Chapter Trans 100

Trans 100.07(3)(b)3.b. b. The age of the injured person.

Trans 100.07(3)(b)3.c. c. The occupation and lifestyle of the injured person, if the occupation or lifestyle of the injured person will be affected.

Trans 100.07(3)(b)3.d. d. The duration and severity of pain, and degree of consciousness of the injured party.

Trans 100.07(3)(b)3.e. e. The length and type of temporary or permanent disability.

Trans 100.07(3)(b)3.f. f. The diagnosis of the injury.

Trans 100.07(3)(c) (c) The department may consider the following documentation when determining the amount of security required under s. 344.13, Stats., for property damage:

Trans 100.07(3)(c)1. 1. A certification of motor vehicle damage, not to exceed the value of the vehicle prior to the accident, completed by an authorized representative of an insurance company or body shop. If the vehicle was a total loss, a salvage dealer may complete the certification.

Trans 100.07 Note Note: Form MV 3658—Evaluation of Motor Vehicle Damage.

Trans 100.07(3)(c)2. 2. A certification of property damage, not to exceed the value of the property prior to the accident, completed by a person skilled in the evaluation of damages to the type of property damaged.

Trans 100.07 Note Note: Form MV 3657—Evaluation of Property Damage.

Trans 100.07(3)(c)3. 3. Credible evidence that a claimant has incurred actual towing and replacement vehicle rental costs if damages excluding those under this subdivision equal or exceed the minimum damage amount under s. 344.12 or 344.14 (2) (e), Stats.

Trans 100.07 Note Note: The minimum damage amount under s. 344.12, Stats., is currently $1000.

Trans 100.07(3)(d) (d) The department may consider whether a motor vehicle was being operated without permission of the owner at the time of an accident in the manner specified in s. Trans 100.09 in connection with any claim for damages to a vehicle that was allegedly operated without the owner’s permission.

Trans 100.07(4) (4) The amount of security required when a death is involved shall be the minimum policy limits provided for under s. 344.15 (1), Stats.

Trans 100.07(5) (5) The department shall make a determination of the amount of security required for an accident within 90 days of receiving an accident report, or at such later date as individual circumstances of an accident may require.

Trans 100.07 Note Note: Determinations made more than 90 days after receipt of an accident report by the Department are valid. See DOT v. Warner, 102 Wis. 2d 232 (Ct. App. 1981).

Trans 100.07(6) (6) After a final determination of the amount of security is made by the department, the amount of security required may be increased only under either of the following circumstances:

Trans 100.07(6)(a) (a) To correct any administrative error on the part of the department.

Trans 100.07(6)(b) (b) To include the claim of a person if all of the following criteria are met:

Trans 100.07(6)(b)1. 1. The claim is filed one year or less after the accident.

Trans 100.07(6)(b)2. 2. No evaluation report was mailed to the person under sub. (2) (a).

Trans 100.07(6)(b)3. 3. The department has not suspended the uninsured person’s operating privilege.

Trans 100.07(6)(b)4. 4. The uninsured has not deposited security.

Trans 100.07 History History: Cr. Register, October, 1985, No. 358, eff. 11-1-85; am. (1), (7) and (8), Register, April, 1994, No. 460, eff. 5-1-94; CR 01-156: r. and recr. Register October 2005 No. 598, eff. 11-1-05.

Trans 100.08 Trans 100.08 Security deposit.

Trans 100.08(1) (1) Acceptable forms of security required under ss. 344.14 and 344.17, Stats., are any of the following:

Trans 100.08(1)(a) (a) United States currency.

Trans 100.08(1)(b) (b) A cashier’s check or draft.

Trans 100.08(1)(c) (c) A money order.

Trans 100.08(1)(d) (d) A financial institution check or draft.

Trans 100.08(1)(e) (e) A certified personal or business check or draft.

Trans 100.08(1)(f) (f) An attorney trust account check or draft.

Trans 100.08(1)(g) (g) A surety bond.

Trans 100.08 Note Note: Forms MV 3016—Security Deposit Receipt, MV 3043—Bond under Chapter 344 Stats., and MV 3385—Informational Letter to Injured Parties.

