Shugarts v. Mohr
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The Supreme Court reversed the judgment of the court of appeals affirming the circuit court’s grant of summary judgment to Plaintiffs’ underinsured motorist (UIM) carrier, Allstate Property and Casualty Co. (Allstate), holding that the court of appeals erred in concluding that Plaintiffs failed to provide Allstate with timely notice of the UIM claim and that they failed to rebut the presumption that Allstate was prejudiced by the untimely notice.
Specifically at issue in this case was whether the court of appeals misinterpreted the UIM policy’s “proof of claim” provision as a “notice of accident” provision. The Supreme Court held (1) the operative event triggering the notice requirement in Plaintiffs’ UIM is the tender of the tortfeasor’s underlying policy limit, not the accident itself; (2) Wis. Stat. 631.81(1) does not apply to the UIM policy provision at issue; and (3) therefore, Plaintiffs provided Allstate with timely proof of their UIM claim as required by the policy. The Court remanded the case to the circuit court for further proceedings.
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2018 WI 27 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2016AP983 Robert H. Shugarts, II and Judith Lynn Shugarts, Plaintiffs-Appellants-Petitioners, v. Dennis M. Mohr, Progressive Casualty Insurance Company/Artisan and Truckers Casualty Company and Wisconsin Municipal Mutual Insurance Company, Defendants, Allstate Property and Casualty Insurance Company, Defendant-Respondent. REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 375 Wis. 2d 225, 894 N.W.2d 443 PDC No: 2017 WI App 27 - Published OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: April 5, 2018 January 9, 2018 Circuit Eau Claire Michael A. Schumacher JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the plaintiffs-appellants-petitioners, there were briefs filed and an oral argument by Harry R. Hertel and Hertel Law Offices, S.C., Eau Claire. For the defendant-respondent, there was a brief filed by Leah M. Cameron, John M. Swietlik, Jr., and Kasdorf, Lewis & Swietlik, S.C., Milwaukee. M. Swietlik, Jr. There was an oral argument by John An amicus curiae brief was filed on behalf of Wisconsin Association for Justice by Edward E. Robinson and Cannon & Dunphy, S.C., Brookfield, with whom on the brief were William C. Gleisner, III Brookfield, Gingras, and and Cates, Law Lynn Offices R. Luebke, of William Laufenberg, S.C., Mark Waukesha. argument by Edward E. Robinson. 2 C. Gleisner, L. There Thomsen, was an III, and oral 2018 WI 27 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2016AP983 (L.C. No. 2013CV377) STATE OF WISCONSIN : IN SUPREME COURT Robert H. Shugarts, II and Judith Lynn Shugarts, Plaintiffs-Appellants-Petitioners, v. Dennis M. Mohr, Progressive Casualty Insurance Company/Artisan and Truckers Casualty Company and Wisconsin Municipal Mutual Insurance Company, FILED APR 5, 2018 Sheila T. Reiff Clerk of Supreme Court Defendants, Allstate Property and Casualty Insurance Company, Defendant-Respondent. REVIEW of a decision of the Court of Appeals. Reversed and cause remanded. ¶1 ANN WALSH BRADLEY, J. The petitioners, Robert and Judith Shugarts, seek review of a published court of appeals decision affirming the circuit court's grant of summary judgment No. 2016AP983 to the Shugarts' underinsured motorist (UIM) carrier.1 They contend that the court of appeals erred in concluding that they failed to provide Allstate Property and Casualty Company (Allstate) with timely notice of their UIM claim and that they failed to rebut the presumption that Allstate was prejudiced by the untimely notice. ¶2 Specifically, the Shugarts assert that the court of appeals mistakenly interpreted the UIM policy's "proof of claim" provision as a "notice of accident" provision. submit that instead it is the tender of the The Shugarts tortfeasor's underlying policy limits, not the accident itself, that triggers the notice provision in the UIM policy. They further argue that if the proof of claim was not timely filed, then Allstate was not prejudiced by the untimely notice. ¶3 We conclude that the operative event triggering the notice requirement in the Shugarts' UIM policy is the tender of the tortfeasor's underlying policy limit. We further conclude that Wis. Stat. § 631.81(1) (2009-10)2 does not apply to the UIM policy provision at issue. Consequently, we determine that the Shugarts provided Allstate with timely proof of their UIM claim as required by the policy language. Because we determine that 1 Shugarts v. Mohr, 2017 WI App 27, 375 Wis. 2d 225, 894 N.W.2d 443 (affirming order of circuit court for Eau Claire County, Michael A. Schumacher, Judge). 