In no event may an insurer be liable under a policy subject to ss. 632.10
for any amount greater than the lesser of the final settlement or the limits of liability set out in the policy.
Immunity for insurer.
No cause of action may arise against and no liability may be imposed upon an insurer or an agent or employee of an insurer for paying, withholding or transferring all or any portion of a final settlement as provided in ss. 632.10
Procedure for payment of withheld funds. 632.103(1)(a)
To qualify for reimbursement of expenses under sub. (2)
, the 1st class city must do any of the following:
Commence proceedings under s. 66.0413
or under a local ordinance relating to demolition or abatement of nuisances, with respect to the building or other structure for which the funds are withheld.
Obtain a release signed by the named insured consenting to demolition of the building or other structure with respect to which the funds are withheld.
The 1st class city shall commence proceedings under par. (a) 1.
or obtain the release under par. (a) 2.
after the occurrence of the loss to the building or other structure by fire or explosion but within 90 days after delivery of the notice of withholding under s. 632.102 (3)
When proceedings described in par. (a) 1.
are commenced, the 1st class city shall notify, in writing, the insurer, the named insured and any mortgagee or other lienholder identified in the notice of withholding under s. 632.102 (3) (b) 2.
that the proceedings are commenced.
The 1st class city shall release all interest in the amount withheld under s. 632.102 (2)
and the insurer shall promptly pay that amount to the named insured and other interests named in the policy if any of the following occurs:
The 1st class city fails to commence proceedings described in par. (a) 1.
or obtain a release described in par. (a) 2.
within the period provided in par. (b)
The 1st class city fails to notify the insurer as provided in par. (c)
If the 1st class city satisfies sub. (1) (a)
and, if applicable, notifies the insurer as required in sub. (1) (c)
, the insurer shall promptly upon receiving the statement under par. (b)
deliver to the 1st class city funds withheld from the named insured's final settlement under s. 632.102 (2)
, to the extent necessary to reimburse the 1st class city for any of the following expenses:
Costs incurred in the course of enforcing ss. 66.0413
or a local ordinance relating to demolition, with respect to the building or other structure for which the funds are withheld.
Costs incurred in acting in accordance with a release signed by the named insured consenting to demolition of the building or other structure with respect to which the funds are withheld.
Costs incurred in abating a public nuisance under s. 254.595
or under a local ordinance relating to abating a public nuisance, with respect to the building or other structure for which the funds are withheld.
Reasonable administrative expenses incurred in connection with activities described in subds. 1.
, including but not limited to expenses for inspection, clerical, supervisory and attorney services.
The insurer may not release any withheld funds to the 1st class city under par. (a)
unless the 1st class city delivers to the insurer and the named insured an itemized statement of the actual costs incurred under par. (a) 1.
The insurer shall promptly deliver to the named insured and other interests named in the policy any portion of the withheld funds that are not released to the 1st class city under par. (a)
Release to named insured.
Except as provided in sub. (2)
, the insurer shall promptly deliver to the named insured and other interests named in the policy the funds withheld from the named insured's final settlement under s. 632.102 (2)
if the 1st class city delivers a notice to the insurer that the building inspection official of the 1st class city, or other person who is authorized by the 1st class city's governing body to represent the 1st class city, has inspected the insured real property and verifies any of the following:
That the damaged or destroyed portions of the building or other structure with respect to which the funds are withheld have been repaired or replaced in compliance with applicable building and safety standards, except to the extent that the withheld funds are needed to complete repair or replacement.
That the damaged or destroyed building or other structure with respect to which the funds are withheld and all remnants of the building or other structure have been removed from the land on which the building or other structure was situated and the site has been restored to a dust-free and erosion-free condition in compliance with applicable building and safety standards.
Funds released to mortgagee. 632.104(1)(1)
First mortgage in default.
The insurer shall release to a mortgagee funds withheld under s. 632.102
, in an amount and within the period provided in sub. (2)
, if all of the following conditions are satisfied:
The mortgagee holds a first mortgage on the real property with respect to which the funds are being withheld, and the mortgage is in default.
The mortgage was executed before March 1, 1991.
The mortgagee delivers to the insurer a written request for release of the funds within 15 days after delivery of the notice of withholding under s. 632.102 (3)
Amount released; timing.
If sub. (1)
is satisfied, the insurer shall release to the mortgagee all or any portion of the funds withheld with respect to the mortgaged property as is necessary to satisfy an outstanding first lien mortgage of the mortgagee. The insurer shall release the funds within 10 days after receiving the request under sub. (1) (c)
History: 1989 a. 347
Bonds need not be under seal.
