Shugarts v. Mohr
Shugarts v. Mohr
Opinion of the Court
¶ 1.
Robert H. Shugarts, II, was injured in an automobile accident. More than four years after the accident and over one year after commencing a lawsuit against the other driver and that driver's insurer, Shugarts wrote to his underinsured motorist (UIM) carrier, Allstate Property and Casualty Insurance Company, notifying it of an underinsured motorist claim arising from the accident. The circuit court ultimately granted Allstate summary judgment, concluding as a matter of law that Shugarts failed to provide Allstate with timely notice of his UIM claim, and that Shugarts had not rebutted the presumption that Allstate was prejudiced by the untimely notice. We agree with the circuit court's conclusions. We therefore affirm the judgment dismissing Shugarts' UIM claim against Allstate.
BACKGROUND
1 2. Shugarts was employed as a deputy sheriff in Eau Claire County. On October 11, 2010, Shugarts was injured when his squad car was struck by a vehicle driven by Dennis Mohr. At the time of the accident, Mohr's vehicle was insured by Progressive Casualty Insurance Company. Shugarts' county-owned squad
¶ 3. In November 2011, Shugarts retained an attorney and sent a notice of retainer to Progressive. Progressive denied coverage in January 2012, asserting its policy excluded coverage for Shugarts' claim because Mohr intentionally struck Shugarts
¶ 4. As a result, Shugarts commenced the instant lawsuit against Mohr and Progressive in June 2013. Although Progressive continued to deny coverage, in August 2013, it offered Shugarts $10,000 to settle the case. At that point, Progressive also provided a Declarations Page indicating Mohr's policy had a bodily injury liability limit of $50,000 per person.
¶ 5. In July 2014, Shugarts filed a second amended summons and third amended complaint, naming WMMIC as a defendant. Shugarts alleged WMMIC was "liable for . . . underinsured motorist coverage arising out of the operation of' Shugarts' squad car. WMMIC moved to dismiss, and later moved for summary judgment, arguing Shugarts was not an insured under its policy for purposes of UIM coverage.
¶ 6. Progressive subsequently changed its coverage position. On October 13, 2014, it offered to settle
¶ 7. In March 2015, Shugarts filed a third amended summons and fourth amended complaint, naming Allstate as a defendant and asserting it was required to provide him with UIM coverage. Allstate answered the complaint in April 2015, asserting as an affirmative defense that "[t]here is no coverage available to the plaintiffs under the Allstate policy given the failure of the plaintiffs to provide timely notice of their intention to make a claim as a result of the subject accident as required under the Allstate policy." Allstate subsequently moved for summary judgment on the same ground.
¶ 8. The circuit court granted Allstate's motion, concluding, as a matter of law, that Shugarts "failed to provide timely notice to Allstate of the accident. . . whether the notice requirement comes under the liability section of the policy, the UIM section of the policy or the statutory provisions." The court further concluded the case law cited by Shugarts "did not declare that providing notice of an accident in an underinsured motorist claim is not necessary . . . ." The court acknowledged Shugarts may have failed to
STANDARDS OF REVIEW
¶ 9. We independently review a grant of summary judgment, using the same methodology as the circuit court. Hardy v. Hoefferle, 2007 WI App 264, ¶ 6, 306 Wis. 2d 513, 743 N.W.2d 843. Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Wis. Stat. § 802.08(2) (2009-10).