2 All subsequent references to the Wisconsin Statutes are to the 2009-10 version unless otherwise indicated. 2 No. the Shugarts' proof of claim was timely filed, we 2016AP983 need not appeals and address whether Allstate was prejudiced. ¶4 Accordingly, we reverse the court of remand to the circuit court for further proceedings. I ¶5 Robert Shugarts was employed as a deputy sheriff in Eau Claire County. While on duty on October 11, 2010, he was involved in the pursuit of Dennis Mohr (Mohr), a suspect in a hit-and-run accident. Robert was severely injured when Mohr's vehicle struck his squad car. ¶6 Mohr's vehicle was insured Insurance Company (Progressive). by Progressive Casualty The squad car was owned by Eau Claire County and was insured under a policy issued by Wisconsin Municipal Mutual Insurance Company (WMMIC), which included UIM coverage. The insurance policy Shugarts through possessed Allstate, a personal which also automobile included UIM coverage. ¶7 In November of 2011, the Shugarts hired an attorney who sent notice of retainer to Progressive. It denied coverage in January of 2012, basing the denial on the assertion that Mohr's striking of the squad car was an intentional act and thus not covered under its policy. ¶8 The Progressive in Shugarts proposed a $600,000 April 2013. In May of of settlement 2013, with Progressive turned down the offer, persisting in its assertion that the intentional act exclusion in Mohr's policy served as a defense to coverage. 3 No. ¶9 2016AP983 After Progressive rejected their offer, the Shugarts filed this lawsuit in June of 2013. Progressive continued to deny coverage, but offered to settle the case for $10,000. It also provided the Shugarts with a declarations page from Mohr's policy indicating that it contained a bodily injury liability limit of $50,000 per person. ¶10 In complaint, July adding defendant. of 2014, the Eau Claire Shugarts County's filed insurer, an amended WMMIC, as a The Shugarts alleged that WMMIC was liable for UIM coverage "arising out of the operation of" his squad car.3 ¶11 Subsequently, on October 13, 2014, Progressive changed its position on coverage. It offered to pay the Shugarts the policy limit of $50,000 if WMMIC waived any subrogation claim. On October 28, 2014, the Shugarts sent a notice of retainer to Allstate, advising that counsel had been retained "with regard to injuries he sustained in an automobile accident which occurred on October 11, 2010." ¶12 After additional correspondence between the Shugarts' attorneys and Allstate, on February 9, 2015, the Shugarts sent 3 WMMIC moved to dismiss, and later for summary judgment. The circuit court granted summary judgment to WMMIC. The Shugarts' notice of appeal initially purported to challenge the circuit court's grants of summary judgment to both Allstate and WMMIC. However, before the court of appeals the Shugarts voluntarily dismissed that portion of the appeal pertaining to WMMIC. Shugarts v. Mohr, 2017 WI App 27, ¶8 n.2, 375 Wis. 2d 225, 894 N.W.2d 443. Accordingly, the Shugarts do not raise any argument related to the summary judgment in favor of WMMIC before this court. 4 No. 2016AP983 Allstate a notice pursuant to Vogt v. Schroeder, 129 Wis. 2d 3, 383 N.W.2d 876 (1986).4 The notice stated that Progressive had offered to settle the Shugarts' claim for the policy limit of $50,000. Further, the notice explained that "[i]n evaluating Mr. Shugarts' injuries, we believe that Mr. Shugarts' claim is well in excess of the policy limits afforded by Progressive Insurance." 4 In Vogt, we concluded that a UIM insurer "has the right of subrogation against the tortfeasor and his insurer to the extent that the underinsurer has paid benefits to its own insured . . . prior to the release of the tortfeasor . . . and his insurance company[.]" Vogt v. Schroeder, 129 Wis. 2d 3, 17, 383 N.W.2d 876 (1986). Stated differently, the UIM insurer has a right of subrogation "as long as it substitutes its funds for those proffered by the tortfeasor's insurer." Pitts v. Revocable Trust of Knueppel, 2005 WI 95, ¶35, 282 Wis. 2d 550, 698 N.W.2d 761 (citing Vogt, 129 Wis. 2d at 17-19). If the UIM insurer simply consents to the settlement, it forfeits its subrogation right. Pitts, 282 Wis. 2d 550, ¶35 (citing Vogt, 129 Wis. 2d at 20-21). Further, in Vogt we adopted a procedure to allow a UIM insurer to intervene in the settlement