Trans 100.08(2) (2) A person other than the uninsured owner or operator may deposit security if the person specifies in writing on whose behalf the deposit is made and to whom the deposit should be returned.

Trans 100.08(3) (3) Security deposited with the department shall be held in trust for the benefit of any claimant involved in the accident. The department shall remit to the depositor any balance remaining after the termination of the security filing period and payments to claimants.

Trans 100.08(4) (4) No interest or dividends shall be paid to a depositor.

Trans 100.08(5) (5) If the owner and operator are separate persons, the deposit may be made by one of them, or they may cooperate in depositing the security. The security shall be applied to the payment of judgments or assignments for damages arising out of the accident rendered against either the operator or owner regardless of who made the deposit.

Trans 100.08(6) (6) If notice has been filed with the secretary by any claimant that a court action has been commenced by any party in interest, the security deposit shall be retained until one of the following conditions is met:

Trans 100.08(6)(a) (a) A judgment is entered and the court orders the department to apply the security deposit to the judgment.

Trans 100.08(6)(b) (b) The case is dismissed on the merits and with prejudice and the operator or owner is determined not to be liable.

Trans 100.08(6)(c) (c) The case is dismissed for any reason, has not been refiled, and more than one year from the date of deposit or the date the person’s operating privilege was suspended, whichever is later, has passed.

Trans 100.08(6)(d) (d) A judgment is entered, and a satisfaction of the judgment is filed with the department.

Trans 100.08(7) (7) A security deposit may be returned only after one of the following conditions is met:

Trans 100.08(7)(a) (a) All judgments or assignments filed with the department related to the accident have been paid and all legal actions related to the accident of which the department has received notice have been resolved.

Trans 100.08(7)(b) (b) More than one year after the date of deposit or date of suspension, whichever is later, has passed and no notice of the commencement of a court action has been filed by a party in interest. In calculating the time period under this subsection, any period of time a claimant was stayed from commencing an action against the owner, operator or bond because of a bankruptcy proceeding may not be considered.

Trans 100.08(8) (8) Final disposition of security deposits shall be made in accordance with s. 344.20, Stats. Unless otherwise specified in writing by all depositors, any security deposit remaining may be returned to any depositor by check made jointly payable to all depositors.

Trans 100.08 History History: Cr. Register, October, 1985, No. 358, eff. 11-1-85; am. (1), Register, April, 1994, No. 460, eff. 5-1-94; CR 01-156: am. (1) (intro.), (5), r. and recr. (3) and (4) and (6), cr. (7) and (8) Register October 2005 No. 598, eff. 11-1-05; CR 10-070: am. (1) (a), (b), (d), (e), and (f) Register November 2010 No. 659, eff. 12-1-10.

Trans 100.09 Trans 100.09 Proof of operating without permission.

Trans 100.09(1) (1) A person operating a motor vehicle shall be presumed to have done so with the express or implied permission of the owner. Any owner contesting this presumption has the burden of proving the driver did not have permission to operate the vehicle.

Trans 100.09(1m) (1m) A person shall be presumed to own a vehicle if it is titled in the person’s name. Ownership may be disputed and the presumption rebutted informally with the department or in a hearing under this chapter. The person in whose name a vehicle is titled shall have the burden of rebutting that presumption.

Trans 100.09 Note Note: See State v. Kirch, 222 Wis. 2d 598, 587 N.W.2d 919 (Ct. App. 1998); Young v. West Bend Mutual Ins. Co., 2008 WI App 147; Kruse v. Weigand, 204 Wis. 195 (1931); Knutson v. Mueller, 68 Wis. 2d 199 (1974).

Trans 100.09(2) (2) A person who operates a motor vehicle with the express permission of a person who has control of a motor vehicle has the implied consent of the owner to operate the vehicle.

Trans 100.09 Note Note: If A loans a vehicle to B, even with conditions or contractual obligations on that loan, such as not re-loaning the vehicle, and B loans the vehicle to C, C has A’s implied consent to operate the vehicle notwithstanding the conditions or agreement between A and B. A’s relinquishment of control of the vehicle to B makes A responsible for any accident in which B is involved or in which any person operating the vehicle with B’s consent is involved. Plevin v. WisDOT, 267 Wis. 2d 281 (Ct. App. 2003). A is responsible for maintaining insurance on or covering damages caused by A’s vehicle.

