Robert H. Shugarts, II and Judith Lynn Shugarts, Plaintiffs-Appellants,
Dennis M. Mohr, Progressive Casualty Insurance Company/Artisan, Truckers Casualty Company and Wisconsin Municipal Mutual Insurance Company, Defendants, Allstate Property and Casualty Insurance Company, Defendant-Respondent.
from a judgment of the circuit court for Eau Claire County
Cir. Ct. No. 2013CV377: MICHAEL A. SCHUMACHER, Judge.
Stark, P. J., Hruz and Seidl, JJ.
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.
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 car was insured under a policy issued by
Wisconsin Municipal Mutual Insurance Company (WMMIC), which
included UIM coverage. Shugarts and his wife, Judith
Shugarts, had a personal automobile insurance policy through
Allstate, which also included UIM coverage.
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' vehicle. In April 2013, through new
counsel, Shugarts wrote to Progressive and offered to settle
the case for $600, 000. In response, Progressive continued to
assert that its policy excluded coverage for Shugarts'
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.
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.
Progressive subsequently changed its coverage position. On
October 13, 2014, it offered to settle Shugarts' claim
for its full bodily injury liability limit of $50, 000.
Approximately two weeks later, on October 28, 2014,
Shugarts' attorney's firm sent a notice of retainer
to Allstate, advising it Shugarts had retained counsel to
represent him "with regard to injuries he sustained in
an automobile accident which occurred on October 11,
2010." During the ensuing months, staff from
Shugarts' attorney's firm continued to correspond
with Allstate regarding Shugarts' UIM claim. On February
9, 2015, counsel sent Allstate a notice, pursuant to Vogt
v. Schroeder, 129 Wis.2d 3, 383 N.W.2d 876');">383 N.W.2d 876 (1986), that
Progressive had offered to settle Shugarts' claim for its
$50, 000 bodily injury liability limit.
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
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 notify Allstate sooner because he believed there
was "no need to resort to this policy." However,
the court stated any failure to provide notice for that
reason was "not reasonable." Finally, the court
concluded Shugarts had failed to rebut the presumption that
Allstate was prejudiced by the untimely notice. Shugarts now
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. §
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 policy language is
enforced as written. Marnholtz v. Church Mut. Ins.
Co., 2012 WI.App. 53, ¶10, 341 Wis.2d 478, 815
N.W.2d 708. However, we construe ambiguous policy language
against the insurer and in favor of coverage. Id.
Policy language is ambiguous if it is reasonably susceptible
to more than one interpretation. Id.
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." Neffv. 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,
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" ...