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(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(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(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(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(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)(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.
Trans 100.11(2)(b)2.
2. If a copy of the endorsement is not readily available, a written certification of the insurer that payment was accepted by the payee named on the check.
Trans 100.11(2)(b)3.
3. If a copy of the check is not readily available, an insurer may submit a copy of a corporate payment record together with a certification that the payment was accepted by the insured party or a third party that provided services to the insured for damages resulting from the accident, such as an automobile repair facility.
Trans 100.11(3)
(3) If a person deposits security with the department, the department shall provide notice of the filing to any person that has filed a notice of subrogation with the department at the address set forth in the subrogation notice or, if the subrogee is an insurer, at the address on file with the department for correspondence with the insurer.
Trans 100.11(5)
(5) Releases and installment agreements filed after the filing of a subrogation notice with the department will not have any effect unless each subrogated party and insured has joined in or filed a release or installment agreement.
Trans 100.11(6)
(6) Releases or installment agreements received before notice of subrogation is received and filed by the department will not be affected by the filing of the subrogation notice.
Trans 100.11 History
History: Cr.
Register, October, 1985, No. 358, eff. 11-1-85; am.,
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 100.12(1)(1)
Effect of release. The department may not suspend the operating privilege of an operator or motor vehicle registrations of a vehicle owner under s.
344.14, Stats., if that person has been released from liability by all persons on whose behalf a security deposit has been required by the department under s.
Trans 100.07 or s.
344.13, Stats., and all persons who have filed subrogation notices with the department for such claims.
Trans 100.12(2)(b)
(b)
Consideration required. A release shall state that it is made for consideration, such as an exchange of money or something that has money value.
Trans 100.12 Note
Note: Forms MV 3039—Minors Release, and MV 3041—Release of Liability.
Trans 100.12(2)(c)1.1. `Injured parties.' If a party sustains property damage or personal injuries, the release shall include the witnessed or notarized signature of each subrogated party and the witnessed or notarized signature of the injured party, except as provided in subds.
2. to
4. Trans 100.12(2)(c)2.
2. `Minors with claims $5,000 or less.' If an injured party is less than 18 years old and the amount of deposit required by the department under s.
344.13, Stats., does not exceed $5,000, the witnessed or notarized signature of that injured party's parent or legal guardian, and if any personal injury to the injured party occurred, a doctor's certification that the injury is not permanent is required.
Trans 100.12(2)(c)3.
3. `Minors with claims exceeding $5,000, or permanent injuries.' If an injured party is less than 18 years old and either a doctor certifies that the injury is permanent or the amount of deposit required by the department under s.
344.13, Stats., exceeds $5,000, a witnessed or notarized legal guardian's signature in his or her capacity as guardian is required, together with a court order authorizing the guardian for the injured party to execute the release.
Trans 100.12(2)(c)4.
4. `Incompetents.' If an injured party is incompetent, a witnessed or notarized guardian's signature in his or her representative capacity is required together with a court order authorizing the guardian to execute the release.
Trans 100.12(2)(c)5.
5. `Deceased parties.' If the injured party died as a result of the accident, the release shall include one of the following:
Trans 100.12(2)(c)5.a.
a. The witnessed or notarized signature of the personal representative or administrator of the estate of the deceased, accompanied by a copy of the court order appointing the personal representative or administrator.
Trans 100.12(2)(c)5.b.
b. The witnessed or notarized signature of parents with legal custody or the legal guardian of the deceased when the deceased was a minor at the time of the accident.
Trans 100.12(2)(c)5.c.
c. The witnessed or notarized signature of the primary heir of the estate of the deceased, accompanied by an affidavit of heirship from the releasing party and assurance that the estate will be settled without appointment of a personal representative. The department may accept a copy of a petition filed under ch.
867, Stats., or a court order assigning property under ch.
867, Stats., as assurance under this subdivision.
Trans 100.12(2)(c)5.d.
d. The witnessed or notarized signature of the primary heir of the estate of the deceased, accompanied by an affidavit of heirship from the releasing party and a certified medical statement attesting that the deceased had no pain and suffering.
Trans 100.12(3)
(3) Dismissal of claims. A final judgment on the merits and with prejudice dismissing all claims against the uninsured operator or owner shall be treated as a release of liability for that uninsured operator or owner as to all parties to that court action.
Trans 100.12(4)
(4) Satisfaction of judgment. A satisfaction of judgment against the uninsured operator or owner for claims arising out of the accident shall be treated as a release of liability for that uninsured operator or owner as to all parties to the court action.
Trans 100.12(5)
(5) Bankrupt uninsured persons under safety responsibility law. Trans 100.12(5)(a)(a)
Effect on deposited security. Notwithstanding the imposition of a stay at the commencement of a bankruptcy proceeding or the issuance of an order of discharge in a bankruptcy proceeding, any security that is deposited with the department shall be held in trust by the department for the benefit of any injured party on whose behalf a security deposit has been required under s.
Trans 100.07 or s.
343.13, Stats.
Trans 100.12(5)(b)
(b)
Bankruptcy that precedes safety responsibility suspension. In any case in which the department is notified of a pending bankruptcy proceeding and applicability of a stay under
11 USC 362, the department may not suspend the operating privilege or motor vehicle registration of the debtor until the stay is no longer in effect and the department is notified by an injured party or their subrogated insurer that the debt was not discharged and that suspension under s.
