Robert H. Shugarts, II v. Dennis M. Mohr

2018 WI 27

SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP983
COMPLETE TITLE: Robert H. Shugarts, II and Judith Lynn Shugarts,
Plaintiffs-Appellants-Petitioners,
v.
Dennis M. Mohr, Progressive Casualty Insurance
Company/Artisan and Truckers Casualty Company
and Wisconsin Municipal Mutual Insurance
Company,
Defendants,
Allstate Property and Casualty Insurance
Company,
Defendant-Respondent.

REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 375 Wis. 2d 225, 894 N.W.2d 443
PDC No: 2017 WI App 27 - Published

OPINION FILED: April 5, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 9, 2018

SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Eau Claire
JUDGE: Michael A. Schumacher

JUSTICES:
CONCURRED:
DISSENTED:
NOT PARTICIPATING:

ATTORNEYS:

For the plaintiffs-appellants-petitioners, there were
briefs filed and an oral argument by Harry R. Hertel and Hertel
Law Offices, S.C., Eau Claire.

For the defendant-respondent, there was a brief filed by
Leah M. Cameron, John M. Swietlik, Jr., and Kasdorf, Lewis &
Swietlik, S.C., Milwaukee. There was an oral argument by John
M. Swietlik, Jr.
 An amicus curiae brief was filed on behalf of Wisconsin
Association for Justice by Edward E. Robinson and Cannon &
Dunphy, S.C., Brookfield, with whom on the brief were William C.
Gleisner, III and Law Offices of William C. Gleisner, III,
Brookfield, and Lynn R. Laufenberg, Mark L. Thomsen, and
Gingras, Cates, Luebke, S.C., Waukesha. There was an oral
argument by Edward E. Robinson.

2
 2018 WI 27
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP983
(L.C. No. 2013CV377)

STATE OF WISCONSIN : IN SUPREME COURT

Robert H. Shugarts, II and Judith Lynn
Shugarts,

Plaintiffs-Appellants-Petitioners,

v.

Dennis M. Mohr, Progressive Casualty Insurance
FILED
Company/Artisan and Truckers Casualty Company
and Wisconsin Municipal Mutual Insurance APR 5, 2018
Company,
Sheila T. Reiff
Clerk of Supreme Court
Defendants,

Allstate Property and Casualty Insurance
Company,

Defendant-Respondent.

REVIEW of a decision of the Court of Appeals. Reversed and

cause remanded.

¶1 ANN WALSH BRADLEY, J. The petitioners, Robert and

Judith Shugarts, seek review of a published court of appeals

decision affirming the circuit court's grant of summary judgment
 No. 2016AP983

to the Shugarts' underinsured motorist (UIM) carrier.1 They

contend that the court of appeals erred in concluding that they

failed to provide Allstate Property and Casualty Company

(Allstate) with timely notice of their UIM claim and that they

failed to rebut the presumption that Allstate was prejudiced by

the untimely notice.

¶2 Specifically, the Shugarts assert that the court of

appeals mistakenly interpreted the UIM policy's "proof of claim"

provision as a "notice of accident" provision. The Shugarts

submit that instead it is the tender of the tortfeasor's

underlying policy limits, not the accident itself, that triggers

the notice provision in the UIM policy. They further argue that

if the proof of claim was not timely filed, then Allstate was

not prejudiced by the untimely notice.

¶3 We conclude that the operative event triggering the

notice requirement in the Shugarts' UIM policy is the tender of

the tortfeasor's underlying policy limit. We further conclude

that Wis. Stat. § 631.81(1) (2009-10)2 does not apply to the UIM
policy provision at issue. Consequently, we determine that the

Shugarts provided Allstate with timely proof of their UIM claim

as required by the policy language. Because we determine that

1
Shugarts v. Mohr, 2017 WI App 27, 375 Wis. 2d 225, 894
N.W.2d 443 (affirming order of circuit court for Eau Claire
County, Michael A. Schumacher, Judge).
2
All subsequent references to the Wisconsin Statutes are to
the 2009-10 version unless otherwise indicated.

2
 No. 2016AP983

the Shugarts' proof of claim was timely filed, we need not

address whether Allstate was prejudiced.

¶4 Accordingly, we reverse the court of appeals and

remand to the circuit court for further proceedings.

I

¶5 Robert Shugarts was employed as a deputy sheriff in

Eau Claire County. While on duty on October 11, 2010, he was

involved in the pursuit of Dennis Mohr (Mohr), a suspect in a

hit-and-run accident. Robert was severely injured when Mohr's

vehicle struck his squad car.

