State guide · Midwest
Wisconsin subrogation law guide
The insured recovers if its negligence is not greater than the negligence of the person against whom recovery is sought, measured separately against each defendant, and damages are reduced by its share. A defendant 51% or more at fault is jointly and severally liable.
Wisconsin at a glanceWI
- Property damage
- 6 years
- Bodily injury
- 3 years
- Fault rule
- Modified, 51% bar
- Gov. notice
- 120 days
Overview
Wisconsin gives subrogation units a long property clock and one of the hardest made-whole regimes in the country. Damage to real or personal property runs six years under Wis. Stat. 893.52(1), with a three-year exception for motor vehicle accident property damage, and personal injury runs three years under 893.54. Fault follows Wis. Stat. 895.045(1): the insured recovers if its negligence is not greater than that of the person it sues, and the comparison is made separately against each defendant, so an insured can recover from one defendant and be barred against another. A defendant at 51% or more is jointly and severally liable, which makes the dominant tortfeasor the natural collection target. On the insurer side, Garrity v. Rural Mutual and Rimes v. State Farm require the insured to be made whole first, and policy language cannot contract around it, though Muller v. Society Insurance protects the carrier's own recovery when the insured settles cheaply on its own. Governmental claims need notice within 120 days and face a $50,000 cap. The economic loss doctrine bars product claims for damage to the product, but Cease Electric keeps negligence claims against service contractors alive.
Quick reference with citations
- Property damage SOL
- 6 years
- Wis. Stat. 893.52(1) (injury to real or personal property, not arising on contract); property damage from a motor vehicle accident runs 3 years under 893.52(2)
- Bodily injury SOL
- 3 years
- Wis. Stat. 893.54
- Product liability
- 3 years for personal injury (Wis. Stat. 893.54) and 6 years for non-auto property damage (893.52(1)); 15-year statute of repose from manufacture for product claims, unless the manufacturer specified a longer useful life (Wis. Stat. 895.047(5)). Claims arising from improvements to real property carry a 7-year repose from substantial completion after 2017 Wisconsin Act 235 shortened it from 10 years (Wis. Stat. 893.89).
- Written contract
- 6 years
- Contract and indemnity recoveries
- Comparative fault rule
- Modified, 51% bar
- Wis. Stat. 895.045(1)
- Government notice of claim
- 120 days
- Serve written notice of the circumstances on the governmental body within 120 days after the event, then present an itemized claim to the clerk (Wis. Stat. 893.80(1d)). Failure to act on the claim within 120 days is a disallowance, and suit must be filed within 6 months after service of a notice of disallowance. Actual notice without prejudice can excuse late notice, and damages are capped at $50,000 per claimant (893.80(3)). Claims against state officers and employees require sworn notice to the Attorney General by certified mail within 120 days, strictly enforced (893.82).
Fault rule in practice
How Wisconsin's rule changes a $50,000 recovery.
The insured recovers if its negligence is not greater than the negligence of the person against whom recovery is sought, measured separately against each defendant, and damages are reduced by its share. A defendant 51% or more at fault is jointly and severally liable.
Authority: Wis. Stat. 895.045(1)
| Insured's share of fault | Recoverable in WI | Under pure comparative |
|---|---|---|
| 0% | $50,000 | $50,000 |
| 20% | $40,000 | $40,000 |
| 50% | $25,000 | $25,000 |
| 60% | Barred | $20,000 |
Doctrines that move the number
Wisconsin doctrine checklist.
Made-whole doctrine
Wisconsin is among the strictest made-whole states in the country. Garrity v. Rural Mutual Insurance Co. bars subrogation until the insured is fully compensated for all losses, the insured can request a Rimes hearing to decide whether it has been made whole, and the doctrine has been held to trump contrary plan language. Muller v. Society Insurance carved out an important limit: an insured that voluntarily settles for less than available liability limits cannot use the doctrine to take the insurer's separate subrogation recovery.
Economic loss doctrine
Wisconsin applies the economic loss doctrine to purchasers of products, commercial and residential, and to damage within an integrated system (Daanen & Janssen, Inc. v. Cedarapids, Inc., 216 Wis. 2d 395, 573 N.W.2d 842 (1998); Linden v. Cascade Stone Co., 2005 WI 113). It does not apply to contracts for services, which keeps subrogated negligence claims against electricians, plumbers and other trades available (Insurance Co. of North America v. Cease Electric, Inc.).
Joint and several liability
A defendant found less than 51% causally negligent is liable only for its percentage of the damages; a defendant at 51% or more is jointly and severally liable (Wis. Stat. 895.045(1)). Defendants acting under a common scheme are jointly and severally liable regardless of share (895.045(2)). Settlements commonly use Pierringer releases, which satisfy the settling tortfeasor's share of fault.
Anti-subrogation and waiver
An insurer cannot subrogate against its own insured, and the made-whole doctrine further limits recovery when the insured has uninsured losses. Before any insured settlement, confirm whether a Pierringer release will extinguish the settling tortfeasor's share, including the portion the carrier paid, so the subrogated interest is resolved in the same agreement.
Practice notes
Working Wisconsin subrogation files.
- 1
The six-year property period in 893.52(1) makes Wisconsin closed-claim sweeps productive for water, fire and structural losses, but auto property damage runs only three years under 893.52(2) and bodily injury three years under 893.54. Watch the repose clocks: 15 years from manufacture for products under 895.047(5), and seven years from substantial completion for construction under 893.89, shortened from 10 years in 2018.
- 2
Run the comparison against each defendant separately. On a $90,000 fire loss where the insured is 30% negligent, the general contractor 55% and a subcontractor 15%, the insured is barred against the subcontractor (30% is greater than 15%) but recovers against the contractor. Because the contractor is at 55%, it is jointly and severally liable for the full $63,000 reduced award, so the barred subcontractor share does not reduce the collectible amount.
- 3
For a city, county, school district or sewerage district, serve written notice of the circumstances within 120 days under 893.80(1d), then present an itemized claim to the clerk. Calendar the 120-day disallowance date and the six-month suit deadline after any notice of disallowance. Recoveries are capped at $50,000 per claimant, which often decides whether a large water main or sewer backup subrogation claim is worth litigating.
- 4
Plan for a Rimes hearing whenever the insured has significant uninsured losses or bodily injury from the same event. The court values all of the insured's damages, and the carrier recovers only after the insured is whole. Coordinating with the insured's counsel and joining the liability suit early usually produces a better result than fighting over a finished settlement, and Muller protects the carrier's own recovery if the insured settles cheaply.
- 5
Wisconsin settlements typically use Pierringer releases, which release the settling tortfeasor's share of fault and leave the plaintiff to pursue the rest. If the insured signs one without resolving the subrogated interest, the carrier's claim against the settling party can be extinguished with it. Put the carrier's interest on the record before any mediation where the insured and a defendant may settle.
- 6
Ishqkala computes Wisconsin fault comparisons per defendant rather than against the combined total, flags any adverse party estimated at 51% or more as a joint and several target, and sets a 120-day notice alert whenever a municipal body appears in the narrative. Opportunities against governmental bodies are scored on the $50,000 cap rather than full damages.
Key cases
Rimes v. State Farm Mutual Automobile Insurance Co.
106 Wis. 2d 263, 316 N.W.2d 348 (1982)
The insured must be made whole for all elements of damage before the insurer recovers, and the court decides that question in an evidentiary proceeding now called a Rimes hearing. Wisconsin carriers should expect one whenever a settlement leaves the insured short.
Muller v. Society Insurance
750 N.W.2d 1 (Wis. 2008)
Where liability limits were sufficient and the insured chose to settle for less than its uninsured loss, the insured could not invoke the made-whole doctrine to take part of the insurer's separate $190,000 subrogation settlement with the negligent electrician.
Insurance Co. of North America v. Cease Electric, Inc.
2004 WI 139, 688 N.W.2d 462
The economic loss doctrine does not bar tort claims arising from contracts for services. A property insurer that paid for a ventilation failure caused by improper wiring could pursue the electrician in negligence.
Inter-company arbitration
Arbitration Forums arbitrators apply Wisconsin's comparative negligence statute, so an applicant at 50% still recovers half against an equally negligent respondent, but multi-party filings must account for the per-defendant comparison. Wisconsin's made-whole rules govern the carrier's relationship with its insured, not the inter-company award, so resolve any Rimes issues before distributing an AF recovery. Compulsory jurisdiction for signatories covers company-paid damages up to $100,000, and the three-year auto property period sets the practical filing deadline for collision claims.
How Ishqkala applies this guide
WI rules, built into every score.
- Opportunities with a Wisconsin loss state are calendared against the 6 years property damage period or the 3 years bodily injury period, whichever controls the claim type.
- The insured's estimated fault share is applied under modified, 51% bar before recoverable dollars are scored.
- Files involving a public entity get a 120-day notice deadline that outranks the general SOL in the priority queue.
- Alerts fire at 180, 90, 45 and 15 days before the controlling deadline.
Other modified, 51% bar jurisdictions
FAQ
Wisconsin subrogation FAQ
6 years (Wis. Stat. 893.52(1) (injury to real or personal property, not arising on contract); property damage from a motor vehicle accident runs 3 years under 893.52(2)). A subrogating carrier generally takes the insured's claim subject to the same limitation period, usually measured from the date of loss.
Modified, 51% bar (Wis. Stat. 895.045(1)). The insured recovers if its negligence is not greater than the negligence of the person against whom recovery is sought, measured separately against each defendant, and damages are reduced by its share. A defendant 51% or more at fault is jointly and severally liable.
Serve written notice of the circumstances on the governmental body within 120 days after the event, then present an itemized claim to the clerk (Wis. Stat. 893.80(1d)). Failure to act on the claim within 120 days is a disallowance, and suit must be filed within 6 months after service of a notice of disallowance. Actual notice without prejudice can excuse late notice, and damages are capped at $50,000 per claimant (893.80(3)). Claims against state officers and employees require sworn notice to the Attorney General by certified mail within 120 days, strictly enforced (893.82).
Wisconsin is among the strictest made-whole states in the country. Garrity v. Rural Mutual Insurance Co. bars subrogation until the insured is fully compensated for all losses, the insured can request a Rimes hearing to decide whether it has been made whole, and the doctrine has been held to trump contrary plan language. Muller v. Society Insurance carved out an important limit: an insured that voluntarily settles for less than available liability limits cannot use the doctrine to take the insurer's separate subrogation recovery.
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