Wisconsin Personal Injury Demand Letter

PERSONAL INJURY DEMAND LETTER — WISCONSIN

FOR SETTLEMENT PURPOSES — EVIDENTIARY USE SUBJECT TO WIS. STAT. § 904.08

HEADER INFORMATION

SENT VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED

Date: [__/__/____]

FROM:
[________________________________]
Attorney at Law
[________________________________]
[________________________________]
[________________________________]
Telephone: [________________________________]
Facsimile: [________________________________]
Email: [________________________________]
Wisconsin State Bar No.: [________________________________]

TO:
[________________________________]
Claims Adjuster / Claims Department
[________________________________] Insurance Company
[________________________________]
[________________________________]

RE: PERSONAL INJURY DEMAND

I. INTRODUCTION AND PURPOSE

This letter constitutes a formal demand for compensation on behalf of our client, [________________________________] ("Claimant"), for personal injuries and damages sustained as a direct and proximate result of the negligence of your insured, [________________________________] ("Tortfeasor"), on [__/__/____] in [________________________________], Wisconsin.

This firm represents Claimant in all claims arising from this incident. All communications should be directed exclusively to this office.

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 make an ordinary demand confidential or privileged and permits use for another purpose.

WISCONSIN COMPARATIVE FAULT: Under Wis. Stat. § 895.045(1), a plaintiff is compared separately with each person found causally negligent and is barred against a person when the plaintiff's negligence is greater than that person's negligence. Allowed damages are reduced proportionally. The separate 51% threshold governs a negligent person's joint-and-several liability; it is not a universal plaintiff-fault bar in a multiparty case.

II. FACTUAL BACKGROUND

A. Pre-Incident Conditions

On [__/__/____], at approximately [____] [a.m./p.m.], Claimant was [________________________________] at or near [________________________________], Wisconsin.

Weather: [________________________________]
Road conditions: [________________________________]
Lighting: [________________________________]
Traffic: [________________________________]

B. The Incident

[________________________________]
[________________________________]
[________________________________]
[________________________________]

C. Emergency Response

☐ Police called — Report No.: [________________________________]
☐ EMS responded — Report No.: [________________________________]
☐ Claimant transported by ambulance to [________________________________]
☐ Claimant sought treatment at [________________________________]
☐ Fire department responded
☐ Photographs taken at scene
☐ Witness statements obtained

D. Witnesses

E. Police Report

Officer [________________________________], [________________________________]:

• [________________________________]
• [________________________________]

☐ Citations to tortfeasor: [________________________________]
☐ No citations to Claimant

III. LIABILITY ANALYSIS UNDER WISCONSIN LAW

A. Negligence Standard

Wisconsin negligence elements:

1. Duty of care owed by the tortfeasor
2. Breach of the standard of care
3. Cause-in-fact — "but for" the breach, injury would not have occurred
4. Proximate cause — foreseeable consequences
5. Damages — actual, compensable injuries

Note: Wisconsin uses a "substantial factor" test for cause-in-fact in some cases, rather than the strict "but for" test.

B. Tortfeasor's Acts of Negligence

☐ Failure to maintain proper lookout
☐ Failure to yield right of way
☐ Following too closely (Wis. Stat. § 346.14)
☐ Distracted driving / handheld device (Wis. Stat. § 346.89(4m))
☐ Excessive speed (Wis. Stat. § 346.57)
☐ Failure to obey traffic signals (Wis. Stat. § 346.37)
☐ Improper lane change
☐ OWI / DUI (Wis. Stat. § 346.63)
☐ Reckless driving (Wis. Stat. § 346.62)
☐ Failure to maintain vehicle
☐ Other: [________________________________]

C. Modified Comparative Negligence (Wis. Stat. § 895.045)

Wisconsin's statute provides:

"Contributory negligence does not bar recovery in an action by any person... 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."

Key Principles:

• Plaintiff is compared separately with each causally negligent person and is barred against that person only if plaintiff negligence is greater
• If 50% or less, recovery reduced by plaintiff's percentage of negligence
• When multiple defendants: plaintiff's negligence is compared to each defendant separately for purposes of the bar

Claimant bears NO fault. The tortfeasor is 100% responsible.

