Chapter 631

631.43 Annotation A fleet policy listing individual vehicles and assessing separate premiums for each is a separate policy for each vehicle and a single limit provision contained in the policy violates sub. (1). Carrington v. St. Paul Fire & Marine Insurance Co., 169 Wis. 2d 211, 485 N.W.2d 267 (1992).

631.43 Annotation Carrington, 169 Wis. 2d 211 (1992), is extended to underinsured motorist coverage. An insured who pays separate premiums for each vehicle under a single policy can stack underinsured motorist coverage even though the policy contains a limit of liability clause. West Bend Mutual Insurance Co. v. Playman, 171 Wis. 2d 37, 489 N.W.2d 915 (1992).

631.43 Annotation Although a policy’s limit of liability language has been held invalid under this section for the purpose of preventing stacking, it is still valid for determining each policy’s limit of liability. Schaefer v. General Casualty Co. of Wisconsin, 175 Wis. 2d 80, 498 N.W.2d 855 (Ct. App. 1993).

631.43 Annotation The lack of underinsured motorist coverage on an accident vehicle was irrelevant when the insured had the coverage on two other vehicles. Under sub. (1), a policy definition amounting to a “drive-other-car” exclusion is invalid. Rodey v. Stoner, 180 Wis. 2d 309, 509 N.W.2d 316 (Ct. App. 1993). See also Patraw v. American Family Mutual Insurance Co., 185 Wis. 2d 757, 519 N.W.2d 643 (Ct. App. 1994).

631.43 Annotation Liability coverages insuring against the risk of loss arising out of specified, owned vehicles do not insure against the same loss and thus sub. (1) does not apply to those coverages. Weimer v. Country Mutual Insurance Co., 211 Wis. 2d 848, 565 N.W.2d 595 (Ct. App. 1997), 96-1440.

631.43 Annotation The applicability of sub. (1) cannot be ascertained by resorting to historical definitions of indemnity and liability insurance. An analysis must be made of whether a particular policy promises to indemnify the insured against the same loss as another policy. Taylor v. Greatway Insurance Co., 2000 WI App 64, 233 Wis. 2d 703, 608 N.W.2d 722, 99-1329.

631.43 Annotation Sub. (1) did not invalidate a provision excluding coverage for a vehicle not owned by the driver but made regularly available to him when the owner’s policy insured against losses arising from the use of the vehicle. The policies did not insure against the “same loss” within the meaning of sub. (1). Martin v. American Family Mutual Insurance Co., 2002 WI 40, 252 Wis. 2d 103, 643 N.W.2d 452, 00-2344.

631.43 Annotation Section 632.05 (2), the valued policy law, does not provide that an insured is entitled to the limits of all policies insuring a dwelling. Instead, sub. (1), the pro rata statute, specifically governs situations when two or more policies indemnify against the same loss. Absent the consent of the insurers, insureds are entitled to the full amount of their loss but not to the full amount of both policies if the combined limits exceed the actual loss. Wegner v. West Bend Mutual Insurance Co., 2007 WI App 18, 298 Wis. 2d 420, 728 N.W.2d 30, 05-3193.

631.43 Annotation Sub. (1) refers specifically to “other insurance” provisions. The accepted meaning of “other insurance” provisions does not include application to successive insurance policies. “Other insurance” refers only to two or more policies insuring the same risk, and the same interest, for the benefit of the same person, during the same period. The issue here was not which of two or more policies pays first, because they were not concurrent policies between competing insurers that applied to the same time period, but successive policies from the same insurer. Plastics Engineering Co. v. Liberty Mutual Insurance Co., 2009 WI 13, 315 Wis. 2d 556, 759 N.W.2d 613, 08-0333.

631.43 Annotation Stacking uninsured motorist coverage. Hannula. WBB Oct. 1985.

631.45 631.45 Limitations on loss to be borne by insurer.

631.45(1) (1) General. An insurance policy indemnifying an insured against loss may by clear language limit the part of the loss to be borne by the insurer to a specified or determinable maximum amount, to loss in excess of a specified or determinable amount, to a specified percentage of the loss, which may vary with the amount of the loss, or by a combination of these methods. If the policy covers various risks, different limitations may be provided separately for each risk if the policy clearly so states.