¶6 Mohr's vehicle was insured by Progressive Casualty

Insurance Company (Progressive). The squad car was owned by Eau

Claire County and was insured under a policy issued by Wisconsin

Municipal Mutual Insurance Company (WMMIC), which included UIM

coverage. The Shugarts possessed a personal automobile

insurance policy through Allstate, which also included UIM

coverage.

¶7 In November of 2011, the Shugarts hired an attorney
who sent notice of retainer to Progressive. It denied coverage

in January of 2012, basing the denial on the assertion that

Mohr's striking of the squad car was an intentional act and thus

not covered under its policy.

¶8 The Shugarts proposed a $600,000 settlement with

Progressive in April of 2013. In May of 2013, Progressive

turned down the offer, persisting in its assertion that the

intentional act exclusion in Mohr's policy served as a defense
to coverage.
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¶9 After Progressive rejected their offer, the Shugarts

filed this lawsuit in June of 2013. Progressive continued to

deny coverage, but offered to settle the case for $10,000. It

also provided the Shugarts with a declarations page from Mohr's

policy indicating that it contained a bodily injury liability

limit of $50,000 per person.

¶10 In July of 2014, the Shugarts filed an amended

complaint, adding Eau Claire County's insurer, WMMIC, as a

defendant. The Shugarts alleged that WMMIC was liable for UIM

coverage "arising out of the operation of" his squad car.3

¶11 Subsequently, on October 13, 2014, Progressive changed

its position on coverage. It offered to pay the Shugarts the

policy limit of $50,000 if WMMIC waived any subrogation claim.

On October 28, 2014, the Shugarts sent a notice of retainer to

Allstate, advising that counsel had been retained "with regard

to injuries he sustained in an automobile accident which

occurred on October 11, 2010."

¶12 After additional correspondence between the Shugarts'
attorneys and Allstate, on February 9, 2015, the Shugarts sent

3
WMMIC moved to dismiss, and later for summary judgment.
The circuit court granted summary judgment to WMMIC. The
Shugarts' notice of appeal initially purported to challenge the
circuit court's grants of summary judgment to both Allstate and
WMMIC. However, before the court of appeals the Shugarts
voluntarily dismissed that portion of the appeal pertaining to
WMMIC. Shugarts v. Mohr, 2017 WI App 27, ¶8 n.2, 375
Wis. 2d 225, 894 N.W.2d 443. Accordingly, the Shugarts do not
raise any argument related to the summary judgment in favor of
WMMIC before this court.

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 No. 2016AP983

Allstate a notice pursuant to Vogt v. Schroeder, 129 Wis. 2d 3,

383 N.W.2d 876 (1986).4 The notice stated that Progressive had

offered to settle the Shugarts' claim for the policy limit of

$50,000. Further, the notice explained that "[i]n evaluating

Mr. Shugarts' injuries, we believe that Mr. Shugarts' claim is

well in excess of the policy limits afforded by Progressive

Insurance."

4
In Vogt, we concluded that a UIM insurer "has the right of
subrogation against the tortfeasor and his insurer to the extent
that the underinsurer has paid benefits to its own
insured . . . prior to the release of the tortfeasor . . . and
his insurance company[.]" Vogt v. Schroeder, 129 Wis. 2d 3, 17,
383 N.W.2d 876 (1986). Stated differently, the UIM insurer has
a right of subrogation "as long as it substitutes its funds for
those proffered by the tortfeasor's insurer." Pitts v.
Revocable Trust of Knueppel, 2005 WI 95, ¶35, 282 Wis. 2d 550,
698 N.W.2d 761 (citing Vogt, 129 Wis. 2d at 17-19). If the UIM
insurer simply consents to the settlement, it forfeits its
subrogation right. Pitts, 282 Wis. 2d 550, ¶35 (citing Vogt,
129 Wis. 2d at 20-21).

Further, in Vogt we adopted a procedure to allow a UIM
insurer to intervene in the settlement process. Pitts, 282
Wis. 2d 550, ¶38. Namely, a UIM insurer is entitled to notice
of a tentative settlement agreement and a period of time in
which to assess the case. This allows the UIM insurer to decide
whether to substitute its payment to the insured in an amount
equal to the tentative settlement, thereby preserving its
subrogation rights, or acquiescing in the settlement. Vogt, 129
Wis. 2d at 20-21. "In effect, this procedure gives to the
plaintiff's underinsurer the option of rejecting the settlement
offer to prevent the release of the tortfeasor and thus protect
its right of subrogation, but it may not thwart the right of its
own insured to receive some payment, either the amount of the
insured's underinsurance claim or the amount offered in
settlement." Id. at 21.

