Chapter 632

632.32 Annotation A reducing clause in an uninsured motorist provision was voided by former sub. (4) (a), 1979 stats. Nicholson v. Home Insurance Cos., 137 Wis. 2d 581, 405 N.W.2d 327 (1987).

632.32 Annotation Because uninsured motorist coverage is “personal and portable,” the claimant was covered by a policy on a vehicle not involved in the accident. Parks v. Waffle, 138 Wis. 2d 70, 405 N.W.2d 690 (Ct. App. 1987).

632.32 Annotation Loss of consortium is not a separate bodily injury under a policy’s “each person” limitation. Landsinger v. American Family Mutual Insurance Co., 142 Wis. 2d 138, 417 N.W.2d 899 (Ct. App. 1987).

632.32 Annotation An insurer could not avoid uninsured motorist coverage based on a policy provision excluding resident relatives who own their own car. Hulsey v. American Family Mutual Insurance Co., 142 Wis. 2d 639, 419 N.W.2d 288 (Ct. App. 1987).

632.32 Annotation A reducing clause and “regular use” exclusionary clause violated former sub. (4) (a), 1985 stats. Niemann v. Badger Mutual Insurance Co., 143 Wis. 2d 73, 420 N.W.2d 378 (Ct. App. 1988).

632.32 Annotation An auto insurer who pays under an uninsured motorist provision is not a tortfeasor or tortfeasor’s insurer against whom an injured insured’s medical insurer may assert a subrogation claim. Employers Health Insurance v. General Casualty Co. of Wisconsin, 161 Wis. 2d 937, 469 N.W.2d 172 (1991).

632.32 Annotation A policy may expand but not reduce uninsured motorist coverage. The policy, not the statute, determines coverage beyond the statutory requirements. Fletcher v. Aetna Casualty & Surety Co., 165 Wis. 2d 350, 477 N.W.2d 90 (Ct. App. 1991).

632.32 Annotation A policy cannot limit uninsured motorist coverage to occupants of vehicles. St. Paul Mercury Insurance Co. v. Zastrow, 166 Wis. 2d 423, 480 N.W.2d 8 (1992).

632.32 Annotation If the insurer of a vehicle becomes insolvent, the vehicle is uninsured under former sub. (4) (a) 2., 1987 stats., even though an insurance guaranty association assumes the liability of the insolvent insurer. Fritsche v. Ford Motor Credit Co., 171 Wis. 2d 280, 491 N.W.2d 119 (Ct. App. 1992).

632.32 Annotation To take advantage of sub. (5) (c), a policy must include language that either says permissive users are restricted to the minimum statutory limits of liability or that users may not avail themselves of the policy unless there is no other valid collectible insurance. Carrell v. Wolken, 173 Wis. 2d 426, 496 N.W.2d 651 (Ct. App. 1992). See also Henry v. General Casualty Co. of Wisconsin, 225 Wis. 2d 849, 593 N.W.2d 913 (Ct. App. 1999), 98-2428; Pemper v. Hoel, 2004 WI App 67, 271 Wis. 2d 442, 677 N.W.2d 705, 03-2134.

632.32 Annotation A reducing clause that is unavailable to a tortfeasor and seeks to reduce uninsured motorist benefits by amounts received under worker’s compensation is invalid. United Fire & Casualty Co. v. Kleppe, 174 Wis. 2d 637, 498 N.W.2d 226 (1993).

632.32 Annotation Adult members of a named insured’s household are capable of giving themselves permission to drive under sub. (5). When the named insured is a corporation and the insurer knows the vehicle is owned by a corporation employee, the owner will be treated as the named insured under sub. (5). Home Insurance Co. v. Phillips, 175 Wis. 2d 104, 499 N.W.2d 193 (Ct. App. 1993).

632.32 Annotation When a premium has been paid for underinsured motorist coverage under which no benefits may ever be paid due to the application of policy definitions, the coverage is illusory and against public policy. Hoglund v. Secura Insurance, 176 Wis. 2d 265, 500 N.W.2d 354 (Ct. App. 1993).

