SB137,4,4
1(a) "All-sums policy" means a general liability insurance policy under which
2the insurer agrees, using such words as "all sums," "those sums," "the total sum," or
3similar words, to indemnify or pay on behalf of the insured all sums that the insured
4becomes legally obligated to pay as a result of a covered risk.
SB137,4,95 (b) "Environmental claim" means a claim for defense or indemnity that is
6submitted under a general liability insurance policy by an insured and that is based
7on the insured's liability or potential liability for bodily injury or property damage
8arising from the presence of pollutants on the bed or banks of a navigable water in
9this state as a result of a release of pollutants in this state.
SB137,4,1510 (c) "Extended underlying assertion" means an assertion by a governmental
11entity or other 3rd person that a person who is or was insured under one or more
12all-sums policies is liable for bodily injury or property damage arising from pollution
13in this state as a result of a release of pollutants in this state and the injury or damage
14occurred or is alleged to have occurred partially but not entirely during the policy
15period of any one all-sums policy.
SB137,4,1816 (d) "Governmental entity" means any federal, state, or local government, or any
17instrumentality of any of them, or any trustee for natural resources designated
18under 42 USC 9607 (f) (2) or 40 CFR part 300, subpart G.
SB137,4,1919 (dm) "Navigable waters" has the meaning given in s. 30.01 (4m).
SB137,4,2220 (e) "Pollutant" means any solid, liquid, or gaseous irritant or contaminant,
21including smoke, vapor, soot, fumes, acids, alkalies, chemicals, asbestos, petroleum
22products, lead, products containing lead, and waste.
SB137,4,2323 (f) "Pollution" means the presence of pollutants in or on land, air, or water.
SB137,5,3
1(2) General interpretation provisions. Except as otherwise provided in the
2policy, all of the following provisions apply to the interpretation of general liability
3insurance policies under which environmental claims are made:
SB137,5,104 (a) Wisconsin law shall be applied in all cases involving environmental claims,
5regardless of the state in which the general liability insurance policy under which
6the claim is or was made was issued or delivered. Nothing in this section shall be
7interpreted to modify common law rules governing choice of law determinations for
8claims for defense or indemnity that are submitted under general liability insurance
9policies and that involve bodily injury or property damage arising from pollution
10outside this state.
SB137,5,1611 (b) Any action taken by a governmental entity against, or any agreement by a
12governmental entity with, an insured in which the governmental entity, in writing,
13notifies the insured that it considers the insured to be potentially liable for pollution
14in this state, or directs, requests, or agrees that the insured take action with respect
15to pollution in this state, is equivalent to a suit or lawsuit as those terms are used
16in the general liability insurance policy.
SB137,5,2317 (c) The insurer may not deny coverage for any reasonable and necessary fees,
18costs, and expenses, including costs and expenses of assessments, studies, and
19investigations, that are incurred by the insured under a voluntary written
20agreement, consent decree, or consent order between the insured and a
21governmental entity and as a result of a written direction, request, or agreement by
22the governmental entity to take action with respect to pollution in this state, on the
23ground that those expenses constitute voluntary payments by the insured.
SB137,6,3 24(3) Rules for interpreting all-sums policies. In the absence of an express
25provision requiring proration of losses for an environmental claim that is based on

1an extended underlying assertion, all of the following rules apply to the
2interpretation of all-sums policies under which environmental claims that are based
3on extended underlying assertions are made:
SB137,6,84 (a) An insurer may not reduce coverage otherwise available to an insured under
5an all-sums policy because the claim involves bodily injury or property damage that
6occurred, in part, outside the policy period of that all-sums policy, regardless of
7whether other valid or collectible insurance is available to the insured for the injury
8or damage that occurred outside that policy period.
SB137,6,119 (b) If an environmental claim is submitted under one or more all-sums policies
10and involves bodily injury or property damage that occurred, or that may have
11occurred, during 2 or more policy periods, all of the following apply:
SB137,6,1512 1. Each insurer that provided coverage for a policy period and that has a duty
13to defend under the policy is jointly and severally liable to the insured for the full
14amount of the insured's costs of defending against the extended underlying
15assertion, subject to any applicable limits of liability.
