When a tortfeasor injures more than one person in a single occurrence and the injured persons are not insured under the same underinsured motorist policy, a definition of an underinsured motor vehicle that compares the injured person's UIM limits to the limits of a tortfeasor's liability policy without regard to the amount the injured person actually receives from the tortfeasor's insurer is invalid under subs. (4m) [repealed 2009 Wis. Act 28
, reenacted 2011 Wis. Act 14
] and (5)(i). A UIM policy must provide a fixed level of UIM recovery that will be arrived at by combining payments made from all sources. Welin v. American Family Mutual Insurance Company, 2006 WI 81
, 292 Wis. 2d 73
, 717 N.W.2d 690
The physical contact element for a hit-and-run accident under [former] sub. (4) (a) 2. b. requires: 1) a hit by the unidentified motor vehicle, or a part thereof, and 2) a hit to the insured's vehicle by another vehicle or part thereof, but not necessarily by the unidentified vehicle. DeHart v. Wisconsin Mutual Insurance Company, 2007 WI 91
, 302 Wis. 2d 564
, 734 N.W.2d 394
instructs that a limitation on uninsured motorist (UM) coverage under a commercial policy does not violate [former] sub. (4) (a) as long as the restriction does not apply to the purchaser or policyholder, but only to its employees. There is nothing to indicate that the legislature sought to require UM coverage for employees under commercial fleet policies, whether the absence of coverage arises from the definition of the named insured, which did not include employees, or from the definition of “covered autos," which did not include employees' nonowned autos. Mittnacht v. St. Paul Fire and Casualty Insurance Co. 2009 WI App 51
, 316 Wis. 2d 787
, 767 N.W.2d 301
“Motor vehicle described in the policy" under sub. (3) is not read to require the importation of a separate and broader definition of “covered auto" from a policy's liability insuring agreement into the policy's uninsured motorist insuring agreement. Mittnacht v. St. Paul Fire and Casualty Insurance Co. 2009 WI App 51
, 316 Wis. 2d 787
, 767 N.W.2d 301
This section did not extend coverage to a rental car: 1) that the driver was not authorized to drive; 2) that he took without the express permission of either the owner of the car or the lessee of the car; 3) when the named insured in the insurance policy under which coverage was sought was not the owner of the car involved in the accident; and 4) when the adult resident who crashed the car was not a named insured under the insurance policy at issue. For the omnibus statute to require coverage, two factors must be met: 1) the rental vehicle must be a “motor vehicle described in the policy"; and 2) the use of the rental vehicle must be “for purposes and in the manner described in the policy." Neither fact was present. Venerable v. Adams, 2009 WI App 76
, 318 Wis. 2d 784
, 767 N.W.2d 386
[Former] sub. (4) requires coverage when a detached piece of an unidentified motor vehicle is propelled into the insured's motor vehicle by an identified motor vehicle. There need not be first a “hit" and then a “run" for uninsured coverage. All that is required is that there be both a “hit" and a “run" (namely, a hit resulting from something done by the unidentified vehicle) in any sequence. Tomson v. American Family Mutual Insurance Company, 2009 WI App 150
, 321 Wis. 2d 492
, 775 N.W.2d 541
A car-rental company issued a certificate of self-insurance under s. 344.16 and subject to liability limits under ss. 344.01 (2) (d) and 344.51 was not a self-insurer for purposes of an underinsured motorist clause that excluded coverage for a vehicle owned or operated by a “self-insurer." Bethke v. Auto-Owners Insurance Company, 2013 WI 16
, 345 Wis. 2d 533
, 825 N.W.2d 482
During the two-year period when both s. 632.32 (5) (j) and (6) (d), 2009 stats., authorizing certain “drive other car" exclusions and prohibiting antistacking provisions in uninsured motorist (UM) coverage were in force, “drive other car" exclusions could not prevent stacking of UM coverage limits for up to three vehicles owned by the same insured. Belding v. Demoulin, 2013 WI App 26
, 346 Wis. 2d 160
, 828 N.W.2d 890
When the insurer in this case: 1) required its insured to maintain a liability policy to receive coverage under an excess policy; 2) granted all permissive users coverage in its “Wisconsin Endorsement;" and then 3) excluded all those same permissive users from coverage based upon coverage under the liability policy under an other-insurance clause, it violated sub. (5) (c) and rendered the Wisconsin Endorsement illusory. Hernandez v. Liberty Mutual Insurance Company, 2014 WI App 36
, 353 Wis. 2d 730
, 844 N.W.2d 657
