This section applies to all insurers, including but not limited to an insurer doing business as a health maintenance organization, as defined in s. 609.01 (2)
History: 1989 a. 23
Jurisdiction and venue. 645.04(1)(1)
Actions by commissioner.
Except as provided in sub. (2)
and s. 645.45 (1)
, no delinquency proceeding may be commenced under this chapter by anyone other than the commissioner of this state and no court has jurisdiction to entertain, hear or determine any proceeding commenced by any other person.
The judgment creditors of 3 or more unrelated judgments may commence proceedings under the conditions and in the manner prescribed in this subsection, by serving notice upon the commissioner and the insurer of intention to file a petition for liquidation under s. 645.41
. Each of the judgments must:
Have been rendered against the insurer by a court in this state having jurisdiction over the subject matter and the insurer;
Have been entered more than 60 days before the service of notice;
Not be the subject of a valid contract between the insurer and any judgment creditor for payment of the judgment, unless the contract has been breached by the insurer; and
Not be a judgment on which an appeal or review is pending.
If any one of the judgments in favor of a petitioning creditor remains unpaid for 30 days after service of the notice, and the commissioner has not then filed a petition for liquidation, the creditor may file in the name of the commissioner a verified petition for liquidation of the insurer under s. 645.41
alleging the conditions stated in this subsection. The commissioner shall be served and joined in the action.
Exclusiveness of proceedings; arbitration clauses.
No court of this state has jurisdiction to entertain, hear or determine any complaint praying for the dissolution, liquidation, rehabilitation, sequestration, conservation or receivership of any insurer, or praying for an injunction or restraining order or other relief preliminary to, incidental to or relating to such proceedings other than in accordance with this chapter. An arbitration provision of any contract with an insurer that is subject to a delinquency proceeding under subch. III
is not enforceable unless the receiver elects to accept arbitration. Only the court that has jurisdiction of the delinquency proceeding may entertain, hear or determine any matter that otherwise would be subject to an arbitration provision.
Change of venue.
Venue for proceedings arising under this chapter shall be laid initially as specified in this chapter. All other actions and proceedings initiated by the receiver may be commenced and tried where the delinquency proceedings are then pending, or where venue would be laid by ss. 801.50
or other applicable law. All other actions and proceedings against the receiver shall be commenced and tried in the county where the delinquency proceedings are pending. At any time upon motion of any party, venue may be changed by order of the court or the presiding judge thereof to any other circuit court in this state, as the convenience of the parties and witnesses and the ends of justice may require. This subsection relates only to venue and is not jurisdictional.
Personal jurisdiction, grounds for.
In addition to other grounds for jurisdiction provided by the law of this state, a court of this state having jurisdiction of the subject matter has jurisdiction over a person served pursuant to s. 801.11
in an action brought by the receiver of a domestic insurer or an alien insurer domiciled in this state:
If the person served is obligated to the insurer in any way as an incident to any agency or brokerage arrangement that may exist or has existed between the insurer and the agent or broker, in any action on or incident to the obligation;
If the person served is a reinsurer who has at any time written a policy of reinsurance for an insurer against which a rehabilitation or liquidation order is in effect when the action is commenced, or is an agent or broker of or for the reinsurer, in any action on or incident to the reinsurance contract; or
If the person served is or has been an officer, manager, trustee, organizer, promoter or person in a position of comparable authority or influence in an insurer against which a rehabilitation or liquidation order is in effect when the action is commenced, in any action resulting from the relationship with the insurer.
Change of forum.
If the court on motion of any party finds that any action commenced under sub. (5)
should as a matter of substantial justice be tried in a forum outside this state, the court may enter an order under s. 801.63
to stay further proceedings on the action in this state.
Sup. Ct. Order, 67 Wis. 2d 585, 776 (1975); 1979 c. 93
; 1979 c. 110
; 1981 c. 390
; 1989 a. 23
The exercise of jurisdiction under sub. (5) over a foreign person obligated to a domestic receiver does not violate due process. Liquidation of All-Star Insurance Corporation, 110 Wis. 2d 72
, 327 N.W.2d 648
Injunctions and orders. 645.05(1)(1)
Injunctions in this state.
Any receiver appointed in a proceeding under this chapter may at any time apply for and any court of general jurisdiction in this state may grant, under the relevant sections of ch. 813
, such restraining orders, temporary and permanent injunctions, and other orders as are deemed necessary and proper to prevent:
Interference with the receiver or with the proceedings;
The institution or further prosecution of any actions or proceedings;
The obtaining of preferences, judgments, attachments, garnishments or liens against the insurer or its assets;
The levying of execution against the insurer or its assets;
The making of any sale or deed for nonpayment of taxes or assessments that would lessen the value of the assets of the insurer;
The withholding from the receiver of books, accounts, documents or other records relating to the business of the insurer; or
Any other threatened or contemplated action that might lessen the value of the insurer's assets or prejudice the rights of policyholders, creditors or shareholders, or the administration of the proceeding.
The receiver may apply to any court outside of this state for the relief described in sub. (1)
Injunctions against a federal home loan bank. 645.05(3)(a)
In this subsection, “insurer-member” means a member of the federal home loan bank in question that is an insurer.
Notwithstanding subs. (1)
and any other provision of this chapter, a federal home loan bank may be stayed, enjoined, or prohibited from exercising or enforcing any right or cause of action regarding collateral pledged under any security agreement, or any pledge, security, collateral, or guarantee agreement, or any other similar arrangement or credit enhancement relating to a federal home loan bank security agreement, for a period not to exceed 10 days after the appointment of a receiver for an insurer-member of the federal home loan bank. If the federal home loan bank fails to comply with the provisions of pars. (c)
, the court may, within 10 days following the appointment of the receiver, extend the stay until the federal home loan bank complies with the provisions of pars. (c)
Not later than 5 days after notification to the federal home loan bank of the appointment of a receiver for an insurer-member, the federal home loan bank shall deliver to the receiver a process and timeline for all of the following:
The release of collateral held by the federal home loan bank that exceeds the amount that is required to support the outstanding secured loan obligations and that is remaining after any repayment of loans, as determined under the applicable agreements between the federal home loan bank and the insurer-member.
The release of any collateral remaining in the federal home loan bank's possession following repayment of all outstanding secured obligations in full.
The redemption or repurchase of federal home loan bank stock in excess of the minimum amount the insurer-member is required to own.
Upon the request of the receiver and not later than 5 days after notification to the federal home loan bank of the appointment of a receiver for an insurer-member, the federal home loan bank shall provide any available options for the insurer-member to renew or restructure an advance. In determining which options are available, the federal home loan bank may consider market conditions, the terms of the advance outstanding to the insurer-member, the applicable policies of the federal home loan bank, and compliance with the Federal Home Loan Bank Act and corresponding regulations.
A federal home loan bank shall, within 7 days of receipt of a repurchase request made by the insurer-member, repurchase any outstanding capital stock in excess of the amount of stock the insurer-member is required to hold as a minimum investment. The federal home loan bank shall repurchase the excess outstanding capital stock if the repurchase is all of the following:
Permissible under federal laws and regulations and the federal home loan bank's capital plan.
Consistent with the capital stock practices then applicable to the federal home loan bank's entire membership.
Sup. Ct. Order, 67 Wis. 2d 585, 776 (1975); 2017 a. 340
Costs and expenses of litigation.
In any proceeding or action brought by the commissioner or a receiver under this chapter, the court may award such costs and other expenses of litigation to the commissioner or receiver as justice requires, without regard to the limitations otherwise prescribed by law.
History: 1989 a. 23
Cooperation of officers and employees. 645.07(1)(1)
Duty to cooperate.
Any officer, manager, trustee or general agent of any insurer, any attorney representing an insurer on any matter, and any other person with executive authority over or in charge of any segment of the insurer's affairs shall cooperate with the commissioner in any proceeding under this chapter or any investigation preliminary or incidental to the proceeding. “To cooperate" includes:
To reply promptly in writing to any inquiry from the commissioner requesting a reply; and
To make available and deliver to the commissioner any books, accounts, documents or other records, or information or property of or pertaining to the insurer and in the person's possession, custody or control.
Duty not to obstruct.
No person may obstruct or interfere with the commissioner in the conduct of any delinquency proceeding or any investigation preliminary or incidental thereto.
Right to defend.
This section does not make it illegal to resist by legal proceedings the petition for liquidation or other delinquency proceedings, or other orders.
Any person included within sub. (1)
who fails to cooperate with the commissioner, or any person who obstructs or interferes with the commissioner in the conduct of any delinquency proceeding or any investigation preliminary or incidental thereto, is subject to s. 601.64
Bonds; immunity. 645.08(1)(1)
In any proceeding under this chapter the commissioner and the commissioner's deputies are responsible on their official bonds for the faithful performance of their duties. If the court deems it desirable for the protection of the assets, it may at any time require an additional bond from the commissioner or the commissioner's deputies.
No civil cause of action may arise against and no civil liability may be imposed upon the state, commissioner, special deputy commissioner, rehabilitator or liquidator, or their employees or agents, or the insurance security fund under ch. 646
or its agents, employees, directors or contributor insurers, for an act or omission by any of them in the performance of their powers and duties under this chapter or in the performance of their powers and duties relating to regulation of the capital or solvency of an insurer under chs. 600
, including the compulsory or security surplus requirements under ch. 623
. This subsection does not apply to a civil cause of action arising from an act or omission that is criminal under ch. 943
. Such a cause of action, however, may be barred or limited by common law, sovereign immunity, governmental immunity or otherwise by law.
