Auto Accident Demand Letter - Wisconsin

DEMAND FOR SETTLEMENT - MOTOR VEHICLE COLLISION

STATE OF WISCONSIN

FOR SETTLEMENT PURPOSES — WIS. STAT. § 904.08 MAY LIMIT SPECIFIED USES OF DISPUTED-CLAIM NEGOTIATIONS

[FIRM NAME]
[________________________________]
[________________________________]
[City], Wisconsin [____]
Telephone: [________________________________]
Facsimile: [________________________________]
Email: [________________________________]

DATE: [__/__/____]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND VIA ELECTRONIC MAIL

[________________________________]
[Adjuster Name]
[________________________________]
[Insurance Company Name]
[________________________________]
[Street Address]
[________________________________]
[City, State ZIP]

RE: SETTLEMENT DEMAND - MOTOR VEHICLE COLLISION
Our Client: [________________________________] (hereinafter "Claimant")
Date of Loss: [__/__/____]
Location of Accident: [________________________________]
Your Insured: [________________________________] (hereinafter "Tortfeasor")
Policy Number: [________________________________]
Claim Number: [________________________________]
Date of Birth: [__/__/____]
Age at Time of Accident: [____]

Dear [________________________________]:

This firm represents [________________________________] (hereinafter "Claimant") in connection with personal injuries and damages sustained in a motor vehicle collision that occurred on [__/__/____] in [________________________________] County, Wisconsin. This letter constitutes a formal demand for settlement of our client's claims arising from the negligence of your insured, [________________________________].

If and to the extent this demand constitutes compromise negotiations concerning a claim disputed as to validity or amount, Wis. Stat. § 904.08 may limit specified uses of the negotiations. It does not itself create confidentiality or privilege and may permit use for another purpose. We remind you that Wisconsin recognizes a common-law tort cause of action against an insurer for the bad faith handling of a claim, Anderson v. Continental Ins. Co., 85 Wis. 2d 675, 271 N.W.2d 368 (1978), and that Wisconsin's direct-action statute, Wis. Stat. § 632.24, permits an injured claimant to sue your company directly in the same action as your insured. Failure to evaluate and respond to this demand in good faith may expose your company to extracontractual liability.

I. WISCONSIN LEGAL FRAMEWORK

A. Modified Comparative Negligence - Separate-Person Comparison - Wis. Stat. § 895.045

Wisconsin follows a modified comparative negligence system under Wis. Stat. § 895.045(1), which provides:

"Contributory negligence does not bar recovery in an action by any person or the person's legal representative to recover damages for negligence resulting in death or in injury to person or property, if that negligence was not greater than the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributed to the person recovering. The negligence of the plaintiff shall be measured separately against the negligence of each person found to be causally negligent."

Under this statute, a plaintiff is barred against a particular person when the plaintiff's negligence is greater than that person's negligence. Allowed damages are reduced in proportion to the plaintiff's negligence. Because the comparison is made separately against each causally negligent person, a plaintiff below 51% of total causal negligence can still be barred against a less-negligent person in a multiparty case. The separate 51% threshold below governs a defendant's joint-and-several liability.

In the present case, your insured bears 100% of the negligence for this collision. Our client was free of all contributory negligence.

B. Joint and Several Liability - Wis. Stat. § 895.045(1)

Under Wis. Stat. § 895.045(1), a person found to be causally negligent whose percentage of causal negligence is less than 51% is liable only for that person's percentage of the total causal negligence. A person whose percentage of causal negligence is 51% or more is jointly and severally liable for the damages allowed.

C. Statute of Limitations - Wis. Stat. § 893.54

Under Wis. Stat. § 893.54(1m), the statute of limitations for an action to recover damages for injuries to the person — including injuries arising from a motor-vehicle accident — is three (3) years from the date the cause of action accrues. The collision occurred on [__/__/____], and accordingly, the personal injury limitations period expires on [__/__/____].

