Chapter Ins 6

Ins 6.31(1)(a)4. 4. When commission on reinsurance is on a “sliding scale” or “guaranteed profit” basis both the tentative commission and any adjustments brought about by the “sliding scale” or “guaranteed profit” provisions should be allocated to Commission and Brokerage-Reinsurance Assumed or Commission and Brokerage-Reinsurance Ceded.

Ins 6.31 Note Note: To make clear the meaning of “sliding scale” and “guaranteed profits” the following is submitted:

SLIDING SCALE CONTRACTS

Ins 6.31 Note Most of these contracts provide for a flat commission ranging from about 30% to 37 1/2%, paid on a written basis. Additional profit commissions are paid at a later date on an earned basis as specified by a formula embodied in the contract. These profit commissions are paid as the result of savings in the loss ratio. A common provision is that 1/2% profit commission shall be paid for each 1% saving in the loss ratio. Sometimes a portion of the scale may provide for a “1 for 1” profit commission, i.e., a full 1% profit commission for each 1% saving in the loss ratio.

Ins 6.31 Note For example, a contract may provide for a flat commission of 35%, with a “1/2 for 1” profit commission to be paid the ceding company for any saving in the loss ratio under 55%, until the profit commission reaches 10%, or a total commission of 45%.

Ins 6.31 Note Some contracts provide for a possible “return commission.” In the preceding example, if the loss ratio should exceed the breaking point of 55%, then the ceding company might have to pay a return commission to the reinsurer on a “1/2 for 1” basis until return commissions of, say, 5% have been returned, thus reducing the ultimate net commission from 35% to 30%. If the loss ratio should run under 35% or exceed 65%, then such saving or loss would ordinarily be carried forward to the computation for the following year.

GUARANTEED PROFIT CONTRACTS

Ins 6.31 Note The most common form of “surplus aid” is the “guaranteed profit”contract. Its principal characteristic is that it transfers unearned premium reserve from the ceding company to the reinsurer and results in an immediate increase in the ceding company’s surplus by the amount of the tentative commissions received, but because all such tentative commissions are subject to return to the reinsurer, does not actually relieve the ceding company of risk. The ceding company still remains exposed to the same risk as before. It is in the position of paying 2% to 5% of the ceded premiums to induce a reinsurer to sign a contract which has no ultimate effect other than to reduce its surplus by 2% to 5% of these premiums.

Ins 6.31 Note Guaranteed profit contracts are often written in a form similar to a quota share or portfolio of reinsurance contract, or a combination of both. The tentative commission is ordinarily 45% or 50%. The reinsurer’s fee is generally 2%, 3%, or 5% of the amount ceded. Most quota-share type contracts are subject to monthly reporting and settlements. The contract usually provides for additional commissions to be increased by 1% for each 1% decrease in the loss ratio, and return commissions on the basis of 1% for each 1% increase in the loss ratio. An example follows:

Ins 6.31 Note In a situation similar to the one illustrated, the ceding company pays to the reinsurer the gross reinsurance premiums less 45% commissions, or a net 55%. As losses are determined they are paid by the reinsurer until the ceding company has received back from the reinsurer losses recovered in an aggregate amount equal to 52% of the original premiums ceded (55% less 3%). Any additional losses are immediately charged back to the ceding company as “return commissions” on a “1 for 1” basis. On the other hand, any saving under 52% is returned to the ceding company in the form of additional commissions. The ultimate effect on the ceding company is the loss of 3% of its ceded premiums. The ceding company actually carries its own full risk throughout the entire period with respect to its gross business.)

Ins 6.31(1)(a)5. 5. Salvage and subrogation may be allocated as follows:

Ins 6.31(1)(a)5.a. a. Where attention is given to salvage or subrogation matters at the same time as the adjustment of the loss is proceeding, no attempt will be made to allocate any portion of the adjuster’s time to salvage (or subrogation) expense.

Ins 6.31(1)(a)5.b. b. Where the salvage or subrogation activity follows the adjustment of the loss such additional time as may be required will be treated as salvage expense.

