Oct. 5, 2022 – With the many forms of insurance – such as life, health, homeowner’s, and automobile, as well as commercial – practicing in the area of insurance law in Wisconsin is dynamic and often complicated.

Insurance is a matter of contract, writes Kelly J. Stohr of Fuhrman & Dodge, S.C., Middleton, and involves shifting risks, specifically the contractual shifting of risk in exchange for premiums.

In general, insurance policies are interpreted like other contracts, although a number of rules distinguish insurance contracts from other forms of contract interpretation, according to Stohr, a coauthor of the two-volume treatise, Anderson on Wisconsin Insurance Law​, published by State Bar of Wisconsin PINNACLE®.

Many of the rules specific to insurance contract interpretation​ stem from constantly developing case law. Stohr and her coauthors provide concise explanations of cases and court decisions that affect how insurance policies are written, interpreted, and applied in Wisconsin. The volumes were revised in 2019-20, and a 2021-22 supplement covers recent developments from Wisconsin Supreme Court and Court of Appeals decisions.

A development involving the known-loss doctrine ties it closely with the doctrine of late notice, writes supplement author Monte E. Weiss of Weiss Law Office, S.C., Mequon.

“Most policies require an insured to provide timely notice of a loss as a prerequisite to coverage,” Weiss notes, and generally it is the insurer’s burden to prove the notice was late.

“However, if the notice is provided more than one year after the loss, then there is a rebuttable presumption that the insurer has been prejudiced by the untimely notice.”

In the area of contract interpretation, a recent decision by the Wisconsin Supreme Court prompts a practice tip from Weiss for handling a case under Wis. Stat. section 631.95, which permits domestic abuse victims to seek insurance coverage for loss despite intentional acts of a coinsured person.

The 2021 decision in Kemper Independence Insurance Co. v. Islami,¹ as noted in the dissent, creates new requirements of proof to establish domestic abuse.

“To be properly prepared for motion practice, counsel should be ready to investigate and supply or address the evidence … to establish domestic abuse,” Weiss notes in the supplement.

Another recent development involves reimbursement of defense fees, coauthor Eileen Dorfman points out in the second volume’s Chapter 7, Insurance Companies’ Duty to Defend.

Dorfman is with CapSpecialty, based in Middleton. She writes that, in Hayes v. Wisconsin & Southern R.R.,² “as a matter of first impression, interpreting Wisconsin law, the district court held that an insurer may not seek to recover defense costs from its insured by way of an unjust enrichment claim.”

“While Wisconsin law strongly incentivizes an insurer to defend claims for which coverage is uncertain, it is ultimately a cost-benefit determination whether to do so,” Dorfman writes.

These insurance law tips from Stohr, Weiss, and Dorfman are just the tip of the iceberg when it comes to Wisconsin insurance law.

More on Referenced PINNACLE Book

The two-volume Anderson on Wisconsin Insurance Law is available both in print and online via Books UnBound, the State Bar’s interactive online library. Check out the Table of Contents.

The print book costs $380 for members and $475 for nonmembers. For more information, or to place an order, visit the WisBar Marketplace or call the State Bar at (800) 728-7788 or (608) 257-3838.

PINNACLE Book Author Spotlight: Eileen Dorfman, of CapSpecialty Inc., Middleton

Why are you a PINNACLE books author?

I write for the State Bar to maintain my subject-matter expertise in Wisconsin insurance law. Since going in-house at a national insurance company, my contacts with Wisconsin-specific legal questions are less frequent than when I worked locally in private practice. Providing research for the State Bar’s publication helps me stay on top of developments in the law.

What additional benefits do you see as an author?

Writing for the State Bar opens up additional opportunities to present your expertise on a given subject. In the past, I’ve used my research from this publication as the basis for a presentation that I’ve given to the State Bar and at insurance seminars.

What interests you about insurance law?

I became passionate about insurance law, and specifically, about coverage litigation, when I realized how much of insurance litigation centered around linguistic disputes.

Insurance coverage issues can often turn on the interpretation of a single key term defined in a policy, or the placement of a comma. Being somewhat of a language nerd and grammarian myself, I’ve found that the way my mind works lends itself well to this particular subject area.

What else should we know about you?

Anyone who knows me knows that my life revolves around my 2-year-old, 130-pound “baby” Great Dane, Dante. Dante is my favorite companion for hiking, swimming, trips to the many excellent Dane County dog parks, and is, generally, my shadow. I only wish I could persuade him to get into a kayak.

Endnotes

¹Kemper Indep. Ins. Co. v. Islami, 2021 WI 53, ¶ 38, 397 Wis. 2d 394, 418, 959 N.W.2d 912, 924, cert. denied, 142 S. Ct. 1120 (2022).

²Hayes v. Wisconsin & Southern R.R., 514 F. Supp. 3d at 1062 (E.D. Wis. 2021).