99-1069 Neff v. Pierzina

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“[T]he determination whether an insurer has been prejudiced by the lack of timely notice is essentially a question of fact. The fact finder’s determination should not be set aside unless it is clearly erroneous. Wis. Stat. sec. 805.17(2). Wisconsin Stat. sec. 632.26(2) states that ‘the risk of nonpersuasion is upon the person claiming there was no prejudice.’ This statement signals a factual determination.”

“[W]e cannot conclude that the circuit court was clearly erroneous in finding that American Family was prejudiced by the delay. Because prejudice to the insurer is often difficult to prove, the insurer is aided by a presumption of prejudice when notice is not given within one year. Ranes, 219 Wis.2d at 62, 580 N.W.2d 197. The circuit court was not persuaded that Schiesl had overcome this presumption of prejudice. It found prejudice, and its finding may not be overturned on this record.”

Affirmed.

Prosser, J.

Attorneys:

For Appellant: Dean R. Rohde, River Falls

For Respondent: Beverly Wickstrom, Eau Claire