No suretyship obligation need be under seal unless a seal is required by the applicable federal law or law of another jurisdiction.
History: 1975 c. 375
Validity of surety bonds. 632.17(1)(1)
Failure to file certificate.
No instrument executed by an insurer authorized to do a surety business is ineffective because of failure to file the certificate of its authority to do business in this state or a certified copy thereof; but the officer with whom any instrument so executed has been filed or any person who might claim the benefit thereof may by written notice require the person filing the instrument to have a certified copy of the certificate of authority filed with the officer, and unless the copy is filed within 8 days after receipt of the notice the instrument does not satisfy the requirement that the instrument be supplied.
Satisfaction of obligations to provide surety.
An undertaking in appropriate terms issued by an insurer authorized to do a surety business satisfies and is complete compliance with any authorization or requirement in the law of this state respecting surety bonds, undertakings or other similar obligations, and shall be accepted as such by any official authorized to receive or empowered to require such an undertaking, subject to sub. (1)
History: 1975 c. 375
Rustproofing warranties insurance.
A policy of insurance to cover a warranty, as defined in s. 100.205 (1) (g)
, shall fully cover the financial integrity of the warranty.
History: 1985 a. 29
Vehicle protection product warranty insurance policy. 632.185(2)
A warranty reimbursement insurance policy that is issued, sold, or offered for sale in this state shall meet all of the following conditions:
The policy is issued by an insurer authorized to do business in this state.
The policy states that the issuer of the policy will reimburse or pay on behalf of the warrantor all covered sums that the warrantor is legally obligated to pay or will provide the service that the warrantor is legally obligated to perform according to the warrantor's contractual obligations under the provisions of the insured warranties sold by the warrantor.
The policy states that if the warrantor does not provide payment due under the terms of the warranty within 60 days after the warranty holder has filed proof of loss according to the terms of the warranty, the warranty holder may file for a reimbursement directly with the issuer of the warranty reimbursement insurance policy.
The policy provides that the issuer of the warranty reimbursement insurance policy has received payment of the premium if the warranty holder paid for the vehicle protection product covered under the insured warranty and that the insurer's liability under the policy may not be reduced or relieved by a failure of the warrantor to report to the insurer the issuance of a warranty.
The policy contains the following provisions regarding cancellation:
The policy may not be canceled by the issuer until a written notice of cancellation has been mailed or delivered to the commissioner and the insured warrantor.
The cancellation of the policy does not reduce the issuer's responsibility with respect to warranties that apply to vehicle protection products sold prior to the date of cancellation.
If the warrantor has filed the policy with the commissioner and the issuer cancels the policy, the warrantor shall do one of the following:
File a copy of a new policy with the commissioner, before the termination of the prior policy, providing no lapse in coverage following the termination of the prior policy.
Discontinue acting as a warrantor as of the termination date of the policy until a new policy becomes effective and the commissioner accepts it.
History: 2003 a. 302
See also ch. Ins 14
, Wis. adm. code.
LIABILITY INSURANCE IN GENERAL
Required provisions of liability insurance policies.
Every liability insurance policy shall provide that the bankruptcy or insolvency of the insured shall not diminish any liability of the insurer to 3rd parties and that if execution against the insured is returned unsatisfied, an action may be maintained against the insurer to the extent that the liability is covered by the policy.
History: 1975 c. 375
Prohibited exclusions in aircraft insurance policies.
No policy covering any liability arising out of the ownership, maintenance or use of an aircraft, may exclude or deny coverage because the aircraft is operated in violation of air regulation, whether derived from federal or state law or local ordinance.
History: 1975 c. 375
Direct action against insurer.
Any bond or policy of insurance covering liability to others for negligence makes the insurer liable, up to the amounts stated in the bond or policy, to the persons entitled to recover against the insured for the death of any person or for injury to persons or property, irrespective of whether the liability is presently established or is contingent and to become fixed or certain by final judgment against the insured.
History: 1975 c. 375
An excess-of-policy coverage clause in a reinsurance agreement constituted a liability insurance contract insuring against tortious failure to settle a claim. Ott v. All-Star Ins. Corp., 99 Wis. 2d 635
, 299 N.W.2d 839
Recovery limitations applicable to an insured municipality likewise applied to its insurer, notwithstanding higher policy limits and s. 632.24. Gonzalez v. City of Franklin, 137 Wis. 2d 109
, 430 N.W.2d 747
Insurers must plead and prove their policy limits prior to a verdict in order to restrict the judgment to the policy limits. Price v. Hart, 166 Wis. 2d 182
, 480 N.W.2d 249
(Ct. App. 1991).