¶ 10. Our goal in interpreting an insurance policy is to give effect to the parties' intent. American Family Mut. Ins. Co. v. American Girl, Inc., 2004 WI 2, ¶ 23, 268 Wis. 2d 16, 673 N.W.2d 65. We construe a policy as it would be understood by a reasonable person in the position of the insured. Id. Unambiguous
¶ 11. Here, the circuit court determined Allstate was entitled to summary judgment because: (1) Shugarts did not provide timely notice of his UIM claim; and (2) Shugarts failed to rebut the presumption that Allstate was prejudiced by the lack of timely notice. Whether an insured provided timely notice to its insurer is typically a question of fact, but it may be decided as a matter of law under circumstances where "no judge or jury could reasonably find that notice was timely, or conversely, untimely." Neff v. Pierzina, 2001 WI 95, ¶ 40, 245 Wis. 2d 285, 629 N.W.2d 177; see also RTE Corp. v. Maryland Cas. Co., 74 Wis. 2d 614, 629, 247 N.W.2d 171 (1976). Similarly, whether an insurer was prejudiced by untimely notice generally presents a factual question, but it may be resolved as a matter of law where the facts are not in dispute. Neff, 245 Wis. 2d 285, ¶¶ 47-48.
DISCUSSION
¶ 12. In support of its position that Shugarts failed to provide timely notice of his UIM claim, Allstate first cites a notice provision that appears in "Part I" of Shugarts' policy, which is entitled
Automobile Liability Insurance
Bodily Injury—Coverage AA
Property Damage—Coverage BB
What To Do In Case of An Auto Accident Or Claim
If a person insured has an auto accident, we must be notified of all details as soon as reasonably possible. If a person insured is sued as the result of an auto accident, we must be notified immediately.
¶ 13. As Shugarts observes, this notice provision appears in the section of the policy relating to liability coverage. However, the policy contains a separate section, Part VII, pertaining to UIM coverage. Parts I and VII contain separate insuring agreements, definitions, exclusions, and liability limits. In addition, Part VII contains its own notice provision. Furthermore, Part I contains an exclusion stating "[t]his coverage" does not apply to liability for "a non-owned auto while being used in any business or occupation of a person insured." Under these circumstances, we agree with Shugarts that a reasonable insured reading Allstate's policy could reasonably conclude the notice provision in Part I was not applicable to a UIM claim arising out of Shugarts' use of his non-owned squad car.
¶ 14. We therefore turn to the notice provision in Part VII of the policy, which provides:
Proof of Claim; Medical Reports
As soon as possible, you or any other person making claim must give us written proof of claim. It must include all details we may need to determine the amounts payable. We may also require any person making claim to submit to examination under oath and sign the transcript.
The insured person may be required to take medical examinations by physicians we choose, as often as we*235 reasonably require. We must be given authorization to obtain medical reports and copies of records.
As relevant here, this provision requires the insured, or any other person making a claim, to give Allstate "written proof of claim" "[a]s soon as possible."
¶ 15. Shugarts argues he satisfied this requirement by sending Allstate a notice of retainer on October 28, 2014, just over two weeks after Progressive offered its full policy limits in settlement of Shugarts' claim against Progressive and Mohr. Shugarts emphasizes that the notice he provided on that date complied with the principles set forth in Vogt and Ranes v. American Family Mutual Insurance Co., 219 Wis. 2d 49, 580 N.W.2d 197 (1998).
¶ 16. In Vogt, the plaintiff (Vogt) had been a passenger in his own vehicle during a collision with a vehicle driven by the defendant (Schroeder). Vogt, 129 Wis. 2d at 7. It was undisputed that Schroeder was "primarily, perhaps wholly, liable" for the accident. Id. It was also undisputed that Vogt's damages exceeded Schroeder's insurance policy limit of $15,000. Id. Schroeder's insurer offered to pay its policy limit in exchange for a release of itself and Schroeder. Id. at 8. Vogt wanted to accept that offer and then pursue a UIM claim under his own automobile insurance policy. Id. However, Vogt's insurer refused to approve the settlement "unless it [could] be accomplished without impairing [the insurer's] possible right of subrogation against. .. Schroeder." Id.
¶ 18. The Vogt court adopted a procedure to allow an underinsurer to "intervene in the settlement process." Pitts, 282 Wis. 2d 550, ¶ 38. Specifically, the court held that an underinsurer is entitled to notice of the proposed settlement, and a period of time in which to assess the case and decide whether to protect its subrogation rights by paying underinsurance benefits to its insured. Vogt, 129 Wis. 2d at 20-21.