process. Pitts, 282 Wis. 2d 550, ¶38. Namely, a UIM insurer is entitled to notice of a tentative settlement agreement and a period of time in which to assess the case. This allows the UIM insurer to decide whether to substitute its payment to the insured in an amount equal to the tentative settlement, thereby preserving its subrogation rights, or acquiescing in the settlement. Vogt, 129 Wis. 2d at 20-21. "In effect, this procedure gives to the plaintiff's underinsurer the option of rejecting the settlement offer to prevent the release of the tortfeasor and thus protect its right of subrogation, but it may not thwart the right of its own insured to receive some payment, either the amount of the insured's underinsurance claim or the amount offered in settlement." Id. at 21. 5 No. ¶13 March 2016AP983 The Shugarts filed an additional amended complaint in of 2015, adding Allstate as a defendant. Allstate answered the complaint raising untimeliness as an affirmative defense. It stated 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." ¶14 Allstate moved for summary judgment. It argued that the Shugarts "did not provide timely notice to Allstate of the October 11, 2010 motor vehicle accident as required by the Allstate policy." ¶15 The circuit summary judgment. court granted Allstate's motion for Specifically, it stated that it considered the notice untimely regardless of the governing policy provision or statute: So I am going to find, as a matter of law, that the plaintiff failed to provide timely notice to Allstate of the accident and I think that's true whether the notice requirement comes under the liability section of the policy, the UIM section of the policy or the statutory provisions. All of them use similar language . . . I have to conclude that it was reasonably possible for Mr. Shugarts to provide notice to Allstate sometime shortly after the accident. Further, the circuit court concluded that the Shugarts had failed to rebut the presumption that Allstate was prejudiced by the untimely notice. ¶16 The Shugarts appealed, and the court of appeals affirmed the circuit court's grant of summary judgment. 6 The No. court of appeals concluded that "Shugarts was 2016AP983 required to provide Allstate with proof of his UIM claim as soon as possible after the incident giving rise to the claim." Shugarts v. Mohr, 2017 WI App 27, ¶24, 375 Wis. 2d 225, 894 N.W.2d 443. "[I]t was possible for Shugarts to provide proof of claim in January 2012, when Progressive denied coverage for his claim against Mohr. At the very least, Shugarts should have provided proof of claim in August 2013, when he learned that Progressive's policy limit was only $50,000." Id. The court of appeals further agreed with the circuit court that the Shugarts had failed to rebut the presumption that Allstate was prejudiced by the late notice. Id., ¶34. II ¶17 In this case we address a summary judgment dismissing the Shugarts' claim against Allstate. We review a grant of summary judgment independently, applying the same methodology as the circuit court. Novell v. Migliaccio, 2008 WI 44, ¶23, 309 Wis. 2d 132, 749 Wis. 2d 544. Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. ¶18 contract. We interpret first the parties' written Am. Family Mut. Ins. Co. v. Am. Girl, Inc., 2004 WI 2, ¶23, 268 Wis. 2d 16, 673 N.W.2d 65. requires us to interpret a statute. likewise presents a question of law. of insurance Interpretation of an insurance contract presents a question of law. Dep't Id. Justice, 2016 WI 42, 7 Our review also Statutory interpretation Moustakis v. State of Wis. ¶16, 368 Wis. 2d 677, 880 No. N.W.2d 142 (citation omitted). We review 2016AP983 questions of law independently of the decisions rendered by the circuit court and court of appeals. Id. III ¶19 Allstate identifies two potential sources of a requirement that the Shugarts provide it with notification of a UIM claim as soon as possible following an accident: language of the insurance policy and Wis. Stat. § 631.81(1). begin by examining the notice requirements dictated language of the Shugarts' insurance policy. address the proof of loss mandated by by the We the Subsequently, we § 631.81(1) and its potential applicability. A ¶20 We turn insurance policy. unambiguous, a interpretation undertake. first the language of the Shugarts' When the language of an insurance policy is court or to will impose not rewrite obligations the the policy parties did by not Acuity v. Chartis Specialty Ins. Co., 2015 WI 28, ¶24, 361 Wis. 2d 396, 861 N.W.2d 533. A policy's terms are interpreted as