2020 WI App 2

COURT OF APPEALS OF WISCONSIN

PUBLISHED OPINION

Case No.: 2018AP627

Complete Title of Case: 

ESTATE OF KEVIN L. PAYETTE, BY ITS PERSONAL 

REPRESENTATIVE, ASSOCIATED TRUST CO., N.A., ALEXIS W.

PAYETTE AND NATALIE S. PAYETTE, MINORS, BY THEIR GUARDIAN 

AND PARENT, HEATHER PAGEL,

 PLAINTIFFS-RESPONDENTS,

SECURA INSURANCE, A MUTUAL COMPANY,

 INVOLUNTARY-PLAINTIFF,

 V.

DAVID E. MARX AND 1ST AUTO CASUALTY INSURANCE COMPANY,

 DEFENDANTS-APPELLANTS.

Opinion Filed: December 10, 2019

Submitted on Briefs: 

Oral Argument: August 29, 2019

JUDGES: Stark, P.J., Hruz and Seidl, JJ.

Concurred:

Dissented:

Appellant

ATTORNEYS: On behalf of the defendants-appellants, the cause was submitted on the 

briefs of Erik L. Fuehrer and Kody Garza of Gabert, Williams, Konz & 

Lawrynk, LLP, Appleton. 
2

Respondent

ATTORNEYS: On behalf of the plaintiffs-respondents, the cause was submitted on the 

brief of Herbert C. Liebmann IV of Liebmann & Van Straten Legal 

Group, LLC, Green Bay.

A nonparty brief was filed by Lynn R. Laufenberg of Gingras, Thomsen 

& Wachs, S.C., Waukesha, and Edward E. Robinson of Cannon & 

Dunphy, S.C., Brookfield, on behalf of the Wisconsin Association for 

Justice

A nonparty brief was filed by Ryan J. Walsh of Eimer Stahl, LLP of 

Madison, on behalf of the Wisconsin Insurance Alliance. 
2020 WI App 2

COURT OF APPEALS

DECISION

DATED AND FILED

December 10, 2019

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2018AP627 Cir. Ct. No. 2015CV689

STATE OF WISCONSIN IN COURT OF APPEALS

ESTATE OF KEVIN L. PAYETTE, BY ITS PERSONAL 

REPRESENTATIVE, ASSOCIATED TRUST CO., N.A., ALEXIS W.

PAYETTE AND NATALIE S. PAYETTE, MINORS, BY THEIR GUARDIAN 

AND PARENT, HEATHER PAGEL,

 PLAINTIFFS-RESPONDENTS,

SECURA INSURANCE, A MUTUAL COMPANY,

 INVOLUNTARY-PLAINTIFF,

 V.

DAVID E. MARX AND 1ST AUTO CASUALTY INSURANCE COMPANY,

 DEFENDANTS-APPELLANTS.

APPEAL from a judgment of the circuit court for Brown County: 

KENDALL M. KELLEY, Judge. Reversed in part and cause remanded. 

Before Stark, P.J., Hruz and Seidl, JJ. 
No. 2018AP627

2

¶1 SEIDL, J. In this wrongful death and survival action, David Marx 

and his insurer, 1st Auto Casualty Insurance Company (collectively, 1st Auto), 

appeal a judgment awarding prejudgment interest at the rate of 12 percent per year 

under WIS. STAT. § 628.46 (2015-16)1to the Estate of Kevin Payette and Payette’s 

minor children, Alexis and Natalie Payette.2 Section 628.46(1) requires an insurer 

to “promptly pay every insurance claim” within thirty days of an insurer being 

provided “written notice of the fact of a covered loss and of the amount of the 

loss” unless “the insurer has reasonable proof to establish that the insurer is not 

responsible for the payment.” Id.

¶2 In Kontowicz v. American Standard Insurance Co., our supreme 

court concluded that WIS. STAT. § 628.46 is applicable in the context of, as here, 

third-party liability claims. See Kontowicz v. American Standard Ins. Co., 2006 

WI 48, ¶2, 290 Wis. 2d 302, 714 N.W.2d 105, clarified on denial of 

 

1

 The circuit court’s award of statutory interest at the rate of 12 percent was in 

accordance with the 2015-16 version of WIS. STAT. § 628.46(1), which was in effect when the 

jury returned its verdict in this case on October 2, 2017. On April 4, 2018, twenty days before the 

court entered judgment on that verdict, our legislature adopted 2017 Wis. Act 235 (Act 235), 

which took effect the following day. Act 235 amended the rate of prejudgment interest due under 

§ 628.46(1) for an insurer’s overdue payment from 12 to 7.5 percent per year. See Act 235, § 4. 

