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. Wisconsin's direct-action statute, Wis. Stat. § 632.24, permits an injured claimant to sue the liability insurer directly on the insured's covered liability. That direct action does not itself give an ordinary third-party tort claimant a bad-faith claim against the insurer. Kranzush v. Badger State Mut. Cas. Co., 103 Wis. 2d 56, 307 N.W.2d 256 (1981).

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. Ch. 344

Subject to the exceptions in § 344.63, § 344.62 requires a motor vehicle liability policy for highway operation. The financial-responsibility and liability-policy limits in §§ 344.01(2)(d) and 344.33(2) are:

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. Insurer Bad Faith — Claimant Standing

Anderson v. Continental Ins. Co., 85 Wis. 2d 675, 271 N.W.2d 368 (1978), concerns an insured's first-party bad-faith claim. An ordinary injured third party cannot sue the tortfeasor's insurer for bad faith in refusing to settle an unliquidated liability claim. Kranzush, 103 Wis. 2d 56. A third party with an independently vested claim may stand differently; Meleski v. Schbohm LLC, 2012 WI App 63, ¶¶9–11, distinguishes such a claim. An insured's viable bad-faith claim is an intentional tort; Wis. Stat. § 893.57 now gives three years after accrual. Warmka v. Hartland-Cicero Mut. Ins. Co., 136 Wis. 2d 31, applied the older two-year period.

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 crash report (Form DT4000) 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. We reserve our client's direct-action and underlying tort remedies. Any insurer duty to settle for the insured's protection is owed to the insured, subject to the facts and applicable law.

VII. SETTLEMENT NEGOTIATION PROVISIONS

A. Good Faith Claims Handling

An insurer's good-faith duties depend on its relationship to the claimant. Our client seeks prompt evaluation and settlement of the insured's liability; this demand does not assert an Anderson bad-faith claim by an ordinary third-party tort claimant.

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 our client's direct action under Wis. Stat. § 632.24 and other remedies available on the underlying claim.

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 (DT4000)
☐ 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 Standing: Anderson concerns an insured's first-party claim; Kranzush bars an ordinary third-party tort claimant's insurer bad-faith claim. The current intentional-tort period is three years after accrual under Wis. Stat. § 893.57; Warmka applied the former two-year period.
☐ Collateral Source Rule: Leitinger v. DBart, Inc., 2007 WI 84 - seek the reasonable value of necessary treatment, which is not necessarily the amount billed or paid. In an ordinary personal injury claim, the insurer-paid amount is generally excluded as collateral-source evidence. See Wis JI–Civil 1756.
☐ Minimum Liability Insurance 25/50/10: Wis. Stat. §§ 344.01(2)(d), 344.33(2), 344.62; UM minimum 25/50 under § 632.32(4)
☐ 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. § 893.57 (Intentional Torts; current three-year period): https://docs.legis.wisconsin.gov/statutes/statutes/893.pdf
• Wis. Stat. § 632.24 (Direct Action Against Insurer): https://docs.legis.wisconsin.gov/document/statutes/632.24
• Wis. Stat. § 632.32 (Motor Vehicle Policy Provisions; UM/UIM): https://docs.legis.wisconsin.gov/document/statutes/632.32
• Wis. Stat. ch. 344 (Financial Responsibility and Required Liability Policy): https://docs.legis.wisconsin.gov/statutes/statutes/344.pdf
• WisDOT Traffic Engineering, Operations and Safety Manual, ch. 12 (DT4000): https://wisconsindot.gov/dtsdManuals/traffic-ops/manuals-and-standards/teops/12.pdf
• 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)
• Meleski v. Schbohm LLC, 2012 WI App 63, ¶¶9–11 (discussing Kranzush and vested third-party claims): https://www.wicourts.gov/ca/opinion/DisplayDocument.pdf?content=pdf&seqNo=81710
• 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