SB137,6,1916 2. Each insurer that provided coverage for a policy period and that has a duty
17to pay any costs of a settlement or judgment under the policy is jointly and severally
18liable to the insured for the full amount of the settlement or judgment for the
19extended underlying assertion, subject to any applicable limits of liability.
SB137,7,220 3. The insured may designate a policy period, and the policy or policies
21providing coverage for that period, including primary, umbrella, and excess
22coverage, shall provide full coverage, subject to any applicable limits of liability. If
23the environmental claim is not fully satisfied from policies covering that policy
24period, the insured may designate the order of other policy periods, and the policy
25or policies providing coverage for each of those periods, including primary, umbrella,

1and excess coverage, shall provide full coverage, subject to any applicable limits of
2liability, in that order until the environmental claim is fully paid.
SB137,7,63 4. If the insured makes a designation under subd. 3., the coverage available to
4the insured under a policy providing coverage for a designated policy period,
5including primary, umbrella, and excess coverage, may not be reduced by the actual
6or potential availability of coverage for other policy periods.
SB137,7,8 7(4) Suit on environmental claim. In any lawsuit involving an environmental
8claim, all of the following apply:
SB137,7,109 (a) The insured may elect to file suit against fewer than all insurers providing
10coverage for the claim, notwithstanding ss. 803.03 and 806.04 (11).
SB137,7,1111 (b) All of the following are rebuttable presumptions:
SB137,7,1512 1. That the costs of preliminary assessments, remedial investigations, risk
13assessments, feasibility studies, site investigations, or other necessary investigation
14are defense costs payable by the insurer, subject to the provisions of the general
15liability insurance policy under which there is coverage for the costs.
SB137,7,2016 2. That the costs of removal actions, remedial action, or natural resource
17damages are indemnity costs and that payment of those costs by the insurer reduces
18the insurer's applicable limit of liability on the insurer's indemnity obligations,
19subject to the provisions of the general liability insurance policy under which there
20is coverage for the costs.
SB137,7,2421 (c) The court shall award to an insured the sum of the costs, disbursements, and
22expenses, including accounting fees and reasonable attorney fees notwithstanding
23s. 814.04 (1), necessary to prepare for and participate in an action in which the
24insured successfully litigates a coverage issue for an environmental claim.
SB137,8,6
1(d) 1. An insurer under a general liability insurance policy under which an
2environmental claim is made that has not entered into a good faith settlement and
3release of the environmental claim with the insured is liable, up to the amounts
4stated in the policy, to any governmental entity that seeks to recover against the
5insured for pollution in this state, irrespective of whether the liability is presently
6established or is contingent and to become fixed or certain by final judgment.
SB137,8,87 2. An insurer under subd. 1. may be proceeded against directly and may be
8joined in any action brought by the governmental entity against the insured.
SB137,8,16 9(5) Effect of settlement. An insurer that enters into a good faith settlement
10and release of an environmental claim, or an insurer that has entered into a good
11faith settlement and release of an environmental claim before the effective date of
12this subsection .... [revisor inserts date], shall not be liable to any person for the
13claim. Entering into a good faith settlement and release of an environmental claim
14with an insurer does not reduce or otherwise impair the right of an insured to recover
15the full balance of its actual loss as provided in this section from an insurer that has
16not entered into a good faith settlement and release of the claim.
SB137,8,21 17(6) Contribution among insurers. An insurer that pays an environmental
18claim, or an insurer that paid an environmental claim before the effective date of this
19subsection .... [revisor inserts date], may seek contribution from any other insurer
20that is liable or potentially liable for the claim and that has not entered into a good
21faith settlement and release of the environmental claim with the insured.
SB137,8,24 22(7) Lost policy. (a) In this subsection, "lost policy" means all or any part of a
23general liability insurance policy that is subject to an environmental claim and that
24is ruined, destroyed, misplaced, or otherwise no longer possessed by the insured.