632.32 Annotation Despite policy restrictions to the contrary, under sub. (3) separate coverage must be provided to both a named insured and an additional insured when both are actively negligent. Iaquinta v. Allstate Insurance Co., 180 Wis. 2d 661, 510 N.W.2d 715 (Ct. App. 1993).

632.32 Annotation Former sub. (4) (a), 1991 stats., does not require the named insured in commercial fleet policies, if the named insured is a corporation or government entity, to be interpreted as including all of the entity’s employees. Meyer v. City of Amery, 185 Wis. 2d 537, 518 N.W.2d 296 (Ct. App. 1994).

632.32 Annotation The uninsured motorist coverage requirements of this section are inapplicable to self-insured entities under s. 344.16. Classified Insurance Co. v. Budget Rent-A-Car of Wisconsin, Inc., 186 Wis. 2d 478, 521 N.W.2d 177 (Ct. App. 1994).

632.32 Annotation Sub. (3) (a) does not apply to uninsured motorist coverage so that a permissive user is entitled to increased coverage limits purchased for specifically named persons not including the user. American Hardware Mutual Insurance Co. v. Steberger, 187 Wis. 2d 682, 523 N.W.2d 187 (Ct. App. 1994).

632.32 Annotation A medical insurer with subrogation rights may be an injured person under former sub. (4), 1991 stats. An auto insurance policy providing that uninsured motorist coverage does not apply to persons claiming by right of subrogation impermissibly reduces coverage that the statute mandates for injured persons. WEA Insurance Corp. v. Freiheit, 190 Wis. 2d 111, 527 N.W.2d 363 (Ct. App. 1994).

632.32 Annotation No policy issued pursuant to the ch. 344 financial responsibility statutes may exclude coverage for persons related by blood or marriage to the operator as mandated by sub. (6) (b) 1. Bindrim v. Colonial Insurance Co., 190 Wis. 2d 525, 527 N.W.2d 320 (1995).

632.32 Annotation This section does not prevent the exclusion of coverage of vehicles used solely on the insured’s premises. Rea v. Transportation Insurance Co., 191 Wis. 2d 271, 528 N.W.2d 79 (Ct. App. 1995).

632.32 Annotation This section does not distinguish between an owner and a named insurer. A policy that excludes coverage to the owner of a vehicle covered by the policy violates this section. Kettner v. Wausau Insurance Cos., 191 Wis. 2d 723, 530 N.W.2d 399 (Ct. App. 1995).

632.32 Annotation When an insurer defines uninsurance as including underinsurance, all case law concerning an insurer’s duties and limitations in an uninsurance situation apply. Kuhn v. Allstate Insurance Co., 193 Wis. 2d 50, 532 N.W.2d 124 (1995).

632.32 Annotation An uninsured motorist policy that restricted coverage to cases when the insured is “hit” or “struck” was void. A bite by a dog tied in a parked vehicle was the result of use of the vehicle and subject to coverage. Trampf v. Prudential Property & Casualty Co., 199 Wis. 2d 380, 544 N.W.2d 596 (Ct. App. 1996), 95-0264.

632.32 Annotation Under the subrogation provision of former sub. (4) (b), 1995 stats., there is no requirement that the insurer plead setoff or file a counterclaim in order to recover payments made to or on behalf of its insured. Jones v. Aetna Casualty & Surety Co., 212 Wis. 2d 165, 567 N.W.2d 904 (Ct. App. 1997), 96-1183.

632.32 Annotation When the named insured is a corporation, but the insurer knows the covered vehicles are owned by individuals and used by family members, this section does not distinguish between the owner of the vehicle and the named insured in determining coverage. Greene v. General Casualty Co. of Wisconsin, 216 Wis. 2d 152, 576 N.W.2d 56 (Ct. App. 1997), 96-2578.

632.32 Annotation Former sub. (4), 1993 stats., does not prohibit the application of a policy arbitration clause to a disputed claim under the policy’s uninsured motorist clause. Jones v. Poole, 217 Wis. 2d 116, 579 N.W.2d 739 (Ct. App. 1998), 97-1430.

632.32 Annotation Because a business operates under a variety of “d/b/a” designations and provides a spectrum of services, some of which qualify under sub. (5) (c) and some of which do not, does not operate to bar the coverage restrictions under that paragraph. That a policy names a “d/b/a” designation does not prevent looking to the entire legal entity to apply sub. (5) (c). Binon v. Great Northern Insurance Co., 218 Wis. 2d 26, 580 N.W.2d 370 (Ct. App. 1998), 97-0710.