Ins 6.31(1)(a)5.c. c. Any items of outside service such as advertising, expenses of outside organizations or rewards where paid by and billed to the company will be treated as salvage expense.

Ins 6.31(1)(a)5.d. d. Cost of recovering stolen goods incurred by and billed to the company will be treated as salvage expense.

Ins 6.31(1)(a)5.e. e. Where salvage is handled by outside agencies and their billing is made directly to the company, sufficient information should be given for proper classification of the related expenses.

Ins 6.31(1)(a)5.f. f. It is understood that the classification of expenses as salvage expense is not dependent upon any salvage recovery.

Ins 6.31(1)(a)6. 6.

Ins 6.31(1)(a)6.a. a. The following employee activities should be allocated to expense groups on the basis of the purposes for which the tabulating, listing, filing or other jobs were performed: Cutting and verifying punched cards, sorting and tabulating punched cards, maintaining punched card files, and supervision thereof.

Ins 6.31(1)(a)6.b. b. The salaries of the employees in service units, such as the following, providing services to other employees may be allocated to expense groups as overhead on the salaries of employees in all other departments except executive officers: Mailroom, Personnel, First aid, Telephone operation, Office maintenance and Receptionists.

Ins 6.31(1)(a)6.c. c. If an appreciable part of the time of employees handling purchases and supplies is devoted to furnishing supplies to agents, such salaries may be allocated to expense groups on the basis of a time estimate. Allocate to General Expenses that part of the time spent in working on supplies for agents; allocate remainder as Overhead on Salaries of employees in all other departments except executives.

Ins 6.31(1)(a)6.d. d. When files are maintained and serviced in a separate department or at a central location, the salaries of employees engaged in this activity may be allocated to expense groups on the basis of a time estimate. That portion of time spent on policy files (daily reports, applications, endorsements, etc.) and that portion of time spent on general correspondence files may be allocated to General Expenses; that portion of time spent on active claim files may be allocated to Loss Adjustment Expenses; that portion of time on inactive claim files (dead files) may be allocated to General Expenses.

Ins 6.31(1)(a)6.e. e. When a central abstract department is maintained for the mechanical reproduction of premium abstracts and claim abstracts for use by other departments, the salaries of these employees may be charged on the basis of a time estimate. That portion of time spent on claim abstracts may be allocated to Loss Adjustment Expenses and that portion of time spent on premium abstracts to General Expenses.

Ins 6.31(1)(a)6.f. f. If a company maintains a general accounting unit and a cashier’s unit (the duties of which include keeping the general ledger, general journal and general cash books) and no apportionment to Investment Expenses, to Loss Adjustment Expenses, or to Acquisition, Field Supervision and Collection Expenses is possible, except by using a rough estimation which is little better than a guess, the company may allocate the total expenses of these units to General Expenses in view of the impossibility of making reasonably accurate apportionments to expense groups.

Ins 6.31(1)(a)7. 7. If the salary of a non-supervisory employee predominantly pertains to the activities of one expense group, the whole of such salary may be allocated to that expense group.

Ins 6.31 Note (Note: By this interpretation, many salaries may be allocated directly and without fractional apportionment. As examples: a branch office or home office employee who is primarily concerned with the collection of premiums may be allocated wholly to Acquisition, Field Supervision and Collection Expenses, even though a lesser part of the activities may pertain to General Expenses; a branch office or home office underwriter who is primarily concerned with the acceptability of risks, net retentions, quoting of rates, etc., may be allocated wholly to General Expenses, although he or she may also engage, in a lesser extent, in production work, pertaining to Acquisition. Field Supervision and Collection Expenses; a special agent working on the development and maintenance of the sales field may be allocated wholly to Acquisition, Field Supervision and Collection Expenses, although he or she may also be concerned, to a lesser extent, in the adjustment of losses; key punch and tabulating machine operators, whose work is primarily statistical, may be allocated wholly to General Expenses, although the cards and tabulations may be used to some extent in collection and loss adjustment activities.)

