Wisconsin Statutes & Annotations
Chapter 632 - Insurance contracts in specific lines.
632.26 - Notice provisions.

632.26 Notice provisions.
(1) Required provisions. Every liability insurance policy shall provide:
(a) That notice given by or on behalf of the insured to any authorized agent of the insurer within this state, with particulars sufficient to identify the insured, is notice to the insurer.
(b) That failure to give any notice required by the policy within the time specified does not invalidate a claim made by the insured if the insured shows that it was not reasonably possible to give the notice within the prescribed time and that notice was given as soon as reasonably possible.
(2) Effect of failure to give notice. Failure to give notice as required by the policy as modified by sub. (1) (b) does not bar liability under the policy if the insurer was not prejudiced by the failure, but the risk of nonpersuasion is upon the person claiming there was no prejudice.
History: 1979 c. 102.
Legislative Council Note, 1979: Subsection (1) is former s. 632.32 (1), altered in 2 ways: (1) to extend its coverage to all liability policies; and (2) to change “may" to “shall". The subsection is divided into 2 paragraphs for clarity.
The first change would strengthen the law. It is entirely new and seems a desirable extension.
The second change corrects an error. The word “shall" was used in the fourth draft of the bill that ultimately became ch. 375, laws of 1975, and was not changed in the addendum to the fourth draft, dated July 14, 1975. Those documents went to the insurance laws revision committee and then to the legislative council for action. Nothing appears in the minutes of the committee's meeting of July 14, 1975 to indicate that a change was made. But in LRB-6218/1 of 1975, “may" appears instead of “shall". That error, which was probably inadvertent and the source of which we have not been able to trace, was carried on into the final enactment.
Sub. (2) continues the second sentence of former s. 632.34 (4). Shifting it to s. 632.26, which is applicable to all liability insurance, broadens its application, but that seems desirable. The term “burden of proof" is changed to “risk of nonpersuasion" to tighten up the meaning. “Burden of proof" is a broad term that comprehends 2 separate concepts: (1) the burden of going forward with the evidence and (2) the burden of persuading the trier of fact, better termed the “risk of nonpersuasion". See McCormick, Evidence, (2nd ed.), at 784 n. 4 (1972). The statute is concerned with determining who wins when the totality of evidence is inconclusive, not with the burden of going forward, which ought to be settled on the basis of general principles. Indeed, since the insurer will have best (or the only) access to information about prejudice, it may be quite unfair to put the burden of going forward on the claimant.
Subs. (1) (b) and (2) are related. The first is a required provision in the policy. The 2nd is a rule of law. It is preferable not to go too far in inserting excuses into the policy. Sub. (1) (b) encourages the insured not to give up automatically if notice is not timely given, but insertion of sub. (2) into the policy would arguably encourage an unduly long delay that might prejudice both parties. [Bill 146-S]
When the insurer denied coverage within the time that the insured could have submitted her proofs in response to the insurer's request for more information, the insurer waived the defense of lack of notice. Ehlers v. Colonial Penn Insurance Co. 81 Wis. 2d 64, 259 N.W.2d 718 (1977).
The failure of policyholders to give notice to an underinsurer of a settlement between the insured and the tortfeasor does not bar underinsured motorist coverage in the absence of prejudice to the insurer. There is a rebuttable presumption of prejudice when there is a lack of notice, with the burden on the insured to prove by the greater weight of the evidence that the insurer was not prejudiced. Ranes v. American Family Mutual Insurance Co. 219 Wis. 2d 49, 580 N.W.2d 197 (1998), 97-0441.
Wisconsin's notice-prejudice statutes, this section and s. 631.81, do not supersede the reporting requirement specific to claims-made-and-reported policies. Anderson v. Aul, 2015 WI 19, 361 Wis. 2d 63, 862 N.W.2d 304, 13-0500.

Structure Wisconsin Statutes & Annotations

Wisconsin Statutes & Annotations

Chapter 632 - Insurance contracts in specific lines.

632.05 - Indemnity amounts.

632.07 - Prohibiting requiring property insurance in excess of replacement value.

632.08 - Mortgage clause.

632.09 - Choice of law.

632.10 - Definitions applicable to property insurance escrow.

632.101 - Policy terms.

632.102 - Payment of final settlement.

632.103 - Procedure for payment of withheld funds.

632.104 - Funds released to mortgagee.

632.14 - Bonds need not be under seal.

632.17 - Validity of surety bonds.

632.18 - Rustproofing warranties insurance.

632.185 - Vehicle protection product warranty insurance policy.

632.22 - Required provisions of liability insurance policies.

632.23 - Prohibited exclusions in aircraft insurance policies.

632.24 - Direct action against insurer.

632.25 - Limited effect of conditions in employer's liability policies.

632.26 - Notice provisions.

