Updated 2013−14 Wis. Stats. Published and certified under s. 35.18. January 1, 2015.
Updated 13−14 Wis. Stats.
INSURANCE CONTRACTS GENERALLY
protect the insured from overreaching by the insurer or by the creditor in connection with the insurance, including a provision that a copy of the complete policy or a certificate containing all of the essential terms be furnished to the debtor and that there shall be an appropriate surrender value or refund of unearned premium to the debtor calculated on a basis approved by the commissioner if the debt is paid or if the insurance contract is rewritten because the original finance plan or credit transaction is altered or a new plan or transaction is entered into with the same or an affiliated lender. This section is satisfied by compliance with the terms of ch. 424, if they are applicable.
History: 1975 c. 375.
and proof of loss. notice or proof of loss is
(1) TIMELINESS OF furnished as soon as
reasonably possible and within one year after the time it was required by the policy, failure to furnish such notice or proof within the time required by the policy does not invalidate or reduce a claim unless the insurer is prejudiced thereby and it was
reasonably possible to meet the time limit.
(2) METHOD OF GIVING NOTICE. It is a sufficient service of notice or proof of loss if a 1st class postage prepaid envelope addressed to the insurer and containing the proper notice or proof is deposited in any U.S. post office within the time prescribed. The commissioner may expressly approve clauses requiring more expeditious methods of notice where that is reasonable.
(3) MEANING OF INSURER’S ACTS. The acknowledgment by the insurer of the receipt of notice, the furnishing of forms for filing proofs of loss, the acceptance of such proofs, or the investigation of any claim are not alone sufficient to waive any of the rights of the insurer in defense of any claim arising under the insurance contract.
History: 1975 c. 375.
An insured’s contradictory statements constituted a breach of the contractual duties of notice and cooperation. Dietz v. Hardware Dealers Mutual Fire Insurance Co. 88 Wis. 2d 496, 276 N.W.2d 808 (1979).
When the insured fails to give notice within one year after the time required in the policy, there is a rebuttable presumption of prejudice, and the burden of proof shifts to the claimant to prove that the insurer was not prejudiced. Neff v. Pierzina, 2001 WI 95, 245 Wis. 2d 285, 629 N.W.2d 177, 99−1069.
The Federal Employee Retirement Income Security Act (ERISA) preempts state law related to any covered employee benefit plan, but does not preempt state regula- tion of insurance. This section regulates insurance and is not preempted. Bogusewski v. Life Insurance Co. of North America, 977 F. Supp. 1357 (1997).
An insurer is prejudiced by late notice when it has been denied the opportunity to have input into how the underlying claim is being defended. An insured may not assume that if its insurer had been given the opportunity to make a timely investiga- tion, it would have produced the same result as that produced by the insured’s own investigation or that any discovery that the insurer would have conducted would par- allel that already conducted by the insured. Phoenix Contractors, Inc. v. Affiliated Capital Corporation, 2004 WI App 103, 273 Wis. 2d 736, 681 N.W.2d 310, 03−2259.
This section, applicable to insurance contracts generally, and s. 632.26, which sets forth required notice provisions in “every liability insurance policy,” govern failure to give timely notice. Whether proceeding under this section or s. 632.26 (2), the cir- cuit court must decide whether the insurer was prejudiced. The finding of untimeli- ness is not solely dispositive. Anderson v. Aul, 2014 WI App 30, 353 Wis. 2d 238, 844 N.W.2d 636, 13−0500.
Limitation of actions. (1) STATUTORY PERIODS OF
(a) Fire insurance. An be commenced within 12
action on a fire insurance months after the inception
of the loss.
This rule also
attached to a
applies to riders or policy covering loss
endorsements or damage to
property or to the use of or income from property from and to separate windstorm or hail insurance policies.
(b) Disability insurance. An action on disability insurance coverage must be commenced within 3 years from the time writ- ten proof of loss is required to be furnished.
(c) Life claims based on absence of insured. Sections 813.22 to 813.34 apply to life insurance actions based on death in which absence is relied upon as evidence of death.
(d) Other. Except as provided in this subsection or elsewhere in chs. 600 to 646 and 655, s. 893.43 applies to actions on insur- ance policies.
(2) GENERAL LAW APPLICABLE TO LIMITATION OF ACTIONS. Except for the prescription of time periods under sub. (1) or else-
where in chs. 600 to 646 and 655, the general law applicable to limitation of actions as modified by ch. 893 applies to actions on insurance policies.
(3) PROHIBITED CLAUSES OF POLICIES. No insurance policy may:
(a) Shorten periods of limitation. Limit the time for beginning an action on the policy to a time less than that authorized by the statutes;
(b) Limit jurisdiction. Prescribe in what court action may be brought thereon; or
Proscribe action. Provide that no action may be brought.