Ins 6.31(1)(a)8. 8. The following describes an acceptable method of allocating to expense groups and lines of business the salaries of employees engaged in administrative and/or supervisor activities:

Ins 6.31(1)(a)8.a. a. Salaries of executive heads, such as the president of a company, the chairperson of a company’s board, and their secretaries, ordinarily should be distributed to expense groups and lines of business as an Overhead on Salaries of supervised personnel, after an apportionment to Investment Expenses. If any other methods are used, the allocations must be supported by detailed analyses of activities.

Ins 6.31(1)(a)8.b. b. Salaries of other executive officers, department heads and supervisors ordinarily should be allocated on the basis of a study of time spent on the affairs of each of the departments or units supervised and then these salaries should be allocated to expense groups and lines of business as Overhead on Salaries of the employees in the respective departments or units. If any other methods are used, the allocations must be supported by detailed analyses of activities.

Ins 6.31(1)(a)9. 9. Includable in the operating expense classification, Boards, Bureaus and Associations, are the following: “Dues, assessments, fees and charges of:...underwriting syndicates, pools and associations such as Factory Insurance Association, Oil Insurance Association, assigned risk plans (except Commission and Brokerage; Claim Adjustment Services; and Taxes, Licenses and Fees);...”

The foregoing instruction is applicable to all assigned risk plans and to the following syndicates, pools and associations:

American Cargo War Risk Reinsurance Exchange
  American Foreign Insurance Association
  American Marine Hull Syndicate
  American Marine Insurance Syndicate of Insurance of           Builders Risks
  American Negative Film Syndicate
  American Reinsurance Exchange
  Associated Aviation Underwriters
  Burlap Reinsurance Exchange
  Coastwise, Great Lakes & Inland Hull Assn.
  The Cotton Insurance Association
  Cotton Marine Reinsurance Agreement
  Eastern Intercoastal Cargo Reinsurance
  Exchange Excess of Loss Association
  Excise Bond Underwriters
  Export Automobile Reinsurance Exchange
  Factory Insurance Association
  Furriers Customers’ Reinsurance Syndicate
  General Cover Underwriters Assn.
  The Great Lakes Underwriting Syndicate
  Inland Marine Reinsurance Assn.
  Inland Marine Syndicate, Inc.
  Inland Waterways Insurance Assn.
  Lake P. & I. Reinsurance Agreement
  Livestock Insurance Office
  Logging Underwriting & Inspection Association
  Multiple Location Service Office
  Mutual Corporation Inter-Reinsurance Fund
  Oil Insurance Association
  Railroad Insurance Association
  Railway Underwriters
  Registered Mail Central Bureau
  Reinsurance Clearing House
  Reinsurance Exchange
  Southern Reinsurance Exchange
  Stock Companies Association
  The Tugboat Underwriting Syndicate
  Underwriters Grain Association
  Underwriters Service Association

Ins 6.31(1)(a)10. 10. Dues or assessments of organizations includable in Boards, Bureaus and Associations, or in Surveys and Underwriting Reports, directly related to loss work are properly chargeable to the expense group, Loss Adjustment Expenses.

Ins 6.31 History History: Cr. Register, July, 1959, No. 43, eff. 8-1-59.

Ins 6.35 Ins 6.35 Petroleum storage environmental cleanup fund; exclusions from reimbursement.

Ins 6.35(1) (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.

Ins 6.35(2) (2) Definitions. In this section:

Ins 6.35(2)(a) (a) “Discharge” has the meaning given in s. 292.01 (3), Stats.

Ins 6.35(2)(b) (b) “Fund” means the petroleum storage environmental cleanup fund under s. 25.47, Stats.

Ins 6.35(2)(c) (c) “Operator” has the meaning given in s. 292.63 (1) (d), Stats.

Ins 6.35(2)(d) (d) “Owner” has the meaning given in s. 292.63 (1) (e), Stats.

Ins 6.35(2)(e) (e) “Petroleum product storage system” has the meaning given in s. 292.63 (1) (fg), Stats.

Ins 6.35(3) (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:

Ins 6.35(3)(a) (a) Costs for which the owner or operator is not legally liable.

Ins 6.35(3)(b) (b) Bodily injury or property damage arising out of any of the following:

Ins 6.35(3)(b)1. 1. A discharge expected or intended from the standpoint of the owner or operator.

Ins 6.35(3)(b)2. 2. A discharge based on or attributable to a criminal act by the owner or operator.

Ins 6.35(3)(b)3. 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.

Ins 6.35 Note 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.

Ins 6.35(3)(b)4. 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.

Ins 6.35(3)(b)5. 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.

Ins 6.35(3)(b)6. 6. War, invasion, act of a foreign enemy, hostilities, civil war, rebellion, revolution, insurrection, military or usurped power, strike, riot or civil commotion.

Ins 6.35(3)(c) (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:

Ins 6.35(3)(c)1. 1. An employee of the owner or operator for an injury occurring during and in the course of the employment.

Ins 6.35(3)(c)2. 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.

Ins 6.35(3)(d) (d) Property damage to any of the following:

Ins 6.35(3)(d)1. 1. Property owned or occupied by or rented or lent to the owner or operator.

Ins 6.35(3)(d)2. 2. Personal property in the care, custody or control of the owner or operator.

Ins 6.35(3)(e) (e) An obligation of the owner or operator under a workers’ compensation, disability benefits, unemployment compensation or other similar law.

Ins 6.35(3)(f) (f) Punitive or exemplary damages.

Ins 6.35(3)(g) (g) Federal, state or local fines, forfeitures or other penalties.

Ins 6.35(3)(h) (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.

Ins 6.35 History History: 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.

Ins 6.40 Ins 6.40 Proxies, consents and authorizations of domestic stock insurers.

Ins 6.40(1) (1) Application of rule. This rule is applicable to all domestic stock insurers having 100 or more stockholders; provided, however, that this rule shall not apply to any insurer if 95% or more of its stock is owned or controlled by a parent or an affiliated insurer and the remaining shares are held by less than 500 stockholders. A domestic stock insurer which files with the securities and exchange commission forms of proxies, consents and authorizations complying with the requirements of the Securities and Exchange Act of 1934 and the Securities and Exchange Acts amendments of 1964 and Regulation X-14 of the securities and exchange commission promulgated thereunder shall be exempt from the provisions of this rule.

Ins 6.40(2) (2) Proxies, consents and authorizations. No domestic stock insurer, or any director, officer or employee of such insurer subject to sub. (1), or any other person, shall solicit, or permit the use of his or her name to solicit, by mail or otherwise, any proxy, consent or authorization in respect of any stock of such insurer in contravention of this rule.

Ins 6.40(3) (3) Disclosure of equivalent information. Unless proxies, consents or authorizations in respect of a stock of a domestic insurer subject to sub. (1) are solicited by or on behalf of the management of such insurer from the holders of records of stock of such insurer in accordance with this rule prior to any annual or other meeting such insurer shall, in accordance with this rule and/or such further rules as the commissioner may adopt, file with the commissioner and transmit to all stockholders of record information substantially equivalent to the information which would be required to be transmitted if a solicitation were made.

Ins 6.40(4) (4) Definitions.

Ins 6.40(4)(a) (a) The definitions and instructions set out in schedule SIS — Stockholder Information Supplement (s. Ins 7.02) shall be applicable for purposes of this rule.

Ins 6.40(4)(b) (b) The terms “solicit” and “solicitation” for purposes of this rule shall include:

Ins 6.40(4)(b)1. 1. Any request for a proxy, whether or not accompanied by or included in a form of proxy; or

Ins 6.40(4)(b)2. 2. Any request to execute or not to execute, or to revoke, a proxy; or

Ins 6.40(4)(b)3. 3. The furnishing of a proxy or other communication to stockholders under circumstances reasonably calculated to result in the procurement, withholding or revocation of a proxy.

Ins 6.40(4)(c) (c) The terms “solicit” and “solicitation” shall not include:

Ins 6.40(4)(c)1. 1. Any solicitation by a person in respect of stock of which he or she is the beneficial owner;

Ins 6.40(4)(c)2. 2. Action by a broker or other person in respect to stock carried in his or her name or in the name of the nominee in forwarding to the beneficial owner of such stock soliciting material received from the company, or impartially instructing such beneficial owner to forward a proxy to the person, if any, to whom the beneficial owner desires to give a proxy, or impartially requesting instructions from the beneficial owner with respect to the authority to be conferred by the proxy and stating that a proxy will be given if the instructions are received by a certain date;

Ins 6.40(4)(c)3. 3. The furnishing of a form of proxy to a stockholder upon the unsolicited request of such stockholder, or the performance by any person of ministerial acts on behalf of a person soliciting a proxy.

Ins 6.40(5) (5) Information to be furnished to stockholders.

Ins 6.40(5)(a) (a) No solicitation subject to this rule shall be made unless each person solicited is concurrently furnished or has previously been furnished with a written proxy statement containing the information specified in sub. (12).

Ins 6.40(5)(b) (b) If the solicitation is made on behalf of the management of the insurer and relates to an annual meeting of stockholders at which directors are to be elected, each proxy statement furnished pursuant to sub. (5) (a) shall be accompanied or preceded by an annual report (in preliminary or final form) to such stockholders containing such financial statements for the last fiscal year as are referred to in Schedule SIS — Stockholder Information Supplement (s. Ins 7.02) under the heading “Financial Reporting to Stockholders.” Subject to the foregoing requirements with respect to financial statements, the annual report to stockholders may be in any form deemed suitable by the management.

Ins 6.40(5)(c) (c) Two copies of each report sent to the stockholders pursuant to sub. (5) shall be mailed to the commissioner not later than the date on which such report is first sent or given to stockholders or the date on which preliminary copies of solicitation material are filed with the commissioner pursuant to sub. (7) (a), whichever date is later.

Ins 6.40(6) (6) Requirements as to proxy.

Ins 6.40(6)(a) (a) The form of proxy: 1) shall indicate in bold-face type whether or not the proxy is solicited on behalf of the management, 2) shall provide a specifically designated blank space for dating the proxy, and 3) shall identify clearly and impartially each matter or group of related matters intended to be acted upon, whether proposed by the management, or stockholders. No reference need be made to proposals as to which discretionary authority is conferred pursuant to par. (c).

Ins 6.40(6)(b) (b) Means shall be provided in the proxy for the person solicited to specify by ballot a choice between approval or disapproval of each matter or group of related matters referred to therein, other than elections to office. A proxy may confer discretionary authority with respect to matters as to which a choice is not so specified if the form of proxy states in bold-face type how it is intended to vote the shares or authorization represented by the proxy in each such case.

Ins 6.40(6)(c) (c) A proxy may confer discretionary authority with respect to other matters which may come before the meeting, provided the persons on whose behalf the solicitation is made are not aware a reasonable time prior to the time the solicitation is made that any other matters are to be presented for action at the meeting and provided further that a specific statement to that effect is made in the proxy statement or in the form of proxy.

Ins 6.40(6)(d) (d) No proxy shall confer authority

Ins 6.40(6)(d)1. 1. To vote for the election of any person to any office for which a bona fide nominee is not named in the proxy statement, or

Ins 6.40(6)(d)2. 2. To vote at any annual meeting other than the next annual meeting (or any adjournment thereof) to be held after the date, on which the proxy statement and form of proxy are first sent or given to stockholders.

Ins 6.40(6)(e) (e) The proxy statement or form of proxy shall provide, subject to reasonable specified conditions, that the proxy will be voted and that where the person solicited specifies by means of ballot provided pursuant to par. (b) a choice with respect to any matter to be acted upon, the vote will be in accordance with the specifications so made.