Trans 100.09(3) (3) Any affidavit, police report or statement of a person other than the owner contending the motor vehicle was parked or operated with the owner’s permission shall result in an initial determination that the operator did have permission to operate the vehicle.

Trans 100.09(4) (4) The owner of a motor vehicle involved in an accident is exempt from depositing security under s. 344.14 (2) (g), Stats., if the owner or the owner’s insurer produces uncontroverted proof that the motor vehicle was operated or parked without actual or implied permission at the time of the accident. Acceptable proof shall be in one of the following forms:

Trans 100.09(4)(a) (a) Written notice from the law enforcement agency where the offense occurred stating that the motor vehicle was reported stolen prior to the accident or that the law enforcement agency investigated the report and found it to be a stolen motor vehicle.

Trans 100.09(4)(b) (b) Written notice from a district attorney that the owner has filed a complaint against the operator and that the operator is being charged with operating without the owner’s consent or another crime indicating the operator’s involvement in the theft of the motor vehicle.

Trans 100.09(4)(c) (c) An affidavit signed by the operator stating that the motor vehicle was being operated without the owner’s expressed or implied consent is filed with the department. This paragraph does not apply to an owner who is the sponsor of the operator, under s. 343.15, Stats.

Trans 100.09 Note Note: This is an exclusive list of mechanisms that may be used for proving unauthorized operation of a vehicle. See Plevin v. WisDOT, 267 Wis. 2d 281 (Ct. App. 2003).

Trans 100.09(5) (5) An affidavit, filed by an insurer under s. 344.15 (4), Stats., that is signed by the owner and attests that the operator did not have permission to operate the motor vehicle at the time of the accident.

Trans 100.09(6) (6) Any affidavit made under sub. (4) (c) or (5) with respect to a leased motor vehicle shall be made by the vehicle lessee rather than the vehicle owner, unless the vehicle owner affirms that possession and control over the vehicle had transferred from the lessee to the owner by repossession or other operation of law at the time of the accident.

Trans 100.09 Note Note: A lessee is considered an “owner” under s. 344.01 (2) (cm). Because the lessee ordinarily has direct control of a leased vehicle, the lessee should ordinarily provide an affidavit under sub. (4) (c) or (5) rather than the lessor or titled owner.

Trans 100.09 History History: Cr. Register, October, 1985, No. 358, eff. 11-1-85; am. (1), Register, April, 1994, No. 460, eff. 5-1-94; CR 01-156: renum. (intro.) and (1) to be (4) (intro.) and (a), (2) to be (4) (b) and (c), (3) to be (5) and am. cr. (1), (2), (3) and (6) Register October 2005 No. 598, eff. 11-1-05; CR 10-070: am. (4) (intro.) Register November 2010 No. 659, eff. 12-1-10.

Trans 100.10 Trans 100.10 Hearing and suspension procedure.

Trans 100.10(1) (1) If proof of damages has been filed under s. Trans 100.07, and the department has determined that a reasonable possibility of a judgment being entered against an uninsured operator or owner exists, the department shall mail a notice to the last known address on file with the department for the uninsured operator and motor vehicle owner. The notice shall require the uninsured operator or owner, or both, to deposit security with the department. The amount of security shall be that sum that is sufficient in the secretary’s judgment to satisfy any judgment for damages resulting from the accident that may be recovered against either the operator or motor vehicle owner. The notice shall require security be deposited by a certain date, and advise the uninsured operator that his or her operating privilege will be suspended or advise the motor vehicle owner that his or her motor vehicle registration will be suspended if security is not deposited by the date required in the notice. The notice shall advise the uninsured operator or motor vehicle owner of actions they may take to avoid operating privilege or motor vehicle registration suspension. It shall also notify them that they may request a hearing on the department’s determination before the suspension date established in the notice.

Trans 100.10(2) (2) Prior to the suspension date specified in the notice, the uninsured operator or motor vehicle owner may request one 20-day extension of time to deposit security.