On appeal, neither party addresses this statutory amendment, and they refer solely to the 

applicable statutory interest rate as being 12 percent per year. Because of the parties’ reliance on 

the former rate—and because we ultimately reverse the court’s award of prejudgment interest for 

reasons unrelated to that rate—all references to WIS. STAT. § 628.46 are to the 2015-16 version of 

the Wisconsin Statutes. All other references to the Wisconsin Statutes are to the 2017-18 version 

unless otherwise noted. 

2

 In this opinion, the term “the Estate” refers both to the Estate of Kevin Payette itself 

and, when in relation to arguments and litigation conducted by all plaintiffs-respondents—who 

shared counsel both in the circuit court and on appeal—to all plaintiffs-respondents. In addition, 

when referring to Kevin Payette individually we will use his surname. When referring to his 

minor children, because they share that surname, we will use their first names.
No. 2018AP627

3

reconsideration, 2006 WI 90, ¶3, 293 Wis. 2d 262, 718 N.W.2d 111. However, 

the Kontowicz court limited its “holding to only those situations in which three 

conditions to trigger the interest are met.” Kontowicz, 290 Wis. 2d 302, ¶2. 

Namely, a third-party claimant is entitled to prejudgment interest under § 628.46 

where: (1) “there can be no question of liability on the part of the 

insured”; (2) “the amount of the damages [is] in a sum certain amount”; and 

(3) “the claimant [provides] written notice of both liability and the sum certain 

amount owed” to the insurer. Kontowicz, 290 Wis. 2d 302, ¶2. 

¶3 On appeal, 1st Auto contends the circuit court erred in concluding 

that the Estate satisfied any of those three conditions. In addition, 1st Auto argues 

the court erred by concluding that 1st Auto lacked reasonable proof that it would 

not be responsible for payment of the Estate’s claims.

¶4 We confine our analysis to Kontowicz’s “sum certain” condition, as 

we conclude it is the dispositive issue in this appeal. We determine that this 

condition is not satisfied where a third-party claimant relies upon an assertion of 

general damages to support a demand that an excess insurer pay a specific amount, 

and the insurer reasonably concludes it is not certain the amount demanded is the 

amount it may actually owe the claimant. Such was the case here, as 1st Auto 

reasonably concluded that it would not ultimately owe the Estate its demanded 

sum (1st Auto’s $1,000,000 policy limit). The reasonableness of 1st Auto’s 

conclusion was confirmed by—but not dependent upon—the fact that a jury 

ultimately determined that 1st Auto actually owed the Estate only $172,806.42. 

Accordingly, we reverse the judgment insofar as it awarded WIS. STAT. § 628.46 

prejudgment interest on the jury’s damages award.
No. 2018AP627

4

BACKGROUND

¶5 On August 24, 2013, at approximately 5:50 p.m., Payette was 

bicycling in the westbound lane of County Trunk Highway VV in the Town of 

Seymour. At the same time, Marx was driving his vehicle in the eastbound lane of 

County Trunk Highway VV, directly behind a vehicle hauling a horse trailer. 

Marx then decided to pass the vehicle and horse trailer and, accordingly, moved 

his vehicle into the westbound lane. Shortly thereafter, Marx’s vehicle struck 

Payette head-on. First responders found Payette deceased on the shoulder of the 

roadway, with his left leg severed. 

¶6 At the time of the accident, Marx had an automobile insurance 

policy with SECURA Insurance, A Mutual Company (Secura), that provided 

$500,000 in liability coverage. He also had a personal umbrella insurance policy

through 1st Auto that provided $1,000,000 in additional coverage.

¶7 On August 15, 2014, counsel for the Estate sent a summary letter 

and demand package to 1st Auto. In its letter, the Estate informed 1st Auto that it 

was making a “formal demand under [WIS. STAT.] § 628.46” for payment of 

1st Auto’s “full policy limit [i.e., $1,000,000] immediately.” In support, the 

summary letter stated that the Estate’s “damages are conservatively in the 

$3,500,000 to $5,000,000 range.”