631.45(2) (2) Property coinsurance. A policy indemnifying an insured against loss of or damage to property may limit the part of the loss to be borne by the insurer to a percentage of the total loss that corresponds to the ratio of the insured sum to a specified percentage of the value of the insured property.

631.45 History History: 1975 c. 375.

631.45 Annotation Public policy does not prohibit insurance coverage for statutorily imposed multiple damages. Cieslewicz v. Mutual Service Casualty Insurance Co., 84 Wis. 2d 91, 267 N.W.2d 595 (1978).

631.45 Annotation Under the facts of the case, the insurer’s tender of the policy limits into court did not relieve the insurer of its duty to defend the insured in the lawsuit. Gross v. Lloyds of London Insurance Co., 121 Wis. 2d 78, 358 N.W.2d 266 (1984).

631.45 Annotation Although a policy’s limit of liability language has been held invalid under s. 631.43 for the purpose of preventing stacking, it is still valid for determining each policy’s limit of liability. Schaefer v. General Casualty Co. of Wisconsin, 175 Wis. 2d 80, 498 N.W.2d 855 (Ct. App. 1993).

631.48 631.48 Nonwaiver clause. An insurer may insert in any insurance policy a provision that no change in the policy is valid unless approved by an executive officer of the insurer, or unless the approval is endorsed on the policy or attached to it, or both, and that no agent has authority to change the policy or waive any of its provisions. This does not preclude a person claiming a right under the policy from relying on waiver or estoppel in an appropriate case.

631.48 History History: 1975 c. 375.

631.51 631.51 Dividends on policies.

631.51(1) (1) Life insurance and annuities. Section 632.62 applies to life insurance and annuities.

631.51(2) (2) Insurance, other than life insurance and annuities. Any insurer may distribute a portion of surplus attributable to policies other than life insurance or annuities, in amounts and with classifications the board of directors determines to be fair and reasonable. Such distribution may not be made contingent on the continuation of the policy or of premium payments except under s. 632.75 (2). A schedule explaining the basis for the distribution shall be filed with the commissioner prior to the distribution.

631.51(3) (3) When not specified in policy. Any insurer may distribute surplus to any class of policyholders even if those policies do not so provide. A schedule explaining the basis for the distribution shall be filed with the commissioner at least 30 days prior to the distribution.

631.51(4) (4) Combined dividends. It is permissible to provide an indivisible dividend to classes of policyholders having more than one type of policy, including a combination of life or annuities with other types of insurance.

631.51 History History: 1975 c. 375.

631.61 631.61 Group and blanket insurance.

631.61(1) (1) Certificates.

631.61(1)(a) (a) General. Except under par. (d), an insurer issuing a group insurance policy other than blanket shall, as soon as practicable after the coverage is effective, provide a certificate for each member of the insured group, except that only one certificate need be provided for the members of a family unit. The certificate shall contain a summary of the essential features of the insurance coverage, including any rights of conversion to an individual policy. Upon receiving a written request therefor, the insurer shall also inform any insured how the insured may inspect a copy of the policy during normal business hours at a place reasonably convenient to the insured.

631.61(1)(b) (b) Blanket insurance. The commissioner may by rule impose a similar requirement for any class of blanket insurance policies for which the commissioner finds that the group of persons covered is constant enough for such action to be practicable and not unreasonably expensive.

631.61(1)(c) (c) Method of providing certificates. The certificate shall be provided in a manner reasonably calculated to bring it to the attention of the certificate holder. The insurer may deliver or mail it directly to the certificate holder or may deliver or mail the certificates in bulk to the policyholder to transmit to certificate holders, unless the insurer has reason to believe that the policyholder will not promptly transmit the certificates. An affidavit by the insurer that it has mailed the certificates in the usual course of business creates a rebuttable presumption that it has done so. As an alternative to delivering or mailing the certificate, the insurer may make the certificate available electronically through an online internet or policyholder network website. If the insurer makes the certificate available electronically, the insurer shall do all of the following:

631.61(1)(c)1. 1. Request the policyholder to post the information, as well as instructions on how to access the certificate, in the policyholder’s place of business or to publish the information and access instructions in a house organ that is reasonably calculated to bring the information to the attention of the certificate holders.

631.61(1)(c)2. 2. Provide notice to the policyholder of any subsequent change in the certificate and request the policyholder to notify the certificate holders of the change in the manner specified in subd. 1.