Trans 100.10(3) (3) If no hearing is requested and none of the safety responsibility compliance requirements set forth in the notice have been met by the suspension date, or the extended suspension date, the department shall issue an order suspending the uninsured person’s operating privilege and suspending registration of all the owner’s motor vehicles.

Trans 100.10(3m) (3m) The department may grant a hearing on the propriety of a suspension order issued under sub. (3) to any person requesting a hearing within 14 days of the mailing date indicated on the suspension order.

Trans 100.10(4) (4) A request for a hearing will not affect the uninsured person’s operating privilege or motor vehicle registration status. Operators and owners who request a hearing prior to the department issuing a suspension order will not have their operating privileges or motor vehicle registrations suspended for failure to deposit security until the conclusion of hearing procedures. Operators who request a hearing after the department issues an operating privilege suspension order shall remain subject to the order unless the suspension is overturned as a result of the hearing. Motor vehicle registrations that are suspended before a request for a hearing is received by the department shall remain suspended unless the suspension is overturned as a result of the hearing.

Trans 100.10(5) (5) If a hearing is requested, the division of motor vehicles shall notify the interested parties of the date, time and place of the hearing. A person may request one postponement or rescheduling of a hearing for any reason if the request is made within 8 calendar days of the mailing date indicated on the notice of hearing. Subsequent requests for postponement or rescheduling may be granted only where an emergency makes attendance unduly burdensome on a party.

Trans 100.10(6) (6) The department may dismiss an operator’s or owner’s request for a hearing if the operator or owner fails to appear for the hearing at the time and place designated in the notice. A hearing dismissed under this subsection may be reopened upon motion of the operator or owner and for good cause shown.

Trans 100.10 Note Note: See s. 344.02 (1), Stats.

Trans 100.10(7) (7) Hearings shall be informal. Hearsay and documentary evidence may be received by the hearing examiner and relied upon as the basis for a decision. Telephone testimony of persons involved in the accident may not be permitted.

Trans 100.10(8) (8) Hearings shall be tape recorded for the purpose of preserving a record. Copies of recorded hearings may be purchased by a party for the cost to the department of copying the tape.

Trans 100.10 Note Note: The current cost for copying a tape is $7.00 per tape.

Trans 100.10(9) (9) The hearing examiner shall have all the duties and powers available to a hearing examiner under ch. 227, Stats.

Trans 100.10(10) (10) All parties and their counsel shall be respectful of the hearing examiner and behave in a professional manner. A hearing examiner may exclude a person or attorney from a hearing for engaging in disrespectful, contemptuous, or disruptive conduct. An attorney who is repeatedly excluded from hearings for conduct may be barred from participating in administrative hearings before the department.

Trans 100.10(11) (11) An examiner may hold the record open at the end of a hearing to receive additional evidence not available at the hearing.

Trans 100.10(12) (12) The department shall enter a decision within 30 days of the date of the hearing, or as soon as practicable thereafter.

Trans 100.10(13) (13) A person may request a rehearing as provided for in s. 227.49, Stats.

Trans 100.10(14) (14) Appeals of decisions under this section shall be made in accordance with s. 344.03, Stats.

Trans 100.10 History History: Cr. Register, October, 1985, No. 358, eff. 11-1-85; am. (1) and (2), Register, April, 1994, No. 460, eff. 5-1-94; CR 01-156: r. and recr. Register October 2005 No. 598, eff. 11-1-05; CR 10-070: am. (10) Register November 2010 No. 659, eff. 12-1-10.

Trans 100.11 Trans 100.11 Notice of subrogation.

Trans 100.11(1) (1) An insurer may file a notice of subrogation with the department at any time.

Trans 100.11(2) (2) Acceptable notice of subrogation is any of the following:

Trans 100.11(2)(a) (a) A copy of a subrogation receipt signed by the insured.

Trans 100.11(2)(b) (b) Proof of payment made as follows:

Trans 100.11(2)(b)1. 1. A copy of the insurer’s cancelled check endorsed by the insured or a third party that provided services to the insured for damages resulting from the accident, such as an automobile repair facility.