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Updated 2013−14 Wis. Stats. Published and certified under s. 35.18. January 1, 2015.

3

Updated 13−14 Wis. Stats.

INSURANCE CONTRACTS GENERALLY

631.20

2. The fact misrepresented or falsely warranted contributes to the loss.

(3) EFFECT OF FAILURE OF CONDITION OR BREACH OF PROMIS- SORY WARRANTY. No failure of a condition prior to a loss and no breach of a promissory warranty constitutes grounds for rescis- sion of, or affects an insurer’s obligations under, an insurance policy unless it exists at the time of the loss and either increases the risk at the time of the loss or contributes to the loss. This sub- section does not apply to failure to tender payment of premium.

In order to make a written application form a part of an insurance policy by endorsement, the insurer must specifically write across the application itself that it is an endorsement and part of the policy. Smith v. Dodgeville Mutual Insurance Co. 212 Wis. 2d 226, 568 N.W.2d 31 (Ct. App. 1997), 96−3352.

Sub. (3) only applies to conditions subsequent to a policy becoming effective, not conditions precedent. Conditions to the making of the contract, conditions precedent, cannot be implicated by the statute because the policy has not yet come into existence. Fox v. Catholic Knights Ins. Society, 2003 WI 87, 263 Wis. 2d 207, 665 N.W.2d 181, 01−1469.

This section does not supersede the known−loss doctrine. That doctrine may apply whether or not the requirements of subs. (1) (b) and (4) (b) are met. American Family Family Mutual Ins. Co. v. Bateman, 2006 WI App 251, 297 Wis. 2d 828, 726 N.W.2d 678, 05−2219.

(4) EFFECT OF INSURER’S KNOWLEDGE. (a) Knowledge when policy issued. No misrepresentation made by or on behalf of a pol- icyholder and no breach of an affirmative warranty or failure of a condition constitutes grounds for rescission of, or affects an insurer’s obligations under, an insurance policy if at the time the policy is issued the insurer has either constructive knowledge of the facts under s. 631.09 (1) or actual knowledge. If the applica- tion is in the handwriting of the applicant, the insurer does not have constructive knowledge under s. 631.09 (1) merely because of the agent’s knowledge.

(b) Knowledge acquired after policy issued. If after issuance of an insurance policy an insurer acquires knowledge of sufficient facts to constitute grounds for rescission of the policy under this section or a general defense to all claims under the policy, the insurer may not rescind the policy and the defense is not available unless the insurer notifies the insured within 60 days after acquir- ing such knowledge of its intention to either rescind the policy or defend against a claim if one should arise, or within 120 days if the insurer determines that it is necessary to secure additional medical information.

Sub. (1) (b) establishes the elements necessary to entitle an insurance company to rescind an insurance contract. There must be an affirmative warranty or misrepresen- tation, which is a question of law. Whether the statement was false, and whether the person making the statement knew, or should have known, that the statement was false are questions of fact. The burden of proof on an insurer seeking to rescind an insurance contract is clear and convincing evidence as to each element of the statute. Pum v. Wisconsin Physicians Service Insurance Corporation, 2007 WI App 10, 298 Wis. 2d 497, 727 N.W.2d 346, 05−3049.

631.13 Incorporation by reference. No insurance contract may contain any agreement or incorporate any provision not fully set forth in the policy or in an application or other document attached to and made a part of the policy at the time of its delivery except that:

(1) RATES. Any policy may by reference incorporate rate schedules and classifications of risks and short−rate tables filed with the commissioner; and

(2) COMPLEX CONTRACTS. By rule or order or by approval of a form the commissioner may authorize for complex contracts incorporation by reference of provisions for administrative arrangements, premium schedules and payment procedures.

History: 1975 c. 375.

(4m) LIFE AND DISABILITY CONTRACTS. (a) Copy of applica- tion to be made available. The policyholder under a life or disabil- ity insurance policy and any person whose life or health is insured under the policy may request in writing a copy of the application if he or she did not receive the policy or a copy of it, or if the policy has been reinstated or renewed without attachment of a copy of the original application. If the insurer does not deliver or mail a copy as requested within 15 working days after receipt of the request by the insurer or its agent or, in the case of a group policy certificate holder, does not inform such person within the same period how he or she may inspect the policy and application during normal business hours at a place reasonably convenient to the certificate holder, nothing in the application affects the insurer’s obligations under the policy to the person making the request. A person whose life or health is insured under a group life or disability insurance policy has the same right to request a copy of any document speci- fied in par. (b), including the certificate.