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 No. 2016AP983

¶13 The Shugarts filed an additional amended complaint in

March of 2015, adding Allstate as a defendant. Allstate

answered the complaint raising untimeliness as an affirmative

defense. It stated that "[t]here is no coverage available to

the plaintiffs under the Allstate policy given the failure of

the plaintiffs to provide timely notice of their intention to

make a claim as a result of the subject accident as required

under the Allstate policy."

¶14 Allstate moved for summary judgment. It argued that

the Shugarts "did not provide timely notice to Allstate of the

October 11, 2010 motor vehicle accident as required by the

Allstate policy."

¶15 The circuit court granted Allstate's motion for

summary judgment. Specifically, it stated that it considered

the notice untimely regardless of the governing policy provision

or statute:

So I am going to find, as a matter of law, that the
plaintiff failed to provide timely notice to Allstate
of the accident and I think that's true whether the
notice requirement comes under the liability section
of the policy, the UIM section of the policy or the
statutory provisions. All of them use similar
language . . . I have to conclude that it was
reasonably possible for Mr. Shugarts to provide notice
to Allstate sometime shortly after the accident.
Further, the circuit court concluded that the Shugarts had

failed to rebut the presumption that Allstate was prejudiced by

the untimely notice.

¶16 The Shugarts appealed, and the court of appeals
affirmed the circuit court's grant of summary judgment. The

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 No. 2016AP983

court of appeals concluded that "Shugarts was required to

provide Allstate with proof of his UIM claim as soon as possible

after the incident giving rise to the claim." Shugarts v. Mohr,

2017 WI App 27, ¶24, 375 Wis. 2d 225, 894 N.W.2d 443. "[I]t was

possible for Shugarts to provide proof of claim in January 2012,

when Progressive denied coverage for his claim against Mohr. At

the very least, Shugarts should have provided proof of claim in

August 2013, when he learned that Progressive's policy limit was

only $50,000." Id. The court of appeals further agreed with

the circuit court that the Shugarts had failed to rebut the

presumption that Allstate was prejudiced by the late notice.

Id., ¶34.

II

¶17 In this case we address a summary judgment dismissing

the Shugarts' claim against Allstate. We review a grant of

summary judgment independently, applying the same methodology as

the circuit court. Novell v. Migliaccio, 2008 WI 44, ¶23, 309

Wis. 2d 132, 749 Wis. 2d 544. Summary judgment is appropriate
where there is no genuine issue as to any material fact and the

moving party is entitled to judgment as a matter of law. Id.

¶18 We interpret first the parties' written insurance

contract. Interpretation of an insurance contract presents a

question of law. Am. Family Mut. Ins. Co. v. Am. Girl, Inc.,

2004 WI 2, ¶23, 268 Wis. 2d 16, 673 N.W.2d 65. Our review also

requires us to interpret a statute. Statutory interpretation

likewise presents a question of law. Moustakis v. State of Wis.
Dep't of Justice, 2016 WI 42, ¶16, 368 Wis. 2d 677, 880
7
 No. 2016AP983

N.W.2d 142 (citation omitted). We review questions of law

independently of the decisions rendered by the circuit court and

court of appeals. Id.

III

¶19 Allstate identifies two potential sources of a

requirement that the Shugarts provide it with notification of a

UIM claim as soon as possible following an accident: the

language of the insurance policy and Wis. Stat. § 631.81(1). We

begin by examining the notice requirements dictated by the

language of the Shugarts' insurance policy. Subsequently, we

address the proof of loss mandated by § 631.81(1) and its

potential applicability.

A

¶20 We turn first to the language of the Shugarts'

insurance policy. When the language of an insurance policy is

unambiguous, a court will not rewrite the policy by

interpretation or impose obligations the parties did not

undertake. Acuity v. Chartis Specialty Ins. Co., 2015 WI 28,
¶24, 361 Wis. 2d 396, 861 N.W.2d 533. A policy's terms are

interpreted as they would be understood from the perspective of

a reasonable person in the position of the insured. Frost ex

rel. Anderson v. Whitbeck, 2002 WI 129, ¶20, 257 Wis. 2d 80, 654

N.W.2d 225.