632.32 Annotation Neither statutes nor case law expressly prohibit territorial limitations on uninsured motorist coverage. A clause restricting the territorial application of uninsured motorist coverage is valid. Clark v. American Family Mutual Insurance Co., 218 Wis. 2d 169, 577 N.W.2d 790 (1998), 97-0970.

632.32 Annotation No hit and run under former sub. (4) (a) 2. b., 1995 stats., occurred when the insured’s vehicle was struck by ice that dislodged from an unidentified truck as it passed. Dehnel v. State Farm Mutual Automobile Insurance Co., 231 Wis. 2d 14, 604 N.W.2d 575 (Ct. App. 1999), 98-3187.

632.32 Annotation Former sub. (4), 1997 stats., required uninsured motorist coverage when a detached piece of an unidentified motor vehicle was propelled into the insured’s motor vehicle by an unidentified motor vehicle. Theis v. Midwest Security Insurance Co., 2000 WI 15, 232 Wis. 2d 749, 606 N.W.2d 162, 98-2552.

632.32 Annotation Although only one parent was the named insured under an uninsured motorist insurance policy paying benefits for the wrongful death of their child, s. 895.04 required payment of the proceeds to both parents. The purpose of the coverage is to reimburse the victim. If the victim is deceased, the compensation must go to the victim’s survivors, not to other insureds. Bruflat v. Prudential Property & Casualty Insurance Co., 2000 WI App 69, 233 Wis. 2d 523, 608 N.W.2d 371, 99-2049.

632.32 Annotation Sub. (5) (j) allows “drive other car” exclusions in only very narrow and specific circumstances. It did not allow exclusion of uninsured motorist coverage for an insured injured while occupying a fire truck in the course of employment. Blazekovic v. City of Milwaukee, 2000 WI 41, 234 Wis. 2d 587, 610 N.W.2d 467, 98-1821. See also Nischke v. Aetna Health Plans, 2008 WI App 190, 314 Wis. 2d 774, 763 N.W.2d 554, 08-0807.

632.32 Annotation Neither sub. (6) nor s. 344.33 requires an automobile insurance policy to include motorcycle coverage. Beerbohm v. State Farm Mutual Automobile Insurance Co., 2000 WI App 105, 235 Wis. 2d 182, 612 N.W.2d 338, 99-1784.

632.32 Annotation No statute requires a self-insured entity under s. 344.16 to provide uninsured motorist coverage as part of the optional insurance it offers to its customers. Prophet v. Enterprise Rent-A-Car Co., 2000 WI App 171, 238 Wis. 2d 150, 617 N.W.2d 225, 99-0776.

632.32 Annotation A hit and run under former sub. (4) (a) 2. b., 1993 stats., requires: 1) an unidentified motor vehicle that; 2) is involved in a “hit;” and 3) “runs” from the accident scene. Physical contact must be present. A hit and run occurs when an unidentified vehicle hits an intermediate vehicle, propelling it into the insured vehicle. Smith v. General Casualty Insurance Co., 2000 WI 127, 239 Wis. 2d 646, 619 N.W.2d 882, 98-1849.

632.32 Annotation This section applies only to policies issued and delivered in Wisconsin. Danielson v. Gasper, 2001 WI App 12, 240 Wis. 2d 633, 623 N.W.2d 182, 00-0950.

632.32 Annotation When underinsured motorist coverage in the amount of $25,000 was contracted for in violation of the requirement for $50,000 coverage under former sub. (4m) (d), 1995 stats., the higher level of coverage was read into the policy under s. 631.15 (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.

632.32 Annotation The statute of limitations for subrogation claims under sub. (4) (a) 3. [now sub. (4) (c)] is the statute of limitations on the underlying tort. Schwittay v. Sheboygan Falls Mutual Ins. Co., 2001 WI App 140, 246 Wis. 2d 385, 630 N.W.2d 772, 00-2445.