¶8 In its demand package, the Estate addressed Marx’s liability, 

providing several reasons as to why Marx was responsible for the accident. These 

reasons included: (1) a Wisconsin Motor Vehicle Accident Report that concluded 

Marx caused the accident by an “improper overtaking”; (2) a written statement 

that Marx provided to the Outagamie County Sheriff’s Department where he 

acknowledged that he “did not see [Payette] until the last moment”; and 
No. 2018AP627

5

(3) photographs of Marx’s vehicle showing that “he had two large stickers on the 

lower left-corner of his driver’s side windshield,” in apparent violation of WIS.

STAT. § 346.88(3)(a).

¶9 The demand package then addressed the Estate’s damages. 

Specifically, the package listed damages of: (1) $7,806.42 in “Medical 

Specials/Funeral Expenses”; (2) $1,988,779 in “future damages”3; and (3) an 

unspecified amount of damages for “Conscious Pain and Suffering.” The Estate’s 

explanation of its potential damages for conscious pain and suffering stated: 

No one knows how long Mr. Payette survived following 

impact by Mr. Marx’s vehicle. However it is important to 

note that his most serious injuries were inflicted below his 

vital organs, and he likely did not die instantly. The 

undisputable truth is that if Mr. Payette lived for even a few 

minutes or seconds following impact, those were the 

longest, most excruciating, and terrifying minutes or

seconds of his life.

¶10 One week later, counsel for the Estate sent 1st Auto an e-mail 

correspondence. In that e-mail, counsel again demanded 1st Auto promptly pay its 

full policy limit. 1st Auto did not do so, and the Estate filed its complaint in the 

present action on April 30, 2015.

4

 

¶11 On August 1, 2017, 1st Auto made individual settlement offers to 

Alexis, Natalie and the Estate, pursuant to WIS. STAT. § 807.01. Those offers 

 

3

 The Estate calculated this figure by multiplying Payette’s median income over the three

years prior to his death ($116,987) by seventeen (the number of years until Payette reached the 

age of sixty-five).

4

 According to the complaint, “[o]n July 1, 2014, Secura tendered its policy limits of 

$500,000” to the Estate.
No. 2018AP627

6

were explicitly to settle the Estate’s collective claims against 1st Auto, and 

therefore were extended independently and in addition to the $500,000 already 

paid to the Estate by Secura. The sum of these settlement offers was $525,000—

$10,000 to the Estate and $257,500 each to Alexis and Natalie. The Estate 

rejected 1st Auto’s settlement offers. 

¶12 The case proceeded to a six-day jury trial in September and October 

of 2017. The jury ultimately returned a verdict finding that Marx was negligent in

the use of his motor vehicle at or immediately prior to the accident, and that such 

negligence was the sole cause of Payette’s death.5 

¶13 The jury then awarded the Estate a total of $672,806.42 in damages. 

That total consisted of: (1) $70,000 in lost inheritance and $75,000 in loss of 

support to Alexis; (2) $70,000 in lost inheritance and $100,000 in loss of support 

to Natalie; (3) $350,000 for the loss of Payette’s society and companionship 

jointly to Alexis and Natalie; and (4) $7,806.42 for funeral expenses to the Estate. 

Due to the $500,000 previously paid to the Estate by Secura, 1st Auto was left 

owing $172,806.42 to the Estate based on the verdict.

¶14 1st Auto subsequently moved the circuit court for an order denying 

the Estate prejudgment interest under WIS. STAT. § 628.46. Three days later, the 

Estate filed its own motion seeking an order granting prejudgment interest. 

¶15 Following briefing, the circuit court issued a written decision and 

order granting the Estate’s motion for WIS. STAT. § 628.46 prejudgment interest at 

 

5

 The jury also concluded that Payette was negligent at or immediately prior to the 

accident, but that such negligence was not a cause of his death.
No. 2018AP627

7

12 percent per year. As pertinent here, the court determined that the second 

Kontowicz condition was satisfied primarily due to the fact that the Estate initially 

estimated its total damages at $3,500,000 to $5,000,000 and, based upon this 

estimate, demanded a specific sum of money—i.e., the 1st Auto policy limit of 

$1,000,000. 

