Chapter Ins 5

Ins 5.39(5)(b)3. 3. Failure of a party to make an offer of proof is a waiver of the right to object to the administrative law judge’s ruling on the objection.

Ins 5.39(5)(b)4. 4. The administrative law judge may order the parties to brief any objection. If the party making the objection fails to brief it, the objection is waived.

Ins 5.39(5)(c) (c) Documents. Documentary exhibits shall, as far as practicable, be on 8-1/2 by 11 inch paper, unless the administrative law judge permits otherwise or unless the document is a form printed on 8-1/2 by 14 inch paper. The administrative law judge may order charts used as exhibits to be reduced to 8-1/2 by 11 inch copies.

Ins 5.39(5)(d) (d) Copies. The administrative law judge may permit the filing or use of a copy in place of any original document, subject to authentication by the proponent if its authenticity is challenged in a prehearing motion.

Ins 5.39(5)(e) (e) Prefiled exhibits and prepared testimony. The administrative law judge may permit or order the parties to submit evidence in the form of documentary exhibits or prepared testimony or both before the hearing. The administrative law judge shall specify the date by which the evidence shall be submitted, in order to allow the parties reasonable time for review. Exhibits and testimony submitted under this paragraph shall be admitted in evidence as though given orally if the author is present and available for cross-examination.

Ins 5.39(5)(f) (f) Technical data. If evidence consists of technical data that would make oral presentation difficult to follow, or if information can be more effectively presented visually, it may be presented in exhibit form and supplemented and explained by oral testimony.

Ins 5.39(5)(g) (g) Use of depositions.

Ins 5.39(5)(g)1. 1. Section 804.07, Stats., governs the use of depositions.

Ins 5.39(5)(g)2. 2. The parties may stipulate to the admission of a deposition in addition to those required to be admitted under s. 227.45 (7), Stats.

Ins 5.39(5)(h) (h) Additional evidence. At the hearing, the administrative law judge may order or the parties may stipulate to the admission of additional documentary evidence after the close of testimony. The administrative law judge shall keep the record open until the additional evidence is filed or the specified time for filing it has expired without its being filed. The administrative law judge may, at the request of the stipulating parties, extend the time for filing the additional evidence.

Ins 5.39(6) (6) Off-the-record discussions. During a hearing, the administrative law judge may permit discussions off the record. If the administrative law judge decides that a discussion off the record is relevant, he or she may summarize it on the record or require the parties to discuss the matter on the record.

Ins 5.39(7) (7) Postponement; adjournment. The administrative law judge may, for good cause and after consideration of the potential hardship to other parties, grant a postponement or adjourn a hearing.

Ins 5.39(8) (8) Reopening. After the record is closed, no further evidence shall be added to the record except by order of the administrative law judge. The administrative law judge may reopen the record to take further evidence if a party moves for reopening and shows to the administrative law judge’s satisfaction that there is evidence that could not reasonably have been discovered before the record was closed and that it should be admitted in the interest of justice, or that documentary evidence used at the hearing was inadvertently omitted. The administrative law judge may, on his or her own motion, reopen a hearing to take additional testimony or admit additional documentary evidence.

Ins 5.39 History History: Cr. Register, March, 1996, No. 483, eff. 4-1-96.

Ins 5.40 Ins 5.40 Costs to prevailing party.

Ins 5.40(1) (1) Motion.

Ins 5.40(1)(a) (a) An individual or small business or small nonprofit corporation, as defined in s. 227.485 (2) (c) and (d), Stats., that believes it may be entitled to costs under s. 227.485 (3), Stats., may make a motion for costs as provided in par. (b), (c) or (d). The motion shall include proof that the party is eligible for an award of costs under s. 227.485 (7), Stats.

Ins 5.40(1)(b) (b) If a hearing is held, a party believing that it may prevail shall make a motion for costs, if any, before the close of the hearing. The moving party and the attorney representing the office in a class 2 proceeding or the office, board, plan, fund or council in a class 1 or class 3 proceeding shall include arguments on the motion in the briefs ordered by the administrative law judge.

Ins 5.40(1)(c) (c) If the matter is submitted to the administrative law judge on briefs without a hearing, a party believing that it may prevail shall file a motion for costs, if any, at the time the parties agree to submit the matter on briefs or within a reasonable time thereafter as permitted by the administrative law judge, but not later than the due date of the party’s brief. The moving party and the attorney representing the office in a class 2 proceeding or the office, board, plan, fund or council in a class 1 or class 3 proceeding shall include arguments on the motion in the briefs ordered by the administrative law judge.

Ins 5.40(1)(d) (d)

Ins 5.40(1)(d)1. 1. If the matter is finally disposed of other than by a decision under s. Ins 5.45, the prevailing party shall file a motion for costs, if any, and a brief in support of the motion within 30 calendar days after receiving notice of the final disposition, except that if the parties settle the matter by stipulation, a prevailing party may not file a motion for costs unless the stipulation expressly authorizes the party to do so.

Ins 5.40(1)(d)2. 2. The attorney representing the office in a class 2 proceeding or the office, board, plan, fund or council in a class 1 or class 3 proceeding shall file a brief in opposition to the motion within 30 calendar days after the deadline for filing under subd. 1.

Ins 5.40(2) (2) Proposed decision on motion.

Ins 5.40(2)(a) (a) If the motion for costs is filed under sub. (1) (b) or (c), the administrative law judge shall decide the motion as part of the proposed decision under s. Ins 5.43. Even if the administrative law judge is the final decision maker in the matter, the decision on the motion for costs shall be issued as a proposed decision.

Ins 5.40(2)(b) (b) If the motion for costs is filed under sub. (1) (d), the administrative law judge shall issue a proposed decision on the motion under s. Ins 5.43.

Ins 5.40(2)(c) (c) The parties may file written objections to the proposed decision under s. Ins 5.43 (2).

Ins 5.40(3) (3) Procedure for determining costs.

Ins 5.40(3)(a) (a) Documentation. If the administrative law judge recommends that the prevailing party be awarded costs, the prevailing party shall, within 30 calendar days after service of the proposed decision under sub. (2), submit documentation of all of the following to the administrative law judge and to the office, board, plan, fund or council:

Ins 5.40(3)(a)1. 1. The number of hours for which compensation is sought, itemized according to the work performed, the dates it was performed and the identity of the individual performing the work.

Ins 5.40(3)(a)2. 2. The hourly rate customarily charged by each individual for whom compensation is sought and, if compensation in excess of $75 an hour for attorney fees is sought, justification for a higher rate as required under s. 814.245 (5) (a) 2., Stats.

Ins 5.40(3)(a)3. 3. Costs for which reimbursement is sought.

Ins 5.40(3)(b) (b) Reply. Within 15 calendar days after the submission of documentation under par. (a), the attorney representing the office, board, plan, fund or council which is a party to the contested case may file a written response contesting any of the costs.

Ins 5.40(3)(c) (c) Determination of costs. The administrative law judge shall determine the eligible costs as provided under s. 227.485 (5), Stats., and if the final decision maker awards costs, the amount awarded shall be included in the final decision.

Ins 5.40(4) (4) Final decision. If the final decision maker awards costs despite the administrative law judge’s recommendation to the contrary, the parties and the administrative law judge shall, after the final decision is issued, follow the procedure in sub. (3) within the specified time periods.

Ins 5.40(5) (5) Judicial review. A final decision awarding costs is subject to judicial review under s. 227.52, Stats. A party may seek judicial review of a final decision granting or denying an award of costs, regardless of whether the party petitions for judicial review of the final decision on the merits of the contested case.

Ins 5.40 History History: Cr. Register, March, 1996, No. 483, eff. 4-1-96.

Ins 5.41 Ins 5.41 Arguments; briefing.

Ins 5.41(1) (1) Filing.

Ins 5.41(1)(a) (a) Unless the administrative law judge permits oral argument instead of briefing or determines that briefing is not necessary, each party shall file a written brief conforming to sub. (2) on the issues involved in the hearing. If a brief contains a summary of evidence or facts relied on, it shall, if possible, include references to specific exhibits or pages of the record containing the evidence. No new evidence may be attached to or referred to in a brief, other than evidence admitted under s. Ins 5.39 (8).

Ins 5.41(1)(b) (b) The party having the burden of proof shall file the first brief, unless the parties stipulate to the simultaneous filing of briefs. The administrative law judge may permit or order the filing of reply briefs. Each party shall file its brief by the date specified by the administrative law judge, unless he or she grants an extension of the time for good cause shown. The administrative law judge may refuse to consider any brief that is not filed on a timely basis. The filing of a party’s brief before the specified date does not affect the deadlines for subsequent briefs.

Ins 5.41(2) (2) Format; length.

Ins 5.41(2)(a) (a) The following standards apply to all briefs which shall:

Ins 5.41(2)(a)1. 1. Be printed or handwritten on only one side of 8-1/2 by 11 inch paper.

Ins 5.41(2)(a)2. 2. Be double spaced.

Ins 5.41(2)(a)3. 3. Have margins of not less than one inch on all sides.

Ins 5.41(2)(a)4. 4. If typewritten or typeset, have a typeface containing not less than 12 characters to the inch.

Ins 5.41(2)(b) (b)

Ins 5.41(2)(b)1. 1. A party’s initial typewritten or typeset brief may not exceed 40 pages in length.

Ins 5.41(2)(b)2. 2. A party’s initial handwritten brief may not exceed 20,000 words or 50 pages in length.