they would be understood from the perspective of a reasonable person in the position of the insured. Frost ex rel. Anderson v. Whitbeck, 2002 WI 129, ¶20, 257 Wis. 2d 80, 654 N.W.2d 225. ¶21 Allstate cites two provisions in the Shugarts' insurance policy, arguing they require the Shugarts to submit 8 No. 2016AP983 notice of loss as soon as possible5 after the accident. First, Allstate points to a provision in the liability portion of the policy, entitled "What To Do In Case Of An Auto Accident Or Claim" (the "notice of accident" provision): 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. ¶22 Although this provision is located in the liability portion of the policy, Allstate contends that it applies with equal force portion of to the UIM claims. policy Allstate does not concedes specifically insured must provide notice of an accident. that the that state UIM an Nevertheless, it argues that nothing in the notice provision contained in the liability portion of the policy indicates that the notice provision does not apply in the UIM context. ¶23 We disagree. separated into entitled "Automobile entitled "Underinsured insured reading provisions seven the located The Shugarts' insurance "parts." At Liability Insurance," Motorists policy in the would issue Insurance." likely liability 5 here policy are and A Part Part I, VII, reasonable conclude section is apply that the in the We observe that the notice of accident provision uses the phrase "as soon as reasonably possible" to describe the timing of the notice it requires, while the notice of claim provision uses the phrase "as soon as possible." This variance does not affect our analysis. 9 No. liability section only.6 2016AP983 See Martinson v. Am. Family Mut. Ins. Co., 63 Wis. 2d 14, 20, 216 N.W.2d 34 (1974) ("The 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 distinction is well established.").7 endorsement and the We therefore conclude that the "notice of accident" provision in the liability section of the Shugarts' policy does not apply to UIM claims. ¶24 Allstate next directs our attention to the UIM portion of the policy, which contains a provision entitled "Proof of Claim; Medical Reports" (the "proof of claim" provision). This provision sets forth that a person making a UIM claim must give Allstate written proof of claim "as soon as possible": 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. 6 Even if this were not the case, at the very least the "notice of accident" provision in the liability section of the policy is ambiguous as to its application to UIM claims. Accordingly, the provision must be construed against the insurer who drafted it. See Acuity v. Chartis Specialty Ins. Co., 2015 WI 28, ¶24, 361 Wis. 2d 396, 861 N.W.2d 533. 7 This difference still holds even though we distinguish this case from Martinson v. Am. Family Mut. Ins. Co., 63 Wis. 2d 14, 216 N.W.2d 34 (1974). See infra, ¶¶31-32. Although Martinson is an uninsured motorist (UM) case and this is a UIM case, the difference between proof of loss and proof of claim is as true for UIM claims as it is for the UM claim at issue in Martinson. 10 No. 2016AP983 The insured person may be required to take medical examinations by physicians we choose, as often as we reasonably require. We must be given authorization to obtain medical reports and copies of records. ¶25 At the outset, two characteristics of this provision are notable. First, the proof of claim provision is located in the UIM section of the policy. As discussed above, a reasonable insured would ascribe importance to this location in the policy, making it the operative notice provision for UIM claims. supra, ¶23. See Second, the provision requires a claimant to submit proof of "claim," not proof of "accident" or proof of "loss." Neither the word "accident" nor the word "loss" appears in the provision. ¶26 Pursuant to the proof of claim provision, a person making a UIM claim is required to submit "proof of claim" "as soon as possible." The question we must answer is when the Shugarts had a UIM claim of which they could give notice. other words, we must determine what is the operative In event triggering the proof of claim provision. ¶27 section To answer this question, we look elsewhere in the UIM of the policy. Namely, the policy contains an exhaustion provision, that states: We are not obligated to make any payment for bodily injury under this coverage which arises out of the use of an underinsured motor vehicle until after the limits of liability for all liability protection in effect and applicable at the time of the accident have been exhausted by payment of judgments or settlements. ¶28 the An exhaustion clause "requires the insured to exhaust tortfeasor's liability limits 11 by payment of full policy No. limits in Danbeck order v. Am. to trigger Family the Mut. Ins. Wis. 2d 186, 629 N.W.2d 150. "UIM benefits insurance are is damages." owed Id., ¶22. to Co., pay 2001 UIM WI benefits." 