SB137,9,7
1(b) If, after a diligent investigation by an insured of the insured's own records,
2including computer records and the records of past and present agents of the insured,
3the insured is unable to reconstruct a lost policy, the insured may provide notice of
4the lost policy to the insurer that the insured believes issued the policy. The notice
5must be in writing and in sufficient detail to identify the person or entity claiming
6coverage, including the name of the alleged policyholder, if known, and any other
7material facts concerning the lost policy known to the person providing the notice.
SB137,9,128 (c) An insurer must thoroughly and promptly investigate a notice of a lost policy
9and must provide to the insured claiming coverage under the lost policy all facts
10known or discovered during the investigation concerning the issuance and terms of
11the policy, including copies of documents establishing the issuance and terms of the
12policy.
SB137,9,1413 (d) For facilitating reconstruction, and determining the terms, of a lost policy,
14the insurer and the insured must comply with the following minimum standards:
SB137,9,2015 1. Within 30 business days after receipt by the insurer of notice of a lost policy,
16the insurer shall commence an investigation into the insurer's records, including
17computer records, to determine whether the insurer issued the lost policy. If the
18insurer determines that it issued the policy, the insurer shall commence an
19investigation into the terms and conditions relevant to any environmental claim
20made under the policy.
SB137,9,2421 2. The insurer and the insured shall cooperate with each other in determining
22the terms of a lost policy. The insurer and the insured shall provide to each other the
23facts known or discovered during an investigation, including the identity of any
24witnesses with knowledge of facts related to the issuance or existence of the lost

1policy, and shall provide each other with copies of any documents establishing facts
2related to the lost policy.
SB137,10,83 3. An insurer that discovers information tending to show the existence of an
4insurance policy that applies to the claim shall provide an accurate copy of the terms
5of the policy or a reconstruction of the policy. If the insured discovers information
6tending to show the existence of an insurance policy that applies to the claim, the
7insurer shall provide an accurate copy of the terms of the policy or a reconstruction
8of the policy upon the request of the insured.
SB137,10,159 4. If the insurer is not able to locate portions of the policy or determine its terms,
10conditions, or exclusions, the insurer shall provide copies of all insurance policy
11forms issued by the insurer during the applicable policy period that potentially apply
12to the environmental claim. The insurer shall identify which of the potentially
13applicable forms, if any, is most likely to have been issued by the insurer to the
14insured, or the insurer shall state why it is unable to identify the forms after a good
15faith search.
SB137,10,2516 (e) If, based on information discovered in the investigation of a lost policy, the
17insured can show by a preponderance of the evidence that a general liability
18insurance policy was issued to the insured by the insurer but cannot produce
19evidence that tends to show the policy limits applicable to the policy, it shall be
20assumed that the minimum limits of coverage, including any exclusions to coverage,
21that the insurer offered during the period in question under such policies apply to
22the policy purchased by the insured. If, however, the insured produces evidence that
23tends to show the policy limits applicable to the policy, the insurer has the burden
24of proof to show by a preponderance of the evidence that different policy limits,
25including any exclusions to coverage, apply to the policy purchased by the insured.
SB137,11,4
1(8) Public rights and interest. In applying the provisions under this section,
2any party or court acting under this section shall ensure that public rights and
3interests are considered for the purpose of furthering the public trust in navigable
4waters.
SB137,11,8 5(9) Enforcement. Any person who is injured by a violation of this section by
6an insurer may bring a civil action against the insurer to recover damages together
7with costs, disbursements, accounting fees, if any, and reasonable attorney fees
8incurred in bringing the action, notwithstanding s. 814.04 (1).
SB137,11,11 9(10) Applicability. (a) This section applies to all environmental claims that
10are not settled or finally adjudicated on or before the effective date of this subsection
11.... [revisor inserts date], regardless of when the claim arose.
SB137,11,1412 (b) This section applies to all environmental claims specified in par. (a),
13regardless of the state in which the general liability insurance policy under which
14the claim is or was made was issued or delivered.
SB137,11,18 15(11) Construction. Nothing in this section shall be construed to raise or
16support any inference that it is the intention of the legislature to change the common
17law of this state with respect to the interpretation of general liability insurance
18policies not subject to this section.
SB137,11,1919 (End)
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