¶ 19. In Ranes, the issue was whether an insured's failure to give the notice of settlement required by Vogt necessarily barred UIM coverage. Ranes, 219 Wis. 2d 49, ¶¶ 1-3. Our supreme court held that, under those circumstances, UIM coverage was not barred unless the underinsurer was prejudiced by the lack of notice. Id., ¶ 3. However, the court concluded failure to provide a Vogt notice gave rise to a rebuttable presumption that the underinsurer was prejudiced. Id.
f 21. Shugarts argues Vogt and Ranes demonstrate that a settlement offer, not the underlying accident, is the trigger for a UIM carrier's subrogation rights.
¶ 22. Shugarts next argues it is not possible to give notice of a UIM claim until the other driver's liability insurer has offered its policy limits because,
[f]or 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.
¶ 23. These arguments are inconsistent with our supreme court's decision in Martinson v. American Family Mutual Insurance Co., 63 Wis. 2d 14, 216 N.W.2d 34 (1974). There, the court was asked to determine whether an insured had provided his uninsured motorist carrier with timely proof of claim, as required by his policy. See id. at 19-20. Similar to the proof of claim provision in Shugarts' policy, see supra ¶ 14, the proof of claim provision in Martinson required the insured, or any other person making a claim, to "give to the company written proof of claim" "[a]s soon as practicable[.]" Martinson, 63 Wis. 2d at 19. The Martinson court concluded the insured had
¶ 24. Thus, under Martinson, Shugarts was required to provide Allstate with proof of his UIM claim as soon as possible after the incident giving rise to the claim. See id. at 21. Under the circumstances of this case, we conclude it was possible for Shugarts to provide proof of claim in January 2012, when Progressive denied coverage for his claim against Mohr. At the very latest, Shugarts should have provided proof of claim in August 2013, when he learned that Progressive's policy limit was only $50,000. At that point, Shugarts was claiming he had incurred over $46,000 in medical expenses, over $645,000 in lost wages, and $17,750 in lost retirement benefits. He had offered to settle his claim against Progressive and Mohr for $600,000. Under these circumstances, when Shugarts learned in August 2013 that Progressive's policy limit was only $50,000, he necessarily knew that, regardless of what settlement offer Progressive might ultimately make, the amount paid would be insufficient to cover his losses. Shugarts therefore knew, at that point, that
f 25. Shugarts nevertheless argues "there exists a public policy reason why notice need not be given until the policy limits have been tendered." Shugarts contends that if an insured is required to provide proof of claim to his or her UIM carrier before the tortfea-sor's insurer offers to settle for its full policy limit, personal injury attorneys will need to change their practice and provide UIM insurers with proof of claim at the same time they provide notice to tortfeasors' liability insurers. According to Shugarts, if UIM insurers are entitled to notice at the same time as tortfea-sors' liability insurers, UIM carriers will have an
¶ 26. For the foregoing reasons, we agree with the circuit court that Shugarts failed to provide timely proof of claim, as required by the Allstate policy. That conclusion, however, does not end our inquiry. Rather, under Wis. Stat. § 631.81(1),
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.
"The decisions interpreting Wis. Stat. § 631.81(1) hold that when the insured fails to give notice within one year after the time required by 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 by the untimely notice.' " Neff, 245 Wis. 2d 285, ¶ 43 (quoting Gerrard Realty Corp. v. American States Ins. Co., 89 Wis. 2d 130, 146-47, 277 N.W.2d 863 (1979)).
