Nixon v. Farmers Ins. Exchange, 178
| Decision Date | 31 October 1972 |
| Docket Number | No. 178,178 |
| Citation | 201 N.W.2d 543,56 Wis.2d 1 |
| Parties | Pearlie NIXON and James Nixon, Appellants, v. FARMERS INSURANCE EXCHANGE, a foreign Insurance Corporation, Respondent. |
| Court | Wisconsin Supreme Court |
Gerald J. Bloch, Phillips, Hoffman & Bloch, Milwaukee, for appellants.
James T. Murray, Arnold, Murray & O'Neill, Milwaukee, for respondent.
One issue is crucial on this appeal: Do the provisions that are part of the uninsured-motorist-coverage endorsement of an automobile liability insurance policy that require an insured under that policy, within one year, either to (1) commence suit for bodily injury against the uninsured motorist, (2) agree on damages, or (3) commence arbitration proceedings, violate sec. 204.30(5)(a), Stats., for the reason that the endorsement fails to give the protection required by that statute?
That section provides:
'204.30(5) Uninsured Motorist Coverage. (5)(a) No automobile liability or motor vehicle liability policy of insurance insuring against loss resulting from liability imposed by law for bodily injury or death suffered by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this state with respect to any motor vehicle registered or principally garaged in this state unless coverage is provided therein or supplemental thereto in limits for bodily injury or death in the amount of at least $15,000 per person and $30,000 per accident under provisions approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operators of uninsured motor vehicles because of bodily injury, sickness or disease, including death resulting therefrom. . . .' Stats.1967 (Emphasis ours.)
To begin with, there is no question but what the trial court was entirely correct in holding such requirements to be conditions precedent and not limitations. A condition precedent in a contract 'must be performed or happen before a duty of immediate performance arises on the promise which the condition qualifies.' 1
'. . . "Condition precedent' is one calling for performance of some act after the contract is entered into on performance of which the obligations depend." 2
But this condition precedent, as is true with respect to all provisions of an uninsured-motorist-coverage endorsement in a contract of insurance, must not violate sec. 204.30(5)(a), Stats.
The particular provisions were identical to those used in California by this California based insurer, which provisions were, in fact, a replica of the 1961 version of the California uninsured motorist statute. 3
California modified its statute to require insurance companies to give written notice of the statute of limitations to an insured who makes a claim under the uninsured motorist coverage. 4
We conclude that the first provision cuts the normal period of the three-year statute of limitations in which the injured person (the insured here) is entitled to recover damages and that thus this provision is in violation of sec. 204.30(5)(a), Stats., in that it does not provide for the protection of persons insured under that endorsement 'who are legally entitled to recover damages from owners or operators of uninsured motor vehicles.'
True, it is alleged that the form of the uninsured-motorist-coverage endorsement here was approved by the commissioner of insurance but this determination is not binding on this court for, as we stated in Krempel v. Noltze, 5 'we are in no way limited or controlled by the insurance commissioner's alleged approval of the policy.' In Krempel there was a conflict between insurance policy provisions and the omnibus statute (sec. 204.34), and the court concluded that this conflict presented a judicial question.
The endorsement is a departure from the standard form promulgated in 1956 by the National Bureau of Casualty Underwriters. 6 The original standard form did now allow the insured to sue the uninsured motorist without the insurer's consent. The form in the instant case...
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