¶16 In reaching this decision, the circuit court rejected 1st Auto’s 

argument that the jury’s award, which rendered 1st Auto liable for a sum 

significantly lower than its policy limit, overcame the certainty of the Estate’s 

demand. The court explained: 

To permit recovery of prejudgment interest only in cases in 

which a jury verdict equals or exceeds the amount 

demanded by Plaintiffs in their demand letter pursuant to 

Wisconsin Statutes section 628.46 would defeat the 

purpose of the statute, which is to discourage insurance 

companies from creating unnecessary delays in paying 

claims owed. An insurance company would have no reason 

to accept a settlement demand if it only ran the risk of 

having to pay interest if the judgment was for more than the 

amount demanded.

Consequently, the court entered a judgment providing that the Estate is “entitled to 

pre-judgment interest from [1st Auto] at 12% pursuant to WIS. STAT. § 628.46.” 

1st Auto now appeals.6

DISCUSSION

 

6

 Following the initial briefing, this court held oral argument, and, at our invitation, 

amicus briefs were later submitted by the Wisconsin Association for Justice and the Wisconsin 

Insurance Alliance (WIA).
No. 2018AP627

8

¶17 As a preliminary matter, we observe that we have recently applied 

differing standards of review to a circuit court’s award of WIS. STAT. § 628.46 

prejudgment interest to a third-party claimant. Compare Dilger v. Metropolitan

Prop. & Cas. Ins. Co., 2015 WI App 54, ¶¶10, 12, 364 Wis. 2d 410, 868 N.W.2d 

177 (applying a clearly erroneous standard of review) with Casper v. American

Int’l S. Ins. Co., 2017 WI App 36, ¶15, 376 Wis. 2d 381, 897 N.W.2d 429

(applying a de novo standard of review).7 Ultimately, however, we need not 

resolve any tension that exists between Dilger and Casper in this appeal. 

¶18 This conclusion follows because, for the reasons explained below, 

the dispositive issue here is whether the circuit court applied the proper legal 

standard to the facts of this case when it decided that the Estate satisfied 

Kontowicz’s sum certain condition. Neither party contends that any of the court’s 

factual findings were clearly erroneous, and so we accept all of the court’s factual 

findings. See Dilger, 364 Wis. 2d 410, ¶12. As “the question of whether the facts

fulfill a particular legal standard is a question of law which we decide 

independently and without deference to the trial court,” we therefore apply a 

de novo standard of review in determining whether the Estate satisfied 

Kontowicz’s sum certain condition. Kersten v. H.C. Prange Co., 186 Wis. 2d 49, 

56, 520 N.W.2d 99 (Ct. App. 1994).

 

7

 The Casper court acknowledged that it was applying a different standard of review 

than the Dilger court, and it explained that “[u]nlike Dilger, this case involves a grant of 

summary judgment, and the parties do not dispute that independent review of the trial court’s 

grant of summary judgment and application of the statute to the facts is appropriate here.” 

Casper v. American Int’l S. Ins. Co., 2017 WI App 36, ¶20 n.7, 376 Wis. 2d 381, 897 N.W.2d 

429; see also Dilger v. Metropolitan Prop. & Cas. Ins. Co., 2015 WI App 54, ¶¶10, 12, 364 

Wis. 2d 410, 868 N.W.2d 177. 
No. 2018AP627

9

¶19 Turning to the merits, 1st Auto contends the circuit court erred in 

awarding the Estate prejudgment interest under WIS. STAT. § 628.46(1). That 

statute provides, in pertinent part:

Unless otherwise provided by law, an insurer shall 

promptly pay every insurance claim. A claim shall be 

overdue if not paid within 30 days after the insurer is 

furnished written notice of the fact of a covered loss and of 

the amount of the loss. If such written notice is not 

furnished to the insurer as to the entire claim, any partial 

amount supported by written notice is overdue if not paid 

within 30 days after such written notice is furnished to the 

insurer. Any part or all of the remainder of the claim that is 

subsequently supported by written notice is overdue if not 

paid within 30 days after written notice is furnished to the 

insurer. Any payment shall not be deemed overdue when 

the insurer has reasonable proof to establish that the insurer 

is not responsible for the payment, notwithstanding that 

written notice has been furnished to the insurer.

