Section Ins 6.35 - Petroleum storage environmental cleanup fund; exclusions from reimbursement(1) PURPOSE. This section interprets s. 292.63(1) (ad) and (gm) and (4) (b) 15., Stats., by defining the liabilities that are excluded from coverage in liability insurance policies for bodily injury and property damage for the purpose of specifying costs paid by an owner or operator to a 3rd party which are ineligible for reimbursement from the fund.(2) DEFINITIONS. In this section:(a) "Discharge" has the meaning given in s. 292.01(3), Stats.(b) "Fund" means the petroleum storage environmental cleanup fund under s. 25.47, Stats.(c) "Operator" has the meaning given in s. 292.63(1) (d), Stats.(d) "Owner" has the meaning given in s. 292.63(1) (e), Stats.(e) "Petroleum product storage system" has the meaning given in s. 292.63(1) (fg), Stats.(3) EXCLUSIONS. In addition to the exclusions specified in s. 292.63(4) (c), Stats., and the claims which shall be denied under s. 292.63(4) (g), Stats., an owner or operator is not eligible for reimbursement under s. 292.63(4) (b) 15., Stats., for compensation paid by the owner or operator to a 3rd party for any of the following: (a) Costs for which the owner or operator is not legally liable.(b) Bodily injury or property damage arising out of any of the following: 1. A discharge expected or intended from the standpoint of the owner or operator.2. A discharge based on or attributable to a criminal act by the owner or operator.3. The owner's or operator's intentional, willful or deliberate noncompliance with any statute or administrative rule administered by the department of safety and professional services or the department of natural resources which directly relates to the storage and handling of flammable liquid or combustible liquid, as defined by the department of safety and professional services by rule. Note: The responsibility for this aspect of petroleum tank storage oversight was transferred from the Department of Safety and Professional Services to the Department of Agriculture, Trade and Consumer Protection. See s. ATCP 93.050(30) and (49) for definitions of combustible and flammable liquid.
4. The owner's or operator's assumption of the liability of a 3rd party under a contract or agreement, unless the owner or operator would have had the liability in the absence of the contract or agreement.5. The ownership, maintenance, use, operation or entrustment to another person of an automobile, aircraft, watercraft or rolling stock belonging to the owner or operator, except that this exclusion does not apply if the bodily injury or property damage is caused by the use of the automobile, aircraft, watercraft or rolling stock during the loading or unloading of the owner's or operator's petroleum products storage system.6. War, invasion, act of a foreign enemy, hostilities, civil war, rebellion, revolution, insurrection, military or usurped power, strike, riot or civil commotion.(c) Bodily injury to any of the following, whether the owner or operator is liable as an employer or in any other capacity, and regardless of whether the owner or operator is obligated to share damages with or to repay someone else who must pay damages because of the bodily injury: 1. An employee of the owner or operator for an injury occurring during and in the course of the employment.2. The spouse, child, parent, brother or sister of an employee of the owner or operator arising as a consequence of the bodily injury to the employee under subd. 1.(d) Property damage to any of the following: 1. Property owned or occupied by or rented or lent to the owner or operator.2. Personal property in the care, custody or control of the owner or operator.(e) An obligation of the owner or operator under a workers' compensation, disability benefits, unemployment compensation or other similar law.(f) Punitive or exemplary damages.(g) Federal, state or local fines, forfeitures or other penalties.(h) Amounts recoverable by the owner or operator under s. 292.63(4) (b) 1 to 14., Stats., or by a 3rd party as a claimant under s. 292.63, Stats.Wis. Admin. Code Office of the Commissioner of Insurance § Ins 6.35
Cr. Register, April, 1991, No. 424, eff. 5-1-91; corrections in (2) (a) and (b), (3) (b) 3., made under s. 13.93(2m) (b) 6 and 7., Stats., Register, February, 2000, No. 530; correction in (3) (b) 3. made under s. 13.92(4) (b) 6, Stats., Register January 2012 No. 673; corrections in (1), (2) (c) to (e), (3) (intro.), (h) made under s. 13.92 4. (b) 7., Stats., Register August 2014 No. 704.