As the homeowners correctly point out, each case interpreting WIS.
STAT. § 895.475 concerns an insurer providing pre-loss prevention services. See
Samuels Recycling Co. v. CNA Ins. Cos., 223 Wis. 2d 233, 588 N.W.2d 385 (Ct.
App. 1998) (allegations by company that insurer failed to provide or negligently
provided loss-control services related to pollution); A.O. Smith Corp. v. Viking
Corp., 79 F.R.D. 91 (E.D. Wis. 1978) (company claimed that insurer negligently
inspected automatic sprinkler system before fire that caused loss to company).
Infratek has failed to provide a single case, from Wisconsin or elsewhere, wherein
a statute like Wisconsin’s was applied to provide immunity for an insurer or its agent
in the context of a post-loss claim evaluation or investigation under a property
insurance policy.
The exemption applies to voluntary inspections, providing specifically that it “shall not
apply to an insurer, the insurer’s agent or employee performing the safety inspection or advisory
services when required to do so under the provisions of a written service contract.” See Samuels
Recycling Co. v. CNA Ins. Cos., 223 Wis. 2d 233, 251-52, 588 N.W.2d 385 (Ct. App. 1998)
(insurers who performed gratuitous pre-loss investigations were exempt from liability); A.O. Smith
Corp. v. Viking Corp., 79 F.R.D. 91, 93-94 (E.D. Wis. 1978) (same). Moreover, immunity does
not apply if the insurer’s actively negligent advice created the condition that caused the loss—if
the safety recommendations increased the risk. See id. at 93; Hamel v. Factory Mut. Eng’g Ass’n,
564 N.E.2d 395, 396-97 (Mass. 1990) (legislature intended to exempt insurers from liability for
safety inspections and for making recommendations to promote safety unless the insurer by its
actions increases the safety risk at the facility inspected). It is also inapplicable if the entity
providing advisory services acted independently of the insurer. A.O. Smith, 79 F.R.D. at 94.
The homeowners also cite to persuasive cases from outside of Wisconsin that apply a
similar statute only to pre-loss investigations. See Hamel, 564 N.E.2d at 396-97 (insurer exempt
from liability for alleged negligent pre-loss inspections in months preceding an accident); Swift v.
Am. Mut. Ins. Co. of Boston, 504 N.E.2d 621, 622-23 (Mass. 1987) (insurer exempt from liability
for alleged negligent inspections that exposed injured employee to silica dust and citing to cases
from other jurisdictions with similar pre-loss investigation exemption statutes).
As discussed in an article published four years after the enactment of WIS. STAT. § 895.475,
numerous states sought to apply the workers’ compensation bar to insurers that provided safety-
related services at the workplace after negligence claims for voluntary undertaking were permitted.
See American Mut. Liab. Ins. Co. v. St. Paul Fire & Marine Ins. Co., 48 Wis. 2d 305, 179 N.W.2d
864 (1970) (and cases cited therein) (claim permitted prior to enactment of predecessor to WIS.