632.32 Annotation Sub. (6) (a) was applicable to a general liability policy that contained an endorsement for non-owned liability coverage. Heritage Mutual Insurance Co. v. Wilber, 2001 WI App 247, 248 Wis. 2d 111, 635 N.W.2d 631, 01-0017.

632.32 Annotation An underinsured motorist provision that required the named insured to be an occupant of an insured vehicle violated sub. (6) (b) 2. a. because the occupancy requirement had the effect of excluding coverage for a named insured. Mau v. North Dakota Insurance Reserve Fund, 2001 WI 134, 248 Wis. 2d 1031, 637 N.W.2d 45, 00-1369. See also Ruenger v. Soodsma, 2005 WI App 79, 281 Wis. 2d 228, 695 N.W.2d 840, 04-1795.

632.32 Annotation An underinsured motorist provision that required the named insured to be an occupant of an insured vehicle was a “drive other car” exclusion under sub. (5) (j) because it had the effect of excluding coverage for a named insured not occupying the insured vehicle. Because the vehicle was a rental vehicle, it did not meet the requirement of sub. (5) (j) 1. that a vehicle subject to a permissible “drive other car” exclusion must be owned by a named insured or related party. Mau v. North Dakota Insurance Reserve Fund, 2001 WI 134, 248 Wis. 2d 1031, 637 N.W.2d 45, 00-1369.

632.32 Annotation For actions seeking coverage under an underinsured motorist policy, the statute of limitations begins to run from the date of loss, which is the date on which a final resolution is reached in the underlying claim against the tortfeasor, be it through denial of that claim, settlement, judgment, execution of releases, or other form of resolution, whichever is the latest. Yocherer v. Farmers Insurance Exchange, 2002 WI 41, 252 Wis. 2d 114, 643 N.W.2d 457, 00-0944.

632.32 Annotation Sub. (3) (b) does not extend policy-limits protection to both the tortfeasor and the person or persons vicariously liable for the tortfeasor’s wrongdoing. A person to whom the negligence of another is imputed is not entitled to separate liability coverage. Folkman v. Quamme, 2003 WI 116, 264 Wis. 2d 617, 665 N.W.2d 857, 02-0261.

632.32 Annotation Sub. (6) (b) 2. a. only prohibits excluding coverage for certain individuals relating to the insured vehicle. An exclusion barring coverage for a non-owned vehicle is not prohibited. Gulmire v. St. Paul Fire & Marine Insurance Co., 2004 WI App 18, 269 Wis. 2d 501, 674 N.W.2d 629, 03-1199.

632.32 Annotation A self-insured city is not an insurer writing policies subject to former sub. (4m) (a) 1., 1999 stats., and is not subject to the requirement to provide underinsured motorist coverage. Van Erden v. Sobczak, 2004 WI App 40, 271 Wis. 2d 163, 677 N.W.2d 718, 02-1595.

632.32 Annotation Sub. (3) extended coverage under an umbrella policy with an endorsement covering vehicles of the policy owners’ daughter to include liability for an accident involving the daughter’s car while being driven by a third party with the daughter’s permission. Dorbritz v. American Family Mutual Insurance Co., 2005 WI App 154, 284 Wis. 2d 442, 702 N.W.2d 406, 04-1896.

632.32 Annotation Sub. (3) (a) mandates that, except as provided in sub. (5), coverage provided to the named insured must apply in the same manner and under the same provisions to any person riding in any motor vehicle described in the policy. Sub. (3) (a) applies to uninsured motorist coverage, regardless of whether that coverage is categorized as liability or indemnity insurance. An insurer cannot cast its “other insurance” clause as an “exclusion” under sub. (5) (e) in order to save the clause from the requirements of sub. (3) (a). An “other insurance” clause that operated so that the policy provided primary coverage for a named insured while providing only excess coverage for an occupancy insured violated sub. (3) (a). Progressive Northern Insurance Co. v. Hall, 2006 WI 13, 288 Wis. 2d 282, 709 N.W.2d 46, 04-0688.

632.32 Annotation Neither sub. (3) (a) or (b) requires an insurance policy to provide separate limits of liability to both a person permissively using the covered vehicle and the named insured who is liable by statute for imputed negligence as a sponsor for a minor’s driver license, for the minor’s negligent operation of a vehicle. LaCount v. General Casualty Co. of Wisconsin, 2006 WI 14, 288 Wis. 2d 358, 709 N.W.2d 418, 03-3258.

