Estate Insurance Claim Liability.

Byline: Derek Hawkins

WI Court of Appeals District III

Case Name: Estate of Kevin L. Payette, et al., v. David E. Marx, et al.

Case No.: 2018AP627

Officials: Stark, P.J., Hruz and Seidl, JJ.

Focus: Estate Insurance Claim Liability

In this wrongful death and survival action, David Marx and his insurer, 1st Auto Casualty Insurance Company (collectively, 1st Auto), appeal a judgment awarding prejudgment interest at the rate of 12 percent per year under WIS. STAT. 628.46 (2015-16) to the Estate of Kevin Payette and Payette's minor children, Alexis and Natalie Payette. Section 628.46(1) requires an insurer to "promptly pay every insurance claim" within thirty days of an insurer being provided "written notice of the fact of a covered loss and of the amount of the loss" unless "the insurer has reasonable proof to establish that the insurer is not responsible for the payment." Id.

In Kontowicz v. American Standard Insurance Co., our supreme court concluded that WIS. STAT. 628.46 is applicable in the context of, as here, third-party liability claims. See Kontowicz v. American Standard Ins. Co., 2006 WI 48, 2, 290 Wis. 2d 302, 714 N.W.2d 105, clarified on denial of reconsideration, 2006 WI 90, 3, 293 Wis. 2d 262, 718 N.W.2d 111. However, the Kontowicz court limited its "holding to only those situations in which three conditions to trigger the interest are met." Kontowicz, 290 Wis. 2d 302, 2. Namely, a third-party claimant is entitled to prejudgment interest under 628.46 where: (1) "there can be no question of liability on the part of the insured"; (2) "the amount of the damages [is] in a sum certain amount"; and (3) "the claimant [provides] written notice of both liability and the sum certain amount owed" to the insurer. Kontowicz, 290 Wis. 2d 302, 2.

On appeal, 1st Auto contends the circuit court erred in concluding that the Estate satisfied any of those three conditions. In addition, 1st Auto argues the court erred by concluding that 1st Auto lacked reasonable proof that it would not be responsible for payment of the Estate's claims.

We...