SB533: Bill Text

Under current law, every insurer is required to maintain in this state a regis tered agent for service of process. The registered agent must be an individual who is a resident of this state, a domestic insurer or a nondomestic insurer authorized to do business in this state. If an insurer fails to maintain an agent or if the agent can not be found, substituted service may be made on the commissioner or, if the legal proceeding is brought by the state, on the secretary of state. The commissioner or secretary of state must send a copy of the process by certified mail to the person served at the person's last-known principal place of business, residence or post-of fice address. The fee for service on the commissioner is $10.

This bill requires every insurer authorized to do business in this state (autho rized insurer) to maintain a registered agent for service of process. The registered agent must be a natural person who resides in this state, a domestic corporation, non stock corporation or limited liability company incorporated or organized in this state with a business office in this state or a foreign corporation or limited liability compa ny authorized to transact business in this state with a business office in this state. The bill specifies how an authorized insurer may change its registered agent, how a registered agent may change its registered agent address and how a registered agent may resign. The bill provides that substituted service may be made on the com missioner, by the same procedure as under current law, if an authorized insurer has no registered agent or if the registered agent cannot with reasonable diligence be served. If substituted service is made on the commissioner, an affidavit must be at tached to the process served attesting that the authorized insurer has no registered agent or that the registered agent could not with reasonable diligence be served. The bill also provides that the commissioner is by law constituted attorney to receive ser vice (substituted service) of summons, notices, orders, pleadings and all other legal process for all authorized insurers, surplus lines insurers, unauthorized insurers, risk purchasing groups and nonresident intermediaries and specifies the action or inaction on the part of each of those entities which serves to authorize substituted service on the commissioner on behalf of the entity.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB533, s. 1 Section 1. 601.31 (1) (p) of the statutes, as affected by 1995 Wisconsin Act 27, is amended to read:

SB533,3,4 601.31 (1) (p) For substituted service of process on the commissioner under s. 601.72 (2), $10.

SB533, s. 2 Section 2. 601.715 of the statutes is created to read:

SB533,3,10 601.715 Registered agent for service of process. (1) Every authorized in surer shall continuously maintain in this state a registered agent for service of pro cess, notice or demand on the insurer. The authorized insurer shall file the name and address of the registered agent with the commissioner. The registered agent may be any of the following:

SB533,3,11 (a) A natural person who resides in this state.

SB533,3,13 (b) A domestic corporation, nonstock corporation or limited liability company incorporated or organized in this state with a business office in this state.

SB533,3,15 (c) A foreign corporation or limited liability company authorized to transact business in this state with a business office in this state.

SB533,3,18 (2) (a) An authorized insurer may change its registered agent by delivering to the commissioner for filing a statement of registered agent change that is signed by an officer of the insurer and that includes all of the following information:

SB533,4,1 1. The name and home office address of the authorized insurer.

SB533,4,2 2. The name of the registered agent, as changed.

SB533,4,3 3. The complete address of the registered agent, as changed.

SB533,4,4 4. Any other information that the commissioner may require.

SB533,4,7 (b) An authorized insurer may change its registered agent no more than one time per year. Any change of registered agent is effective on January 1 of the year following the delivery of the statement under par. (a).

SB533,4,9 (3) A registered agent of an authorized insurer may change its registered agent address by doing all of the following:

SB533,4,11 (a) Notifying in writing the authorized insurer for which the registered agent is acting.

SB533,4,13 (b) Delivering to the commissioner for filing a statement that includes all of the following:

SB533,4,15 1. The name and home office address of the authorized insurer for which the registered agent is acting.

SB533,4,16 2. The complete new registered agent address.

SB533,4,17 3. An attached copy of the notice under par. (a).

SB533,4,20 (4) (a) A registered agent of an authorized insurer may resign by signing and delivering to the commissioner for filing a statement of resignation that includes all of the following information:

SB533,4,22 1. The name and home office address of the authorized insurer for which the registered agent is acting.

SB533,4,23 2. The name of the registered agent.

SB533,4,24 3. A statement that the registered agent resigns.

SB533,5,2 (b) After filing the statement, the commissioner shall mail a copy to the autho rized insurer under par. (a) 1.

SB533,5,3 (c) The resignation is effective on the earlier of the following:

SB533,5,5 1. Sixty days after the commissioner receives the statement of resignation for filing.

SB533,5,7 2. The date on which the appointment of a successor registered agent is effec tive.

SB533,5,14 (5) If an authorized insurer has no registered agent for service of process in this state or if the registered agent cannot with reasonable diligence be served, substi tuted service may be made on the commissioner under ss. 601.72 and 601.73. If sub stituted service is made on the commissioner, an affidavit attesting that the autho rized insurer has no registered agent or that the registered agent could not with reasonable diligence be served shall be attached to the process, notice or demand that is served.