A person getting ready to direct a driver where to go is not using the vehicle. In determining who constitutes a user of a vehicle for the purposes of an omnibus clause, it is generally required that if one who claims to be a user was not actually driving the vehicle, that individual must have exercised some form of control over it. Jackson v. Wisconsin County Mutual Insurance Corp. 2014 WI 36
, 354 Wis. 2d 327
, 847 N.W.2d 384
The common law definition of intra-policy stacking requiring a separate premium attributable to each vehicle in an insurance policy was applicable to sub. (6) (d) as it existed between 2009 and 2011. Bodish v. West Bend Mutual Insurance Company, 2014 WI App 78
, 355 Wis. 2d 392
, 851 N.W.2d 811
As used in sub. (2) (d), 2009 stats., the phrase “legally entitled to recover" means recovery that exceeds what insureds can actually recover from tortfeasors. The phrase does not thwart underinsured motorist coverage for an insured who has not been fully compensated for his or her damages when the amount of damages an insured could actually recover from a tortfeasor is capped by statute. State Farm Mutual Automobile Ins. Co. v. Hunt, 2014 WI App 115
, 358 Wis. 2d 379
, 856 N.W.2d 633
An exclusion of passengers of an insured's vehicle from a policy's underinsured motorist coverage when the insured driver was at fault and was operating a vehicle insured by the policy's liability coverage, although potentially in violation of sub. (6) (b) 2., was enforceable under the savings provision in sub. (5) (e) that “exclusions are effective even if incidentally to their main purpose they exclude persons, uses or coverages that could not be directly excluded under sub. (6) (b).” Pierce v. Mid-Century Insurance Company, 2016 WI App 79
, 372 Wis. 2d 171
, 887 N.W.2d 115
Uninsured motorist coverage: Wisconsin courts open up additional avenues of recovery. Dunphy. WBB Nov. 1982.
Politics & Wisconsin Automobile Insurance Law. Jaskulski. Wis. Law. Nov. 2010.
Wisconsin's New Automobile Insurance Law. End. Wis. Law. Oct. 2011.
You Get What You Pay For: Why Wisconsin Should Adopt Uninsured and Underinsured Motorist Stacking Waivers. Kempke. 2016 WLR 411.
Defense of noncooperation.
If a policy of automobile liability insurance provides a defense to the insurer for lack of cooperation on the part of the insured, the defense is not effective against a 3rd person making a claim against the insurer unless there was collusion between the 3rd person and the insured or unless the claimant was a passenger in or on the insured vehicle. If the defense is not effective against the claimant, after payment the insurer is subrogated to the injured person's claim against the insured to the extent of the payment and is entitled to reimbursement by the insured.
History: 1975 c. 375
; 1979 c. 102
Legislative Council Note, 1979: This provision is continued from former s. 632.34 (8). It is changed from a required provision of the policy to a rule of law. It is not the kind of rule that needs to be put in the policy to inform the policyholder. Indeed, the policyholder should receive no encouragement to fail to cooperate. This is a relaxation of present law. [Bill 146-S]
Prejudice is not a component of the defense of noncooperation. Schaefer v. Northern Assurance Co. 182 Wis. 2d 148
, 513 N.W.2d 16
(Ct. App. 1994).
, the Wisconsin Court of Appeals confirmed that this section had abrogated the common-law requirement of prejudice in non-cooperation cases, but this was true only for cases involving automobiles, to which this section expressly applies. Welton Enterprises, Inc. v. Cincinnati Ins. Co. 131 F. Supp. 3d 827
Prohibited rejection, cancellation and nonrenewal.
No insurer may cancel or refuse to issue or renew an automobile insurance policy wholly or partially because of one or more of the following characteristics of any person: age, sex, residence, race, color, creed, religion, national origin, ancestry, marital status or occupation.
History: 1975 c. 375
; 1979 c. 102
Accident in the course of business or employment. 632.36(1)(1)
Rate and other terms.
An insurer may increase or charge a higher rate for a motor vehicle liability insurance policy issued or renewed on or after April 16, 1982, on the basis of an accident which occurs while the insured is operating a motor vehicle in the course of the insured's business or employment, only if the policy covers the insured for liability arising in the course of the insured's business or employment. An insurer may issue or renew a motor vehicle liability insurance policy on or after November 1, 1989, on terms that are less favorable to the insured than would otherwise be offered, including but not limited to the rate, because of an accident which occurs while the insured is operating a motor vehicle in the course of the insured's business or employment, only if the policy covers the insured for liability arising in the course of the insured's business or employment.
(2) Cancellation or nonrenewal.
