Insurance – notice — coverage

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Wisconsin Court of Appeals

Civil

Insurance – notice — coverage

Where an insurer was not prejudiced by untimely notice of a claim, the insurer had a duty to provide coverage.

“We conclude that the undisputed facts establish that WILMIC was not prejudiced by Aul’s untimely notice of the Andersons’ claim. WILMIC learned of the claim almost a year before the lawsuit was filed and learned of the lawsuit within weeks of its filing. Aul hired counsel to represent him prior to notice to WILMIC, and, upon notice, WILMIC hired counsel to represent Aul and promptly intervened to protect its own interests. WILMIC did not submit any evidence to rebut the prima facie showing that there was no prejudice. There are no facts to show that the late notice compromised Aul’s position vis-à-vis the Andersons’ claim as he was represented by counsel from the outset, nor are there any facts to show that WILMIC was hindered in its ability to investigate, evaluate, settle the claim, or otherwise present an effective defense on the merits. WILMIC’s assertion that it is prejudiced by the mere potential of coverage is not persuasive. Indeed, there are no facts to show that WILMIC is not in the same position it would have been in with respect to the Andersons’ underlying claim or Aul’s claim for coverage if Aul had given timely notice. As a matter of law, we conclude that WILMIC was not prejudiced by the untimely notice and therefore coverage is not precluded on these narrow grounds.”

Reversed and Remanded.

Recommended for publication in the official reports.

2013AP500 Anderson v. Aul

Dist. II, Waukesha County, Dreyfus, J., Neubauer, J.

Attorneys: For Appellant: Strop, Holly Lynn, Madison; For Respondent: Hammes, James W., Waukesha; Johnson, Terry E., Milwaukee