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. Factual cause — the negligence was a substantial factor in producing the injury
4. Damages — actual, compensable injuries

Note: More than one person's negligence may be a factual cause. A court may limit liability on public policy grounds after factual cause is established. See Wis. JI—Civil 1500 (2021) and its commentary.

B. Tortfeasor's Acts of Negligence

☐ Failure to maintain proper lookout
☐ Failure to yield right of way
☐ Following too closely (Wis. Stat. § 346.14)
☐ Inattentive driving that interfered with safe operation (Wis. Stat. § 346.89(1))
☐ Composing or sending an electronic text or email while driving (Wis. Stat. § 346.89(3)(a))
☐ Using a wireless phone where workers in a covered highway, railroad, utility, or roadside response area were at risk from traffic (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 is liable for the entire damages award, even if other parties share some fault. The liability insurer's payment depends on the policy's coverage and limits; it does not automatically owe the entire award.

E. Collateral Source Rule

For an ordinary personal injury claim, seek the reasonable value of care necessarily required by the injury, including qualifying provider write-offs. Patient health care billing records are presumed to state reasonable value under Wis. Stat. § 908.03(6m)(bm), but that presumption may be challenged. The statute does not allow collateral-source payments or benefits to rebut that presumption. Itemize the services, bills, and any disputed amounts; do not assume that every billed charge is recoverable.

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 damages limits: The $750,000 noneconomic cap in Wis. Stat. § 893.55(4)(d)(1) applies to medical malpractice, not an ordinary private-party injury claim. Separate limits may apply: § 895.04(4) caps wrongful-death loss of society and companionship at $500,000 per occurrence for a deceased minor or $350,000 for a deceased adult; § 893.80(3) generally limits damages in a covered local-government tort action to $50,000, subject to its exceptions. Ferdon ex rel. Petrucelli v. Wisconsin Patients Comp. Fund, 2005 WI 125, struck down an earlier $350,000 medical malpractice cap.

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. Section 628.46(2) pauses overdue status when no recipient can legally give a valid release or the insurer cannot determine the payee, if it promptly notifies the claimant and offers in good faith to pay once the payee is determined. 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))

This pre-suit demand is not a statutory offer under § 807.01. After issue is joined in a filed action, a plaintiff may serve a written offer at least 20 days before trial. If an offer satisfying that section is rejected and the judgment equals or exceeds the offer, § 807.01(4) provides interest from the offer date at prime plus 1%, using the statutory January 1 or July 1 reference date for the judgment year. This is separate from the conditional 7.5% insurance-claim interest under § 628.46.

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

Exception: Section 895.043(6) removes this cap when the defendant's conduct meeting the punitive standard included operating a covered vehicle while impaired by an intoxicant to the point of unsafe operation. An OWI allegation alone does not establish that exception or entitlement to punitive damages.

☐ 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 is a pre-suit settlement demand. It does not constitute an offer under Wis. Stat. § 807.01; that procedure becomes available only after issue is joined in a filed action.

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.

Covered local-government defendant: If the claim is against a political corporation, governmental subdivision or agency, or an officer, agent, or employee acting in that capacity, check § 893.80 before suit. Subsection (1d) generally calls for signed written notice of the circumstances within 120 days after the event, subject to its actual-notice and no-prejudice exception, plus presentation of an itemized claim with the claimant's address to the appropriate clerk or secretary and disallowance of that claim. Record the notice, claim, and disallowance dates here: [________________________________]. The ordinary three-year period alone does not supply those steps.

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. Interest at 7.5% is requested only for claim payments that qualify as overdue under Wis. Stat. § 628.46.

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(6) — Punitive cap (greater of 2x compensatory or $200K), subject to the intoxicated vehicle operator exception
• Wis. Stat. § 908.03(6m)(bm) — Presumption for patient health care bills and restriction on collateral-source rebuttal
• 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. § 893.80(1d), (3) — Covered local-government claim notice, disallowance, and damages limit
• 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 an earlier medical malpractice noneconomic cap

Key Wisconsin Principles

• Modified comparative fault with 51% bar
• Joint and several liability for defendants 51%+ at fault; several only below 51%
• Damages limits depend on the claim and defendant: medical malpractice, wrongful-death companionship, and covered local-government tort claims have separate limits
• Punitive damages generally capped at greater of 2x compensatory or $200K, with the § 895.043(6) intoxicated vehicle operator exception
• Past health care expenses measured by reasonable value; qualifying billing records carry a rebuttable presumption
• 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.