Wrongful death (motor-vehicle): If this collision resulted in death, note that Wis. Stat. § 893.54(2m) requires a wrongful-death action arising from an accident involving a motor vehicle to be commenced within two (2) years of accrual — not the general three-year period. Any death claim must be calendared to that separate two-year deadline.

D. Direct Action Against the Insurer - Wis. Stat. § 632.24

This is a distinctive feature of Wisconsin law. Under Wis. Stat. § 632.24, "[a]ny bond or policy of insurance covering liability to others for negligence makes the insurer liable, up to the amounts stated in the bond or policy, to the persons entitled to recover against the insured for the death of any person or for injury to persons or property, irrespective of whether the liability is presently established or is contingent and to become fixed or certain by final judgment against the insured."

In practical terms, Wisconsin's direct-action statute permits our client to name and sue your company directly as a defendant, in the same lawsuit as your insured, without first obtaining a judgment against the insured. (See also Wis. Stat. § 803.04(2), permitting joinder of the insurer.) This materially increases your company's direct exposure and is a significant factor in evaluating this demand.

E. Mandatory Liability Insurance and Minimum Limits - Wis. Stat. § 632.32; Ch. 344

Wisconsin requires every operator to maintain liability insurance with the following minimum limits under Wis. Stat. § 632.32(4):

F. Mandatory Uninsured Motorist Coverage - Wis. Stat. § 632.32(4)

Under Wis. Stat. § 632.32(4), every motor vehicle liability policy issued in Wisconsin must include uninsured motorist (UM) coverage with minimum limits of $25,000 per person and $50,000 per accident for bodily injury. Underinsured motorist (UIM) coverage is not mandatory but, where purchased, is governed by Wis. Stat. § 632.32(4m). UM/UIM coverage applies where the at-fault driver is uninsured or carries insufficient limits.

G. Bad Faith - Anderson v. Continental Ins. Co.

Wisconsin recognizes a common-law tort of bad faith against an insurer for the unreasonable handling of a claim. Anderson v. Continental Ins. Co., 85 Wis. 2d 675, 271 N.W.2d 368 (1978). To establish bad faith, a claimant must show the absence of a reasonable basis for the insurer's conduct and the insurer's knowledge or reckless disregard of the lack of a reasonable basis. A bad faith claim is an intentional tort subject to a two-year statute of limitations. See Warmka v. Hartland-Cicero Mut. Ins. Co., 136 Wis. 2d 31, 400 N.W.2d 923 (1987). We reserve all rights and remedies available under Wisconsin law for the unreasonable handling of this claim.

H. Collateral Source Rule

Wisconsin follows the collateral source rule. Payments our client receives from independent sources (such as health insurance) do not reduce the damages recoverable from the tortfeasor and are generally inadmissible to diminish recovery. See Leitinger v. DBart, Inc., 2007 WI 84, 302 Wis. 2d 110, 736 N.W.2d 1.

II. STATEMENT OF FACTS

A. Accident Description

On [__/__/____], at approximately [____] [a.m./p.m.], our client, [________________________________], was operating a [____ Year] [________________________________] [Make/Model], bearing Wisconsin license plate number [________________________________], traveling [direction] on [________________________________] [Street/Highway/County Trunk] in/near [________________________________], [________________________________] County, Wisconsin.

At the time of the collision, our client was [________________________________] [describe activity].

Your insured, [________________________________], was operating a [____ Year] [________________________________] [Make/Model], bearing license plate number [________________________________]. Your insured [________________________________] [describe negligent conduct].

As a direct and proximate result of your insured's negligence, your insured's vehicle struck our client's vehicle [________________________________] [describe point of impact].

B. Weather and Road Conditions

Weather conditions were [________________________________]. Road conditions were [________________________________]. Visibility was [________________________________]. The posted speed limit was [____] miles per hour.

