Earlier this week, college hoops fans were treated to a great matchup between the University of Wisconsin and Duke University in the championship game of the 2015 NCAA Basketball Tournament. Last week, in the spirit of the tournament, I wrote about insurance “bad faith” in Kentucky. Perhaps I jinxed the Kentucky Wildcats because they ended up losing to the Badgers of Wisconsin. Well, this week I was initially going to blog about what constitutes insurance “bad faith” in North Carolina (to honor Duke as the champions), but my colleague Nicole Vinson works cases in North Carolina and has blogged extensively about insurance subjects relating to the state. So, it makes sense for me to turn my attention to Wisconsin and share my research on what it takes to establish a claim for bad faith in Wisconsin.

To establish a claim for bad faith in Wisconsin, the insured must show the following:

1) the absence of a reasonable basis for the insurance company’s denial benefits of the policy; and

2) the insurance company’s knowledge or reckless disregard for the lack of a reasonable basis for denying the claim.1

Courts in Wisconsin have classified the above two-prong test applying objective and subjective standards. The first prong is objective and the “insured must establish that under the facts and circumstances, a reasonable insurer could not have denied or delayed payment of the claim.”2 Here, the trier of fact must “determine whether the insurer properly investigated the claim and whether the results of the investigation were subjected to reasonable evaluation and review.”3 Under this analysis, the conduct of that insurer is measured against what a reasonable insurer would have done under the same facts and circumstances. If the insurer violated the first/objective prong of the bad faith test, then we have to turn to the second prong which is a subjective standard. An insurer violates the subjective prong if there are sufficient grounds for the trier of fact to draw the inference that the insurer acted with “a reckless disregard of lack of a reasonable basis for denial or a reckless indifference to facts or to proofs submitted by the insured.4

Like most other states, Wisconsin has statutes governing insurance claim adjustment practices. You can find them enumerated in the Wisconsin Administrative Code, Chapter 6, starting with section 6.11. If an insurance company is engaged in claim settlement practices that are unfair, a policyholder may be able to cite such violations as further indicia of bad faith.

1 Anderson v. Continental Ins. Co., 85 Wis.2d 675, 691 (1978).
2 Weiss v. United Fire and Cas. Co., 197 Wis.2d 365, 378 (1995).
3 Id.
4 Anderson at 693.