91, ¶25, 245 Pursuant to an exhaustion clause, only insufficient duty 2016AP983 when to the cover tortfeasor's the UIM liability policyholder's "Such language [in a policy] provides a clear indication of when the policy comes into play and when a presentable claim exists for the insured." Ins. Exch., 2002 WI 41, ¶20 n.3, Yocherer v. Farmers 252 Wis. 2d 114, 643 N.W.2d 457. ¶29 In other words, tortfeasor until drivers their are policy not limits by definition "underinsured" are exhausted. Danbeck, 245 Wis. 2d 186, ¶22; see also Arnold P. Anderson, Wisconsin Insurance Law § 4.93 (7th ed. 2015) ("UIM policies require that the insured recover or exhaust all money available from the tortfeasor's liability policy insured looks to the UIM policy for payment."). to the exhaustion operative event Shugarts' UIM clause, triggering policy is we conclude notice requirement tender of the Giving effect therefore the the before the that the in the tortfeasor's underlying policy limit. ¶30 The language and application of the exhaustion clause highlight the excess nature of UIM coverage. UIM coverage is first party coverage that may afford additional compensation for injured persons whenever a tortfeasor is inadequately insured. See Danner v. Auto-Owners Ins., 2001 WI 90, ¶51, 245 Wis. 2d 49, 629 N.W.2d 159 (quoting 3 Alan 12 I. Widiss, Uninsured and No. 2016AP983 Underinsured Motorist Insurance § 31.4, at 5 (Revised 2d ed. 2001)). the As explained above, UIM coverage is not triggered until tortfeasor's characteristic underlying liability differentiates UIM limits are coverage met. from This uninsured motorist (UM) coverage, which is first party coverage that is also "first dollar" coverage because the tortfeasor has no insurance. ¶31 Accordingly, the court of appeals' reliance on Martinson, 63 Wis. 2d 14, a case involving UM insurance, not UIM insurance, is misplaced. In Martinson, the court addressed whether an insured had provided timely proof of a UM claim as required by the applicable policy provision. The Martinson condition court require[d] concluded the that filing of See id. at 19-20. "[t]he the proof claim of as claim soon practicable after the incident giving rise to the claim." as at 21. Id. It further determined that the proof of claim condition "does not mean the claim should be filed as soon as practicable after the liability of the insurer has been established." ¶32 "first Martinson's holding makes sense in the context of a dollar" coverage. the Id. UM claim. However, UIM coverage is excess It is not triggered by the incident itself, but by tender Martinson, of the tortfeasor's underlying policy limit. therefore, is distinguishable because it addresses UM, but not UIM coverage. ¶33 Here, application of the exhaustion clause indicates that the Shugarts' UIM coverage was not triggered until the $50,000 policy limit of Mohr's Progressive policy was exhausted. 13 No. 2016AP983 This did not occur until October 13, 2014, when Progressive offered its policy limit to settle the case. Before that date, the Shugarts had no UIM "claim" of which they could give notice. ¶34 Indeed, prior to the offer of the policy limit on October 13, 2014, Progressive offered the Shugarts a $10,000 settlement. Had the Shugarts accepted this initial offer, after providing notice of the tentative settlement to Allstate, there would have been no UIM coverage. The amount received by the Shugarts would have been $40,000 less than Progressive's policy limit. As such, Mohr by definition would not have been an "underinsured" motorist. ¶35 After receiving Progressive's offer to settle for the full policy limit, the Shugarts did not unduly delay notifying Allstate of the offer. On October 28, 2014, fifteen days after receiving the offer from Progressive, the Shugarts sent Allstate a notice of retainer. Correspondence between the Shugarts and Allstate ensued, and the Shugarts ultimately sent a Vogt notice on February 9, 2015, advising Allstate of its ability to substitute payment and thereby protect its subrogation rights. See supra, ¶12 n.4. This timeline is sufficient to satisfy the policy's requirement that notice of claim be provided "as soon as possible." ¶36 provided Allstate notice contends shortly that after the the Shugarts accident, or should have at very the latest in August of 2013 after receiving the declarations page of the Progressive policy showing the policy limit of $50,000. But the policy requires notice 14 of "claim," not notice of No. "possible claim." 