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

Wisconsin has a two-tier liability system:

• Defendant 51% or more at fault: Jointly and severally liable for all damages
• Defendant less than 51% at fault: Severally liable only — responsible for only that defendant's proportionate share

Practical Significance: If the tortfeasor is found 51%+ at fault, the tortfeasor (and the insurer) is liable for the entire damages award, even if other parties share some fault.

E. Collateral Source Rule

Wisconsin follows the collateral source rule. Evidence of benefits received from collateral sources (health insurance, disability, etc.) is generally inadmissible to reduce the plaintiff's damages. The tortfeasor must compensate the plaintiff for the full amount of medical expenses incurred.

F. Negligence Per Se

Statutory violations:

• Wis. Stat. § [________________________________]: [________________________________]
• Wis. Stat. § [________________________________]: [________________________________]

IV. INJURIES AND MEDICAL TREATMENT

A. Summary of Injuries

Primary Diagnoses:

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

Secondary/Associated Conditions:

• [________________________________]
• [________________________________]

B. Injury Checklist

☐ Traumatic brain injury / Concussion
☐ Cervical spine injury (herniation / bulge / fracture)
☐ Thoracic spine injury
☐ Lumbar spine injury
☐ Shoulder injury (rotator cuff / labral)
☐ Knee injury (ACL / MCL / meniscus)
☐ Hip injury / fracture
☐ Rib fractures
☐ Extremity fractures
☐ Facial lacerations / scarring
☐ Soft tissue injuries
☐ Nerve damage / radiculopathy
☐ PTSD / anxiety / depression
☐ TMJ dysfunction
☐ Other: [________________________________]

C. Chronological Treatment History

D. Diagnostic Imaging

E. Surgical Procedures

F. Prognosis

Treating physician [________________________________]:

• [________________________________]
• MMI: ☐ Reached [__/__/____] ☐ Not yet reached
• Impairment rating: [____]%
• Future treatment: [________________________________]
• Future medical costs: $[________________________________]

V. DAMAGES CALCULATION

A. Economic Damages (No Cap)

B. Non-Economic Damages

Wisconsin Non-Economic Damages Cap: The $750,000 cap on non-economic damages under Wis. Stat. § 893.55(4)(d)(1) applies only to medical malpractice cases. In general personal injury cases, there is no cap on non-economic damages. (The Wisconsin Supreme Court struck down a prior general PI non-economic cap in Ferdon ex rel. Petrucelli v. Wisconsin Patients Comp. Fund, 2005 WI 125, 284 Wis. 2d 573.)

C. Total Damages Summary

VI. INSURANCE COVERAGE ANALYSIS

A. Tortfeasor's Liability Coverage

Wisconsin Auto Insurance Minimums (Wis. Stat. § 344.33):
- $25,000/$50,000 bodily injury; $10,000 property damage (25/50/10)

B. UM/UIM Coverage

Wisconsin requires UM coverage (Wis. Stat. § 632.32). UIM must be offered.

C. MedPay

VII. PREJUDGMENT INTEREST

A. Insurance Claim Interest (Wis. Stat. § 628.46(1))

Qualifying overdue insurance claim payments bear simple interest at 7.5% per annum. For a third-party liability claim, use this section only after establishing clear liability, a sum certain owed, and written notice of both; the insurer must also have received the required proof of loss or equivalent evidence and lack reasonable proof of nonresponsibility. Interest begins when the qualifying payment becomes overdue, not merely when a demand is sent.

B. Offer of Settlement Interest (Wis. Stat. § 807.01(4))

If the claimant makes a formal offer of settlement that is rejected and subsequently obtains a judgment more favorable than the rejected offer, the claimant may be entitled to prejudgment interest on the amount of the judgment.