An insurer may cancel a motor vehicle liability insurance policy that is issued or renewed on or after November 1, 1989, or refuse to renew a motor vehicle liability insurance policy on or after November 1, 1989, on the basis of an accident which occurs while the insured is operating a motor vehicle in the course of the insured's business or employment, only if the policy covers the insured for liability arising in the course of the insured's business or employment.
History: 1981 c. 178
; 1989 a. 31
Use of emission inspection data in setting rates.
An insurer may not use odometer reading data collected in the course of an inspection under s. 110.20 (6)
as a factor in setting rates or premiums for a motor vehicle liability insurance policy or as a factor in altering rates or premiums during the term, or at renewal, of such a policy. However, an insurer may use such data as a basis for investigation into the number of miles that the motor vehicle is normally driven.
History: 1991 a. 279
; 1993 a. 213
Motor vehicle glass repair practices; restriction on specifying vendor.
An insurer that issues a motor vehicle insurance policy covering the repair or replacement of motor vehicle glass may not require, as a condition of that coverage, that an insured, or a 3rd party, making a claim under the policy for the repair or replacement of motor vehicle glass obtain services or parts from a particular vendor, or in a particular location, specified by the insurer.
History: 1991 a. 269
Motor vehicle repair practices; restriction on specifying vendor. 632.375(1)(1)
This section applies to every insurer that issues or delivers in this state a motor vehicle insurance policy that covers repairs to a motor vehicle registered or principally garaged in this state.
No insurer may require that, as a condition of the coverage specified in sub. (1)
, repairs to a motor vehicle must be made by a particular contractor or repair facility. For purposes of this section, a consumer has the right to select the motor vehicle repair facility of his or her choice.
No insurer may fail to initiate and conclude with due dispatch an investigation of a claim for repairs to a motor vehicle on the basis of whether the repairs will be made by a particular contractor or repair facility.
(3) Inapplicability to glass repair.
, rather than this section, applies to the repair or replacement of motor vehicle glass under a motor vehicle insurance policy.
History: 2015 a. 93
Nonoriginal manufacturer replacement parts. 632.38(1)(a)
“Insured" means the person who owns the motor vehicle that is subject to repair or the person seeking the repair on behalf of the owner.
“Insurer's representative" means a person, excluding the person repairing the motor vehicle, who has agreed in writing to represent an insurer with respect to a claim.
“Motor vehicle" means any motor-driven vehicle required to be registered under ch. 341
or exempt from registration under s. 341.05 (2)
, including a demonstrator or executive vehicle not titled or titled by a manufacturer or a motor vehicle dealer. “Motor vehicle" does not mean a moped, semitrailer or trailer designed for use in combination with a truck or truck tractor.
“Nonoriginal manufacturer replacement part" means a replacement part that is not made by or for the manufacturer of an insured's motor vehicle.
“Replacement part" means a replacement for any of the nonmechanical sheet metal or plastic parts that generally constitute the exterior of a motor vehicle, including inner and outer panels.
(2) Notice of intended use.
An insurer or the insurer's representative may not require directly or indirectly the use of a nonoriginal manufacturer replacement part in the repair of an insured's motor vehicle, unless the insurer or the insurer's representative provides to the insured the notice described in this subsection in the manner required in sub. (3)
. The notice shall be in writing and shall include all of the following information:
A clear identification of each nonoriginal manufacturer replacement part that is intended for use in the repair of the insured's motor vehicle.
The following statement in not smaller than 10-point type: “This estimate has been prepared based on the use of one or more replacement parts supplied by a source other than the manufacturer of your motor vehicle. Warranties applicable to these replacement parts are provided by the manufacturer or distributor of the replacement parts rather than by the manufacturer of your motor vehicle."
The notice described in sub. (2)
shall appear on or be attached to the estimate of the cost of repairing the insured's motor vehicle if the estimate is based on the use of one or more nonoriginal manufacturer replacement parts and is prepared by the insurer or the insurer's representative. The insurer or the insurer's representative shall deliver the estimate and notice to the insured before the motor vehicle is repaired.
If the insurer or the insurer's representative directs the insured to obtain one or more estimates of the cost of repairing the insured's motor vehicle and the estimate approved by the insurer or the insurer's representative clearly identifies one or more nonoriginal manufacturer replacement parts to be used in the repair, the insurer or the insurer's representative shall assure delivery of the notice described in sub. (2)
to the insured before the motor vehicle is repaired.