632.32 Annotation A full-service car wash where vehicles are serviced and driven by employees is a service station and therefore a statutory motor vehicle handler under sub. (2) (b). Rocker v. USAA Casualty Insurance Co., 2006 WI 26, 289 Wis. 2d 294, 711 N.W.2d 634, 04-0356.

632.32 Annotation The broad scope of this entire section is dependent upon whether a policy includes motor vehicle coverage, but each subsection can include provisions that exempt certain coverages from the scope as defined in sub. (1). An insurer cannot reduce the scope of this section simply because the motor vehicle coverage is issued as part of a comprehensive insurance policy. This section can apply despite the fact that an insurer’s policy excludes coverage for any vehicles owned by the insured, and no vehicles are specifically described in the policy. Under sub. (1), sub. (6) (a) applies to a policy that provides liability coverage for customers’ automobiles while on or next to the premises. Rocker v. USAA Casualty Insurance Co., 2006 WI 26, 289 Wis. 2d 294, 711 N.W.2d 634, 04-0356.

632.32 Annotation Sub. (6) (b) 1. applies to underinsured motorist coverage when issued as part of a policy containing liability insurance. Vieau v. American Family Mutual Insurance Co., 2006 WI 31, 289 Wis. 2d 552, 712 N.W.2d 661, 04-1358.

632.32 Annotation When a tortfeasor injures more than one person in a single occurrence and the injured persons are not insured under the same underinsured motorist (UIM) policy, a definition of an underinsured motor vehicle that compares the injured person’s UIM limits to the limits of a tortfeasor’s liability policy without regard to the amount the injured person actually receives from the tortfeasor’s insurer is invalid under sub. (4m) [repealed 2009 Wis. Act 28, reenacted 2011 Wis. Act 14] and sub. (5) (i). A UIM policy must provide a fixed level of UIM recovery that will be arrived at by combining payments made from all sources. Welin v. American Family Mutual Insurance Co., 2006 WI 81, 292 Wis. 2d 73, 717 N.W.2d 690, 04-1513.

632.32 Annotation Former sub. (5) (i) 2., 2001 stats., does not allow an insurer to reduce uninsured motorist policy limits by worker’s compensation payments that are not made to or on the behalf of the insured, the insured’s heirs, or the insured’s estate. Teschendorf v. State Farm Insurance Cos., 2006 WI 89, 293 Wis. 2d 123, 717 N.W.2d 258, 03-3521.

632.32 Annotation The physical contact element for a hit-and-run accident under former sub. (4) (a) 2. b., 2005 stats., requires: 1) a hit by the unidentified motor vehicle, or a part thereof; and 2) a hit to the insured’s vehicle by another vehicle or part thereof, but not necessarily by the unidentified vehicle. DeHart v. Wisconsin Mutual Insurance Co., 2007 WI 91, 302 Wis. 2d 564, 734 N.W.2d 394, 05-2962.

632.32 Annotation Meyer, 185 Wis. 2d 537 (1994), instructs that a limitation on uninsured motorist (UM) coverage under a commercial policy does not violate former sub. (4) (a), 2007 stats., as long as the restriction does not apply to the purchaser or policyholder, but only to its employees. There is nothing to indicate that the legislature sought to require UM coverage for employees under commercial fleet policies, whether the absence of coverage arises from the definition of the named insured, which did not include employees, or from the definition of “covered autos,” which did not include employees’ nonowned autos. Mittnacht v. St. Paul Fire & Casualty Insurance Co., 2009 WI App 51, 316 Wis. 2d 787, 767 N.W.2d 301, 08-1036.

632.32 Annotation “Motor vehicle described in the policy” under sub. (3) is not read to require the importation of a separate and broader definition of “covered auto” from a policy’s liability insuring agreement into the policy’s uninsured motorist insuring agreement. Mittnacht v. St. Paul Fire & Casualty Insurance Co., 2009 WI App 51, 316 Wis. 2d 787, 767 N.W.2d 301, 08-1036.