VIII. PUNITIVE DAMAGES

Applicability (Wis. Stat. § 895.043)

Punitive damages in Wisconsin require proof by clear and convincing evidence that the defendant acted:

• Maliciously; or
• In intentional disregard of the rights of the plaintiff

Statutory Cap (Wis. Stat. § 895.043(6))

Punitive damages are capped at the greater of:

• Two (2) times the amount of compensatory damages; or
• $200,000

☐ Punitive damages sought: [________________________________]
☐ Punitive damages not sought at this time

IX. SETTLEMENT DEMAND

SETTLEMENT DEMAND: $[________________________________]

Terms:

1. Payment within thirty (30) days of receipt
2. Certified funds to [________________________________], Attorney Trust Account
3. Full and final release upon payment
4. Inclusive of all claims from the incident
5. Excludes first-party insurance claims (MedPay, UM/UIM)

Note: This demand also constitutes a formal offer of settlement for purposes of Wis. Stat. § 807.01(4). If rejected and Claimant obtains a more favorable judgment at trial, prejudgment interest will apply.

X. STATUTE OF LIMITATIONS AND RESERVATION OF RIGHTS

Statute of Limitations

Under Wis. Stat. § 893.54, the SOL for personal injury is three (3) years.

Reservation of Rights

Claimant reserves all rights, including filing suit, amending damages, pursuing punitive damages, pursuing UM/UIM claims, seeking prejudgment interest, and all other remedies under Wisconsin law.

WARNING: If this demand is not accepted, Claimant will file suit. Wisconsin's joint and several liability rule means that a defendant found 51% or more at fault is liable for the entire damages award. Additionally, prejudgment interest at 7.5% will accrue on overdue claim payments. The collateral source rule ensures full medical expense recovery.

XI. MEDICAL RECORDS AND EXHIBITS INDEX

☐ Emergency department records
☐ Ambulance / EMS report
☐ Hospital records
☐ Primary care records
☐ Specialist records
☐ Physical therapy records
☐ Chiropractic records
☐ Mental health records
☐ Surgical records
☐ Imaging reports
☐ Prescription records
☐ Medical narrative report
☐ Itemized bills
☐ EOBs
☐ Employer wage verification
☐ Tax returns
☐ Police report
☐ Photographs (scene, vehicle, injuries)
☐ Witness statements
☐ Property damage documentation

XII. SIGNATURE

Respectfully submitted,

[________________________________]
Attorney for Claimant
Wisconsin State Bar No.: [________________________________]

[________________________________]
Firm Name
[________________________________]
Address

Telephone: [________________________________]
Email: [________________________________]

Date: [__/__/____]

XIII. SOURCES AND REFERENCES

Wisconsin Statutes

• Wis. Stat. § 895.045 — Modified comparative negligence (51% bar)
• Wis. Stat. § 895.045(1) — Ordinary-negligence allocation and joint-and-several liability (51%+ causal negligence); subsection (3) separately governs statutory strict-product responsibility
• Wis. Stat. § 893.54 — Statute of limitations (3 years)
• Wis. Stat. § 893.55(4)(d)(1) — Med mal non-economic cap ($750,000)
• Wis. Stat. § 895.043 — Punitive damages (2x compensatory or $200K)
• Wis. Stat. § 628.46(1) — Insurance claim interest (7.5%)
• Wis. Stat. § 807.01(4) — Offer of settlement prejudgment interest
• Wis. Stat. § 344.33 — Auto insurance minimums (25/50/10)
• Wis. Stat. § 632.32 — UM/UIM coverage
• Wis. Stat. § 895.04 — Wrongful death
• Wis. Stat. § 346.63 — OWI/DUI
• Wis. Stat. § 346.62 — Reckless driving

Key Wisconsin Cases

• Ferdon ex rel. Petrucelli v. Wisconsin Patients Comp. Fund, 2005 WI 125 — Struck down general PI non-economic cap

Key Wisconsin Principles

• Modified comparative fault with 51% bar
• Joint and several liability for defendants 51%+ at fault; several only below 51%
• No cap on non-economic damages in general PI (cap applies only in med mal at $750K)
• Punitive damages capped at greater of 2x compensatory or $200K
• Collateral source rule applies
• Prejudgment interest at 7.5% on overdue insurance payments
• Auto minimums: 25/50/10
• 3-year statute of limitations
• Wisconsin is a fault-based tort state

This template does not constitute legal advice and must be reviewed by a licensed Wisconsin attorney before use.