SB533,5,17 (6) Except as provided in sub. (5), this section does not limit or affect the right to serve summons, notice, orders, pleadings, demands or other process upon an au thorized insurer in any other manner provided by law.

SB533, s. 3 Section 3. 601.72 of the statutes, as affected by 1995 Wisconsin Act 27, is re pealed and recreated to read:

SB533,6,2 601.72 Service of process through state officer. (1) General. Under pro cedures specified in s. 601.73, the commissioner is by law constituted attorney, except in cases in which the proceeding is to be brought by the state against an insurer or intermediary other than a risk retention group or risk purchasing group, in which event the secretary of state is by law constituted attorney, to receive service of sum mons, notices, orders, pleadings and all other legal process relating to any court or administrative agency in this state for all of the following:

SB533,6,6 (a) Authorized insurers. All insurers authorized to do business in this state, while authorized to do business in this state, and thereafter in any proceeding aris ing from or related to any transaction having any connection with this state, provided the requirements under s. 601.715 (5) are satisfied.

SB533,6,9 (b) Surplus lines insurers. All insurers as to any proceeding arising out of any contract that is permitted by s. 618.41, or out of any certificate, cover note or other confirmation of such insurance.

SB533,6,12 (c) Unauthorized insurers. All insurers or other persons doing an unauthorized insurance business in this state, including but not limited to risk purchasing groups, as to any proceeding arising out of the unauthorized transaction.

SB533,6,16 (d) Risk purchasing groups and nonresident intermediaries. All risk purchas ing groups or nonresident intermediaries as to any proceeding arising out of insur ance activities within this state or out of insurance activities related to policies on risks within this state.

SB533,6,22 (2) Appointment of attorney. Except as provided in sub. (2m), every licensed insurer by applying for and receiving a certificate of authority, every surplus lines insurer by entering into a contract subject to the surplus lines law, and every unau thorized insurer by doing an insurance business in this state, is deemed to have irre vocably appointed the commissioner and secretary of state as the insurer's attorneys in accordance with sub. (1).

SB533,7,5 (2m) Risk retention groups and risk purchasing groups. A risk retention group or risk purchasing group may not do an insurance business or engage in any insurance activity in this state until it registers with the commissioner and desig nates the commissioner as its agent for the purposes described in sub. (1). The com missioner may prescribe the form of registration under this subsection. If a risk retention group or risk purchasing group fails to designate the commissioner as re quired by this subsection, the commissioner is appointed agent for the risk retention group or risk purchasing group as provided in sub. (2).

SB533,7,8 (3) Others affected. The commissioner and secretary of state shall also be at torneys for the executors, administrators or personal representatives, receivers, trustees or other successors in interest of the persons specified in sub. (1).

SB533,7,10 (4) Fees. Litigants serving process on the commissioner under this section shall pay the fees specified in s. 601.31 (1) (p).

SB533,7,13 (5) Ordinary means of service. The right to substituted service under this sec tion does not limit the right to serve summons, notice, orders, pleadings, demands or other process upon any person in any manner provided by law.

SB533, s. 4 Section 4. 601.72 (1) (intro.) of the statutes, as affected by 1995 Wisconsin Act .... (this act), is amended to read:

SB533,7,22 601.72 (1) General. (intro.) Under procedures specified in s. 601.73, the com missioner is by law constituted attorney, except in cases in which the proceeding is to be brought by the state against an insurer or intermediary other than a risk reten tion group or risk purchasing group, in which event the secretary of state department of financial institutions is by law constituted attorney, to receive service of summons, notices, orders, pleadings and all other legal process relating to any court or adminis trative agency in this state for all of the following:

SB533, s. 5 Section 5. 601.72 (2) of the statutes, as affected by 1995 Wisconsin Act .... (this act), is amended to read:

SB533,8,6 601.72 (2) Appointment of attorney. Except as provided in sub. (2m), every licensed insurer by applying for and receiving a certificate of authority, every surplus lines insurer by entering into a contract subject to the surplus lines law, and every unauthorized insurer by doing an insurance business in this state, is deemed to have irrevocably appointed the commissioner and secretary of state department of finan cial institutions as the insurer's attorneys in accordance with sub. (1).

SB533, s. 6 Section 6. 601.72 (3) of the statutes, as affected by 1995 Wisconsin Act .... (this act), is amended to read:

SB533,8,12 601.72 (3) Others affected. The commissioner and secretary of state depart ment of financial institutions shall also be attorneys for the executors, administra tors or personal representatives, receivers, trustees or other successors in interest of the persons specified in sub. (1).