C. Police Report

The collision was investigated by [________________________________] [law enforcement agency, e.g., Wisconsin State Patrol, county sheriff, municipal police department]. The investigating officer, [________________________________], prepared a Wisconsin Motor Vehicle Accident Report (Form MV4000) assigned [________________________________]. The report [________________________________] [summarize findings].

D. Witnesses

E. Physical Evidence

☐ Photographs of the accident scene preserved
☐ Photographs of vehicle damage preserved
☐ Photographs of client's visible injuries preserved
☐ Dashcam or surveillance video footage [is/is not] available
☐ Event Data Recorder (EDR) data [has/has not] been preserved
☐ Cell phone records of the at-fault driver [have/have not] been requested
☐ Traffic camera footage [has/has not] been requested

III. LIABILITY ANALYSIS

A. Negligence of Your Insured

Under Wisconsin law, the elements of a negligence claim are: (1) a duty of care, (2) a breach of that duty, (3) a causal connection between the breach and the injury, and (4) damages. See Hoida, Inc. v. M&I Midstate Bank, 2006 WI 69, 291 Wis. 2d 283, 717 N.W.2d 17.

Your insured breached the duty of care by:

☐ Failing to maintain control of the vehicle
☐ Operating a vehicle without due care / inattentive driving (Wis. Stat. § 346.89)
☐ Failing to maintain a proper lookout
☐ Following too closely (Wis. Stat. § 346.14)
☐ Failing to yield the right of way (Wis. Stat. § 346.18)
☐ Operating a motor vehicle while distracted / texting (Wis. Stat. § 346.89(3))
☐ Operating while intoxicated (Wis. Stat. § 346.63)
☐ Exceeding the posted speed limit / driving too fast for conditions (Wis. Stat. § 346.57)
☐ Failing to obey a traffic control signal (Wis. Stat. § 346.37)
☐ [________________________________] [other negligent conduct]

B. Negligence Per Se / Safety-Statute Violation

A violation of a Wisconsin traffic statute enacted for public safety constitutes evidence of negligence and may support a finding of negligence as a matter of law where the statute satisfies the safety-statute test.

C. Proximate Causation

Your insured's negligence was a substantial factor in producing our client's injuries. But for the negligent conduct, this collision would not have occurred.

D. Allocation of Fault

Your insured bears 100% of the causal negligence for this collision. Our client bears 0% contributory negligence. Accordingly, no reduction under Wis. Stat. § 895.045 applies.

IV. INJURIES AND MEDICAL TREATMENT

A. Emergency Treatment

Following the collision, our client was [________________________________] [describe transport to medical facility] on [__/__/____]. Presenting complaints included:

• [________________________________]
• [________________________________]
• [________________________________]

Emergency diagnoses:

• [________________________________]
• [________________________________]
• [________________________________]

B. Medical Treatment Chronology

C. Treating Physicians and Specialists

D. Current Medical Status and Prognosis

As of this demand, our client [________________________________] [describe current condition and prognosis]. Dr. [________________________________] has opined that [________________________________].

E. Future Medical Treatment

V. DAMAGES

A. Economic Damages

1. Past Medical Expenses

2. Future Medical Expenses

3. Lost Wages and Income

Our client was employed by [________________________________] as a [________________________________] earning $[________] [per period]. As a direct result of injuries, our client was unable to work for [________________________________].

4. Loss of Earning Capacity

[If applicable] $[________]

5. Property Damage

6. Out-of-Pocket Expenses

B. Non-Economic Damages

1. Pain and Suffering

Our client has endured significant physical pain, emotional distress, and diminished quality of life. [________________________________] [Describe nature and severity of pain, impact on daily life, sleep issues, anxiety, depression, loss of enjoyment, etc.]

Wisconsin does not impose a statutory cap on non-economic damages in ordinary motor vehicle personal injury cases. (Note: a non-economic cap applies to medical malpractice actions under Wis. Stat. § 893.55, which does not apply here.)

