As is often the case, the first sixth months of the 2023-24 legislative session were largely focused on the biennial budget process. The Wisconsin Civil Justice Council (WCJC) has worked to maintain and improve the state’s civil litigation climate by providing input on the state budget and other relevant pieces of legislation.

We recently reported on the ongoing controversy involving Burford Capital, the largest provider of third party litigation funding (TPLF) in the world. On May 8, a broad national coalition of 35 business associations and tort reform advocates sent a letter to the federal Advisory Committee on Civil Rules regarding TPLF. The letter asks the committee to amend Rule 26 of the Federal Rules of Civil Procedure to require disclosure of a litigation financing agreement in any civil action filed in federal court.

The coalition includes the American Tort Reform Association, U.S. Chamber Institute for Legal Reform, National Federation of Independent Business, DRI Center for Law and Public Policy, and state chambers of commerce including Wisconsin Manufacturers and Commerce.

TPLF or “litigation financing” is a form of investing in which hedge funds and other financiers invest in a lawsuit in exchange for a portion of any settlement or judgement award. The investment provides cash to plaintiffs to litigate a claim, while the financier—often thanks to sophisticated underwriting—anticipates the case will result in a large judgement or settlement to meet its return-on-investment goals.

This year, Iowa became the first state in the country to limit noneconomic damages against trucking companies and commercial drivers. Senate File 228 was signed into law on May 12 by Iowa Gov. Kim Reynolds (R). The law sets a $5 million limit on the noneconomic damages that can be recovered in court by a victim of an accident involving a trucking company. Economic damages remain uncapped in Iowa.

The goal of caps on noneconomic damages is not to deprive plaintiffs of fair judgements or settlements, but rather to protect employers from unreasonable “nuclear verdicts” and stabilize insurance costs for vital industries like medicine and logistics.

The damage caps do not apply to accidents where a commercial driver is proven to have been driving illegally or recklessly, such as under the influence of alcohol or other drugs, without proper licensure, or while using an electronic communication device or speeding by at least 15 miles per hour.

In 5 Walworth, LLC v. Engerman Contracting, Inc. (2023 WI 51), the Wisconsin Supreme Court held that three insurers were not entitled to summary judgement on their duty to defend several companies under the terms of their commercial general liability policies.

In Pepsi-Cola Metropolitan Bottling Company, Inc. v. Employers Insurance Company of Wausau (2023 WI 42), the Wisconsin Supreme Court did not reach a decision in a case involving an insurer’s duty to defend and the applicability of an anti-assignment clause. As a per curiam opinion, the supreme court’s decision did not establish a precedent; however, the published court of appeals decision was affirmed.

In Fleming v. Amateur Athletic Union of the United States, Inc. (2023 WI 40), the Wisconsin Supreme Court held that an extended statute of limitations did not apply to a negligence claim.