Section 218.0163. Civil damages.

 

(1)  Without exhausting any administrative remedy available under an agreement or ss. 218.0101 to 218.0163 , except as provided in ss. 218.0116 (7) and (8) and 218.0134 , a licensee may recover damages in a court of competent jurisdiction for pecuniary loss, together with actual costs including reasonable attorney fees, if the pecuniary loss is caused by any of the following:

(a) A violation by any other licensee of s. 218.0116 (1) (bm) , (f) , (h) , (hm) , (i) , (km) , (L) , (Lm) , (mm) , (pm) , (q) , (qm) , (r) , (rm) , (s) , (sm) , (t) , (u) , (um) , (v) , (vm) , (w) , (wm) , (x) , (xm) , (y) , (ym) , or (ys) .

(b) Any unfair practice found by a licensor or the division of hearings and appeals under s. 218.0152 (1) .

(c) An affected grantor's disapproval of a proposed action under s. 218.0134 (2) (b) , if the division of hearings and appeals has determined that there is not good cause for not permitting the proposed action to be undertaken following a hearing under s. 218.0134 (2) (c) . A dealer may recover under this paragraph even if the affected grantor complies with the order of the division of hearings and appeals under s. 218.0134 (3) (b) . If a dealer recovers damages for pecuniary loss, actual costs under this paragraph also include actual costs, including reasonable attorney fees, incurred by the dealer in obtaining the division of hearings and appeals' determination of good cause.

(1m)  If a court finds that a violation or practice described in sub. (1) (a) or (b) is willful, a licensee shall recover damages in an amount equal to 3 times the pecuniary loss, together with actual costs including reasonable attorney fees.

(1q)  In any action brought under this subsection, the burden of proof as to liability shall be the same as set forth in ss. 218.0114 (7) (d) , 218.0116 (7) (b) , and 218.0116 (8) (b) regarding complaints brought before the division of hearings and appeals, but the burden of proof as to damages shall be on the licensee seeking damages.

(1r)  For purposes of subs. (1) and (1m) , “licensee" means a person or entity holding a license at the time the cause of action arose regardless of whether the person or entity holds a license at the time an action under this section is commenced.

(2)  Any retail buyer, lessee or prospective lessee suffering pecuniary loss because of a violation by a licensee of s. 218.0116 (1) (bm) , (c) , (cm) , (dm) , (e) , (em) , (f) , (im) , (m) or (p) may recover damages for the loss in any court of competent jurisdiction together with costs, including reasonable attorney fees.

(3)  A complainant or petitioner who prevails against a manufacturer, importer, or distributor as a result of a complaint or petition filed with the division of hearings and appeals based on an alleged violation of ss. 218.0101 to 218.0163 or under s. 218.0116 (7) or (8) or 218.0134 shall have a cause of action against the manufacturer, importer, or distributor for reasonable expenses and attorney fees incurred by the complainant or petitioner in connection with all proceedings resulting from the complaint or petition. This subsection does not apply:

(a) If the division of hearings and appeals finds that the manufacturer, importer, or distributor was substantially justified or that special circumstances make an award of expenses and attorney fees unjust.

(b) To an action or proceeding under ss. 218.0114 (7) (d) , 218.0131 (3) (c) , and 218.0163 (1) and (1m) .

1999 a. 31 s. 283 ; 2001 a. 31 ; 2003 a. 77 ; 2005 a. 256 ; 2011 a. 91 ; 2013 a. 168 s. 21 . Only a licensee may recover under this section; a claim must be related to the scope of the license. Ford Motor Co. v. Lyons, 137 Wis. 2d 397 , 405 N.W.2d 354 (Ct. App. 1987). Sub. (2) authorizes recovery of reasonable costs and reasonable attorney fees by retail purchasers who prevail on claims under s. 218.0116. Sub. (2) and s. 218.0116 manifest a legislative purpose to provide recovery of the reasonable expenses of the litigation, and such an interpretation is necessary to harmonize otherwise conflicting provisions of sub. (2) and 814.04. Recovery of only s. 814.04 enumerated costs would discourage litigants with legitimate claims from seeking relief and undermine the statute's effectiveness in suppressing prohibited mischief. Kolupar v. Wilde Pontiac Cadillac, Inc. 2007 WI 98 , 303 Wis. 2d 258 , 735 N.W.2d 93 , 05-0935 . A dealer's refusal to sell the manufacturer's products after filing a complaint under s. 218.01 (2) (bd) 2. [now 218.0114 (7) (d)] is a violation of that provision, and consequently of s. 218.01 (3) (a) 4. [now 218.0116 (1) (bm)], entitling the manufacturer to treble damages under sub. (9) (am) [now s. 218.0163]. American Suzuki Motor Corp. v. Bill Kummer, Inc. 65 F.3d 1381 (1995).