632.32 - Provisions of motor vehicle insurance policies.

632.34 - Defense of noncooperation.

632.35 - Prohibited rejection, cancellation and nonrenewal.

632.36 - Accident in the course of business or employment.

632.365 - Use of emission inspection data in setting rates.

632.37 - Motor vehicle glass repair practices; restriction on specifying vendor.

632.375 - Motor vehicle repair practices; restriction on specifying vendor.

632.38 - Nonoriginal manufacturer replacement parts.

632.41 - Prohibited provisions in life insurance.

632.415 - Funeral policies.

632.42 - Trustee and deposit agreements in life insurance.

632.43 - Standard nonforfeiture law for life insurance.

632.435 - Standard nonforfeiture law for individual deferred annuities.

632.44 - Required provisions in life insurance.

632.45 - Contracts providing variable benefits.

632.46 - Incontestability and misstated age.

632.47 - Assignment of life insurance rights.

632.475 - Life insurance policy loans.

632.48 - Designation of beneficiary.

632.50 - Estoppel from medical examination.

632.56 - Required group life insurance provisions.

632.57 - Conversion option in group and franchise life insurance.

632.60 - Limitation on credit life insurance.

632.62 - Participating and nonparticipating policies.

632.63 - Unclaimed life insurance and annuities.

632.64 - Certification of disability.

632.65 - Annuities exempt from regulation.

632.66 - Annuity contracts without life contingencies.

632.67 - Effect of power of attorney for health care.

632.69 - Life settlements.

632.695 - Applicability of general transfers at death provisions.

632.697 - Benefits subject to department's right to recover.

632.71 - Estoppel from medical examination, assignability and change of beneficiary.

632.715 - Reports of action against health care provider.

632.72 - Medical benefits or assistance; assignment.

632.725 - Standardization of health care billing and insurance claim forms.

632.726 - Current procedural terminology code changes.

632.729 - Prohibiting discrimination based on COVID-19.

632.73 - Right to return policy.

632.74 - Reinstatement of individual or franchise disability insurance policies.

632.745 - Coverage requirements for group and individual health benefit plans; definitions.

632.746 - Preexisting condition; portability; restrictions; and special enrollment periods.

632.747 - Guaranteed acceptance.

632.748 - Prohibiting discrimination.

632.749 - Contract termination and renewability.

632.7495 - Guaranteed renewability of individual health insurance coverage.

632.7497 - Modifications at renewal.

632.75 - Prohibited provisions for disability insurance.

632.755 - Public assistance and early intervention services.

632.76 - Incontestability for disability insurance.

632.77 - Permitted provisions for disability insurance policies.

632.775 - Effect of power of attorney for health care.

632.78 - Required grace period for disability insurance policies.

632.79 - Notice of termination of group hospital, surgical or medical expense insurance coverage due to cessation of business or default in payment of premiums.

632.793 - Notice of loss of primary insurance coverage due to age.

632.795 - Open enrollment upon liquidation.

632.797 - Disclosure of group health claims experience.

632.798 - Out-of-pocket costs.

632.80 - Restrictions on medical payments insurance.

632.81 - Minimum standards for certain disability policies.

632.82 - Renewability of long-term care insurance policies.

632.825 - Midterm termination of long-term care insurance policy by insured.

632.83 - Internal grievance procedure.

632.835 - Independent review of coverage denial determinations.

632.84 - Benefit appeals under certain policies.

632.845 - Prohibiting refusal to cover services because liability policy may cover.

632.85 - Coverage without prior authorization for treatment of an emergency medical condition.

632.853 - Coverage of drugs and devices.

632.855 - Requirements if experimental treatment limited.

632.857 - Explanation required for restriction or termination of coverage.

632.861 - Prescription drug charges.

632.865 - Pharmacy benefit managers.

632.866 - Step therapy protocols.

632.867 - Oral and injected chemotherapy.

632.87 - Restrictions on health care services.

632.873 - Restrictions relating to fees for dental services.

632.875 - Independent evaluations relating to chiropractic treatment.

632.88 - Policy extension for handicapped children.

632.885 - Coverage of dependents.

632.89 - Coverage of mental disorders, alcoholism, and other diseases.

632.895 - Mandatory coverage.

632.896 - Mandatory coverage of adopted children.

632.897 - Hospital and medical coverage for persons insured under individual and group policies.

632.8985 - Prohibiting abortion coverage.

632.899 - Medical savings accounts study.

632.91 - Definition.

632.93 - The fraternal contract.

632.95 - Fraud in obtaining membership.

632.96 - Beneficiaries in fraternal contracts.

632.97 - Application of proceeds of credit insurance policy.

632.975 - Portable electronics insurance.

632.977 - Travel insurance.

632.98 - Worker's compensation insurance.

632.99 - Certifications of disability.