Consent given by another.
Consent may be given by another in the following cases:
A parent, a guardian of the person, or a person having legal custody as defined in s. 48.02 (12)
may consent to the issuance of a policy on a dependent child.
A grandparent may consent to the issuance of life or disability insurance on a grandchild.
A court of general jurisdiction may give consent on ex parte application on the showing of any facts the court considers sufficient to justify such insurance.
Effect of lack of insurable interest or consent.
No insurance policy is invalid merely because the policyholder lacks insurable interest or because consent has not been given, but a court with appropriate jurisdiction may order the proceeds to be paid to someone other than the person to whom the policy is designated to be payable, who is equitably entitled thereto, or may create a constructive trust in the proceeds or a part thereof, subject to terms and conditions of the policy other than those relating to insurable interest or consent.
See also s. Ins 2.45
, Wis. adm. code.
The proceeds of a casualty insurance policy purchased by a land contract vendee that named the vendor as mortgagee were properly awarded to the vendor under sub. (4) when, following confirmation of a strict foreclosure judgment against the vendee, the insured premises were destroyed by fire. Disrud v. Arnold, 167 Wis. 2d 177
, 482 N.W.2d 114
(Ct. App. 1992).
A stockholder may have an insurable interest in corporate property. Heyden v. Safeco Title Insurance Co., 175 Wis. 2d 508
, 498 N.W.2d 905
(Ct. App. 1993).
A contract of insurance upon a life in which the insured has no interest is a pure wager. Nevertheless, sub. (4) makes clear that the beneficiary of the policy is entitled to the policy proceeds. Section 895.055, with immaterial exceptions, voids all gambling contracts, but s. 600.12 (2), provides that if a section in chs. 600 to 655 conflicts with another statutory provision, the section in chs. 600 to 655 governs. Sun Life Assurance Co. of Canada v. U.S. Bank National Ass'n, 839 F.3d 654
While article IV, section 24
, of the Wisconsin Constitution states that “except as provided in this section, the legislature may not authorize gambling in any form," the legislature has not authorized gambling in sub. (4). Gambling contracts, including life insurance policies that lack an insurable interest, are still forbidden. The statute changed only the remedy for violation, from invalidation of the policy to requiring the insurer to cough up the proceeds rather than being allowed to keep all the premiums and pay nothing to the policy holder because the latter had no insurable interest in the policy. Sun Life Assurance Co. of Canada v. U.S. Bank National Ass'n, 839 F.3d 654
Mistakes in contracts. 631.08(1)(1)
Except as otherwise provided in chs. 600
, general contract law applies to mistakes in insurance contracts.
Person to whom proceeds payable in property insurance.
Mistake in designating the person to whom the insurance is payable in a policy of property insurance does not void the policy nor constitute a defense for the insurer unless the mistake was due to misrepresentation or concealment by the owner of the property or someone representing the owner in procuring the policy, or unless the company would not have issued or continued the policy if it had known the truth.
Knowledge and acts of agents. 631.09(1)(1)
Imputation of knowledge.
An insurer is deemed to know any fact material to the risk or which breaches a condition of the policy, if the agent who bound the insurer or issued the policy or transmitted the application to the insurer knew it at the time the agent acted, or if thereafter any of the insurer's agents with whom the policyholder is then dealing as agent of the insurer learns it in the course of the agent's dealing with the policyholder, and knows that it pertains to a policy written by the insurer.
Acts of agent.
A failure by any policyholder or insured to perform an act required to perfect his or her rights under the policy, or failure to perform the act in the time and manner prescribed, does not affect the insurer's obligations under the policy if the failure was caused by an act, statement or representation or omission to perform a duty by an agent of the insurer who has apparent authority, whether or not the agent was within the actual scope of the agent's authority.
Effect of notice to agent.
Notice given by or on behalf of the policyholder or insured to any authorized agent of the insurer with particulars sufficient to identify the policy is notice to the insurer.
do not apply if the agent and the policyholder or insured acted in collusion to deceive or defraud the insurer, or if the policyholder or insured knew the agent was acting beyond the scope of the agent's authority.
Group policyholder not agent.
No person is an agent of an insurer merely because the person is a policyholder of a group insurance policy.
Liability under common law.
This section does not diminish any liability of the insurer that would exist under common law.
History: 1975 c. 375
Absent proof that an agent knew, or should have known, of financial problems of a reinsurer from whom the agent procured insurance, the agent is not liable when the reinsurer later becomes insolvent. Master Plumbers Mut. Liab. v. Cormany & Bird, 79 Wis. 2d 308
, 255 N.W.2d 533
When an insured elected to have open heart surgery after an agent indicated that the insurer would probably pay the bills, that action was sufficient reliance to estop the insurer from denying coverage. Nolden v. Mutual Benefit Life Insurance Co., 80 Wis. 2d 353
, 259 N.W.2d 75
Representations, warranties and conditions. 631.11(1)(1)
Effect of negotiations for contract. 631.11(1)(a)
Statement or warranty.