Id. (emphasis added).

¶20 In order to be entitled to prejudgment interest under WIS. STAT.

§ 628.46, a third-party claimant must satisfy all three Kontowicz conditions set 

forth above. See Kontowicz, 290 Wis. 2d 302, ¶2. Here, because we agree with 

1st Auto that the Estate’s claim failed to satisfy the second Kontowicz condition, 

we focus exclusively on that condition. See Miesen v. DOT, 226 Wis. 2d 298, 

309, 594 N.W.2d 821 (Ct. App. 1999) (stating the court of appeals “should decide 

cases on the narrowest possible grounds”).

¶21 Again, the second Kontowicz condition requires that to be entitled to 

prejudgment interest under WIS. STAT. § 628.46, a third-party claimant’s “amount 

of damages must be in a sum certain amount.” Kontowicz, 290 Wis. 2d 302, ¶48. 

The parties agree, and we acknowledge, that neither Kontowicz nor its progeny set 

forth a specific test to determine exactly what types of damages a third-party 

claimant may demand—and with what level of specificity a claimant must demand 
No. 2018AP627

10

them—in order to satisfy this condition. In Casper, however, we did hold that a 

third-party claimant’s itemization of past and future special damages is sufficient 

to satisfy this condition.8 See Casper, 376 Wis. 2d 381, ¶¶24, 28. 

¶22 Pursuant to Casper, the parties here do not dispute that certain 

damages identified by the Estate in its written notice constituted a “sum certain” 

amount of damages. Namely, the parties do not dispute that the $7,806.42 in 

funeral expenses and the $350,000 awarded to Alexis and Natalie for the loss of 

Payette’s society and companionship are sums certain within the meaning of 

Kontowicz.

9

 However, as an umbrella carrier, it is undisputed that 1st Auto did 

not owe any portion of that combined $357,806.42 in damages to the Estate 

because Secura’s primary policy provided $500,000 in liability coverage.

¶23 Thus, the parties’ dispute regarding the sum certain condition 

centers on the remaining damages that the Estate sought in its August 14, 2014 

 

8

 As we explained in Casper, “[s]pecial damages are ‘those representing the victim’s 

actual pecuniary losses[,]’ as opposed to general damages, which are those ‘not readily 

susceptible to direct proof or easily estimable,’ and include pain and suffering and injury to 

reputation.” Casper, 376 Wis. 2d 381, ¶24 n.9 (citation omitted).

9

 We note that a loss of society and companionship claim represents the post-death 

noneconomic damages portion of a wrongful death claim. See Phelps v. Physicians Ins. Co. of 

Wis., 2009 WI 74, ¶27, 319 Wis. 2d 1, 768 N.W.2d 615. In this case, it is undisputed that 

pre-death noneconomic damages (such as damages recoverable in a medical malpractice claim) 

were not at issue. See id. Consequently, because Wisconsin law allows for a maximum recovery 

of “$350,000 per occurrence in the case of a deceased adult, for loss of society and 

companionship,” the maximum amount of noneconomic damages available to the Estate in its 

wrongful death claim was $350,000. See WIS. STAT. § 895.04(4). 

According to the circuit court’s written decision awarding the Estate prejudgment interest 

under WIS. STAT. § 628.46, the “parties agreed prior to judgment that ... Alexis and Natalie were 

jointly entitled” to this full amount. Due to this stipulation—and in the absence of any argument 

to the contrary on appeal by 1st Auto—we deem the Estate’s claim for loss of society and 

companionship as a sum certain in the amount of $350,000. 
No. 2018AP627

11

demand package. Those damages fell into two categories. First, Payette’s Estate 

sought damages for Payette’s conscious pain and suffering.10 Second, Alexis and 

Natalie sought to recover the pecuniary losses they suffered as a result of Payette’s 

death.

11

¶24 In its brief-in-chief, 1st Auto contends that the “amorphous nature” 

of both of these categories of damages renders them incapable of satisfying 

Kontowicz’s sum certain condition. 1st Auto reasons that because both types of 

damages are general damages, which, again, by definition are “not readily 

susceptible to direct proof or easily estimable,” they cannot constitute a sum 

certain.

12

 See Casper, 376 Wis. 2d 381, ¶24 n.9.