This section does not apply to actions in which the principal on a bond under s. 344.36 causes injury. That section requires obtaining a judgment against the principal before an action may be brought against the surety. Vansguard v. Progressive Northern Insurance Co., 188 Wis. 2d 584
, 525 N.W.2d 146
(Ct. App. 1994).
There is neither a statutory nor a constitutional right to have all parties identified to a jury, but as a procedural rule, the court should in all cases apprise the jurors of the names of all the parties. Stoppleworth v. Refuse Hideway, Inc., 200 Wis. 2d 512
, 546 N.W.2d 870
(Ct. App. 1996), 93-3182
The insured stands in privity with the insurer under this section. There is but one wrong and but one cause of action. When liability cannot be imposed upon one, none can be imposed upon the other. Plaintiff's cashing of the defendant's insurer's settlement check demonstrated an accord and satisfaction of claims against the insured although the insured had not been named in the action. Parsons v. American Family Insurance Co., 2007 WI App 211
, 305 Wis. 2d 630
, 740 N.W.2d 399
This section does not speak to whether the timely answer of an insured denying liability may inure to the benefit of a defaulting insurance company so as to preclude a judgment by default against it for the plaintiff's damages. The timely answer of the codefendant insureds denying the liability of all defendants did not preclude default judgment against the insurer on the issue of liability and damages upon the insurer's acknowledged default. Estate of Otto v. Physicians Insurance Company of Wisconsin, Inc., 2008 WI 78
, 311 Wis. 2d 84
, 751 N.W.2d 805
This section applies to any policy of insurance covering liability, irrespective of whether that policy was delivered or issued for delivery in Wisconsin, so long as the accident or injury occurs in this state. Casper v. American International South Insurance Co., 2011 WI 81
, 336 Wis. 2d 267
, 800 N.W.2d 880
This section does not mandate a pro rata distribution of the policy limits among all claimants. The statute is silent as to how the policy limit is to be distributed. Until such time as there was a verdict in this case, policy limits paid into court were not subject to the circuit court's control and neither the direct action statute nor Wisconsin case law required the court to distribute its policy limits in settlement on a pro rata basis. Lovelien v. Austin Mutual Insurance Co., 2018 WI App 4
, 379 Wis. 2d 733
, 906 N.W.2d 728
The direct action statute generally endeavors to save litigation and reduce expense by determining the rights of all parties in a single action involving the insurance carrier, to expedite the final settlement of litigation and payment to the injured person, and to place the burden on the insurer to pay damages sustained by a person as a result of the insured's causal negligence. However, when an injured party pursues claims for damages arising out of an accident directly against an insured's liability insurer under this section without the insured being made a party to that action, claim preclusion does not bar the insured from pursuing a negligence claim in a subsequent lawsuit against the injured party. Hull v. Glewwe, 2019 WI App 27
, 388 Wis. 2d 90
, 931 N.W.2d 266
The federal compulsory counterclaim rule precluded an action against an insurer under the state direct action statute when an action directly against the insured was barred by rule. Fagnan v. Great Central Ins. Co., 577 F.2d 418
A breach of fiduciary duty was negligence for purposes of Wisconsin's direct action and direct liability statutes. Federal Deposit Insurance Co. v. MGIC Indemnity Corp., 462 F. Supp. 759
An insurer's failure to join in an insured motorist's petition to remove the case to federal court necessitated a remand to state court. Padden v. Gallaher, 513 F. Supp. 770
Limited effect of conditions in employer's liability policies.
Any condition in an employer's liability policy requiring compliance by the insured with rules concerning the safety of persons shall be limited in its effect in such a way that in the event of breach by the insured the insurer shall nevertheless be responsible to the injured person under s. 632.24
as if the condition has not been breached, but shall be subrogated to the injured person's claim against the insured and be entitled to reimbursement by the latter.
History: 1975 c. 375
“Condition" as used in this section does not refer to exclusion. Bortz v. Merrimac Mutual Insurance Co. 92 Wis. 2d 865
, 286 N.W.2d 16
(Ct. App. 1979).
Notice provisions. 632.26(1)(1)
Every liability insurance policy shall provide: