Chapter 618

618.28 618.28 Exemptions from Wisconsin law.

618.28(1) (1) Exemptions. Any nondomestic insurer authorized to do business in this state may apply for and the commissioner may make an order exempting it from any requirement otherwise applicable to it, if the commissioner finds after a hearing:

618.28(1)(a) (a) That in the absence of the statutory requirement in this state the requirement would not be imposed on the insurer or on a similar Wisconsin insurer by the law of the insurer’s domicile;

618.28(1)(b) (b) That exemption from the requirement will not endanger the interests of insureds, creditors or the public in this state; and

618.28(1)(c) (c) That the exemption will not give the insurer an unfair competitive advantage over domestic insurers.

618.28(2) (2) Notice and hearing. The hearing may not be held until at least 30 days after notice has been given to competing insurers authorized to do business in this state by publication in the administrative register or otherwise in a manner considered adequate by the commissioner. Any such insurer may appear in the hearing and state its position on sub. (1) (c).

618.28 History History: 1971 c. 260; 1991 a. 316.

618.31 618.31 Changes in business plan.

618.31(1) (1) Notification. Within 5 years after the initial issuance of a certificate of authority to a nondomestic insurer by its domiciliary jurisdiction no substantial change may be made in the business plan and the insurer may not substantially deviate from it unless notice of the proposed action is filed with the commissioner 30 days in advance of the proposed effective date. The commissioner at least 5 days before the proposed effective date may request that the effective date be deferred for an additional period not exceeding 30 days.

618.31(2) (2) Disapproval.

618.31(2)(a) (a) Applicability in this state. If the commissioner finds that effectiveness of the proposed change within this state would be contrary to the laws of this state or to the interests of insureds, creditors or the public in this state, the commissioner may prohibit the application of the change to this state.

618.31(2)(b) (b) Changes outside state. If the commissioner finds after a hearing that the application of the change outside of this state would endanger the interests of insureds, creditors or the public in this state, the commissioner may revoke the insurer’s certificate of authority unless it agrees not to make such a change.

618.31 History History: 1971 c. 260; 1979 c. 102 s. 236 (6); 1991 a. 316.

618.32 618.32 Transfer of business.

618.32(1) (1) Report to commissioner. Any action by which a nondomestic insurer proposes to transfer to another person or to reinsure any part of its insurance business in this state, other than in the normal and usual course of business, shall be reported to the commissioner not less than 30 days in advance of the proposed effective date. The commissioner may defer the effective date for an additional period not exceeding 30 days by written notice to the insurer before expiration of the initial 30-day period.

618.32(2) (2) Disapproval. The commissioner may, within the 30-day period or its extension, prohibit the proposed action if it would be contrary to the law or to the interests of insureds, creditors or the public in this state.

618.32 History History: 1971 c. 260.

618.34 618.34 Assessment by nondomestic company. Every nondomestic mutual insurer authorized in this state shall, immediately after making an assessment upon any of its members in this state, notify the commissioner thereof with a statement of the condition of the insurer, setting forth the facts showing the necessity for the assessment. No such insurer may make or increase any assessment because of its inability to collect assessments from its members in other states in which its policies were written in violation of law.

618.34 History History: 1971 c. 260.

618.36 618.36 Release from regulation.

618.36(1) (1) Continuance of regulation. A nondomestic insurer authorized under this chapter is subject to regulation under the applicable provisions of chs. 600 to 646 until released from regulation under this section.

618.36(2) (2) Application for release. A nondomestic insurer may apply for release from regulation by filing with the commissioner:

618.36(2)(a) (a) Its certificate of authority;

618.36(2)(b) (b) A schedule of its outstanding liabilities from policies issued in this state, to residents of this state, or on risks located in this state and from other business transactions in this state;

618.36(2)(c) (c) A plan for securing the discharge of such liabilities; and

618.36(2)(d) (d) Such other information as the commissioner reasonably requires.

618.36(3) (3) Release order. The commissioner shall release the insurer from regulation if he or she finds:

618.36(3)(a) (a) That the insurer has ceased to do any new business in this state;

618.36(3)(b) (b) That the discharge of existing liabilities to creditors in this state is sufficiently secured; and

618.36(3)(c) (c) That the release would not otherwise be prejudicial to the interests of insureds, creditors or the public in this state, or of all insureds, creditors and the public in the United States if this state is the state of entry of the insurer into the United States.

618.36(4) (4) Notification or publication. The commissioner may, before deciding on the release, require the insurer to notify all agents or other classes of potentially interested persons in a manner he or she prescribes, or in a manner he or she prescribes to publish at its own expense its intention to withdraw. The notice shall advise affected persons to communicate to the commissioner any objections they may have to the withdrawal.

618.36(5) (5) Deposits and subjection to jurisdiction. The commissioner may, as a prerequisite for releasing the insurer, require a deposit under s. 601.13, a bond issued by a surety authorized in this state, or other appropriate security or reinsurance in an amount sufficient to secure the proper discharge of the insurer’s liabilities in this state. The commissioner may also require an agreement to remain subject to the jurisdiction of the commissioner and the courts of this state with respect to any matter arising out of business done in this state prior to the release.

618.36 History History: 1971 c. 260; 1977 c. 339; 1979 c. 89 s. 543; 1979 c. 102 s. 236 (5), (7).

618.37 618.37 Revocation of certificate of authority. Whenever there are grounds for delinquency proceedings against a nondomestic insurer under ch. 645, the commissioner may, after a hearing, revoke, suspend or limit its certificate of authority. No such action shall affect insurance already issued and the insurer shall remain subject to regulation until released under s. 618.36.

618.37 History History: 1971 c. 260.

618.39 618.39 Assisting unauthorized insurers.

618.39(1) (1) Conduct prohibited. No person may do an insurance business in this state if the person knows or should know that the result is or might be the illegal placement of insurance with an unauthorized insurer or the subsequent servicing of an insurance policy illegally placed with an unauthorized insurer.

618.39(2) (2) Personal liability for violation. Any person who violates sub. (1) is personally liable to any claimant under the policy for any damage proximately caused by the person’s violation. That damage may include damage resulting from the necessity of replacing the insurance in an authorized insurer or the failure of the unauthorized insurer to perform the insurance contract.

618.39(3) (3) Standards by rule.

618.39(3)(a) (a) The office may by rule promulgate standards for any of the following:

618.39(3)(a)1. 1. Establishing that a person should know that the result of insurance business is or might be the illegal placement of insurance with an unauthorized insurer or the subsequent servicing of an insurance policy illegally placed with an unauthorized insurer.

618.39(3)(a)2. 2. Imposing requirements under s. 601.42 or 628.04 or sanctions or remedial measures under sub. (2) or s. 601.64, or any other applicable penalty or remedial provision of chs. 600 to 646, for a violation of this section.

618.39(3)(b) (b) Notwithstanding par. (a) 1., it is not necessary for the office to promulgate a rule under par. (a) 1. to establish that a person violated sub. (1).

618.39 History History: 1971 c. 260; 1975 c. 371, 421; 2001 a. 65.

618.39 Annotation Legislative Council Note, 1975: Sub. (2) is added as an effective sanction to suppress knowing placement of insurance with unauthorized insurers. It is adapted from Conn. Insurance Laws, Sec. 38-90. Insurance agents and others should guarantee performance of insurance contracts they negotiate knowingly with unlicensed insurers, unless legally negotiated under the surplus lines law. In addition, the sanctions of s. 601.64 apply to violators of this provision. [Bill 16-S]

subch. III of ch. 618 SUBCHAPTER III

PERMISSIBLE BUSINESS BY
UNAUTHORIZED INSURERS

618.40 618.40 Definitions. In this subchapter, unless the context requires otherwise:

618.40(1) (1) “Affiliated group” means all persons that control, are controlled by, or are under common control with, an insured.

618.40(2) (2) “Authorized insurer” means an insurer that is licensed, or authorized, to transact the business of insurance under the law of the home state.

618.40(3) (3) “Control” means, with respect to a person having control over another person, that the person does any of the following:

618.40(3)(a) (a) Directly or indirectly, or acting through one or more other persons, owns, controls, or has the power to vote 25 percent or more of any class of voting securities of a person.

618.40(3)(b) (b) Controls in any manner the election of a majority of the directors or trustees of a person.

618.40(3m) (3m) “Domestic surplus lines insurer” means an insurer that has a certificate to do business as a domestic surplus lines insurer under s. 618.41 (13).

618.40(4) (4) 

618.40(4)(a) (a) Except as provided in par. (b), “home state” means, with respect to an insured, one of the following:

618.40(4)(a)1. 1. The state in which the insured maintains its principal place of business or, in the case of an insured who is an individual, the individual’s principal residence.

618.40(4)(a)2. 2. If 100 percent of the insured risk is located outside of the state referred to in subd. 1., the state to which the greatest percentage of the insured’s taxable premium for that insurance contract is allocated.

618.40(4)(b) (b) If more than one insured from an affiliated group are named insureds on a single surplus lines insurance contract, “home state” means the state, as determined under par. (a), of the member of the affiliated group that has the largest percentage of premium attributed to it under the insurance contract.

618.40(5) (5) “Premium tax” means, with respect to unauthorized insurance, any tax, fee, assessment, or other charge imposed by this state directly or indirectly based on any payment made as consideration for an insurance contract for such insurance, including premium deposits, assessments, registration fees, and any other compensation given in consideration for a contract of insurance.

618.40(6) (6) “Principal place of business” means, with respect to determining the home state of an insured, the state where the insured maintains its headquarters and where the insured’s high-level officers direct, control, and coordinate the business activities of the insured.

618.40(7) (7) “Principal residence” means, with respect to determining the home state of an insured who is an individual, the state where the individual resides for the greatest number of days during a calendar year.

618.40(8) (8) “State” includes any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Northern Mariana Islands, the Virgin Islands, and American Samoa.

618.40(9) (9) “Surplus lines broker” means a person that is licensed in a state to sell, solicit, or negotiate insurance on properties, risks, or exposures located or to be performed in that state with unauthorized insurers.

618.40(10) (10) “Surplus lines insurance” means any insurance to which all of the following apply:

618.40(10)(a) (a) This state is the home state of the insured.

618.40(10)(b) (b) The insurance is permitted under this subchapter to be placed through a surplus lines agent or broker with an unauthorized insurer eligible to accept the insurance.

618.40(11) (11) “Unauthorized insurance” means any insurance permitted in a state to be placed directly or through a surplus lines broker with an unauthorized insurer eligible to accept such insurance.

618.40 History History: 2011 a. 224; 2017 a. 16.

618.41 618.41 Surplus lines insurance.

618.41(1) (1) General permission. A domestic surplus lines insurer or a nondomestic insurer which has not obtained a certificate of authority to do business in this state under s. 618.12 may negotiate for and make insurance contracts with persons in this state and on risks located in this state, subject to the limitations and requirements specified in this section.

618.41(2) (2) Incidental acts permitted. With respect to contracts made under this section, the insurer may in this state also inspect risks to be insured, collect premiums and adjust losses, and do all other acts reasonably incidental to the contract.

618.41(3) (3) Solicitation prohibited. Nothing in subs. (1) and (2) permits the solicitation of business in this state by or on behalf of an insurer without a certificate of authority. The commissioner may by rule prescribe the manner in which insurance agents or brokers may advertise the availability of their services in procuring, on behalf of persons seeking insurance, contracts with domestic surplus lines insurers or with insurers without a certificate of authority.

618.41(4) (4) Information to policyholder. The insurer and any agent or broker are obligated promptly to furnish the policyholder a statement in a form prescribed or approved by the commissioner, informing the policyholder that the insurer has not obtained a certificate of authority to do business in this state and is not regulated in this state except as provided in this section.

618.41(5) (5) Trade practices. With respect to contracts made under this section, nondomestic insurers and domestic surplus lines insurers are subject to s. 628.34 and rules promulgated thereunder.

618.41(6) (6) Prohibited and restricted surplus lines business.

618.41(6)(a) (a) Prohibited classes. The commissioner may by rule prohibit the making of contracts under sub. (1) in a specified class of insurance if authorized insurers provide an established market for the class in this state which is adequate and reasonably competitive with reputable unauthorized insurers.

618.41(6)(b) (b) Restricted classes. The commissioner may by rule place restrictions and limitations on and create special procedures for the making of contracts under sub. (1) for a specified class of insurance if there have been abuses of placements in the class or if the policyholders in the class, because of limited financial resources, business experience or knowledge, cannot be expected to protect their own interests adequately.

618.41(6)(c) (c) Exclusion of individual insurers. The commissioner may prohibit an individual insurer or group policyholder, including but not limited to a risk purchasing group, from making any contracts under sub. (1) or issuing evidence of coverage and may prohibit all insurance agents and brokers from dealing with the insurer or group policyholder, if:

618.41(6)(c)1. 1. It has willfully violated this section, ss. 610.11 (1), 628.34, or any rule promulgated under any of them; or

618.41(6)(c)2. 2. It has failed to pay the fees and taxes specified in s. 618.43; or

618.41(6)(c)3. 3. The commissioner has reason to believe that the insurer, or the insurer which issued the policy to a group policyholder, is in an unsound condition or the insurer or group policyholder is operated in a fraudulent, dishonest or incompetent manner or in violation of the law of its domicile.

618.41(6)(d) (d) Evaluations. The commissioner may issue lists of unauthorized nondomestic insurers whose solidity he or she believes to be doubtful or whose practices he or she believes to be objectionable. The commissioner may issue lists of unauthorized nondomestic insurers he or she believes to be reliable and solid. The commissioner may also issue other relevant evaluations of unauthorized insurers. No action may lie against the commissioner or any employee of the office for anything said in the issuance of such lists and evaluations.

618.41(6m) (6m) Rustproofing warranties insurance. An insurer issuing a policy of insurance under this section to cover a warranty, as defined in s. 100.205 (1) (g), shall comply with s. 632.18 and the policy shall be on a form approved by the commissioner under s. 631.20.

618.41(7) (7) Surplus lines agent’s license.

618.41(7)(a) (a) The commissioner may, pursuant to s. 628.04 (2), issue to any licensed agent or broker a surplus lines license granting authority to procure insurance under this section.

618.41(7)(b) (b) The fee for issuance of a surplus lines license is the fee required by s. 601.31 (1) (L) 3.

618.41(7m) (7m) Risk purchasing groups; licensed agents. A natural person may not solicit, negotiate or obtain liability insurance for a risk purchasing group from an unauthorized insurer unless the natural person is licensed as a surplus lines agent under sub. (7).

618.41(8) (8) Surplus lines agents, brokers and group policyholders.