¶25 The Estate responds that “[t]o say the demand was not in a sum

certain amount makes no sense. The demand was for $1,000,000. That is a sum 

certain amount.” In so arguing, the Estate essentially urges us to accept the circuit 

court’s conclusion that because the Estate “demanded a sum certain from 

[1st Auto]—the policy limit of $1,000,000—based on Marx’s certain liability; the 

second Kontowicz condition has therefore been satisfied.”

 

10

 Damages for a deceased’s conscious pain and suffering are recoverable in a survival 

action, which “belongs to the estate.” See Day v. Allstate Indem. Co., 2011 WI 24, ¶¶61-63, 332 

Wis. 2d 571, 798 N.W.2d 199.

11

 Damages for pecuniary injuries suffered by a deceased’s beneficiaries may be sought 

in a wrongful death action. “Importantly, wrongful death beneficiaries seek recovery not for the 

injury suffered by the deceased, but rather ‘for the loss sustained to the beneficiaries because of 

the death.’” Day, 332 Wis. 2d 571, ¶62 (citation omitted). 

12

 The Estate does not refute 1st Auto’s contention that both categories of damages 

represent general damages. We therefore deem that point conceded for purposes of this appeal. 

See Schlieper v. DNR, 188 Wis. 2d 318, 322, 525 N.W.2d 99 (Ct. App. 1994) (unrefuted

arguments may be deemed conceded).
No. 2018AP627

12

¶26 We reject the Estate’s interpretation of Kontowicz’s sum certain 

condition—and, by extension, the circuit court’s interpretation of that same 

condition—because it would render the condition largely meaningless. This 

conclusion follows because if a third-party claimant could always satisfy the sum 

certain condition by merely demanding the limits of a particular insurance policy, 

then every claimant could simply demand an insurer pay its policy limits in every 

claim and thus be entitled to prejudgment interest under WIS. STAT. § 628.46 on 

any amount ultimately recovered. Stated differently, under the Estate’s 

interpretation, the claimant would be deemed to have satisfied the sum certain 

condition regardless of whether there was any certainty that such a sum would 

ultimately be owed to the claimant by the insurer. Such a result would be absurd 

because, in this regard, it would ignore the fact that the Kontowicz decision itself 

referred to a “sum certain” being “owed,” not just demanded. See Kontowicz, 290 

Wis. 2d 302, ¶2.

¶27 Just as we reject the Estate’s broad interpretation of Kontowicz’s 

sum certain condition, so too do we reject 1st Auto’s argument that the 

“amorphous nature” of general damages means that such damages can never 

satisfy that condition. And indeed, 1st Auto recognizes in its reply brief that such 

a rigid rule is not tenable, stating that there are cases where “no reasonable jury 

would return a lesser amount” of general damages than the amount covered by a 

policy’s limits.

¶28 1st Auto’s concession is well taken. Even though general damages 

are, by definition, “not readily susceptible to direct proof or easily estimable,” 
No. 2018AP627

13

there certainly are cases where a third-party claimant can satisfy the sum certain 

condition based upon a claim for such damages.13 Nonetheless, for the following 

reasons, we agree with 1st Auto that this is not such a case.

¶29 First, in its demand package, the Estate explicitly acknowledged 

when identifying its potential damages for conscious pain and suffering that “no 

one” knew “if Mr. Payette lived for even a few minutes or seconds following 

impact.” As such, not only was there no certainty as to how much a jury would 

award for Payette’s conscious pain and suffering, there was no certainty that a jury 

would award any such damages at all because it was admittedly unknown if 

Payette survived for any length of time following the collision with Marx’s 

vehicle. These uncertainties were borne out by the jury’s verdict, which 

determined the Estate was not, in fact, entitled to any damages for Payette’s 

conscious pain and suffering. 

¶30 Second, as to the “future damages” referenced in the demand 

package, the Estate simply calculated Payette’s lost future wages at $1,988,779. 

