Chapter Ins 5

Ins 5.13(2)(a)5. 5. A statement of any matter constituting a defense, affirmative defense or mitigation of the matter charged which the respondent wishes to have considered.

Ins 5.13(2)(b) (b) Notwithstanding par. (a), the administrative law judge may accept a timely written communication from an unrepresented respondent as a sufficient answer, if the communication provides the administrative law judge with sufficient information to determine the matters specified under par. (a). If the answer is insufficient, the administrative law judge may order a respondent to file a sufficient answer within a specified time period.

Ins 5.13(2)(c) (c) Each material allegation not controverted in an answer filed within the specified time shall be taken as true. Any new matter set forth under par. (a) 5. is deemed controverted without service of a reply.

Ins 5.13(2)(d) (d) A respondent’s failure to raise an issue in an answer constitutes waiver of the issue, unless the administrative law judge allows the respondent to amend the answer under s. Ins 5.15 (2).

Ins 5.13 History History: Cr. Register, March, 1996, No. 483, eff. 4-1-96.

Ins 5.15 Ins 5.15 Amendment of pleadings.

Ins 5.15(1) (1) Section 802.09 (1) to (4), Stats., applies in contested cases under this chapter.

Ins 5.15(2) (2) The administrative law judge may permit a party to amend an answer or pleading at any time during a contested case. The administrative law judge may deny a motion to amend if the amendment would unduly delay or disrupt the proceeding or would constitute a significant injustice to any party.

Ins 5.15 History History: Cr. Register, March, 1996, No. 483, eff. 4-1-96.

Ins 5.17 Ins 5.17 Papers; identification; form; filing; service.

Ins 5.17(1) (1) Papers captioned. Except as otherwise permitted by the administrative law judge, each party shall, to the extent practicable, caption each pleading, notice, motion, brief, stipulation, decision, order and other paper filed in a contested case with all of the following:

Ins 5.17(1)(a) (a)

Ins 5.17(1)(a)1. 1. If the contested case arises under ch. Ins 17, the heading,“Board of the Patients Compensation Fund.”

Ins 5.17(1)(a)3. 3. In any other case, the heading, “Commissioner of Insurance.”

Ins 5.17(1)(b) (b) The name of the paper.

Ins 5.17(1)(c) (c) The legal file number assigned to the contested case.

Ins 5.17(1)(d) (d) The title of the contested case in the form, “In the Matter of . . .” followed by one of the following:

Ins 5.17(1)(d)1. 1. The name and designation of the petitioner in a class 1 proceeding.

Ins 5.17(1)(d)2. 2. The name and designation of each respondent in a class 2 proceeding.

Ins 5.17(1)(d)3. 3. The name and designation of the petitioner and the name and designation of one of the following respondents in a class 3 proceeding:

Ins 5.17(1)(d)3.a. a. The Wisconsin compensation rating bureau in a contested case arising under s. 626.31 (4), Stats., and s. Ins 5.09 (4) or s. 102.31 (4), Stats., and s. Ins 5.09 (5).

Ins 5.17(1)(d)3.b. b. The Wisconsin insurance plan in a contested case arising under ss. Ins 4.10 (16) and 5.09 (6).

Ins 5.17(1)(d)3.c. c. The Wisconsin automobile insurance plan in a contested case arising under ss. Ins 3.49 (3) (d) 1. and 5.09 (7).

Ins 5.17(1)(d)3.d. d. The Wisconsin health care liability insurance plan, the patients compensation fund or both in a contested case arising under ss. Ins 5.10 (1) (a) or (c) and 17.24 (3).

Ins 5.17(1)(d)3.e. e. The Wisconsin health care liability insurance plan in a contested case arising under ss. Ins 5.10 (1) (b) and 17.25 (16).

Ins 5.17(1)(d)3.f. f. The patients compensation fund peer review council in a contested case arising under ss. Ins 5.10 (1) (c) and 17.285 (9).

Ins 5.17(2) (2) Form. Except as otherwise permitted or ordered by the administrative law judge, each paper filed shall comply with all of the following:

Ins 5.17(2)(a) (a) It shall be printed or typewritten on only one side of 8-1/2 by 11 inch paper.

Ins 5.17(2)(b) (b) It shall be signed by the party, by the party’s attorney or, if the party is a corporation, limited liability company, partnership, cooperative or other association, by any of its officers or employees. The name and mailing address shall be printed or typewritten immediately after the signature.

Ins 5.17(3) (3) Filing; service.

Ins 5.17(3)(a) (a) Filing of a paper is complete upon its receipt by the office or the administrative law judge before 4:30 p.m. on any business day.

Ins 5.17(3)(b) (b) Whenever a party files a paper in a contested case, that party shall, on the same date, serve a copy on every other party.

Ins 5.17(3)(c) (c) By filing a paper in a contested case, the filing party certifies that he or she has served a copy on every other party as required by par. (b). No other affidavit of mailing or service is required.

Ins 5.17(3)(d) (d) If any party claims not to have received a copy of any filed paper, an affidavit of mailing constitutes presumptive proof of service.

Ins 5.17(3)(e) (e) Mailing by the office to a person regulated by the office at the latest mailing address the person has on file with the office constitutes presumptive proof of service.

Ins 5.17(3)(f) (f) Section 801.14 (2), Stats., shall govern the method and completion of service of papers. Documents exceeding 15 pages in length may not be filed with the office or administrative law judge by facsimile transmission.

Ins 5.17(3)(g) (g) Section 801.15 (5), Stats., does not apply to proceedings under this chapter.

Ins 5.17(4) (4) Copies to administrative law judge. If the office or a board, plan, fund or council is not a party to a contested case, each party shall furnish the administrative law judge with a copy of each paper served on the other parties except papers served in connection with discovery.

Ins 5.17(5) (5) Address. Unless otherwise ordered by the administrative law judge, the address for serving and filing documents with the office, the PCF Board or the administrative law judge is: Office of the Commissioner of Insurance Attn: Legal Unit, 125 South Webster Street Floor 2, P. O. Box 7873, Madison, WI 53707-7873. Facsimile transmission number: 608-264-6228.

Ins 5.17 History History: Cr. Register, March, 1996, No. 483, eff. 4-1-96; correction in (5) made under s. 13.93 (2m) (b) 6., Stats., Register, February, 1999, No. 518; CR 04-131: am. (5) Register June 2005 No. 594, eff. 7-1-05; CR 09-022: am. (3) (e) Register August 2009 No. 644, eff. 9-1-09; CR 18-092: r. (1) (a) 2., am. (5) Register March 2020 No. 771, eff. 4-1-20.

subch. VI of ch. Ins 5 Subchapter VI — Administrative Law Judge Authority; Sanctions

Ins 5.19 Ins 5.19 Administrative law judges.

Ins 5.19(1) (1) Appointment. The commissioner, an official or employee of the office designated by the commissioner, an employee borrowed from another agency as provided in s. 227.46 (1) (intro.), Stats., or a person employed as a special project or limited-term employee by the office or appointed according to the terms of a contract to which the office is a party, shall act as administrative law judge for each contested case.

Ins 5.19(2) (2) Authority and duties. The administrative law judge may do any of the following:

Ins 5.19(2)(a) (a) Require the parties to submit supplementary pleadings in order to clarify positions or issues.

Ins 5.19(2)(b) (b) Consolidate proceedings and order the joinder of parties.

Ins 5.19(2)(c) (c) Admit intervenors as parties to a contested case.

Ins 5.19(2)(d) (d) Provide interpreters under s. 885.37 (3) (b) and (3m), Stats.

Ins 5.19(2)(e) (e) Make procedural rulings and issue scheduling and other orders.

Ins 5.19(2)(f) (f) Adjourn or postpone proceedings.

Ins 5.19(2)(g) (g) Grant extensions of time to file papers.

Ins 5.19(2)(h) (h) Issue subpoenas to compel the attendance of witnesses and the production of evidence.

Ins 5.19(2)(i) (i) Regulate discovery proceedings and issue orders to compel or limit discovery.

Ins 5.19(2)(j) (j) Hold prehearing conferences.

Ins 5.19(2)(k) (k) Preside over and regulate the course of hearings.

Ins 5.19(2)(L) (L) Administer oaths and affirmations.

Ins 5.19(2)(m) (m) Receive evidence and make evidentiary rulings.

Ins 5.19(2)(n) (n) Impose or recommend sanctions for disobedient parties.

Ins 5.19(2)(o) (o) Require or permit parties to file written briefs and arguments.

Ins 5.19(2)(p) (p) Supervise the compilation of the record.

Ins 5.19(2)(q) (q) Order preparation of a written transcript of oral proceedings and supervise preparation of the transcript.

Ins 5.19(2)(r) (r) Issue proposed decisions.

Ins 5.19(2)(s) (s) Advise the final decision maker on final decisions and orders.

Ins 5.19(2)(t) (t) Issue final decisions and orders if appointed as final decision maker by the commissioner or a board.

Ins 5.19(2)(u) (u) Certify the contested case record to a circuit court, if necessary for a judicial review proceeding.

Ins 5.19(2)(v) (v) Take any other action authorized by law.

Ins 5.19(3) (3) Limits of authority. The administrative law judge may not exercise any authority that is reserved to the final decision maker under this chapter, unless the commissioner or a board orders that the administrative law judge’s decision is the final decision.

Ins 5.19(4) (4) Impartiality.

Ins 5.19(4)(a) (a) An administrative law judge shall withdraw from a contested case if he or she has a personal bias regarding the matter or another reason for disqualification that prevents him or her from acting in an impartial manner.

Ins 5.19(4)(b) (b) A party filing a motion under s. 227.46 (6), Stats., to disqualify an administrative law judge in a class 2 or 3 proceeding shall include in an affidavit attached to the motion a description of each specific act or situation which the party believes demonstrates the administrative law judge’s personal bias or other basis for disqualification. The party shall also file a brief citing any applicable case law on which the party relies.

Ins 5.19(4)(c) (c) A motion under par. (b) is timely if it is filed before the prehearing conference or within 10 days after the party acquires knowledge or, with reasonable diligence, should have acquired knowledge of facts allegedly demonstrating personal bias or other reason for disqualification of the administrative law judge.

Ins 5.19(4)(d) (d) Failure to file a timely and sufficient affidavit under par. (b) constitutes a waiver of the right to object to the qualification of the administrative law judge.

Ins 5.19(4)(e) (e) An administrative law judge is not disqualified solely because he or she is an employee of the office, or solely because the administrative law judge has presided over a case involving the same or related parties, facts or issues in the past.

Ins 5.19(5) (5) Ex parte communications. If an administrative law judge receives an ex parte communication which violates s. 227.50 (1), Stats., the administrative law judge shall deal with the ex parte communication as provided under s. 227.50 (2), Stats.

Ins 5.19 History History: Cr. Register, March, 1996, No. 483, eff. 4-1-96.

Ins 5.21 Ins 5.21 Failure to appear, answer or comply with administrative law judge’s order.

Ins 5.21(1) (1) Failure to answer or appear.

Ins 5.21(1)(a) (a) If a party other than due to excusable neglect, fails to file an answer by the date specified in the notice of hearing or fails to appear at the prehearing conference or fails to appear at the scheduled hearing, the administrative law judge shall promptly issue and serve a final decision finding the party in default, accepting the opposing party’s allegations as true and deciding the case based on those allegations. If proof of any fact is necessary for the administrative law judge to issue the decision the administrative law judge shall receive the proof.

Ins 5.21(1)(b) (b) The administrative law judge may relieve a party from a default decision only if:

Ins 5.21(1)(b)1. 1. The party files a motion for relief within a reasonable time but not more than one year after the decision is mailed; and

Ins 5.21(1)(b)2. 2. The party establishes that the failure to file an answer or to appear was due to excusable neglect. For the purpose of this paragraph failure to receive a notice, pleading, decision, or other document in a proceeding is not a basis to establish excusable neglect if the notice, pleading, decision, or other document was mailed to the address of a licensee of the office at the address shown in the office records, to an address provided by the party in the course of the proceeding or to the address of an attorney representing the party. If the office does not have such an address, failure to receive the document does not establish excusable neglect if the document is mailed to an address the party represents to the public or otherwise as a business address.

Ins 5.21(2) (2) Sanctions against disobedient party. If a party fails to disclose witnesses or evidence under s. Ins 5.35, fails to comply with a subpoena, fails to make a required appearance, fails to respond to discovery or fails to comply with an order issued by the administrative law judge, the administrative law judge, on his or her own motion or on a motion by an opposing party, may by order do any of the following which the administrative law judge considers just in relation to the disobedient party’s failure:

Ins 5.21(2)(a) (a) Disqualify the disobedient party from further participation in the proceedings.

Ins 5.21(2)(b) (b) Stay further proceedings until the disobedient party cures the failure.

Ins 5.21(2)(c) (c) Prohibit the disobedient party from arguing designated issues or introducing designated matters in evidence.

Ins 5.21(2)(d) (d) Dismiss the proceeding, or any part of the proceeding, if the proceeding was initiated at the request of the disobedient party.

Ins 5.21(2)(e) (e) Strike the pleadings of the disobedient party or render a decision accepting the opposing party’s allegations as true and decide the case based on the allegations, or both.

Ins 5.21(2)(f) (f) Award expenses as provided under s. 804.12 (1) (c), (2) (b) or (3), Stats., against a party subject to an action brought by the office. Under this section, expenses cannot be awarded against the state or its agencies.

Ins 5.21(2)(g) (g) Impose a forfeiture under s. 601.64, Stats., against a respondent subject to an action brought by the office for any violation of an order of the administrative law judge compelling discovery. An order compelling discovery issued by the administrative law judge to a respondent is an order under s. 601.41 (4), Stats. Under this section, a forfeiture cannot be imposed against the state or its agencies.