343.14 or
343.18, Stats., is appropriate.
Trans 100.12 Note
Note: 11 USC 362 is the bankruptcy code's automatic stay provision.
Trans 100.12(5)(c)1.1. `Reinstatement.' An uninsured operator or vehicle owner whose operating privilege or motor vehicle registration is suspended under s.
344.14 or
344.18, Stats., who files a petition in bankruptcy, and from whom collection of a pre-bankruptcy debt arising from an accident occurring prior to the filing of the petition is stayed under
11 USC 362, or whose liability for damages resulting from an accident is discharged under United States bankruptcy laws may reinstate his or her operating privilege or motor vehicle registration. The person shall be subject to all the same reinstatement, filing and fee requirements as any other person seeking license reinstatement who has obtained a release from the injured party.
Trans 100.12 Note
Note: See
Holder v. DOT, 40 BR 847 (E.D. Wisc., 1984) regarding the Department's authority to require proof of financial responsibility for the future of a bankruptcy debtor. Tort liability is not “consumer debt" under
11 USC 101 (7). Therefore, Ch.
13 co-debtor stay does not prohibit collection against non-bankrupt persons. In re ALVAREZ, 57 BR 65 (S.D. Fla., 1985).
Trans 100.12(5)(c)2.
2. `Release of suspension ordered in violation of automatic stay.' If the department is notified that a stay prohibiting action against a debtor under
11 USC 362 was in effect at the time the department ordered revocation or suspension of the debtor's operating privilege or motor vehicle registration under s.
344.14, Stats., the department shall release the s.
344.14, Stats., revocation or suspension and, if the debtor is otherwise eligible to be licensed, reinstate the bankruptcy debtor's operating privilege and motor vehicle registration without any reinstatement fee.
Trans 100.12 Note
Note: 11 USC 362 is the bankruptcy code's Automatic Stay provision.
Trans 100.12(5)(c)3.
3. `Reimposition of suspension.' The department may suspend a debtor's operating privilege or motor vehicle registration that was released under subd.
1. or
2. upon a showing by an injured party that the debt for damages resulting from the accident was not discharged or satisfied within the bankruptcy proceeding and that the bankruptcy stay is not in effect or upon notification that the case has been dismissed.
Trans 100.12(5)(c)4.
4. `Proof.' The department may require satisfactory proof that the debtor's liability to all injured parties and their subrogated insurers have been discharged in a bankruptcy proceeding in any case where a debtor seeks to reinstate an operating privilege or motor vehicle registration after the case is closed or dismissed, a discharge has been granted, or the automatic stay has been lifted, terminated, annulled or modified. Acceptable proof may include copies of the schedules for the bankruptcy case listing the injured party as a claimant in the bankruptcy, proof of the filing date, such as the notice of bankruptcy filing mailed by the bankruptcy court or a copy of the petition containing the clerk's file stamp showing the date the petition was filed, and an affidavit that the debt is dischargeable under
11 USC 523 and has been discharged.
Trans 100.12(5)(c)5.
5. `Disputes.' In any case where a debtor uninsured operator or motor vehicle owner and an injured party dispute whether a discharge has affected the injured party's claim, the department may require one or both parties to obtain a court order that decides whether the claim is discharged.
Trans 100.12(5)(c)6.
6. `Court determinations.' The department shall accept court findings or orders regarding discharge of a claim in an action between the debtor uninsured operator or motor vehicle owner and an injured party as determinative, and may impose or release a suspension under ch.
344, Stats., in accordance with the determination of the court.
Trans 100.12 Note
Note: While the Department does not have authority to require debtors to provide a certain type of notice of bankruptcy filing to it under federal law, debtors who are subject to financial responsibility filing requirements will find that the Department's reaction to a bankruptcy filing is faster and more predictable under this section if the Department is listed on the mailing matrix for the proceeding with an address of Wisconsin Department of Transportation, Uninsured Motorists Unit, P.O. Box 7919, Madison, WI 53707-7919.
Trans 100.12(5)(d)
(d) The department may not release a safety responsibility or damage judgment suspension or revocation based solely upon a court order entered under s.
128.21, Stats.
Trans 100.12 Note
Note: Voluntary wage earner proceedings affect only executions, attachments or garnishments, and do not affect suspensions and revocations of operating privileges. s.
128.21 (1), Stats. Debtors using state procedures to reorganize debts may use a s.
344.27, Stats., process to obtain a court ordered repayment plan for an unpaid damage judgment.
Trans 100.12 History
History: Cr.
Register, October, 1985, No. 358, eff. 11-1-85; renum. (4) (intro.) to be (4) and am. r. (4) (a) to (c), cr. (5),
Register, April, 1994, No. 460, eff. 5-1-94;
CR 01-156: r. and recr. (1), (2), (4) and (5), renum. (3) to be (2) (c) 5. and am., cr. (3)
Register October 2005 No. 598, eff. 11-1-05.
Trans 100.13(1)(1)
For the purpose of s.
344.14 (2) (h) or
344.25 (2), Stats., a written agreement providing for payment in installments of an agreed amount for all claims for injury or damage resulting from the accident shall contain all of the following:
