Sec. Trans 100.12 - Release of liability

ยง Trans 100.12. Release of liability

(1) EFFECT OF RELEASE. The department may not suspend the operating privilege of an operator or motor vehicle registrations of a vehicle owner under s. 344.14, Stats., if that person has been released from liability by all persons on whose behalf a security deposit has been required by the department under s. Trans 100.07 or s. 344.13, Stats., and all persons who have filed subrogation notices with the department for such claims.

Note: See ss. 344.14(2) (h) and 344.18(1) (b), Stats.

(2) VALIDITY OF RELEASE. A release shall be considered valid under ss. 344.14(2) (h) and 344.18(1) (b), Stats., if it meets all of the following criteria:

(a) Written release required. A release shall be made in writing.

(b) Consideration required. A release shall state that it is made for consideration, such as an exchange of money or something that has money value.

Note: Forms MV 3039-Minors Release, and MV 3041-Release of Liability.

(c) Competent approval.

1. 'Injured parties.' If a party sustains property damage or personal injuries, the release shall include the witnessed or notarized signature of each subrogated party and the witnessed or notarized signature of the injured party, except as provided in subds. 2. to 4.

2. 'Minors with claims $5,000 or less.' If an injured party is less than 18 years old and the amount of deposit required by the department under s. 344.13, Stats., does not exceed $5,000, the witnessed or notarized signature of that injured party's parent or legal guardian, and if any personal injury to the injured party occurred, a doctor's certification that the injury is not permanent is required.

Note: See s. 344.14(2) (h), Stats.

3. 'Minors with claims exceeding $5,000, or permanent injuries.' If an injured party is less than 18 years old and either a doctor certifies that the injury is permanent or the amount of deposit required by the department under s. 344.13, Stats., exceeds $5,000, a witnessed or notarized legal guardian's signature in his or her capacity as guardian is required, together with a court order authorizing the guardian for the injured party to execute the release.

Note: ss. 807.10, 344.14(2) (h) and 344.18(1) (b), Stats. Parents are not "legal guardians" unless appointed by a court.

4. 'Incompetents.' If an injured party is incompetent, a witnessed or notarized guardian's signature in his or her representative capacity is required together with a court order authorizing the guardian to execute the release.

5. 'Deceased parties.' If the injured party died as a result of the accident, the release shall include one of the following:

a. The witnessed or notarized signature of the personal representative or administrator of the estate of the deceased, accompanied by a copy of the court order appointing the personal representative or administrator.

b. The witnessed or notarized signature of parents with legal custody or the legal guardian of the deceased when the deceased was a minor at the time of the accident.

c. The witnessed or notarized signature of the primary heir of the estate of the deceased, accompanied by an affidavit of heirship from the releasing party and assurance that the estate will be settled without appointment of a personal representative. The department may accept a copy of a petition filed under ch. 867, Stats., or a court order assigning property under ch. 867, Stats., as assurance under this subdivision.

d. The witnessed or notarized signature of the primary heir of the estate of the deceased, accompanied by an affidavit of heirship from the releasing party and a certified medical statement attesting that the deceased had no pain and suffering.

(3) DISMISSAL OF CLAIMS. A final judgment on the merits and with prejudice dismissing all claims against the uninsured operator or owner shall be treated as a release of liability for that uninsured operator or owner as to all parties to that court action.

(4) SATISFACTION OF JUDGMENT. A satisfaction of judgment against the uninsured operator or owner for claims arising out of the accident shall be treated as a release of liability for that uninsured operator or owner as to all parties to the court action.

(5) BANKRUPT UNINSURED PERSONS UNDER SAFETY RESPONSIBILITY LAW.

(a) Effect on deposited security. Notwithstanding the imposition of a stay at the commencement of a bankruptcy proceeding or the issuance of an order of discharge in a bankruptcy proceeding, any security that is deposited with the department shall be held in trust by the department for the benefit of any injured party on whose behalf a security deposit has been required under s. Trans 100.07 or s. 343.13, Stats.

(b) Bankruptcy that precedes safety responsibility suspension. In any case in which the department is notified of a pending bankruptcy proceeding and applicability of a stay under 11 USC 362, the department may not suspend the operating privilege or motor vehicle registration of the debtor until the stay is no longer in effect and the department is notified by an injured party or their subrogated insurer that the debt was not discharged and that suspension under s. 343.14 or 343.18, Stats., is appropriate.