Sub. (2) does not bar a rehabilitation plan from extending immunity to individuals and entities not listed in this section. There is no such limiting language in the statute. Nickel v. Wells Fargo Bank, 2013 WI App 129
, 351 Wis. 2d 539
, 841 N.W.2d 482
Commissioner's reports. 645.09(1)(1)
General report of proceedings.
The commissioner may include in his or her annual report:
The names of the insurers proceeded against under ss. 645.31
, and such other facts as indicate in reasonable detail the commissioner's formal proceedings under this chapter; and
Such facts as generally indicate the utilization and effectiveness of proceedings under ss. 645.21
Causes of delinquency.
The commissioner may include in his or her annual report, not later than the 2nd annual report following the initiation of any formal proceedings under this chapter, a detailed analysis of the basic causes and the contributing factors making the initiation of formal proceedings necessary, and may make recommendations for remedial legislation. For this purpose the commissioner may appoint a special assistant qualified in insurance, finance, and accounting to conduct the study and prepare the analysis, and may determine the special assistant's compensation, which shall be paid from the appropriation under s. 20.145 (1) (g) 1.
The commissioner may include in his or her annual report, not later than the 2nd annual report following discharge of the receiver, a detailed study of the delinquency proceeding for each insurer subjected to a formal proceeding, with an analysis of the problems faced and their solutions. The commissioner may also suggest alternative solutions, as well as other material of interest, for the purpose of assisting and guiding liquidators or rehabilitators in the future. For this purpose the commissioner may appoint a special assistant qualified to conduct the study and prepare the analysis, and may determine his or her compensation, which shall be paid from the appropriation under s. 20.145 (1) (g) 1.
Reports on insurers subject to proceedings.
The commissioner as receiver shall make and file annual reports and any other required reports for the companies proceeded against under ss. 645.31
in the manner and form and within the time required by law of insurers authorized to do business in this state, and under the same penalties for failure to do so.
Continuation of delinquency proceedings.
Every proceeding commenced before August 5, 1967 is deemed to have commenced under this chapter for the purpose of conducting the proceeding thereafter, except that in the discretion of the commissioner the proceeding may be continued, in whole or in part, as it would have been continued had this chapter not been enacted.
Effect of amendments of this chapter.
Every proceeding commenced under this chapter before December 9, 1979, is subject to the amendments of this chapter by chapter 93, laws of 1979
, except as to rights which have fully vested before December 9, 1979.
History: 1979 c. 93
Commissioner's summary orders. 645.21(1)(1)
Summary order after hearing.
Whenever the commissioner has reasonable cause to believe, and determines, after a hearing held as prescribed in s. 601.62
, that any insurer has committed or engaged in, or is committing or engaging in or is about to commit or engage in any act, practice or transaction, or is in or is about to get into a situation that would subject it to formal delinquency proceedings under this chapter, the commissioner may make and serve upon the insurer and any other persons involved, such orders other than seizure orders under ss. 645.22
as are reasonably necessary to correct, eliminate or remedy such conduct, condition or ground.
Summary order before hearing.
If the conditions of sub. (1)
are satisfied, and if it appears to the commissioner that irreparable harm to the property or business of the insurer or to the interests of its policyholders, creditors or the public may occur unless the commissioner issues with immediate effect the orders described in sub. (1)
, the commissioner may make and serve such orders without notice and before hearing, simultaneously serving upon the insurer notice of hearing under s. 601.62
If the commissioner issues a summary order before hearing under sub. (2)
, the insurer may at any time waive the commissioner's hearing and apply for immediate judicial relief by means of any remedy afforded by law without first exhausting administrative remedies. Subsequent to a hearing the insurer or any person whose interests are substantially affected is entitled to judicial review of any order issued by the commissioner.
Court's seizure order. 645.22(1)(1)
Upon the filing by the commissioner in any circuit court in this state of a verified petition alleging any ground that would justify a court order for a formal delinquency proceeding against an insurer under this chapter and that the interests of policyholders, creditors or the public will be endangered by delay, and setting out the order considered necessary by the commissioner, the court shall issue forthwith, ex parte and without a hearing, the requested order, which may do any of the following:
Direct the commissioner to take possession and control of all or a part of the property, books, accounts, documents and other records of an insurer and of the premises occupied by it for the transaction of its business.
Until further order of the court, enjoin the insurer and its officers, managers, agents, and employees from disposition of its property and from transaction of its business except with the written consent of the commissioner.
The court shall specify in the order what its duration shall be, which shall be such time as the court deems necessary for the commissioner to ascertain the condition of the insurer. On motion of either party or on its own motion, the court may hold such hearings as it deems desirable after such notice as it deems appropriate, and may extend, shorten or modify the terms of the seizure order. The court shall vacate the seizure order if the commissioner fails to commence a formal proceeding under this chapter after having had a reasonable opportunity to do so. The issuance of an order of the court pursuant to a formal proceeding under this chapter vacates the seizure order.
Entry of a seizure order under this section does not constitute an anticipatory breach of any contract of the insurer.