632.32 Annotation This section did not extend coverage to a rental car: 1) that the driver was not authorized to drive; 2) that the driver took without the express permission of either the owner of the car or the lessee of the car; 3) when the named insured in the insurance policy under which coverage was sought was not the owner of the car involved in the accident; and 4) when the adult resident who crashed the car was not a named insured under the insurance policy at issue. For the omnibus statute to require coverage, two factors must be met: 1) the rental vehicle must be a “motor vehicle described in the policy”; and 2) the use of the rental vehicle must be “for purposes and in the manner described in the policy.” Neither fact was present. Venerable v. Adams, 2009 WI App 76, 318 Wis. 2d 784, 767 N.W.2d 386, 08-2188.

632.32 Annotation Former sub. (4), 2007 stats., requires coverage when a detached piece of an unidentified motor vehicle is propelled into the insured’s motor vehicle by an identified motor vehicle. There need not be first a “hit” and then a “run” for uninsured coverage. All that is required is that there be both a “hit” and a “run,” namely, a hit resulting from something done by the unidentified vehicle, in any sequence. Tomson v. American Family Mutual Insurance Co., 2009 WI App 150, 321 Wis. 2d 492, 775 N.W.2d 541, 08-2744.

632.32 Annotation A car-rental company issued a certificate of self-insurance under s. 344.16 and subject to liability limits under ss. 344.01 (2) (d) and 344.51 was not a self-insurer for purposes of an underinsured motorist clause that excluded coverage for a vehicle owned or operated by a “self-insurer.” Bethke v. Auto-Owners Insurance Co., 2013 WI 16, 345 Wis. 2d 533, 825 N.W.2d 482, 10-3153.

632.32 Annotation During the two-year period when both former subs. (5) (j) and (6) (d), 2009 stats., authorizing certain “drive other car” exclusions and prohibiting antistacking provisions in uninsured motorist (UM) coverage were in force, “drive other car” exclusions could not prevent stacking of UM coverage limits for up to three vehicles owned by the same insured. Belding v. Demoulin, 2013 WI App 26, 346 Wis. 2d 160, 828 N.W.2d 890, 12-0829.

632.32 Annotation Affirmed. 2014 WI 8, 352 Wis. 2d 359, 843 N.W.2d 373, 12-0829.

632.32 Annotation When the insurer in this case: 1) required its insured to maintain a liability policy to receive coverage under an excess policy; 2) granted all permissive users coverage in its “Wisconsin Endorsement;” and then 3) excluded all those same permissive users from coverage based upon coverage under the liability policy under an other-insurance clause, it violated sub. (5) (c) and rendered the Wisconsin Endorsement illusory. Hernandez v. Liberty Mutual Insurance Co., 2014 WI App 36, 353 Wis. 2d 730, 844 N.W.2d 657, 13-1286.

632.32 Annotation A person getting ready to direct a driver where to go is not using the vehicle. In determining who constitutes a user of a vehicle for the purposes of an omnibus clause, it is generally required that if one who claims to be a user is not actually driving the vehicle, that individual must exercise some form of control over it. Jackson v. Wisconsin County Mutual Insurance Corp., 2014 WI 36, 354 Wis. 2d 327, 847 N.W.2d 384, 12-1644.

632.32 Annotation The common law definition of intra-policy stacking requiring a separate premium attributable to each vehicle in an insurance policy was applicable to sub. (6) (d) as it existed between 2009 and 2011. Bodish v. West Bend Mutual Insurance Co., 2014 WI App 78, 355 Wis. 2d 392, 851 N.W.2d 811, 13-1659.

632.32 Annotation As used in former sub. (2) (d), 2009 stats., the phrase “legally entitled to recover” means recovery that exceeds what insureds can actually recover from tortfeasors. The phrase does not thwart underinsured motorist coverage for an insured who has not been fully compensated for the insured’s damages when the amount of damages the insured could actually recover from a tortfeasor is capped by statute. State Farm Mutual Automobile Insurance Co. v. Hunt, 2014 WI App 115, 358 Wis. 2d 379, 856 N.W.2d 633, 13-2518.