2016AP983 Accepting Allstate's argument would lead to the absurd result that an accident victim would be required to file a notice of a UIM claim after every auto accident to prevent forfeiting such a claim if the tortfeasor's underlying liability limits do not cover the full loss. ¶37 We thus conclude that, pursuant to the policy language, the operative event triggering the notice requirement in the Shugarts' UIM policy is the tender of the tortfeasor's underlying policy limit. Because the Shugarts sent Allstate a notice of retainer fifteen days after the Progressive's offer to settle for the policy limit and sent the Vogt notice within four months of that operative event, their notice to Allstate was timely. B ¶38 Allstate applies here. contends next that Wis. Stat. § 631.81(1) Section § 631.81(1) addresses proof of loss: 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. ¶39 Allstate asserts that the Shugarts did not provide proof of loss as soon as reasonably possible, and not within one year after the accident. According to Allstate, the notice is untimely pursuant to Wis. Stat. § 631.81(1). We disagree. As analyzed above, the policy does not require "proof of loss" for UIM claims. 15 No. ¶40 By indicating that "notice or proof 2016AP983 of loss" is required "within one year after the time it was required by the policy," Wis. Stat. § 631.81(1) presupposes that the policy requires "notice or proof of loss" in the first instance. In other words, the text of § 631.81(1) directs the reader back to the policy. As analyzed above, we conclude that the UIM section of the policy requires proof of "claim," not proof of "loss." See supra, ¶25. ¶41 For this reason, we determine that Wis. Stat. § 631.81(1) does not apply to the UIM policy at issue. Allstate contends that § 631.01(1) requires a contrary result.8 It argues that § 631.01(1) does not limit the application of § 631.81 to liability 8 insurance, and therefore it should apply to Wisconsin Stat. § 631.01(1) states: (1) General. This chapter and ch. 632 apply to all insurance policies and group certificates delivered or issued for delivery in this state, on property ordinarily located in this state, on persons residing in this state when the policy or group certificate is issued, or on business operations in this state, except: (a) As provided in ss. 600.01 and 618.42; (b) On business operations in this state if the contract is negotiated outside this state and if the operations in this state are incidental or subordinate to operations outside this state, unless the contract is for a policy of insurance to cover a warranty, as defined in s. 100.205(1)(g), in which case the provisions set forth in sub. (4m) apply; and (c) As otherwise provided in the statutes. 16 UIM No. insurance as § 631.81(1) policy well. We provisions notice of loss. not indicates clearly are that that by their persuaded. it own The applies terms to 2016AP983 text only require of those proof or See § 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 . . . ") (emphasis added). ¶42 Because we determine that, pursuant to the language of the policy, the Shugarts provided timely notice of their UIM claim to Allstate, we need not address whether Allstate was prejudiced by an untimely notice. See Ranes v. Am. Family Mut. Ins. Co., 219 Wis. 2d 49, ¶3, 580 N.W.2d 197 (1998) (holding that an insured's failure to give notice of settlement does not bar UIM coverage unless the insurer was prejudiced by the lack of notice); see also Wis. Stat. § 631.81(1). ¶43 In sum, we conclude that the operative event triggering the notice requirement in the Shugarts' UIM policy is the tender of the tortfeasor's underlying policy limit. We further conclude that Wis. Stat. § 631.81(1) does not apply to the UIM policy provision at issue. Consequently, we determine that the Shugarts provided Allstate with timely proof of their UIM claim as the policy language dictates. ¶44 Accordingly, we reverse the decision of the court of appeals and remand the cause to the circuit court for further proceedings. By the Court.—The decision of the court of reversed, and the cause remanded to the circuit court. 17 appeals is No. 18 2016AP983 No. 1 2016AP983
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