Pain and Suffering Valuation: Based on the severity, duration, and permanence of our client's injuries, we value pain and suffering at $[________].

2. Loss of Society and Companionship / Consortium

[If applicable] Our client's spouse, [________________________________], has suffered loss of consortium, including the loss of companionship, society, and services. Wisconsin recognizes loss of consortium as an independent claim.

Loss of Consortium Damages: $[________]

C. Summary of Damages

VI. DEMAND FOR SETTLEMENT

Based upon the foregoing, we demand settlement in the total amount of:

$[________________________________]

This demand is open for thirty (30) days, expiring on [__/__/____]. If we do not receive a meaningful response or acceptable offer by that date, we will file a civil complaint in the appropriate Wisconsin Circuit Court without further notice. As permitted by Wis. Stat. § 632.24, that complaint will name your company directly as a defendant.

This demand covers all claims including:

☐ Personal injury claims
☐ Property damage claims
☐ Loss of consortium (if applicable)
☐ All past, present, and future damages

[OPTIONAL - POLICY LIMITS DEMAND] The damages set forth above substantially exceed the available liability coverage. We therefore demand tender of the full applicable policy limits of $[________]. This is a time-limited demand to settle within policy limits, open for [____] days. We request immediate written confirmation of all applicable liability, umbrella, and excess coverage. An insurer that, without a reasonable basis, fails to settle a claim within policy limits where liability and damages are clear exposes itself to extracontractual (bad faith) liability under Anderson v. Continental Ins. Co., and all such rights are expressly reserved.

VII. SETTLEMENT NEGOTIATION PROVISIONS

A. Good Faith Claims Handling

Wisconsin imposes a duty of good faith on insurers. The unreasonable failure to evaluate and pay a legitimate claim may give rise to bad faith liability under Anderson.

B. Policy Limits Disclosure

We request immediate written confirmation of:

☐ The liability coverage limits
☐ Any umbrella or excess policies
☐ Whether coverage is disputed
☐ UM/UIM coverage limits on all applicable policies

C. Reservation of Rights

This demand is without prejudice to all rights, including bad faith claims under Anderson, direct action under Wis. Stat. § 632.24, and all other available remedies.

VIII. LITIGATION WARNING

Should settlement fail, we will file suit in [________________________________] County Circuit Court, Wisconsin, naming both your insured and your company directly pursuant to Wis. Stat. § 632.24. We will pursue full compensatory damages, costs, statutory interest, and all available relief.

IX. MEDICAL RECORDS AUTHORIZATION

Enclosed is a HIPAA-compliant authorization (45 C.F.R. § 164.508).

I, [________________________________], authorize the following providers to release records related to the collision on [__/__/____] to [________________________________] [Insurance Company]:

This authorization expires on [__/__/____] or upon final resolution, whichever occurs first.

Signature: _________________________________ Date: [__/__/____]
Printed Name: [________________________________]

X. ENCLOSED DOCUMENTATION

☐ Police/Accident Report (MV4000)
☐ Photographs of accident scene
☐ Photographs of vehicle damage
☐ Photographs of injuries
☐ Medical records and bills (itemized)
☐ Proof of lost wages
☐ Property damage estimates/invoices
☐ HIPAA-compliant medical authorization
☐ Expert reports (if available)
☐ Witness statements
☐ [________________________________]

XI. DOCUMENTATION CHECKLIST - CLAIMANT FILE

☐ Accident/police report obtained
☐ All medical records collected
☐ All medical bills itemized (billed and paid)
☐ Lost wage documentation obtained
☐ Property damage documented
☐ Witness statements preserved
☐ Injury photographs at multiple recovery stages
☐ Insurance policy information confirmed
☐ Personal injury SOL deadline calendared ([__/__/____] - THREE YEARS)
☐ Treatment completed or at MMI
☐ Future medical projections obtained
☐ Pain and suffering documentation maintained
☐ Insurance correspondence documented
☐ HIPAA authorization executed
☐ Demand sent certified mail
☐ Settlement authority confirmed with client
☐ Lien search completed (health insurer, Medicare/Medicaid, hospital)
☐ Direct-action joinder of insurer (§ 632.24) evaluated for complaint

