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STATE
OF WISCONSIN |
IN COURT OF APPEALS DISTRICT
IV |
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Heritage
Federal Credit Union, as assignee of the
assets of Greyhound Central Credit Union, as
sold and assigned by the National Credit Union
Association,
Plaintiff-Appellant, v. Cumis
Insurance Society, Inc., a Wisconsin Corporation,
Defendant-Respondent. |
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ERRATA SHEET
Marilyn L. Graves
Clerk of Court of Appeals
P.O. Box 1688
Madison, WI 53701-1688
Court of Appeals District I
633 W. Wisconsin Ave., #1400
Milwaukee, WI 53203-1918
Court of Appeals District III
740 Third Street
Wausau, WI 54403-5784
Jennifer Krapf
Administrative Assistant
119 Martin Luther King Blvd.
Madison, WI 53703
Peg Carlson
Chief Staff Attorney
119 Martin Luther King Blvd.
Madison, WI 53703
Court of Appeals District II
2727 N. Grandview Blvd.
Waukesha, WI 53188-1672
Court of Appeals District IV
119 Martin Luther King Blvd.
Madison, WI 53703
Hon. Patrick J. Fiedler
Trial Court Judge
Dane County, City-County Bldg
210 Martin Luther King, Jr. Blvd.
Madison, WI 53709
Judith Coleman, Trial Court Clerk
Case No. 94 CV 0722
Dane County, City-County Bldg
210 Martin Luther King, Jr. Blvd.
Madison, WI 53709
Daniel R. Ryan
Hinshaw & Culbertson
222 N. LaSalle Street
Chicago, IL 60601-1081
Thomas M. Pyper
Whyte Hirschboeck Dudek, S.C.
One East Main Street, #300
Madison, WI 53703
Susan R. Tyndall
Hinshaw & Culbertson
100 E. Wisconsin Ave., #2600
Milwaukee, WI 53202-4115
Ann M. Maher
Whyte Hirschboeck Dudek, S.C.
111 E. Wisconsin Ave., Ste. 2100
Milwaukee, WI 53202
PLEASE TAKE NOTICE that the attached page seven is to be substituted for page seven in the above-captioned opinion which was released on July 3, 1997.
Dated this 30th day of July, 1997.
third-party assignee, even though the alleged assignment occurred after the losses had taken place.
Furthermore,
prior to Heritage’s purchase, Greyhound had not discovered any losses which
would be covered by the bond.
Therefore, it did not have any matured, assignable claims — only an
insurance policy which, by its own terms, could not be assigned without CUMIS’
written consent. Therefore, we conclude
that the holding in Gimbles does not extend to a discovery bond
of this nature. See State Bank of
Viroqua v. Capitol Indem. Corp., 61 Wis.2d 699, 708-09, 214 N.W.2d 42,
46-47 (1974) (noting that bond claims differ from fire claims in several
respects). We turn our attention, then,
to Heritage’s claims that either CUMIS waived the consent requirement or it was
satisfied when CUMIS accepted the premium payment from Heritage.
2. Waiver/ Premium Payment.
An insurer may waive its right to rely on a certain policy provision when it acts in a manner inconsistent with that provision to the prejudice of the policyholder. Whirry v. State Farm Mut. Auto Ins. Co. of Bloomington, Ill., 263 Wis. 322, 326, 57 N.W.2d 330, 332 (1953) (citation omitted). However, “[w]aiver implies actual knowledge of a fact or condition going to the liability of the insurer.” Id. Thus, in Whirry, an insurance company was not liable for damages resulting from a widow’s automobile accident which occurred when she was driving a car for which her deceased husband had been the insured, even though the widow had paid the renewal premium, because she had not notified the company of her husband’s death and the company had not accepted her as the insured. Id. The insurance company’s retention of the premium was held insufficient in and of itself to waive the company’s defense, because the company