Opinion No. Oag 54-81, (1981) , 70 Op. Att'y Gen. 209 ( 1981 )

FRANK VOLPINTESTA, Corporation Counsel Kenosha County

You inquire whether sec. 70.62 (4)(em)1., Stats., empowers a county board of supervisors to increase the levy limit allowed under sec. 70.62, Stats., to include the costs of workers' compensation claims, unemployment compensation claims and other claims filed against a county where such claims were settled either before being litigated or after litigation.

Section 70.62 (4)(em)1., Stats., provides:

The amount of the levy allowed under this subsection may be increased by the following amounts:

1. The amount needed for increased costs of court judgments and out-of-court settlements.

In my opinion, the levy limit can only be increased pursuant to sec. 70.62 (4)(em)1., Stats., to cover increased costs which relate to payment of a judgment awarded by a court, an award of an administrative agency which has been affirmed by a court or the amount of a settlement which has been made out-of-court after a civil action or special review proceeding has been commenced or instituted in a court. Pleadings must have been filed with the clerk of the proper court. See secs. 59.76, 102.23, 108.09 (7),227.16, 801.02, 893.80, Stats.

Many counties budget some amount yearly to pay anticipated claims. The reference in sec. 70.62 (4) (em) 1., Stats., to "increased costs" only includes those amounts not previously budgeted. Since the phrase out-of-court settlements is not defined in the statute, the words therein are to be construed according to sec.990.01 (1), Stats. In my opinion, it has a "peculiar meaning in the law" and is required to be construed according to such meaning. Black's Law Dictionary 993 (5th ed. 1979), defines "out-of-court settlement":

The phrase is used with reference to agreements and transactions in regard to a pending suit which are arranged or take place between parties or their counsel privately and without being referred to the judge or court for authorization or approval. Thus, a case which is compromised, settled, and withdrawn by private agreement of the parties, after its institution, is said to be settled "out of court."

In People v. McWilliams, 117 Cal. App. 732, 4 P.2d 601, 603 (1931), which is cited in 30A Words and Phrases at 296, it is stated that "[t]he plain meaning of the expression out of court . . . is outside of the proceedings then being taken in court."

You also inquire whether the phrase "costs of court judgments and out-of-court settlements" would include attorneys' fees, filing fees, cost of depositions and other costs directly related to the litigation.

I am of the opinion that it would. Such costs would not be limited to those allowed or allowable by a court pursuant to statute. Costs related to defending the claims at the administrative level could be included where there was a court judgment, court confirmation of award or out-of-court settlement after civil action had been commenced or special proceeding instituted.

BCL:RJV