¶ 28. "Prejudice to the insurer in this context is a serious impairment of the insurer's ability to investigate, evaluate, or settle a claim, determine coverage, or present an effective defense, resulting from the unexcused failure of the insured to provide timely notice." Id., ¶¶ 44. Timely notice is important to an insurer so that it can investigate the circumstances of an accident, contact witnesses while they are still available and while their memories are still fresh, and locate unknown witnesses. Id., ¶ 59. In addition, over time, witnesses may "become entrenched in a position because they have calculated the legal effect of their answers." Id. Even where the insured has conducted an investigation close in time to the underlying accident, an insurer may still be prejudiced by the loss of the opportunity to perform its own investigation. See id., ¶¶ 62-67; see also Kreckel v. Walbridge Aldinger Co., 2006 WI App 168, ¶¶ 17-18, 295 Wis. 2d 649, 712 N.W.2d 508; Phoenix Contractors, Inc. v. Affiliated Capital Corp., 2004 WI App 103, ¶¶ 19-21, 273 Wis. 2d 736, 681 N.W.2d 310.
¶ 29. Shugarts argues he has rebutted the presumption of prejudice because: (1) Shugarts and his
¶ 30. However, it is undisputed that Allstate had no opportunity to conduct any investigation until more than four years after the underlying accident, and more than one year after Shugarts commenced the instant lawsuit. Regardless of whether some witnesses are currently available for deposition and medical records are available for inspection, Allstate was deprived of the opportunity to conduct an investigation and interview witnesses while their memories of the underlying events were still comparatively fresh and before they became entrenched in their positions. Moreover, Shugarts' assertion "upon information and belief' that certain witnesses are available to be deposed is not supported by citations to the record and appears to be purely speculative. In addition, Shugarts fails to account for the fact that Allstate was deprived of the opportunity to conduct a meaningful investigation into Shugarts' medical issues and participate in settlement negotiations to resolve this matter at an earlier stage. On these facts, we conclude, as a matter of law, that Shugarts has failed to meet his burden to rebut the presumption that Allstate was prejudiced by his failure to timely provide proof of his UIM claim.
¶ 32. In Rentmeester v. Wisconsin Lawyers Mutual Insurance Co., 164 Wis. 2d 1, 3-4, 9, 473 N.W.2d 160 (Ct. App. 1991), we upheld the circuit court's conclusion that no prejudice existed when an attorney failed to provide notice of claim to his malpractice insurer within one year after the time required by the policy. We relied, in part, on the fact that two trial attorneys had testified the insurer "was not prejudiced in preparing a legal malpractice defense, and all rights of discovery, the availability of evidence and preparation for trial were unaffected by the delay in notice." Id. at 9. Shugarts has not cited similar evidence in this case supporting his claim that Allstate was not prejudiced.
¶ 33. In International Flavors & Fragrances, Inc. v. Valley Forge Insurance Co., 2007 WI App 187, ¶ 13, 304 Wis. 2d 732, 738 N.W.2d 159, we concluded an insured had rebutted the presumption that its insurer was prejudiced by the insured's failure to provide
¶ 34. Finally, Shugarts argues in his reply brief that, even assuming he should have provided Allstate with proof of his UIM claim in August 2013, at that point nearly three years had elapsed since the accident date. Accordingly, he asserts any investigation undertaken in August 2013 would not have been close in time to the accident in any event. However, in making this argument Shugarts ignores the presumption that Allstate was prejudiced by his late notice and his burden to rebut that presumption. An investigation conducted in August 2013 would have been closer in time to the accident than an investigation conducted after Shugarts finally notified Allstate of his UIM claim more than one year later in October 2014. Shugarts provides no evidence to support a conclusion that the same witnesses who were available in August 2013 remained available in October 2014, or that they would have provided the same testimony in October 2014 as in August 2013. Shugarts simply has not cited any evidence that would support a conclusion Allstate was not prejudiced by his failure to provide timely
By the Court.—Judgment affirmed.
For the remainder of this opinion, we refer to Robert and Judith Shugarts, collectively, as "Shugarts."
The circuit court also granted summary judgment in favor of WMMIC. Shugarts' appeal initially challenged both the judgment dismissing his claim against WMMIC and the judgment dismissing his claim against Allstate. However, Shugarts subsequently notified this court he was voluntarily dismissing that portion of his appeal pertaining to WMMIC. We therefore address his appellate arguments only as they pertain to his claim against Allstate.