¶21 Allstate cites two provisions in the Shugarts'

insurance policy, arguing they require the Shugarts to submit

8
 No. 2016AP983

notice of loss as soon as possible5 after the accident. First,

Allstate points to a provision in the liability portion of the

policy, entitled "What To Do In Case Of An Auto Accident Or

Claim" (the "notice of accident" provision):

If a person insured has an auto accident, we must be
notified of all details as soon as reasonably
possible. If a person insured is sued as the result
of an auto accident, we must be notified immediately.
¶22 Although this provision is located in the liability

portion of the policy, Allstate contends that it applies with

equal force to UIM claims. Allstate concedes that the UIM

portion of the policy does not specifically state that an

insured must provide notice of an accident. Nevertheless, it

argues that nothing in the notice provision contained in the

liability portion of the policy indicates that the notice

provision does not apply in the UIM context.

¶23 We disagree. The Shugarts' insurance policy is

separated into seven "parts." At issue here are Part I,

entitled "Automobile Liability Insurance," and Part VII,

entitled "Underinsured Motorists Insurance." A reasonable

insured reading the policy would likely conclude that the

provisions located in the liability section apply in the

5
We observe that the notice of accident provision uses the
phrase "as soon as reasonably possible" to describe the timing
of the notice it requires, while the notice of claim provision
uses the phrase "as soon as possible." This variance does not
affect our analysis.

9
 No. 2016AP983

liability section only.6 See Martinson v. Am. Family Mut. Ins.

Co., 63 Wis. 2d 14, 20, 216 N.W.2d 34 (1974) ("The notice of

accident, occurrence or loss provision of the general policy

provisions is distinct and different from the proof of claims

requirements of the uninsured motorist endorsement and the

distinction is well established.").7 We therefore conclude that

the "notice of accident" provision in the liability section of

the Shugarts' policy does not apply to UIM claims.

¶24 Allstate next directs our attention to the UIM portion

of the policy, which contains a provision entitled "Proof of

Claim; Medical Reports" (the "proof of claim" provision). This

provision sets forth that a person making a UIM claim must give

Allstate written proof of claim "as soon as possible":

As soon as possible, you or any other person making
claim must give us written proof of claim. It must
include all details we may need to determine the
amounts payable. We may also require any person
making claim to submit to examination under oath and
sign the transcript.

6
Even if this were not the case, at the very least the
"notice of accident" provision in the liability section of the
policy is ambiguous as to its application to UIM claims.
Accordingly, the provision must be construed against the insurer
who drafted it. See Acuity v. Chartis Specialty Ins. Co., 2015
WI 28, ¶24, 361 Wis. 2d 396, 861 N.W.2d 533.
7
This difference still holds even though we distinguish
this case from Martinson v. Am. Family Mut. Ins. Co., 63 Wis. 2d
14, 216 N.W.2d 34 (1974). See infra, ¶¶31-32. Although
Martinson is an uninsured motorist (UM) case and this is a UIM
case, the difference between proof of loss and proof of claim is
as true for UIM claims as it is for the UM claim at issue in
Martinson.

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 No. 2016AP983

The insured person may be required to take medical
examinations by physicians we choose, as often as we
reasonably require. We must be given authorization to
obtain medical reports and copies of records.
¶25 At the outset, two characteristics of this provision

are notable. First, the proof of claim provision is located in

the UIM section of the policy. As discussed above, a reasonable

insured would ascribe importance to this location in the policy,

making it the operative notice provision for UIM claims. See

supra, ¶23. Second, the provision requires a claimant to submit

proof of "claim," not proof of "accident" or proof of "loss."

Neither the word "accident" nor the word "loss" appears in the

provision.

¶26 Pursuant to the proof of claim provision, a person

making a UIM claim is required to submit "proof of claim" "as

soon as possible." The question we must answer is when the

Shugarts had a UIM claim of which they could give notice. In

other words, we must determine what is the operative event

triggering the proof of claim provision.

¶27 To answer this question, we look elsewhere in the UIM

section of the policy. Namely, the policy contains an

exhaustion provision, that states:

We are not obligated to make any payment for bodily
injury under this coverage which arises out of the use
of an underinsured motor vehicle until after the
limits of liability for all liability protection in
effect and applicable at the time of the accident have
been exhausted by payment of judgments or settlements.
¶28 An exhaustion clause "requires the insured to exhaust
the tortfeasor's liability limits by payment of full policy

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 No. 2016AP983

limits in order to trigger the duty to pay UIM benefits."