631.61(1)(c)3. 3. Provide a paper copy of the certificate to any certificate holder upon request.

631.61(1)(d) (d) Substitutes. The commissioner may by rule or order prescribe substitutes for delivery or mailing of certificates, including booklets describing the coverage, the posting of notices in the place of business, or publication in a house organ, if the substitutes are reasonably calculated to inform certificate holders of their rights.

631.61(2) (2) Effect of failure to issue certificates. Unless a certificate or an authorized substitute has been made available to the certificate holder as required by this section, no act or omission by the certificate holder after the coverage has become effective as to the certificate holder, other than intentionally causing the loss insured against, affects the insurer’s obligations under the insurance contract.

631.61 History History: 1975 c. 375, 421; 2007 a. 170; 2017 a. 365 s. 112.

631.64 631.64 Corporate name. Every insurance policy or annuity contract shall conspicuously display the name of the insurer on its first page.

631.64 History History: 1975 c. 375.

631.65 631.65 Assessable policies. Every assessable policy shall conspicuously display on the first page, separately from any other provision and in type at least as large as any used in the body of the policy, the words “This policy is assessable”.

631.65 History History: 1975 c. 375; 1981 c. 218.

631.69 631.69 Insurance written in connection with finance plans. Any insurance contract written in connection with a finance plan or other credit transaction shall contain provisions to protect the insured from overreaching by the insurer or by the creditor in connection with the insurance, including a provision that a copy of the complete policy or a certificate containing all of the essential terms be furnished to the debtor and that there shall be an appropriate surrender value or refund of unearned premium to the debtor calculated on a basis approved by the commissioner if the debt is paid or if the insurance contract is rewritten because the original finance plan or credit transaction is altered or a new plan or transaction is entered into with the same or an affiliated lender. This section is satisfied by compliance with the terms of ch. 424, if they are applicable.

631.69 History History: 1975 c. 375.

631.81 631.81 Notice and proof of loss.

631.81(1) (1) Timeliness of notice. Provided notice or proof of loss is furnished as soon as reasonably possible and within one year after the time it was required by the policy, failure to furnish such notice or proof within the time required by the policy does not invalidate or reduce a claim unless the insurer is prejudiced thereby and it was reasonably possible to meet the time limit.

631.81(2) (2) Method of giving notice. It is a sufficient service of notice or proof of loss if a 1st class postage prepaid envelope addressed to the insurer and containing the proper notice or proof is deposited in any U.S. post office within the time prescribed. The commissioner may expressly approve clauses requiring more expeditious methods of notice where that is reasonable.

631.81(3) (3) Meaning of insurer’s acts. The acknowledgment by the insurer of the receipt of notice, the furnishing of forms for filing proofs of loss, the acceptance of such proofs, or the investigation of any claim are not alone sufficient to waive any of the rights of the insurer in defense of any claim arising under the insurance contract.

631.81 History History: 1975 c. 375.

631.81 Annotation An insured’s contradictory statements constituted a breach of the contractual duties of notice and cooperation. Dietz v. Hardware Dealers Mutual Fire Insurance Co., 88 Wis. 2d 496, 276 N.W.2d 808 (1979).

631.81 Annotation When the insured fails to give notice within one year after the time required in the policy, there is a rebuttable presumption of prejudice, and the burden of proof shifts to the claimant to prove that the insurer was not prejudiced. Neff v. Pierzina, 2001 WI 95, 245 Wis. 2d 285, 629 N.W.2d 177, 99-1069.

631.81 Annotation An insurer is prejudiced by late notice when it has been denied the opportunity to have input into how the underlying claim is being defended. An insured may not assume that if its insurer had been given the opportunity to make a timely investigation, it would have produced the same result as that produced by the insured’s own investigation or that any discovery that the insurer would have conducted would parallel that already conducted by the insured. Phoenix Contractors, Inc. v. Affiliated Capital Corp., 2004 WI App 103, 273 Wis. 2d 736, 681 N.W.2d 310, 03-2259.

631.81 Annotation Wisconsin’s notice-prejudice statutes, this section and s. 632.26, do not supersede the reporting requirement specific to claims-made-and-reported policies. Anderson v. Aul, 2015 WI 19, 361 Wis. 2d 63, 862 N.W.2d 304, 13-0500.