No statement, representation or warranty made by a person other than the insurer or an agent of the insurer in the negotiation for an insurance contract affects the insurer's obligations under the policy unless it is stated in any of the following:
A written application signed by the person, provided that a copy of the written application is made a part of the policy by attachment or endorsement.
A written communication provided by the insurer to the insured within 60 days after the effective date of the policy.
Misrepresentation or breach of affirmative warranty.
No misrepresentation, and no breach of an affirmative warranty, that is made by a person other than the insurer or an agent of the insurer in the negotiation for or procurement of an insurance contract constitutes grounds for rescission of, or affects the insurer's obligations under, the policy unless, if a misrepresentation, the person knew or should have known that the representation was false, and unless any of the following applies:
The insurer relies on the misrepresentation or affirmative warranty and the misrepresentation or affirmative warranty is either material or made with intent to deceive.
The fact misrepresented or falsely warranted contributes to the loss.
Effect of failure of condition or breach of promissory warranty.
No failure of a condition prior to a loss and no breach of a promissory warranty constitutes grounds for rescission 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 subsection does not apply to failure to tender payment of premium.
Knowledge when policy issued.
No misrepresentation made by or on behalf of a policyholder 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 application 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.
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 acquiring 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.
Copy of application to be made available.
The policyholder under a life or disability 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 specified in par. (b)
, including the certificate.
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 insurer's obligations under the certificate unless it is stated in the certificate, or in a written document signed by the certificate holder, a copy of which is supplied to the certificate holder or the beneficiary whose rights would be affected.
History: 1975 c. 375
; 1977 c. 339
; Stats. 1977 s. 641.11; 1983 a. 189
s. 329 (25)
; 1995 a. 259
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
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
Third parties may recover against an insurer even though the insured's fraudulent application voided the policy under this section. Rauch v. American Family Insurance Co., 115 Wis. 2d 257
, 340 N.W.2d 478
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).
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
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 Mutual Ins. Co. v. Bateman, 2006 WI App 251
, 297 Wis. 2d 828
, 726 N.W.2d 678
Sub. (1) (b) establishes the elements necessary to entitle an insurance company to rescind an insurance contract. There must be an affirmative warranty or misrepresentation, 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 Corp., 2007 WI App 10
, 298 Wis. 2d 497
, 727 N.W.2d 346
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:
Any policy may by reference incorporate rate schedules and classifications of risks and short-rate tables filed with the commissioner; and
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
Contract rights under noncomplying policies. 631.15(1)(1)
Enforcement of policy terms.
Except as otherwise specifically provided by statute, a policy is enforceable against the insurer according to its terms, even if it exceeds the authority of the insurer.
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.
Reformation of contract.
Upon written request of the policyholder or an insured whose rights under the policy are continuing 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
Written reason for coverage denial. 631.17(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
APPROVAL OF FORMS
Filing and approval of forms. 631.20(1)(a)(a)
No form subject to s. 631.01 (1)
, except as exempted under par. (c)
, sub. (1g)
, or s. 631.01 (2)
, or (5)
or by rule under par. (b)
, may be used unless it has been filed with and approved by the commissioner and unless the insurer certifies that the form complies with chs. 600
and rules promulgated under chs. 600
. It is deemed approved if it is not disapproved within 30 days after filing, or within a 30-day extension of that period ordered by the commissioner prior to the expiration of the first 30 days.
Subject to s. 655.24 (1)
, the commissioner may by rule exempt certain classes of policy forms from prior filing and approval.
Subject to sub. (1m)
, a form first used and not already filed under par. (a)
on or after August 1, 2008, is exempt from par. (a)
except for any of the following:
A form for a Medicare replacement policy or a Medicare supplement policy.
A form for a long-term care insurance policy, including a form for a nursing home or home health care policy.
A form issued by an insurer ordered by the commissioner under s. 601.41 (4)
to file forms under par. (a)
. The commissioner may require an insurer to file forms under par. (a)
to secure compliance with the law, including if the commissioner determines that the insurer violated sub. (1m)
A form that includes an appraisal or arbitration provision not specifically authorized by rule. The entire form, including the appraisal or arbitration provision, is subject to par. (a)
A form required to be filed under par. (a)
by a rule promulgated by the commissioner.
Exempt if approved by commission.
A form for a product, as defined in s. 601.58 (2) (k)
, that is approved by or self-certified to, and not disapproved by, the Interstate Insurance Product Regulation Commission is exempt from subs. (1) (a)
and (1m) (a)
, unless otherwise provided by a rule promulgated by the commissioner under s. 601.58
Except as exempted under sub. (1g)
or s. 631.01 (2)
, or (5)
or by a rule promulgated by the commissioner, an insurer may not, on or after August 1, 2008, use a form that is exempt from sub. (1) (a)
under sub. (1) (c)
unless the insurer does all of the following:
Files the form with the commissioner 30 days before its use.
Files the form in the manner and format, and with the attachments, prescribed by the commissioner.
Certifies as required under par. (b)
that the form complies with chs. 600
and rules promulgated under chs. 600
. The commissioner may require an insurer to include specific compliance certifications.