632.32 Annotation An exclusion of passengers of an insured’s vehicle from a policy’s underinsured motorist coverage when the insured driver was at fault and was operating a vehicle insured by the policy’s liability coverage, although potentially in violation of sub. (6) (b) 2., was enforceable under the savings provision in sub. (5) (e) that exclusions are effective even if incidentally to their main purpose they exclude persons, uses, or coverages that could not be directly excluded under sub. (6) (b). Pierce v. Mid-Century Insurance Co., 2016 WI App 79, 372 Wis. 2d 171, 887 N.W.2d 115, 15-2408.

632.32 Annotation The requirements of sub. (3), the omnibus statute, are imputed to every policy and supersede contrary policy terms, including policy language purporting to limit the insurer’s per-accident liability to a fixed amount. Thom v. 1st Auto & Casualty Insurance Co., 2021 WI App 33, 398 Wis. 2d 273, 961 N.W.2d 79, 20-0285.

632.32 Annotation The purpose of sub. (3), the omnibus statute, is to make sure that insurance coverage obtained for “a vehicle listed in the policy” also provides coverage for individuals who use it with permission and are responsible for using it. Thus, it is sometimes said that the omnibus statute prohibits insurance companies from insuring only certain drivers, and that omnibus coverage follows the vehicle. Thom v. 1st Auto & Casualty Insurance Co., 2021 WI App 33, 398 Wis. 2d 273, 961 N.W.2d 79, 20-0285.

632.32 Annotation A vehicle is “described in a policy” if it is listed on the insurance application or on the policy’s declarations page or if it is otherwise “covered” under the policy. In this case, it was undisputed that a vehicle owned by a third party and involved in the accident was not listed in the insureds’ insurance application or the declarations page of the insurance policy, and the vehicle did not fit within the policy’s definition of “your covered auto.” The policy language provided that the insurer would insure the insureds’ “use of any auto,” which meant that the insurer would pay liability incurred by the insureds, no matter what vehicles they drove. In other words, the insurer could not deny coverage to an insured individual on the ground that the insured individual was driving a vehicle that was not “your covered auto.” No reasonable insured would read this definition to mean that the third party’s vehicle the insured individual drove was itself “covered” under the policy. Thom v. 1st Auto & Casualty Insurance Co., 2021 WI App 33, 398 Wis. 2d 273, 961 N.W.2d 79, 20-0285.

632.32 Annotation To determine whether an injury arose from the “use” of a vehicle, the court must ascertain whether the injury-causing activity is within the risk for which the parties reasonably contemplated coverage by asking whether the activity is reasonably consistent with the inherent nature of the vehicle. In this case, when the defendant sexually assaulted the insured inside the cab of the defendant’s pickup truck and on the truck’s tailgate, the defendant was not using the truck as a vehicle. The sexual assault was not related to the truck’s inherent use as a means of transportation, and it was not a reasonable and natural consequence of that inherent use. The fact that the injurious conduct occurred inside the vehicle was not sufficient to transform that conduct into a “use” of the vehicle for purposes of insurance coverage. 1st Auto & Casualty Insurance Co. v. R.P., 2021 WI App 66, 399 Wis. 2d 335, 965 N.W.2d 460, 20-1745.

632.32 Annotation An insurance company is only permitted to reduce its coverage limits under sub. (5) (i) 2. and its underinsured motorist’s insurance policy by the total amount of worker’s compensation actually received by the insured’s estate. In this case, the estate was obligated by s. 102.29 (1) (b) to refund the worker’s compensation insurer a portion of the settlement amount with the tortfeasor; under the statute, the estate was not paid the amount the estate paid back. Secura Supreme Insurance Co. v. Estate of Huck, 2021 WI App 69, 399 Wis. 2d 542, 966 N.W.2d 124, 20-1078.

632.32 Annotation Affirmed on other grounds. 2023 WI 21, 406 Wis. 2d 297, 986 N.W.2d 810, 20-1078.

632.32 Annotation Sub. (2) (d) does not bar an insurer from requiring that an insured sustain bodily injury or death in order to trigger underinsured motorist (UIM) coverage under an automobile liability insurance policy. UIM insurance protects the insured accident victim, conditioning coverage on a nexus between the insured and the bodily injury or death suffered. Nothing in sub. (2) (d) precludes insurers from affording coverage to only those insureds who are injured in an auto accident. Brey v. State Farm Mutual Automobile Insurance Co., 2022 WI 7, 400 Wis. 2d 417, 970 N.W.2d 1, 19-1320.