631.81 Annotation The Federal Employee Retirement Income Security Act (ERISA) preempts state law related to any covered employee benefit plan, but does not preempt state regulation of insurance. This section regulates insurance and is not preempted. Bogusewski v. Life Insurance Co. of North America, 977 F. Supp. 1357 (1997).

631.83 631.83 Limitation of actions.

631.83(1) (1) Statutory periods of limitation.

631.83(1)(a) (a) Fire insurance. An action on a fire insurance policy must be commenced within 12 months after the inception of the loss. This rule also applies to riders or endorsements attached to a fire insurance policy covering loss or damage to property or to the use of or income from property from any cause, and to separate windstorm or hail insurance policies.

631.83(1)(b) (b) Disability insurance. An action on disability insurance coverage must be commenced within 3 years from the time written proof of loss is required to be furnished.

631.83(1)(c) (c) Life claims based on absence of insured. Sections 813.22 to 813.34 apply to life insurance actions based on death in which absence is relied upon as evidence of death.

631.83(1)(d) (d) Other. Except as provided in this subsection or elsewhere in chs. 600 to 646 and 655, s. 893.43 applies to actions on insurance policies.

631.83(2) (2) General law applicable to limitation of actions. Except for the prescription of time periods under sub. (1) or elsewhere in chs. 600 to 646 and 655, the general law applicable to limitation of actions as modified by ch. 893 applies to actions on insurance policies.

631.83(3) (3) Prohibited clauses of policies. No insurance policy may:

631.83(3)(a) (a) Shorten periods of limitation. Limit the time for beginning an action on the policy to a time less than that authorized by the statutes;

631.83(3)(b) (b) Limit jurisdiction. Prescribe in what court action may be brought thereon; or

631.83(3)(c) (c) Proscribe action. Provide that no action may be brought.

631.83(4) (4) Minimum waiting period for action. No action may be brought against the insurer on an insurance policy to compel payment thereunder until at least 60 days after proof of loss has been furnished as required by the policy or such proof of loss has been waived, or the insurer has denied full payment, whichever is earlier. This subsection does not apply in any case in which the verified complaint alleges facts that would establish prejudice to the complainant by reason of such delay, other than the delay itself.

631.83(5) (5) Tolling of period of limitation. The period of limitation is tolled during the period in which the parties conducted an appraisal or arbitration procedure prescribed by the insurance policy or by law or agreed to by the parties.

631.83 History History: 1975 c. 375; 1979 c. 89, 102; 1983 a. 192; 1987 a. 247; 1989 a. 187 s. 29.

631.83 Annotation The term “fire insurance” covers indemnity insurance for losses to property caused by many perils other than fire. Villa Clement, Inc. v. National Union Fire Insurance Co. of Pittsburgh, 120 Wis. 2d 140, 353 N.W.2d 369 (Ct. App. 1984).

631.83 Annotation Action by mortgagees of insured property against the insurer for paying the policy proceeds to the insured despite knowledge of the mortgagee’s interest was not on the policy and was not barred by sub. (1) (a). Picus v. Copus, 127 Wis. 2d 359, 379 N.W.2d 341 (Ct. App. 1985).

631.83 Annotation The s. 893.57 statute of limitations governs the intentional tort of bad faith by an insurer. Warmka v. Hartland Cicero Mutual Insurance Co., 136 Wis. 2d 31, 400 N.W.2d 923 (1987).

631.83 Annotation “Inception of the loss” in sub. (1) (a) means the date on which the loss occurs, not the discovery date. Borgen v. Economy Preferred Insurance Co., 176 Wis. 2d 498, 500 N.W.2d 419 (Ct. App. 1993).

631.83 Annotation The failure of policyholders to give notice to an underinsurer of a settlement between the insured and the tortfeasor did not bar underinsured motorist coverage in the absence of prejudice to the insurer. There is a rebuttable presumption of prejudice when there is a lack of notice, with the burden on the insured to prove by the greater weight of the evidence that the insurer was not prejudiced. Ranes v. American Family Mutual Insurance Co., 219 Wis. 2d 49, 580 N.W.2d 197 (1998), 97-0441.

