Robert H. Shugarts, II and Judith Lynn Shugarts, Plaintiffs-Appellants-Petitioners,
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.
ARGUMENT: January 9, 2018
OF DECISION OF THE COURT OF APPEALS Reported at 375 Wis.2d
225, 894 N.W.2d 443');">894 N.W.2d 443 PDC No: 2017 WI.App. 27 - Published
Circuit Court, Eau Claire county, Michael A. Schumacher
the plaintiffs-appellants-petitioners, there were briefs
filed and an oral argument by Harry R. Hertel and Hertel Law
Offices, S.C., Eau Claire.
the defendant-respondent, there was a brief filed by Leah M.
Cameron, John M. Swietlik, Jr., and Kasdorf, Lewis &
Swietlik, S.C., Milwaukee. There was an oral argument by John
M. Swietlik, Jr.
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 and Law Offices of William C.
Gleisner, III, Brookfield, and Lynn R. Laufenberg, Mark L.
Thomsen, and Gingras, Cates, Luebke, S.C., Waukesha. There
was an oral argument by Edward E. Robinson.
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 to the Shugarts'
underinsured motorist (UIM) carrier. 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
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. The Shugarts submit that instead it is the tender
of the 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
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) 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
the Shugarts' proof of claim was timely filed, we need
not address whether Allstate was prejudiced.
Accordingly, we reverse the court of appeals and remand to
the circuit court for further proceedings. I
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.
Mohr's vehicle was insured by Progressive Casualty
Insurance Company (Progressive). 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 Shugarts possessed a personal
automobile insurance policy through Allstate, which also
included UIM coverage.
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.
The Shugarts proposed a $600, 000 settlement with Progressive
in April of 2013. In May of 2013, Progressive turned down the
offer, persisting in its assertion that the intentional act
exclusion in Mohr's policy served as a defense to
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.
In July of 2014, the Shugarts filed an amended complaint,
adding Eau Claire County's insurer, WMMIC, as a
defendant. The Shugarts alleged that WMMIC was liable for UIM
coverage "arising out of the operation of" his
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."
After additional correspondence between the Shugarts'
attorneys and Allstate, on February 9, 2015, the Shugarts
sent Allstate a notice pursuant to Vogt v.
Schroeder, 129 Wis.2d 3, 383 N.W.2d 876');">383 N.W.2d 876 (1986)
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
The Shugarts filed an additional amended complaint in March
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."
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."
The circuit court granted Allstate's motion for summary
judgment. Specifically, it stated that it considered the
notice untimely ...