631.11(4m)(a)(a) 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.

631.11(4m)(b)(b) 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.

631.11 AnnotationIf 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 Insurance Co., 80 Wis. 2d 353, 259 N.W.2d 75 (1977).

631.11 AnnotationAn 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).

631.11 AnnotationThird 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 (1983).

631.11 AnnotationSub. (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).

631.11 AnnotationIn 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.

631.11 AnnotationSub. (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 Insurance Society, 2003 WI 87, 263 Wis. 2d 207, 665 N.W.2d 181, 01-1469.

631.11 AnnotationThis 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 Insurance Co. v. Bateman, 2006 WI App 251, 297 Wis. 2d 828, 726 N.W.2d 678, 05-2219.

631.11 AnnotationSub. (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, 05-3049.

631.11 AnnotationThe term “promissory warranty” under sub. (3) is generally understood to mean a warranty that facts will continue to be as stated throughout the policy period, such that a failure of the warranty provides the insurer with a defense to a claim under the policy or a “continuing warranty.” Promissory warranties in insurance policies generally pertain to commitments by insureds designed to minimize the risk of loss. Obviously, minimizing a risk of loss can only occur prior to the loss. It is nonsensical to suggest that provisions dealing with post-loss adjustment fall into such a category. Kemper Independence Insurance Co. v. Islami, 2020 WI App 38, 392 Wis. 2d 866, 946 N.W.2d 231, 19-0488.

631.11 AnnotationIn this case, the business-use clause in the homeowner’s policy was written as an exclusion, not a warranty or a condition, so sub. (3) did not apply to the business-use clause. The terms “warranty” and “condition” do not necessarily encompass any use restriction on a property. Kutchera v. State Farm Fire & Casualty Co., 560 F. Supp. 3d 1242 (2021).

631.11 AnnotationSub. (3) only applies to conditions subsequent. While conditions subsequent and warranties provide for the avoidance of liability for a covered loss if they are breached, exclusions declare that there never was coverage for a particular loss in the first place. In this case, the policy’s medical-certificate requirement was not a condition subsequent; it was an exclusion of coverage in cases in which the requirement was not satisfied. Thus, sub. (3) had no application to the case. Jadair International, Inc. v. American National Property & Casualty Co., 77 F.4th 546 (2023).

631.13631.13 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:

631.13(2)(2) Complex contracts. 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.

631.15(4)(4) 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.

631.15 AnnotationWhen underinsured motorist coverage in the amount of $25,000 was contracted for in violation of the requirement for $50,000 coverage under former s. 632.32 (4m) (d), 1995 stats., 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, 98-3002.