The insurer or the insurer's representative may not require the person repairing the motor vehicle to give the notice described in sub. (2)
Notwithstanding par. (b)
, if an insured authorizes repairs to begin prior to the approval by the insurer or the insurer's representative of an estimate that clearly identifies one or more nonoriginal manufacturer replacement parts to be used in the repair, the insurer or the insurer's representative shall send the written notice described in sub. (2)
by mail to the insured's last-known address no later than 3 working days after the insurer or the insurer's representative receives the estimate.
(4) Notice by telephone.
Notwithstanding sub. (3)
, notice of the intention to use nonoriginal manufacturer replacement parts in the repair of the insured's motor vehicle may be given by the insurer or the insurer's representative by telephone. If such notice is given, the insurer or insurer's representative shall send the written notice described in sub. (2)
by mail to the insured's last-known address no later than 3 working days after the telephone contact.
History: 1991 a. 176
LIFE INSURANCE AND ANNUITIES
Subch. V of ch. 632 Cross-reference
See also ch. Ins 2
, Wis. adm. code.
Prohibited provisions in life insurance. 632.41(1)(1)
No insurer may issue assessable life insurance policies under which assessments or calls may be made upon policyholders or others.
(2) Burial insurance.
Except as provided in s. 632.415
, no contract in which the insurer agrees to provide benefits to pay for any of the incidents of burial or other disposition of the body of a deceased may provide that the benefits are payable to a funeral director or any other person doing business related to burials.
See also ch. Ins 23
, Wis. adm. code.
Sub. (2) does not prohibit naming funeral director as beneficiary of life insurance policy in conjunction with separate agreement between insured and funeral director that proceeds will be used for funeral and burial expenses. 71 Atty. Gen. 7
Purpose of (2) is to prevent monopolistic or unfair trade practices. 76 Atty. Gen. 291
In this section, “multipremium funeral policy" means a life insurance policy sold under sub. (2)
for which premiums to fund the policy are paid over time.
A life insurance policy may provide for the assignment of the proceeds of the policy to a funeral director or operator of a funeral establishment if the insurance intermediary who sells or solicits the sale of the policy is not an agent of the funeral director or operator of the funeral establishment or if the assignment of proceeds is contingent on the provision of funeral merchandise or funeral services as provided for in a burial agreement that satisfies the requirements of s. 445.125 (3m)
and rules promulgated by the funeral directors examining board under s. 445.125 (3m) (j) 1. b.
A life insurance policy sold under sub. (2)
shall permit the policyholder to designate a different beneficiary, upon written notice to the insurer, and a different funeral director or operator of a funeral establishment that is to receive the assignment of proceeds, after written notice to the current funeral director or operator of the funeral establishment.
An insurer may issue a multipremium funeral policy only if, at the time that the policy is issued, the face amount of the policy is not less than the value of funeral merchandise and services to be provided under a burial agreement under s. 445.125 (3m)
The death benefit under a multipremium funeral policy may not be less than the face amount of the policy unless all of the following apply:
The policy contains a detailed explanation of the lower death benefit, as well as full disclosure of the lower death benefit on the first page of the policy.
The applicant does not apply for, or qualify for, any full face amount multipremium funeral policy that the insurer offers.
The death benefit is not less than at least one of the following:
Twenty-five percent of the face amount of the policy during the first year that the policy is in effect, 50 percent of the face amount of the policy during the 2nd year that the policy is in effect and the full face amount of the policy after the end of the 2nd year that the policy is in effect, but in no event less than the total of the premiums actually paid.
During the first 2 years that the policy is in effect, an amount equal to the actual premiums paid plus simple interest at the rate of 3 percent per year, and, after the end of the 2nd year that the policy is in effect, the full face amount of the policy.
The period over which premiums may be payable under a multipremium funeral policy may not exceed the following applicable period:
Twenty years, if the insured is less 60 years of age when the policy is issued.
Ten years, if the insured is at least 60 years of age but less than 80 years of age when the policy is issued.
Five years, if the insured is at least 80 years of age when the policy is issued.
At the time that an applicant applies for coverage under a multipremium funeral policy, the insurance intermediary or other person selling or soliciting the sale of the policy shall disclose the maximum number of premium payments to be made over the life of the policy, the frequency of the premium payments and the amount of each premium payment.
Proof of death for an insurance policy sold under sub. (2)
may be established with an affidavit in the form prescribed under s. 69.02 (1) (c)
if the insurer consents to receipt of the affidavit.
Subject to subs. (3)
, the commissioner shall by rule establish minimum standards for claims payments, marketing practices and reporting practices for life insurance policies sold under sub. (2)
History: 1999 a. 191
; 2003 a. 167
See also ch. Ins 23
, Wis. adm. code.
Trustee and deposit agreements in life insurance.