But Payette’s lost future wages could not have represented a sum certain 1st Auto 

owed to the Estate itself, as it is well-established that “[a]n estate may not recover 

on its own behalf damages for the decedent’s pecuniary loss.” Weiss v. Regent 

Props., Ltd., 118 Wis. 2d 225, 235, 346 N.W.2d 766 (1984). Nor could those 

 

13

 We need not search far to find support for this statement, as the WIA recognizes in its 

amicus brief that there are “cases in which an assertion of general damages would [constitute a]

‘sum certain owed.’” Specifically, the WIA identifies two types of cases where general damages 

may satisfy the sum certain condition: “(1) where the insurer concedes liability for the full

[policy] amount or [2] where, as in Kontowicz, there can be no fair debate that the insurer is 

responsible for damages at least up to the policy limit.” See Kontowicz v. American Standard 

Ins., 2006 WI 48, 290 Wis. 2d 302, 714 N.W.2d 105.
No. 2018AP627

14

wages—standing alone—have represented a sum certain that 1st Auto owed to 

Alexis and Natalie, as our supreme court has explained that “[w]rongful death 

beneficiaries are not automatically entitled to recover for pecuniary loss resulting 

from a parent’s wrongful death. It is well established that the survivors must 

prove their loss.” Petta v. ABC Ins. Co., 2005 WI 18, ¶20, 278 Wis. 2d 251, 692 

N.W.2d 639 (citation omitted). 

¶31 To prove such loss in this context—that is, an alleged pecuniary loss 

due to a decedent’s loss of earning power—wrongful-death beneficiaries must 

show not just the amount of the decedent’s lost earning power, but the benefit they 

would have derived from that earning power. Day v. Allstate Indem. Co., 2011 

WI 24, ¶62 n.16, 332 Wis. 2d 571, 798 N.W.2d 199. In this case, critically, the 

Estate’s demand package failed to make such a showing because it did not even 

attempt to establish what benefit Alexis and Natalie expected to derive from 

Payette’s lost future earnings. As such, we cannot say that the Estate showed that 

1st Auto owed it a sum certain when it sent the demand package, because that 

package was silent on the actual (or, for that matter, even the estimated) amount of 

Alexis and Natalie’s recoverable pecuniary losses.

¶32 Based on the foregoing, we need not look beyond the Estate’s 

demand package itself to conclude that its identified $1,988,779 in “future 

damages” did not satisfy Kontowicz’s sum certain owed condition. Nonetheless, 

we note that the jury’s verdict irrefutably confirms that it was not certain that 

1st Auto owed to the Estate the $1,000,000 sum it demanded in August 2014, as 

that verdict established that 1st Auto actually owed the Estate only $172,806.42. 

¶33 For all these reasons, we conclude that the general damages sought 

by the Estate in its demand package did not constitute a sum certain that 1st Auto 
No. 2018AP627

15

owed to the Estate within the meaning of Kontowicz. Although the Estate clearly 

demanded that 1st Auto pay a sum certain—its $1,000,000 policy limit—that sum 

was not reasonably demonstrated to be owed to the Estate by 1st Auto. Rather, 

1st Auto reasonably concluded that the total value of the damages it may owe to 

the Estate was lower than the policy limits demanded. In other words, 1st Auto 

reasonably concluded it was not certain that it would owe the Estate the sum 

demanded. 

¶34 In reaching our conclusion, we are mindful of the purpose 

underlying WIS. STAT. § 628.46—namely, “to discourage insurance companies 

from creating unnecessary delays in paying claims owed.” Kontowicz, 290 

Wis. 2d 302, ¶47. That purpose would not be furthered, however, by a conclusion 

that the Estate satisfied the sum certain condition in this case. 

¶35 To explain, there was unquestionably a delay from the time the 

Estate first demanded that 1st Auto pay its policy limits, in August 2014, until the 

jury returned its verdict in October 2017. But we perceive nothing unreasonable 

about that delay because—for the reasons explained above—1st Auto, a 

third-party excess liability insurer, could reasonably conclude it was not certain it 

would ultimately owe the amount that the Estate demanded prior to trial. 

Resolving that uncertainty via litigation was not an unnecessary delay—indeed, 

there are unquestionably occasions where a plaintiff’s “amount of damages [are] 

not ascertainable or determinable prior to judicial determination” and litigation is

therefore necessary. See Klug & Smith Co. v. Sommer, 83 Wis. 2d 378, 384, 265 

N.W.2d 269 (1978). Our conclusion that this case presented one such occasion 

when damages were not certain prior to trial is further underscored by the fact that 

the amount the jury awarded the Estate was $352,193.58 less than the $525,000 

1st Auto offered to settle the Estate’s claims prior to trial. 
No. 2018AP627

16

¶36 The Estate makes two additional arguments in support of its 

argument that it satisfied the sum certain condition. First, it points to our decision 

in Fritsche v. Ford Motor Credit Co., 171 Wis. 2d 280, 491 N.W.2d 119 (Ct.

