Quirk in Law Could Force Wisconsin Family to Lose Insurance Settlement

When Dane County, Wis., highway worker James Porter was struck and killed on the job in June 2009, Joel Porter, his son, lost his best friend.

Porter’s daughter, Jessica Johnson, lost a grandfather to her two little girls.

And because of a quirk in state law, and a decision that the county is mulling, James Porter’s children could also lose most of an insurance settlement from the driver who struck and killed him.

“I feel it’s outrageous,” said Joel Porter, 25, a psychologist with the Mukwonago School District near Milwaukee. “They might as well have dug through his pockets at his funeral.”

“It’s been hard because it brings back all the memories of losing him again,” said Johnson, 28, a waitress and UW-Madison nursing student. “It almost feels like I’m right back where I was when he died.”

Porter, 61, of Monona, was killed on June 4, 2009, when he was hit by a pickup truck while part of a maintenance crew on Highway 151 near Sun Prairie. The driver who hit him, Alan Borgardt, 59, of Oshkosh, was ticketed and fined for inattentive driving.

The Porter siblings’ lawyer, Lester Pines, said that when someone is hurt on the job, that person is usually covered by workers’ compensation insurance. If a person is injured by a third party’s negligence, the employee can make a claim against the third party.

But it has to be one or the other. State law doesn’t allow injured workers or their families to collect both.

In this case, James Porter died without any dependents. Porter was divorced, and his children are adults. They are not eligible to collect workers’ comp, and their only option was to seek a settlement from Borgardt’s insurer for the loss of society and companionship of their father.

Under the state law governing unemployment compensation, the county must pay the state treasury an amount equal to Porter’s death benefit plus $20,000, which would total $247,000. The payment must be made even if Porter’s children receive an insurance settlement from Borgardt.

However, the law also allows the county the right to recoup that $247,000 from any settlement Porter’s children might get from Borgardt’s insurer, which is tentatively set at $350,000. In essence, Porter’s children would lose more than two-thirds of the insurance settlement to their father’s employer.

“It just stinks. I don’t think it’s respectful to my father,” Joel Porter said.

It’s a rare set of circumstances, Pines said, given that a county employee is rarely killed on the job, much less one who has no dependents.

Topf Wells, chief of staff to Dane County Executive Kathleen Falk, agrees that it’s “unusual and unfortunate.” But he said the law is intended to protect taxpayers, and that’s what the county would be doing by seeking part of the Porter insurance settlement.

Wells said that the county’s attorney is negotiating the matter with Porter’s children and declined to comment further.

Joel Porter said he wonders what happened to the helpful spirit that Falk showed at his father’s funeral, when she pledged to do anything she could do for his family in their time of crisis.

“When push comes to shove, it sounds like she’s not really there,” he said.

Information from: Wisconsin State Journal