632.32 Annotation You Get What You Pay For: Why Wisconsin Should Adopt Uninsured and Underinsured Motorist Stacking Waivers. Kempke. 2016 WLR 411.

632.32 Annotation Uninsured motorists coverage: Wisconsin courts open up additional avenues of recovery. Dunphy. WBB Nov. 1982.

632.32 Annotation Politics & Wisconsin Automobile Insurance Law. Jaskulski. Wis. Law. Nov. 2010.

632.32 Annotation Wisconsin’s New Automobile Insurance Law. End. Wis. Law. Oct. 2011.

632.34 632.34 Defense of noncooperation. If a policy of automobile liability insurance provides a defense to the insurer for lack of cooperation on the part of the insured, the defense is not effective against a 3rd person making a claim against the insurer unless there was collusion between the 3rd person and the insured or unless the claimant was a passenger in or on the insured vehicle. If the defense is not effective against the claimant, after payment the insurer is subrogated to the injured person’s claim against the insured to the extent of the payment and is entitled to reimbursement by the insured.

632.34 History History: 1975 c. 375, 421; 1979 c. 102, 104, 177.

632.34 Annotation Legislative Council Note, 1979: This provision is continued from former s. 632.34 (8). It is changed from a required provision of the policy to a rule of law. It is not the kind of rule that needs to be put in the policy to inform the policyholder. Indeed, the policyholder should receive no encouragement to fail to cooperate. This is a relaxation of present law. [Bill 146-S]

632.34 Annotation Prejudice is not a component of the defense of noncooperation. Schaefer v. Northern Assurance Co. of America, 182 Wis. 2d 148, 513 N.W.2d 615 (Ct. App. 1994).

632.34 Annotation In Schaefer, 182 Wis. 2d 148 (1994), the Wisconsin Court of Appeals confirmed that this section had abrogated the common-law requirement of prejudice in non-cooperation cases, but this was true only for cases involving automobiles, to which this section expressly applies. Welton Enterprises, Inc. v. Cincinnati Insurance Co., 131 F. Supp. 3d 827 (2015).

632.35 632.35 Prohibited rejection, cancellation and nonrenewal. No insurer may cancel or refuse to issue or renew an automobile insurance policy wholly or partially because of one or more of the following characteristics of any person: age, sex, residence, race, color, creed, religion, national origin, ancestry, marital status or occupation.

632.35 History History: 1975 c. 375; 1979 c. 102.

632.36 632.36 Accident in the course of business or employment.

632.36(1) (1) Rate and other terms. An insurer may increase or charge a higher rate for a motor vehicle liability insurance policy issued or renewed on or after April 16, 1982, on the basis of an accident which occurs while the insured is operating a motor vehicle in the course of the insured’s business or employment, only if the policy covers the insured for liability arising in the course of the insured’s business or employment. An insurer may issue or renew a motor vehicle liability insurance policy on or after November 1, 1989, on terms that are less favorable to the insured than would otherwise be offered, including but not limited to the rate, because of an accident which occurs while the insured is operating a motor vehicle in the course of the insured’s business or employment, only if the policy covers the insured for liability arising in the course of the insured’s business or employment.

632.36(2) (2) Cancellation or nonrenewal. An insurer may cancel a motor vehicle liability insurance policy that is issued or renewed on or after November 1, 1989, or refuse to renew a motor vehicle liability insurance policy on or after November 1, 1989, on the basis of an accident which occurs while the insured is operating a motor vehicle in the course of the insured’s business or employment, only if the policy covers the insured for liability arising in the course of the insured’s business or employment.

632.36 History History: 1981 c. 178; 1989 a. 31.

632.365 632.365 Use of emission inspection data in setting rates. An insurer may not use odometer reading data collected in the course of an inspection under s. 110.20 (6) or (7) as a factor in setting rates or premiums for a motor vehicle liability insurance policy or as a factor in altering rates or premiums during the term, or at renewal, of such a policy. However, an insurer may use such data as a basis for investigation into the number of miles that the motor vehicle is normally driven.