2005AP1807 Opichka v. Racine County

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Reversed with directions that the County return the settlement amounts it received from the deputies.

“Because the paid time off was part of the deputies’ earned compensation, the time and money that the County gave them did not result from any loss caused by their accidents. Rather, these benefits were personal property the deputies had purchased by working the requisite number of hours. They had complete autonomy over how they would use these accumulated benefits….

“The County cannot claim a loss for giving the deputies their own property, so it has no right to recover the value of that property from the settlement proceeds. It is no answer that the County may have paid a replacement worker time and one-half. The County would have incurred that expense regardless of why the deputies used their time off. Had they taken off because of illness or to go somewhere on vacation, the County had no hope of recovering the sick or vacation pay. The result should not change just because a tortfeasor enters the picture….

“Because the deputies owned the time-off benefits, the County’s subrogation liens also violate the collective bargaining agreement. The deputies were forced to use their property in a way they did not wish to use it. Instead of saving their sick days for illnesses, they had to use them to recuperate from accident injuries. Similarly, they did not get to use their vacation time for recreation or relaxation. The tortfeasors therefore caused these deputies to lose the value of their bargain. The settlement was supposed to replace that value, but instead, the County insisted on taking it. Essentially, the subrogation liens improperly cancelled part of the negotiated benefits.”

Judgment reversed.

Recommended for publication in the official reports.

Dist II, Racine County, Mueller, J., Brown, J.

Attorneys:

For Appellant: Fuchs, John F., Milwaukee; Boyle, Rebecca D., Milwaukee

For Respondent: Serketich, John P., Racine