(b) Statement or warranty. No statement, representation or warranty made by or on behalf of a particular certificate holder under a group life or disability insurance policy affects the insur- er’s obligations under the certificate unless it is stated in the certif- icate, or in a written document signed by the certificate holder, a copy of which is supplied to the certificate holder or the benefi- ciary whose rights would be affected.

(5) FRATERNALS. This section applies to fraternals, as defined in s. 614.01 (1) (a).

631.15

Contract rights under noncomplying policies.

(1)

ENFORCEMENT OF POLICY TERMS.

Except as otherwise specifi-

cally provided by statute, a policy is insurer according to its terms, even if it the insurer.

enforceable exceeds the

against the authority of

(3m) ENFORCEMENT OF STATUTE AND RULE REQUIREMENTS. A policy that violates a statute or rule is enforceable against the insurer as if it conformed to the statute or rule.

(4) REFORMATION OF CONTRACT. Upon written request of the policyholder or an insured whose rights under the policy are con- tinuing and not transitory, an insurer shall reform and reissue its written policy to comply with the requirements of the law existing at the date of issue or last renewal of the policy.

History: 1975 c. 375; 1987 a. 247. When uninsured motorist coverage in the amount of $25,000 was contracted for, in violation of the requirement for $50,000 coverage under s. 632.32 (4m) (d), the higher level of coverage was read into the policy under sub. (3m), even though it was not reflected in the premium paid. Brunson v. Ward, 2001 WI 89, 245 Wis. 2d 163, 629 N.W.2d 140, 98−3002.

631.17 Written reason for coverage denial. (1) In this section, “disability insurance policy” has the meaning given in s.

    • 632.895

      (1) (a).

  • (2)

    An insurer that denies coverage under an individual or

group life or disability insurance policy or a certificate of group life or disability insurance shall advise the applicant or proposed insured in writing of the reasons for the denial.

History: 1999 a. 95.

(6) INCONTESTABILITY PROVISIONS. This section is subject to ss. 632.46 and 632.76.

History: 1975 c. 375, 421; 1977 c. 339 s. 44; Stats. 1977 s. 641.11; 1983 a. 189 s. 329 (25); 1995 a. 259.

SUBCHAPTER II

If a question on a form calls for the applicant’s judgment or opinion as a lay person, any ambiguity should be construed against the insurer. Nolden v. Mutual Benefit Life Ins. Co. 80 Wis. 2d 353, 259 N.W.2d 75 (1977).

APPROVAL OF FORMS

An insured’s contradictory statements constituted a breach of the contractual duties of notice and cooperation. Dietz v. Hardware Dealers Mut. Fire Ins. Co. 88

Wis. 2d 496, 276 N.W.2d 808 (1979).

Third parties may recover against an insurer even though the insured’s fraudulent application voided the policy under s. 631.11. Rauch v. American Family Insurance

f 631.20 o r m su

Filing and approval of forms. (1) FILING. (a) No

b j e c t t

  • o

    s.

6 3 1 . 0 1 ( 1 )

, e x c e p t a s e x e

m p t e d u n d e r p a r . ( c ) ,

s u b . ( 1 g ) , o r s . 6 3 1 . 0 1 ( 2 ) , ( 3 ) , ( 4 ) , o r ( 5 ) o r b y r u l e u n d e r p a r . ( b ) , may be used unless it has been filed with and approved by the

Co. 115 Wis. 2d 257, 340 N.W.2d 478 (1983).

commissioner and unless the insurer certifies that the form com-

Sub. (2) [now sub. (1) (b)] applies a reliance test to misrepresentations made in the negotiation or application for insurance, and not to statements made in proof of loss forms. Tempelis v. Aetna Casualty & Surety Co. 164 Wis. 2d 17, 473 N.W.2d 549

(Ct. App. 1991).

plies with chs. 600 to 655 and rules promulgated under chs. 600 to 655. It is deemed approved if it is not disapproved within 30

days after filing, or within a 30−day extension of that period

2013−14 Wisconsin Statutes updated through 2013 Wis. Act 380 and all Supreme Court Orders entered before Jan. 1, 2015. Pub- lished and certified under s. 35.18. Changes effective after Jan. 1, 2015 are designated by NOTES. (Published 1−1−15)

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