App. 1992). In that case, the insured and his wife made a first-party claim against 

their automobile liability insurer. Id. at 287. The insured’s policy “included 

uninsured motorist coverage, and showed a liability limit for this coverage of 

$25,000.” Id. The parties disagreed as to whether the insured’s damages would 

exceed that limit. Id. at 307 n.8. Ultimately, the matter proceeded to trial, where a 

jury “found damages of about $120,000.” Id. 

¶37 On appeal, the insurer argued that an award of prejudgment interest 

under WIS. STAT. § 628.46 was not warranted because the insured’s claim 

“involve[d] nebulous damages such as pain and suffering and future loss of 

earning capacity, [and therefore] it [was] not possible to value the claim.” 

Fritsche, 171 Wis. 2d at 306. We rejected that argument, stating: 

It may be that the risk of mis-evaluation outweighs the risk 

of paying [§ 628.46] interest. But [the insurer] has had the 

use of $25,000 which became owing to the [insured] as a 

result of an accident which occurred October 11, 1985. 

Presumably, [the insurer] has received a return on that 

amount since then. We see nothing illogical in interpreting 

a broad statute to require [the insurer] to pay for the use of 

$25,000 from the date by which it had received evidence of 

the loss equivalent to a proof of loss.

Id. at 307.

¶38 Based upon this language, the Estate argues that “when an insurance 

company makes the decision to withhold payment, it exposes itself to liability for 

interest under WIS. STAT. § 628.46.” We are not persuaded, as the Estate reads 

Fritsche, a first-party insurance case, too broadly. In particular, the Estate 
No. 2018AP627

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overlooks the fact that, here, 1st Auto did not misevaluate the Estate’s claims. To 

the contrary, 1st Auto correctly forecasted that a jury would not ultimately find it 

owed the Estate damages equal to or in excess of its policy limits, especially when 

considering the $500,000 previously paid by Secura. 

¶39 Second, the Estate argues that because WIS. STAT. § 628.46 refers to 

“any partial amount supported by written notice” being eligible for an award of 

prejudgment interest, the jury’s award—although far below their demanded sum—

can still constitute a sum certain. We reject this argument for much the same 

reasons we rejected the Estate’s primary argument. That is, it would render 

Kontowicz’s sum certain condition meaningless because a claimant could always 

demand payment of an insurer’s policy limits and then claim that any lesser 

amount ultimately awarded was a partial amount supported by written notice.14 

¶40 Moreover, the Estate’s argument fails to account for the fact that the 

Kontowicz court expressly “limit[ed]” its holding that WIS. STAT. § 628.46 interest 

was available to third-party claimants “to only those situations in which” the three 

conditions set forth above are met. Kontowicz, 290 Wis. 2d 302, ¶55. In other 

words, the “conditions [Kontowicz] impose[d] raised the bar” for third-party 

claimants. Casper, 376 Wis. 2d 381, ¶18. As discussed at length, a jury award for 

a portion of the sum certain demand for 1st Auto’s policy limits is not a partial 

amount “owed” at the time of the demand, nor is it supported by written notice as 

 

14

 We note that our analysis in this opinion is consistent with this statutory language in 

that we have treated the Estate’s claims for funeral expenses and loss of society and 

companionship as partial amounts supported by written notice. The Estate is not entitled to 

prejudgment interest under WIS. STAT. § 628.46 on those claims, however, as it makes no 

argument that Secura failed to timely pay them.
No. 2018AP627

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is also required by the statute and Kontowicz. See Kontowicz, 290 Wis. 2d 302, 

¶55; sec. 628.46. Thus, we conclude that the Estate’s claim failed to clear this 

higher bar. Accordingly, we reverse the judgment insofar as it awarded § 628.46 

prejudgment interest on the jury’s damages award and affirm the judgment in all 

other respects. 

By the Court.—Judgment reversed in part and cause remanded.