XII. WISCONSIN-SPECIFIC PRACTICE NOTES

☐ Modified Comparative Negligence (51% Bar): Wis. Stat. § 895.045 - barred if plaintiff's negligence is greater than that of the person against whom recovery is sought; negligence measured separately against each tortfeasor
☐ Joint and Several Liability Threshold: Wis. Stat. § 895.045(1) - defendant 51%+ causally negligent is jointly and severally liable; under 51% is several only
☐ Three-Year Personal Injury SOL: Wis. Stat. § 893.54(1m) - calendar carefully
☐ Two-Year Wrongful-Death SOL (motor vehicle): Wis. Stat. § 893.54(2m) - death arising from a motor-vehicle accident is 2 years, not 3 (2015 Wis. Act 133)
☐ DIRECT ACTION AGAINST INSURER: Wis. Stat. § 632.24 (and § 803.04(2)) - insurer may be sued directly and joined in the same action as the insured; major leverage point unique to a handful of states
☐ Bad Faith: Anderson v. Continental Ins. Co., 271 N.W.2d 368 (Wis. 1978) - common-law tort; 2-year SOL (Warmka)
☐ Collateral Source Rule: Leitinger v. DBart, Inc., 2007 WI 84 - full billed amounts; collateral source evidence generally inadmissible
☐ Minimum Insurance 25/50/10: Wis. Stat. § 632.32(4); UM minimum 25/50
☐ Mandatory UM Coverage: Wis. Stat. § 632.32(4); UIM optional (§ 632.32(4m))
☐ No Non-Economic Cap (auto): Cap under § 893.55 applies only to medical malpractice
☐ Venue: Generally proper in the county where the claim arose or where a defendant resides (Wis. Stat. § 801.50)

Respectfully submitted,

[FIRM NAME]

By: _________________________________
[________________________________]
[Attorney Name]
Wisconsin State Bar No. [________________________________]
[________________________________]
[Street Address]
[________________________________]
[City, Wisconsin ZIP]
Telephone: [________________________________]
Email: [________________________________]

cc: [________________________________] [Client Name]
Enclosures: As noted above

SOURCES AND REFERENCES

• Wis. Stat. § 895.045 (Contributory/Comparative Negligence): https://docs.legis.wisconsin.gov/document/statutes/895.045
• Wis. Stat. § 893.54 (Statute of Limitations - Injury to the Person): https://docs.legis.wisconsin.gov/document/statutes/893.54
• Wis. Stat. § 632.24 (Direct Action Against Insurer): https://docs.legis.wisconsin.gov/document/statutes/632.24
• Wis. Stat. § 632.32 (Motor Vehicle Insurance Provisions; UM/UIM; Minimum Limits): https://docs.legis.wisconsin.gov/document/statutes/632.32
• Anderson v. Continental Ins. Co., 271 N.W.2d 368 (Wis. 1978): https://law.justia.com/cases/wisconsin/supreme-court/1978/76-242-7.html
• Warmka v. Hartland-Cicero Mut. Ins. Co., 400 N.W.2d 923 (Wis. 1987) (bad faith SOL)
• Leitinger v. DBart, Inc., 2007 WI 84 (collateral source rule)
• Wisconsin OCI - Auto Insurance FAQ (minimum limits 25/50/10): https://oci.wi.gov/documents/consumers/pi-233.pdf
• Wisconsin DOT - Auto Insurance Requirements: https://wisconsindot.gov/Pages/dmv/license-drvs/rcd-crsh-rpt/auto-insurance.aspx