Unless otherwise noted, all references to the Wisconsin Statutes are to the 2009—10 version, which was in effect during the policy period at issue in this case.
Although Shugarts sent Allstate a notice of retainer on October 28, 2014, he did not send a Vogt notice until February 9, 2015. See Vogt v. Schroeder, 129 Wis. 2d 3, 383 N.W.2d 876 (1986). Thus, contrary to Shugarts' assertion, he did not actually comply with Vogt on October 28, 2014. This fact, however, is not material to our resolution of this appeal. See infra ¶¶ 20-21, 27 n.8.
Shugarts also asserts that, before the underinsured driver's liability insurer has made a settlement offer, a UIM carrier "has no standing of any kind to appear in litigation because its subrogation rights have not been affected, and it is not a party in interest or a subrogated party under Wisconsin law." However, Shugarts cites no legal authority in support of this assertion, and we therefore decline to consider it. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992).
At the time of Shugarts' accident, Wis. Stat. § 632.32(d) defined "underinsured motorist coverage" as coverage "for the protection of persons insured under that coverage who are legally entitled to recover damages for bodily injury, death, sickness, or disease from owners or operators of underinsured motor vehicles." The term "underinsured motor vehicle" was defined, as relevant here, as a motor vehicle for which "[t]he limits under the bodily injury liability insurance policy . .. are less than the amount needed to fully compensate the insured for his or her damages." Sec. 632.32(2)(e)3. A policy endorsement attached to Shugarts' policy contained the same definition.
Shugarts suggests he did not provide Allstate with proof of claim prior to October 2014 because, before that time, he believed he was entitled to UIM coverage under the WMMIC policy. However, we agree with the circuit court that any failure to provide proof of claim on those grounds was unreasonable. Shugarts' erroneous belief that he would also be entitled to UIM coverage under a different policy does not excuse him from complying with the proof of claim requirement in the Allstate policy.
Notably, the Allstate policy required Shugarts to provide "written proof of claim." In Martinson v. American Family Mutual Insurance Co., 63 Wis. 2d 14, 20-21, 216 N.W.2d 34 (1974), our supreme court explained that "[t]he notice of accident, occurrence or loss provision of the general policy provisions is distinct and different from the proof of claims requirements of the uninsured motorist endorsement. . . ." The court elaborated:
As used in a policy of automobile insurance, notice of loss and proofs of loss are distinct concepts, and they have different purposes and functions. The provisions for notice of loss refer to information to the insurance company of the loss of, or damage to, the insured automobile, while the clause pertaining to proofs of loss usually requires a statement of loss, signed and sworn to by the insured, containing specified information.
Id. (quoting 8 Blashfield, Automobile Law And Practice, Insurance, § 331.1, pp. 145-46). We question whether Shugarts' October 28, 2014 notice of retainer qualified as a "proof of claim," under this definition. However, because the parties do not raise the issue, and because its resolution ultimately does not affect the disposition of this appeal, we assume, without deciding, that the October 28, 2014 notice of retainer sufficed as a valid proof of claim.
We also observe that, while Allstate concedes Shugarts "first sent notice of loss to Allstate in a letter dated October 28, 2014," Allstate also contends it "first received notice of the loss in January 2015." However, as Shugarts notes, the mailing of a letter creates a rebuttable presumption that the letter was delivered and received, which "shifts to the challenging party the burden of presenting credible evidence of non-receipt." State ex rel. Flores v. State, 183 Wis. 2d 587, 612-13, 516 N.W.2d 362 (1994). Allstate does not point to any evidence that it did not
Reference
- Full Case Name
- Robert H. Shugarts, II and Judith Lynn Shugarts v. Dennis M. Mohr, Progessive Casualty Insurance Company/Artisan, Truckers Casualty Company and Wisconsin Municipal Mutual Insurance Company, Allstate Property and Casualty Insurance Company, Defendant-Respondent
- Cited By
- 1 case
- Status
- Published