MINIMUM WAITING PERIOD FOR ACTION. No action may be
brought against the insurer on an insurance policy to compel pay- ment thereunder until at least 60 days after proof of loss has been furnished as required by the policy or such proof of loss has been waived, or the insurer has denied full payment, whichever is ear- lier. This subsection does not apply in any case in which the veri- fied complaint alleges facts that would establish prejudice to the complainant by reason of such delay, other than the delay itself.
(5) TOLLING OF PERIOD OF LIMITATION. The period of limitation is tolled during the period in which the parties conducted an appraisal or arbitration procedure prescribed by the insurance policy or by law or agreed to by the parties.
History: 1975 c. 375; 1979 c. 89, 102; 1983 a. 192; 1987 a. 247; 1989 a. 187 s. 29.
The term “fire insurance” covers indemnity insurance for losses to property caused by many perils other than fire. Villa Clement v. National Union Fire Insurance Co. of Pittsburgh, 120 Wis. 2d 140, 353 N.W.2d 369 (Ct. App. 1984).
Action by mortgagees of insured property against the insurer for paying the policy proceeds to the insured despite knowledge of the mortgagee’s interest was not on the policy and was not barred by sub. (1) (a). Picus v. Citizens Security Mutual Insurance Co. 127 Wis. 2d 359, 379 N.W.2d 341 (Ct. App. 1985).
The s. 893.57 statute of limitations governs the intentional tort of bad faith by an insurer. Warmka v. Hartland Cicero Mutual Insurance Co. 136 Wis. 2d 31, 400 N.W.2d 923 (1987).
“Inception of the loss” in sub. (1) (a) means the date on which the loss occurs, not the discovery date. Borgen v. Economy Preferred Ins. Co. 176 Wis. 2d 498, 500 N.W.2d 176 (Ct. App. 1993).
The failure of policyholders to give notice to an underinsurer of a settlement between the insured and the tortfeasor did not bar underinsured motorist coverage in the absence of prejudice to the insurer. There is a rebuttable presumption of prejudice when there is a lack of notice, with the burden on the insured to prove by the greater weight of the evidence that the insurer was not prejudiced. Ranes v. American Family Mutual Insurance Co. 219 Wis. 2d 49, 580 N.W.2d 197 (1998), 97−0441.
Sub. (2) clearly and unambiguously excepts the time limitations for fire insurance claims from the application of s. 893.12. Wieting Funeral Home of Chilton, Inc. v. Meridian Mutual Insurance Co. 2004 WI App 218 277 Wis. 2d 274, 690 N.W.2d 442, 04−0461.
An “agreement” by the parties to engage in an appraisal procedure under sub. (5) requires something more than a mere agreement to meet and discuss a dispute between the parties. Wieting Funeral Home of Chilton, Inc. v. Meridian Mutual Insurance Co. 2004 WI App 218, 277 Wis. 2d 274, 690 N.W.2d 442, 04−0461.
The key word in sub. (1) (a) is not loss, but inception. In a claim arising from dam- age to corn yield resulting from vandalism to a corn planter, the inception of that loss was the moment overfertilized seeds were planted with the vandalized corn planter. Bronsteatter & Sons, Inc. v. American Growers Insurance Company, 2005 WI App 192, 286 Wis. 2d 782, 703 N.W.2d 757, 05−0115.
Because all of the statutory language surrounding sub. (5), including the statute regulating arbitration and appraisals, applies only to first−party claims, sub. (5) tolls the period of limitation only as to claims by insureds against their insurer, not to claims by third parties against a tortfeasor’s insurer. Thom v. OneBeacon Insurance Company, 2007 WI App 123, 300 Wis. 2d 607, 731 N.W.2d 657, 06−1617.
631.85 Appraisal or arbitration. An insurance policy may contain provisions for independent appraisal and compulsory arbitration, subject to the provisions of s. 631.20. If an approved policy provides for application to a court of record for the appoint- ment of a disinterested appraiser, arbitrator, or umpire, any court of record of this state except the court of appeals or the supreme court may be requested to make an appointment. Upon appropri- ate request, the court shall make the appointment promptly. This section does not apply to a surplus lines insurance form issued under s. 618.41 before, on, or after April 20, 2012.
History: 1975 c. 375; 1977 c. 187; 2011 a. 224. Although s. 631.20 generally refers to forms, its procedure for approval of forms is applicable to arbitration clauses under this section. An arbitration clause not approved under this section is per se invalid. Appleton Papers, Inc. v. Home Indem- nity Co. 2000 WI App 104, 235 Wis. 2d 39, 612 N.W.2d 760, 99−1567.
Restrictions on use of genetic test results.
In this section, “genetic test” means a test using deoxyribonu-
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)