Ins 5.41(2)(c) (c)

Ins 5.41(2)(c)1. 1. A party’s subsequent typewritten or typeset brief may not exceed 10 pages in length.

Ins 5.41(2)(c)2. 2. A party’s subsequent handwritten brief may not exceed 4,000 words or 12 pages in length.

Ins 5.41 History History: Cr. Register, March, 1996, No. 483, eff. 4-1-96.

subch. IX of ch. Ins 5 Subchapter IX — Decisions

Ins 5.43 Ins 5.43 Proposed decision.

Ins 5.43(1) (1) Issued by administrative law judge. If the administrative law judge is not the final decision maker in a contested case, the administrative law judge shall prepare a proposed decision for consideration by the final decision maker. The proposed decision shall include proposed findings of fact, proposed conclusions of law, a recommended final order and the administrative law judge’s signed opinion explaining the proposed decision. The administrative law judge shall serve a copy of the proposed decision on each party.

Ins 5.43(2) (2) Objections by parties.

Ins 5.43(2)(a) (a) Any party may file written objections to the administrative law judge’s proposed decision under sub. (1). Unless the final decision maker specifies a different time period, an objecting party shall file objections within 20 calendar days after service of the proposed decision and shall serve copies on the other parties. The objecting party shall identify the legal or factual grounds for each objection, and may file a written brief in support of the objections.

Ins 5.43(2)(b) (b) Any other party may file a written response to the objections under par. (a) within 10 calendar days after the objections are filed.

Ins 5.43(2)(c) (c) A final decision maker may, upon written motion by a party, do either of the following:

Ins 5.43(2)(c)1. 1. Extend or limit the time for filing objections or responses to objections.

Ins 5.43(2)(c)2. 2. Permit the parties to make further oral or written arguments to the final decision maker.

Ins 5.43 History History: Cr. Register, March, 1996, No. 483, eff. 4-1-96.

Ins 5.45 Ins 5.45 Final decision.

Ins 5.45(1) (1) Final decision maker.

Ins 5.45(1)(a) (a) If the proceeding arises under ch. Ins 17 or a petition for a declaratory ruling under s. 619.04, Stats., or ch. 655, Stats., the PCF board shall be the final decision maker unless the PCF board directs that the administrative law judge’s decision shall be final.

Ins 5.45(1)(c) (c) In any other case, the commissioner shall be the final decision maker unless the commissioner directs that the administrative law judge’s decision shall be final.

Ins 5.45(2) (2) Contents; notice of rights. The final decision maker, after considering any proposed decision and objections under s. Ins 5.43, shall issue the final decision in a contested case. The final decision shall include findings of fact, conclusions of law, an order, the notice required under s. 227.48, Stats., and a copy of the relevant statutory provisions. If the final decision varies from the administrative law judge’s proposed decision, the final decision shall explain the reasons for the variation.

Ins 5.45(3) (3) Administrative law judge as final decision maker. If the administrative law judge is designated as the final decision maker, the administrative law judge may issue a final decision under sub. (1) without first issuing a proposed decision under s. Ins 5.43, except as provided in s. Ins 5.21 (2).

Ins 5.45(4) (4) Parties for review.

Ins 5.45(4)(a) (a) Each of the following, unless dismissed as a party by the administrative law judge, is a party under s. 227.47, Stats., for purposes of review under s. 227.53, Stats.:

Ins 5.45(4)(a)1. 1. The office, if it participated in the proceeding as a party.

Ins 5.45(4)(a)2. 2. The petitioner, if any.

Ins 5.45(4)(a)3. 3. Each respondent.

Ins 5.45(4)(a)4. 4. Any person permitted to intervene by the administrative law judge.

Ins 5.45(4)(b) (b) The administrative law judge shall prepare a list of persons who are parties for purposes of review under s. 227.47, Stats., and shall include in the proposed decision the name and address of each person on the list. In determining the parties in addition to those specified in par. (a), the administrative law judge shall consider all of the following criteria:

Ins 5.45(4)(b)1. 1. The nature of the proceeding.

Ins 5.45(4)(b)2. 2. The persons affected by the decision and the extent of that effect.

Ins 5.45(4)(b)3. 3. The nature of the participation by those involved in the proceeding, including attendance at hearings, cross-examination of witnesses and submission of briefs.

Ins 5.45(4)(c) (c) Each person listed as a party under par. (b) shall be served with the final decision and any posthearing motion or petition for rehearing, reopening or judicial review, submitted by any party after service of the final decision, and with any correspondence or other document directly related to the hearing or decision.

Ins 5.45 History History: Cr. Register, March, 1996, No. 483, eff. 4-1-96; correction in (1) (b) made under s. 13.93 (2m) (b) 7., Stats., Register June 2005 No. 594; CR 17-015: r. (1) (b) Register December 2017 No. 744, eff. 1-1-18.