Danbeck v. Am. Family Mut. Ins. Co., 2001 WI 91, ¶25, 245

Wis. 2d 186, 629 N.W.2d 150. Pursuant to an exhaustion clause,

"UIM benefits are owed only when the tortfeasor's liability

insurance is insufficient to cover the UIM policyholder's

damages." Id., ¶22. "Such language [in a policy] provides a

clear indication of when the policy comes into play and when a

presentable claim exists for the insured." Yocherer v. Farmers

Ins. Exch., 2002 WI 41, ¶20 n.3, 252 Wis. 2d 114, 643

N.W.2d 457.

¶29 In other words, tortfeasor drivers are not by

definition "underinsured" until their policy limits are

exhausted. Danbeck, 245 Wis. 2d 186, ¶22; see also Arnold P.

Anderson, Wisconsin Insurance Law § 4.93 (7th ed. 2015) ("UIM

policies require that the insured recover or exhaust all money

available from the tortfeasor's liability policy before the

insured looks to the UIM policy for payment."). Giving effect

to the exhaustion clause, we therefore conclude that the
operative event triggering the notice requirement in the

Shugarts' UIM policy is the tender of the tortfeasor's

underlying policy limit.

¶30 The language and application of the exhaustion clause

highlight the excess nature of UIM coverage. UIM coverage is

first party coverage that may afford additional compensation for

injured persons whenever a tortfeasor is inadequately insured.

See Danner v. Auto-Owners Ins., 2001 WI 90, ¶51, 245 Wis. 2d 49,
629 N.W.2d 159 (quoting 3 Alan I. Widiss, Uninsured and
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 No. 2016AP983

Underinsured Motorist Insurance § 31.4, at 5 (Revised 2d ed.

2001)). As explained above, UIM coverage is not triggered until

the tortfeasor's underlying liability limits are met. This

characteristic differentiates UIM coverage from uninsured

motorist (UM) coverage, which is first party coverage that is

also "first dollar" coverage because the tortfeasor has no

insurance.

¶31 Accordingly, the court of appeals' reliance on

Martinson, 63 Wis. 2d 14, a case involving UM insurance, not UIM

insurance, is misplaced. In Martinson, the court addressed

whether an insured had provided timely proof of a UM claim as

required by the applicable policy provision. See id. at 19-20.

The Martinson court concluded that "[t]he proof of claim

condition require[d] the filing of the claim as soon as

practicable after the incident giving rise to the claim." Id.

at 21. It further determined that the proof of claim condition

"does not mean the claim should be filed as soon as practicable

after the liability of the insurer has been established." Id.
¶32 Martinson's holding makes sense in the context of a

"first dollar" UM claim. However, UIM coverage is excess

coverage. It is not triggered by the incident itself, but by

the tender of the tortfeasor's underlying policy limit.

Martinson, therefore, is distinguishable because it addresses

UM, but not UIM coverage.

¶33 Here, application of the exhaustion clause indicates

that the Shugarts' UIM coverage was not triggered until the
$50,000 policy limit of Mohr's Progressive policy was exhausted.
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 No. 2016AP983

This did not occur until October 13, 2014, when Progressive

offered its policy limit to settle the case. Before that date,

the Shugarts had no UIM "claim" of which they could give notice.

¶34 Indeed, prior to the offer of the policy limit on

October 13, 2014, Progressive offered the Shugarts a $10,000

settlement. Had the Shugarts accepted this initial offer, after

providing notice of the tentative settlement to Allstate, there

would have been no UIM coverage. The amount received by the

Shugarts would have been $40,000 less than Progressive's policy

limit. As such, Mohr by definition would not have been an

"underinsured" motorist.

¶35 After receiving Progressive's offer to settle for the

full policy limit, the Shugarts did not unduly delay notifying

Allstate of the offer. On October 28, 2014, fifteen days after

receiving the offer from Progressive, the Shugarts sent Allstate

a notice of retainer. Correspondence between the Shugarts and

Allstate ensued, and the Shugarts ultimately sent a Vogt notice

on February 9, 2015, advising Allstate of its ability to
substitute payment and thereby protect its subrogation rights.

See supra, ¶12 n.4. This timeline is sufficient to satisfy the

policy's requirement that notice of claim be provided "as soon

as possible."