631.83 Annotation Sub. (2) clearly and unambiguously excepts the time limitations for fire insurance claims from the application of s. 893.12. Wieting Funeral Home of Chilton, Inc. v. Meridian Mutual Insurance Co., 2004 WI App 218, 277 Wis. 2d 274, 690 N.W.2d 442, 04-0461.

631.83 Annotation An “agreement” by the parties to engage in an appraisal procedure under sub. (5) requires something more than a mere agreement to meet and discuss a dispute between the parties. Wieting Funeral Home of Chilton, Inc. v. Meridian Mutual Insurance Co., 2004 WI App 218, 277 Wis. 2d 274, 690 N.W.2d 442, 04-0461.

631.83 Annotation The key word in sub. (1) (a) is not loss, but inception. In a claim arising from damage to corn yield resulting from vandalism to a corn planter, the inception of that loss was the moment overfertilized seeds were planted with the vandalized corn planter. Bronsteatter & Sons, Inc. v. American Growers Insurance Co., 2005 WI App 192, 286 Wis. 2d 782, 703 N.W.2d 757, 05-0115.

631.83 Annotation Because all of the statutory language surrounding sub. (5), including the statute regulating arbitration and appraisals, applies only to first-party claims, sub. (5) tolls the period of limitation only as to claims by insureds against their insurer, not to claims by third parties against a tortfeasor’s insurer. Thom v. OneBeacon Insurance Co., 2007 WI App 123, 300 Wis. 2d 607, 731 N.W.2d 657, 06-1617.

631.85 631.85 Appraisal or arbitration. An insurance policy may contain provisions for independent appraisal and compulsory arbitration, subject to the provisions of s. 631.20. If an approved policy provides for application to a court of record for the appointment of a disinterested appraiser, arbitrator, or umpire, any court of record of this state except the court of appeals or the supreme court may be requested to make an appointment. Upon appropriate request, the court shall make the appointment promptly. This section does not apply to a surplus lines insurance form issued under s. 618.41 before, on, or after April 20, 2012.

631.85 History History: 1975 c. 375; 1977 c. 187; 2011 a. 224.

631.85 Annotation Although s. 631.20 generally refers to forms, its procedure for approval of forms is applicable to arbitration clauses under this section. An arbitration clause not approved under this section is per se invalid. Appleton Papers, Inc. v. Home Indemnity Co., 2000 WI App 104, 235 Wis. 2d 39, 612 N.W.2d 760, 99-1567.

631.89 631.89 Restrictions on use of genetic test results.

631.89(1) (1) In this section, “genetic test” means a test using deoxyribonucleic acid extracted from an individual’s cells in order to determine the presence of a genetic disease or disorder or the individual’s predisposition for a particular genetic disease or disorder.

631.89(2) (2) An insurer, the state with respect to a self-insured health plan, or a county, city, village or school board that provides health care services for individuals on a self-insured basis, may not do any of the following:

631.89(2)(a) (a) Require or request directly or indirectly any individual or a member of the individual’s family to obtain a genetic test.

631.89(2)(b) (b) Require or request directly or indirectly any individual to reveal whether the individual or a member of the individual’s family has obtained a genetic test or what the results of the test, if obtained by the individual or a member of the individual’s family, were.

631.89(2)(bm) (bm) Require or request directly or indirectly a health care provider, as defined in s. 146.81 (1) (a) to (p), who is or may be providing or who has or may have provided health care services to an individual to reveal whether the individual or a member of the individual’s family has obtained a genetic test or what the results of the test, if obtained by the individual or a member of the individual’s family, were.

631.89(2)(c) (c) Condition the provision of insurance coverage or health care benefits on whether an individual or a member of the individual’s family has obtained a genetic test or what the results of the test, if obtained by the individual or a member of the individual’s family, were.

631.89(2)(d) (d) Consider in the determination of rates or any other aspect of insurance coverage or health care benefits provided to an individual whether an individual or a member of the individual’s family has obtained a genetic test or what the results of the test, if obtained by the individual or a member of the individual’s family, were.

631.89(3) (3) 

631.89(3)(a) (a) Subsection (2) does not apply to an insurer writing life insurance coverage or income continuation insurance coverage.

631.89(3)(b) (b) An insurer writing life insurance coverage or income continuation insurance coverage that obtains information under sub. (2) (a) or (b) may not do any of the following: