Chapter Ins 5

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.

Ins 5.21(3) (3) Notice; opportunity to object.

Ins 5.21(3)(a) (a) If an order under sub. (2) would constitute a final decision in the contested case, the administrative law judge shall issue the order as a proposed decision under s. Ins 5.43, giving the parties opportunity to object. An order dismissing any party, proceeding or cause of action is a final decision for purposes of s. 227.52, Stats.

Ins 5.21(3)(b) (b) The final decision maker shall issue the final decision under s. Ins 5.45 after considering any objections to the proposed decision under s. Ins 5.43 (2).

Ins 5.21(3)(c) (c) The final decision maker may order the hearing reopened if the party to whom the proposed decision is issued shows good cause for any failure described in sub. (2) (intro.).

Ins 5.21 History History: Cr. Register, March, 1996, No. 483, eff. 4-1-96; CR 04-131: am. (1), (2) (intro.), cr. (2) (e) to (g) Register June 2005 No. 594, eff. 7-1-05.

subch. VII of ch. Ins 5 Subchapter VII — Motions; Subpoenas; Record; Miscellaneous Provisions

Ins 5.23 Ins 5.23 Appearances.

Ins 5.23(1) (1) A party may appear in person or by an attorney licensed to practice law in this state.

Ins 5.23(2) (2) Each party or person appearing for a party shall furnish his or her name and mailing address to the administrative law judge and shall promptly notify the administrative law judge of any change of address. The mailing address last furnished to the administrative law judge shall be conclusively presumed to be the correct address.

Ins 5.23 History History: Cr. Register, March, 1996, No. 483, eff. 4-1-96.

Ins 5.25 Ins 5.25 Motions.

Ins 5.25(1) (1) General. A person requesting an order from the administrative law judge shall make the request in the form of a motion which clearly describes the order sought and the grounds for granting it. A person may move the administrative law judge for any substantive or procedural order authorized by law, including any of the following:

Ins 5.25(1)(a) (a) An order dismissing a party or case for lack of personal or subject matter jurisdiction. A motion to dismiss for lack of jurisdiction may be made at any point in the proceeding, but shall be made as soon as the basis for the motion becomes apparent to the moving party.

Ins 5.25(1)(b) (b) An order dismissing a contested case before a hearing for failure to state a claim on which relief can be granted.

Ins 5.25(1)(c) (c) An order granting summary judgment as to any issue or the entire matter under consideration. A motion for summary judgment shall be brought and decided in accordance with s. 802.08, Stats.

Ins 5.25(2) (2) Form of motion. Every motion, except the following, shall be submitted in writing with at least 7 calendar days’ notice to all parties, unless each nonmoving party waives the notice requirement:

Ins 5.25(2)(a) (a) An oral motion made at a prehearing conference or hearing, unless the administrative law judge requires that the motion be submitted in writing.

Ins 5.25(2)(b) (b) An oral motion for an extension of time to file a paper. An administrative law judge may rule on a motion under this paragraph on an ex parte basis. The administrative law judge shall notify every other party if the motion is granted.

Ins 5.25(3) (3) Written motions. A person filing a written motion shall comply with s. Ins 5.17 (1) to (5). A moving party offering any affidavit, brief or other document in support of a motion shall include a copy of each document with the motion unless the administrative law judge permits or orders otherwise.

Ins 5.25(4) (4) Motion hearing; notice.

Ins 5.25(4)(a) (a) Except as provided in sub. (2) (b), the administrative law judge shall give all parties an opportunity to argue a motion, orally or in writing, before ruling on it. The administrative law judge shall notify all parties of any scheduled motion hearing.

Ins 5.25 History History: Cr. Register, March, 1996, No. 483, eff. 4-1-96; CR 04-131: cr. (1) (c) Register June 2005 No. 594, eff. 7-1-05.

Ins 5.27 Ins 5.27 Subpoenas.

Ins 5.27(1) (1) General. The administrative law judge or a party’s attorney of record may issue a subpoena in a contested case to compel the attendance of any witness or the production of relevant evidence. The person issuing the subpoena shall serve a copy on all other parties. Sections 814.67 and 885.06, Stats., govern the payment of witness fees and expenses.

Ins 5.27(2) (2) Request for subpoena. A party may request the administrative law judge to issue a subpoena on behalf of that party by submitting the proposed subpoena for the administrative law judge’s signature. The administrative law judge may not sign a blank subpoena form. The requesting party is responsible for serving the subpoena and for paying any service, witness and travel fees.

Ins 5.27(3) (3) Denial; limitations. The administrative law judge may limit the scope of a subpoena or deny a request for a subpoena if it appears to be unreasonable, oppressive, excessive in scope or unduly burdensome.

Ins 5.27(4) (4) Compliance. In addition to the sanctions provided under s. Ins 5.21, a person who fails to comply with a subpoena issued under this section may be compelled as provided under s. 885.12, Stats., and may be subject to administrative sanctions including, but not limited to, sanctions for a violation of an order issued under ss. 601.41 (4) and 601.42 (4), Stats.

Ins 5.27 History History: Cr. Register, March, 1996, No. 483, eff. 4-1-96; CR 04-131: am. (4) Register June 2005 No. 594, eff. 7-1-05.

Ins 5.29 Ins 5.29 Record of oral proceedings; transcripts.

Ins 5.29(1) (1) Method of recording.

Ins 5.29(1)(a) (a) The administrative law judge shall provide for a stenographic or electronic recording of oral proceedings in a contested case. Proceedings shall be electronically recorded unless a board is the final decision maker or the administrative law judge determines that a stenographic record is necessary, in which case, the office or administrative law judge shall provide for the stenographic record.

Ins 5.29(1)(b) (b) Instead of an electronic recording of oral proceedings, any party may provide for a stenographic record at the party’s own expense. A party other than the office that provides for a stenographic record shall furnish the administrative law judge with the original and the attorney for the office, if any, with a copy of the transcript at no cost.

Ins 5.29(1)(c) (c) Any party may make his or her own electronic audio recording of a proceeding.

Ins 5.29(2) (2) Electronic recording; copies. If the administrative law judge makes an electronic recording of oral proceedings in a contested case, the administrative law judge shall furnish a copy of the recording to any party who requests a copy. The fee for an audio cassette recording is $10.00 per cassette or any part of a cassette, except as provided in sub. (4).

Ins 5.29(3) (3) Transcript.

Ins 5.29(3)(a) (a)