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01-1469 Fox, a minor, by Matthew T. Frick, Guardian ad Litem v. Catholic Knights Insurance Co.

By: dmc-admin//April 15, 2002//

01-1469 Fox, a minor, by Matthew T. Frick, Guardian ad Litem v. Catholic Knights Insurance Co.

By: dmc-admin//April 15, 2002//

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“We conclude that under the unusual circumstances of this case, and by operation of Wis. Stat. § 631.11(3) (1999-2000), Patrick’s policy was in effect at the time of his death even if a blood test was a condition precedent to the activation of the policy, even though Patrick died before having that test, and even though a blood test could only have been performed on the blood that had been drawn from Patrick following his fatal accident.”

First, the failure to complete the blood test did not contribute to the loss because the victim was killed in a car accident.

Further, defendant insurer did not prove that failure to complete the blood test and related medical studies increased the risk at the time of Patrick’s death.

“Therefore, under the unusual circumstances of this case, the ‘date of completion’ language of section C was not triggered and did not postpone the commencement of coverage. Patrick’s coverage began, under the express terms of section C, on ‘[t]he date of this application’ and ‘[t]he date of this Agreement’: May 21, 1997-sixteen days before his death. Accordingly, we conclude that the circuit court erred in granting CKIS’s motion for summary judgment; we reverse and remand for the entry of an order granting Fox’s motion for summary judgment.”

Reversed and remanded with instructions.

Recommended for publication in the official reports.

DISSENTING OPINION: Wedemeyer, P.J. “I write separately from the majority because I believe the trial court correctly ruled that Wis. Stat. § 631.11(3) does not apply to this case, and that because the blood was not drawn from Patrick until after he died, the life insurance policy did not go into effect.”

Dist I, Milwaukee County, Dugan, J., Schudson, J.

Attorneys:

For Appellant: Matthew T. Fricker, Milwaukee

For Respondent: Paul J. Pytlik, Waukesha; Mitchelle M. Stoeck, Waukesha

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