Note: 11 USC 362 is the bankruptcy code's automatic stay provision.

(c) Effect on operating privilege and motor vehicle registration.

1. 'Reinstatement.' An uninsured operator or vehicle owner whose operating privilege or motor vehicle registration is suspended under s. 344.14 or 344.18, Stats., who files a petition in bankruptcy, and from whom collection of a pre-bankruptcy debt arising from an accident occurring prior to the filing of the petition is stayed under 11 USC 362, or whose liability for damages resulting from an accident is discharged under United States bankruptcy laws may reinstate his or her operating privilege or motor vehicle registration. The person shall be subject to all the same reinstatement, filing and fee requirements as any other person seeking license reinstatement who has obtained a release from the injured party.

Note: See Holder v. DOT, 40 BR 847 (E.D. Wisc., 1984) regarding the Department's authority to require proof of financial responsibility for the future of a bankruptcy debtor. Tort liability is not "consumer debt" under 11 USC 101(7). Therefore, Ch. 13 co-debtor stay does not prohibit collection against non-bankrupt persons. In re ALVAREZ, 57 BR 65 (S.D. Fla., 1985).

2. 'Release of suspension ordered in violation of automatic stay.' If the department is notified that a stay prohibiting action against a debtor under 11 USC 362 was in effect at the time the department ordered revocation or suspension of the debtor's operating privilege or motor vehicle registration under s. 344.14, Stats., the department shall release the s. 344.14, Stats., revocation or suspension and, if the debtor is otherwise eligible to be licensed, reinstate the bankruptcy debtor's operating privilege and motor vehicle registration without any reinstatement fee.

Note: 11 USC 362 is the bankruptcy code's Automatic Stay provision.

3. 'Reimposition of suspension.' The department may suspend a debtor's operating privilege or motor vehicle registration that was released under subd. 1. or 2. upon a showing by an injured party that the debt for damages resulting from the accident was not discharged or satisfied within the bankruptcy proceeding and that the bankruptcy stay is not in effect or upon notification that the case has been dismissed.

4. 'Proof.' The department may require satisfactory proof that the debtor's liability to all injured parties and their subrogated insurers have been discharged in a bankruptcy proceeding in any case where a debtor seeks to reinstate an operating privilege or motor vehicle registration after the case is closed or dismissed, a discharge has been granted, or the automatic stay has been lifted, terminated, annulled or modified. Acceptable proof may include copies of the schedules for the bankruptcy case listing the injured party as a claimant in the bankruptcy, proof of the filing date, such as the notice of bankruptcy filing mailed by the bankruptcy court or a copy of the petition containing the clerk's file stamp showing the date the petition was filed, and an affidavit that the debt is dischargeable under 11 USC 523 and has been discharged.

5. 'Disputes.' In any case where a debtor uninsured operator or motor vehicle owner and an injured party dispute whether a discharge has affected the injured party's claim, the department may require one or both parties to obtain a court order that decides whether the claim is discharged.

6. 'Court determinations.' The department shall accept court findings or orders regarding discharge of a claim in an action between the debtor uninsured operator or motor vehicle owner and an injured party as determinative, and may impose or release a suspension under ch. 344, Stats., in accordance with the determination of the court.

Note: While the Department does not have authority to require debtors to provide a certain type of notice of bankruptcy filing to it under federal law, debtors who are subject to financial responsibility filing requirements will find that the Department's reaction to a bankruptcy filing is faster and more predictable under this section if the Department is listed on the mailing matrix for the proceeding with an address of Wisconsin Department of Transportation, Uninsured Motorists Unit, P.O. Box 7919, Madison, WI 53707-7919.

(d) The department may not release a safety responsibility or damage judgment suspension or revocation based solely upon a court order entered under s. 128.21, Stats.

(Cr. Register, October, 1985, No. 358, eff. 11-1-85; renum. (4) (intro.) to be (4) and am. r. (4) (a) to (c), cr. (5), Register, April, 1994, No. 460, eff. 5-1-94; CR 01-156: r. and recr. (1), (2), (4) and (5), renum. (3) to be (2) (c) 5. and am., cr. (3) Register October 2005 No. 598, eff. 11-1-05.)

Voluntary wage earner proceedings affect only executions, attachments or garnishments, and do not affect suspensions and revocations of operating privileges. s. 128.21(1), Stats. Debtors using state procedures to reorganize debts may use a s. 344.27, Stats., process to obtain a court ordered repayment plan for an unpaid damage judgment.

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