¶36 Allstate contends that the Shugarts should have

provided notice shortly after the accident, or at the very

latest in August of 2013 after receiving the declarations page

of the Progressive policy showing the policy limit of $50,000.
But the policy requires notice of "claim," not notice of
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 No. 2016AP983

"possible claim." Accepting Allstate's argument would lead to

the absurd result that an accident victim would be required to

file a notice of a UIM claim after every auto accident to

prevent forfeiting such a claim if the tortfeasor's underlying

liability limits do not cover the full loss.

¶37 We thus conclude that, pursuant to the policy

language, the operative event triggering the notice requirement

in the Shugarts' UIM policy is the tender of the tortfeasor's

underlying policy limit. Because the Shugarts sent Allstate a

notice of retainer fifteen days after the Progressive's offer to

settle for the policy limit and sent the Vogt notice within four

months of that operative event, their notice to Allstate was

timely.

B

¶38 Allstate contends next that Wis. Stat. § 631.81(1)

applies here. Section § 631.81(1) addresses proof of loss:

Provided notice or proof of loss is furnished as soon
as reasonably possible and within one year after the
time it was required by the policy, failure to furnish
such notice or proof within the time required by the
policy does not invalidate or reduce a claim unless
the insurer is prejudiced thereby and it was
reasonably possible to meet the time limit.
¶39 Allstate asserts that the Shugarts did not provide

proof of loss as soon as reasonably possible, and not within one

year after the accident. According to Allstate, the notice is

untimely pursuant to Wis. Stat. § 631.81(1). We disagree. As

analyzed above, the policy does not require "proof of loss" for
UIM claims.

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 No. 2016AP983

¶40 By indicating that "notice or proof of loss" is

required "within one year after the time it was required by the

policy," Wis. Stat. § 631.81(1) presupposes that the policy

requires "notice or proof of loss" in the first instance. In

other words, the text of § 631.81(1) directs the reader back to

the policy. As analyzed above, we conclude that the UIM section

of the policy requires proof of "claim," not proof of "loss."

See supra, ¶25.

¶41 For this reason, we determine that Wis. Stat.

§ 631.81(1) does not apply to the UIM policy at issue. Allstate

contends that § 631.01(1) requires a contrary result.8 It argues

that § 631.01(1) does not limit the application of § 631.81 to

liability insurance, and therefore it should apply to UIM

8
Wisconsin Stat. § 631.01(1) states:

(1) General. This chapter and ch. 632 apply to all
insurance policies and group certificates delivered or
issued for delivery in this state, on property
ordinarily located in this state, on persons residing
in this state when the policy or group certificate is
issued, or on business operations in this state,
except:

(a) As provided in ss. 600.01 and 618.42;

(b) On business operations in this state if the
contract is negotiated outside this state and if
the operations in this state are incidental or
subordinate to operations outside this state,
unless the contract is for a policy of insurance
to cover a warranty, as defined in s.
100.205(1)(g), in which case the provisions set
forth in sub. (4m) apply; and

(c) As otherwise provided in the statutes.

16
 No. 2016AP983

insurance as well. We are not persuaded. The text of

§ 631.81(1) clearly indicates that it applies to only those

policy provisions that by their own terms require proof or

notice of loss. See § 631.81(1) ("Provided notice or proof of

loss is furnished as soon as reasonably possible and within one

year after the time it was required by the policy . . . ")

(emphasis added).

¶42 Because we determine that, pursuant to the language of

the policy, the Shugarts provided timely notice of their UIM

claim to Allstate, we need not address whether Allstate was

prejudiced by an untimely notice. See Ranes v. Am. Family Mut.

Ins. Co., 219 Wis. 2d 49, ¶3, 580 N.W.2d 197 (1998) (holding

that an insured's failure to give notice of settlement does not

bar UIM coverage unless the insurer was prejudiced by the lack

of notice); see also Wis. Stat. § 631.81(1).

¶43 In sum, we conclude that the operative event

triggering the notice requirement in the Shugarts' UIM policy is

the tender of the tortfeasor's underlying policy limit. We
further conclude that Wis. Stat. § 631.81(1) does not apply to

the UIM policy provision at issue. Consequently, we determine

that the Shugarts provided Allstate with timely proof of their

UIM claim as the policy language dictates.

¶44 Accordingly, we reverse the decision of the court of

appeals and remand the cause to the circuit court for further

proceedings.

By the Court.—The decision of the court of appeals is
reversed, and the cause remanded to the circuit court.
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1