Wisconsin Legislature: Trans 100.07(3)(d)

(1) Definitions. In this section, “evaluation report” means an evaluation of personal injury report, evaluation of property damage report or evaluation of motor vehicle damage report submitted by a person to the department to document the amount of a claim resulting from an accident.

Note: Forms MV 3656 evaluation of personal injury report, MV 3657 evaluation of property damage report and MV 3658 evaluation of motor vehicle damage report, are provided to persons in appropriate cases by the Division of Motor Vehicles Uninsured Motorist Unit, P. O. Box 7999, Madison, WI 53707-7999, (608) 266-1249.

(2) Evaluation reports.

(a) If the department determines that one or more people involved in an accident were uninsured, the department may mail evaluation reports to all other persons involved in the accident. The date on which the department first mails evaluation reports to any person shall be considered the “mailing date” under this subsection. The department shall mail the evaluation reports to the address provided in the accident report.

(b) In determining the amount of security required:

1. The department shall consider evaluation reports filed with the department within 21 days of the mailing date.

2. The department may consider an evaluation report filed with the department more than 21 days after the mailing date if it meets all of the following requirements:

a. No final determination of the amount of security required has been made.

b. The report is received by the department within one year of the accident date.

(3) Elements of a claim.

(a) The department may consider court costs, which are reasonably estimated or determined, but do not exceed $500.00, when determining the amount of security to be deposited under s. 344.13 (1) and (2), Stats.

(b) The department may consider the following documentation in support of a claim in setting the amount of security required under s. 344.13, Stats., for a personal injury:

1. A certification of personal injury, completed by a person skilled in the evaluation of personal injuries.

Note: Form MV 3466—Evaluation of Personal Injuries.

2. A certification of loss of wages as a result of the accident based on written information provided by the claimant’s employer.

3. A computation of an amount sufficient to satisfy a court award for pain and suffering of the injured person. The department may consider the following factors when computing an amount for pain and suffering:

a. The location, permanency, and potential cost of cosmetic surgery of scars resulting from the accident.

b. The age of the injured person.

c. The occupation and lifestyle of the injured person, if the occupation or lifestyle of the injured person will be affected.

d. The duration and severity of pain, and degree of consciousness of the injured party.

e. The length and type of temporary or permanent disability.

f. The diagnosis of the injury.

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

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.

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

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.

Note: Form MV 3657—Evaluation of Property Damage.

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.

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

(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.

(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.

(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.

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).

(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:

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

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

1. The claim is filed one year or less after the accident.

2. No evaluation report was mailed to the person under sub. (2) (a).

3. The department has not suspended the uninsured person’s operating privilege.

4. The uninsured has not deposited security.

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 Security deposit.

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

(a) United States currency.

(b) A cashier’s check or draft.

(d) A financial institution check or draft.

(e) A certified personal or business check or draft.

(f) An attorney trust account check or draft.

(g) A surety bond.

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

(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.

(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.

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

(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.

(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:

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

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

(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.

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

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

(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.

(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.

(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.

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 Proof of operating without permission.

(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.

(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.

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).

(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.

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.

(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.

(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:

(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.

(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.

(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.

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).

(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.

(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.

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.

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 Hearing and suspension procedure.

(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.

(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.

(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.

(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.

(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.

(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.

(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.