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Zentgraf v. Hanover Insurance Company12/27/2001
. American Motorists Insurance Company (American) appeals from the circuit court "order approving distribution of settlement proceeds under [Wis. Stat.] § 102.29" (1999-2000). American argues that the circuit court erred by: (1) awarding Diane Zentgraf damages for the loss of society and companionship of her husband, James Zentgraf, when no evidence was presented to support the award; and (2) failing to provide for its attorney's fees as costs of collection under § 102.29. American is correct and, therefore, we reverse and remand with directions.
I. BACKGROUND
. James Zentgraf was employed by Access Industries, Inc., to service elevators at various client locations. On September 29, 1995, while traveling to a client location, his vehicle was rear-ended by a vehicle driven by Daniel Duame, during a five-vehicle accident. Mr. Zentgraf sustained injuries for which he received medical treatment.
. On September 8, 1998, Mr. Zentgraf and his wife, Diane, filed a complaint against Duame and The Hanover Insurance Company, Duame's automobile liability insurer. The complaint joined American, the worker 's compensation insurance carrier for Access Industries, as a plaintiff, pursuant to Wis. Stat. § 102.29. The complaint alleged that Duame's "negligence and carelessness" caused the collision and Mr. Zentgraf's "injuries and damages," as well as Mrs. Zentgraf's loss of "the aid, society, companionship, services and consortium" of her husband.
. Upon receiving the summons and complaint, a representative of American's claim department wrote to the circuit court, advising that American's lien had been paid in full and, therefore, American would not be participating in the lawsuit. The letter requested that American be dismissed from the action. The court, however, did not grant the request for dismissal, and American subsequently retained legal representation for the action. On December 24, 1998, American's attorney filed a "notice of lien and intent to participate in prosecution under [Wis. Stat. §] 102.29."
. In a letter dated May 12, 2000, counsel for the Zentgrafs notified the circuit court that the case had been settled. The following November, however, because the parties had been unable to reach an agreement regarding distribution of the settlement proceeds, the Zentgrafs moved for approval of the $15,000 settlement and distribution of the proceeds as outlined in their proposed order: $3750 to Diane Zentgraf; and $11,250 to James Zentgraf, to be distributed pursuant to the provisions of Wis. Stat. § 102.29. At the November 13, 2000 hearing on the motion, American objected to the proposed order. The court adjourned the hearing to allow for testimony.
. At the January 8, 2001 hearing, the parties reported that they still had not reached an agreement regarding distribution of the settlement proceeds. American, arguing that the claim for loss of society and companionship was worth only $500, acknowledged that it was attempting to increase the portion of the settlement that would be subject to distribution under the Wis. Stat. § 102.29 formula. See DeMeulenaere v. Transp. Ins. Co., 116 Wis. 2d 322, 325, 342 N.W.2d 56 (Ct. App. 1983) (" n award for loss of consortium is not to be considered in the distribution formula of [Wis. Stat. §] 102.29(1) ...."). The court took no testimony but, after hearing further argument from attorneys for American and the Zentgrafs, announced that it would review "the file and the documents" and issue a decision within thirty days. On January 11, 2001, the court signed the Zentgrafs' proposed order, without modification.
II. DISCUSSION
A. Mrs. Zentgraf's Claim
. American f
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