SB533, s. 7 Section 7. 601.73 (1) (intro.) of the statutes, as affected by 1995 Wisconsin Act 27, section 7011, is amended to read:

SB533,8,16 601.73 (1) Requirements for effective service. (intro.) Service upon the com missioner or secretary of state under s. 601.72 (2) is service on the principal, if:

SB533, s. 8 Section 8. 601.73 (1) (intro.) of the statutes, as affected by 1995 Wisconsin Acts 27, section 7012b, and .... (this act), is repealed and recreated to read:

SB533,8,21 601.73 (1) Requirements for effective service. (intro.) Service upon the com missioner or department of financial institutions under s. 601.72 is service on the principal, if:

SB533, s. 9 Section 9. 601.73 (2) (c) of the statutes, as affected by 1995 Wisconsin Act 27, is amended to read:

SB533,9,2 601.73 (2) (c) Default judgment. No plaintiff or complainant is entitled to a judgment by default in any proceeding in which process is served under this section and s. 601.72 (2) until the expiration of 20 days from the date of mailing of the process under par. (b).

SB533, s. 10 Section 10. 623.06 (1) of the statutes is renumbered 623.06 (1f).

SB533, s. 11 Section 11. 623.06 (1c) of the statutes is created to read:

SB533,9,7 623.06 (1c) In this section, "qualified actuary" means a member in good stand ing of the American academy of actuaries who meets any other requirements that the commissioner may by rule specify.

SB533, s. 12 Section 12. 623.06 (1m) of the statutes is created to read:

SB533,9,14 623.06 (1m) (a) 1. For each year ending on or after December 31, 1996, every life insurance company doing business in this state shall submit to the commissioner, with its annual statement due by March 1 of the following year, an opinion by a quali fied actuary as to whether the reserves and related actuarial items held in support of the policies and contracts specified by the commissioner by rule satisfy all of the following:

SB533,9,15 a. They are computed appropriately.

SB533,9,16 b. They are based on assumptions that satisfy contractual provisions.

SB533,9,17 c. They are consistent with prior reported amounts.

SB533,9,18 d. They comply with the applicable laws of this state.

SB533,9,21 2. The commissioner shall by rule specify in detail the nature of the information required in the opinion under subd. 1. and may by rule require any additional in formation that the commissioner determines is necessary to the scope of the opinion.

SB533,9,25 (b) 1. Every life insurance company not exempted by rule shall include with the opinion required under par. (a) the opinion of the qualified actuary as to whether the reserves and related actuarial items held in support of the policies and contracts spe cified by the commissioner by rule, when considered in light of the assets held by the company with respect to the reserves and related actuarial items, including but not limited to the investment earnings on the assets and the considerations anticipated to be received and retained under the policies and contracts, make adequate provi sion for the company's obligations under the policies and contracts, including but not limited to the benefits under and expenses associated with the policies and contracts. The commissioner may by rule provide for a transition period for an insurance com pany to establish any higher reserves that the qualified actuary determines are nec essary to make adequate provision for the company's obligations under the policies and contracts.

SB533,10,17 2. An insurance company that is required to submit an opinion under subd. 1. shall have prepared by the qualified actuary who renders the opinion a memoran dum in support of the opinion under subd. 1. The commissioner shall specify by rule the form and content of the memorandum. The insurance company shall provide the memorandum to the commissioner, at the commissioner's request, for his or her ex amination. After examination, the commissioner shall return the memorandum to the insurance company. The memorandum shall not be considered a record of the commissioner's office.

SB533,10,24 3. If an insurance company fails to provide a supporting memorandum to the commissioner upon request within the period specified by rule, or if the commission er determines that the supporting memorandum provided by an insurance company fails to meet the standards prescribed by rule or is otherwise unacceptable, the com missioner may retain a qualified actuary at the expense of the insurance company to review the opinion required under subd. 1. and the basis for the opinion and to pre pare such supporting memorandum as the commissioner requires.

SB533,10,25 (c) The following provisions apply to an opinion required under par. (a) or (b):

SB533,11,3 1. The opinion shall apply to all business in force, including individual and group health insurance plans, in form and substance acceptable to the commissioner as specified by rule.

SB533,11,6 2. The opinion shall be based on standards adopted from time to time by the actuarial standards board established by the American academy of actuaries and on such additional standards as the commissioner may by rule prescribe.

SB533,11,11 3. In the case of an opinion required to be submitted by a foreign or alien compa ny, the commissioner may accept the opinion filed by that company with the insur ance supervisory official of another state if the commissioner determines that the opinion reasonably meets the requirements applicable to a company domiciled in this state.

SB533,11,15 (d) Except for fraud or wilful misconduct, a qualified actuary may not be held liable for damages to any person other than the insurance company or the commis sioner for any act, error, omission, decision or conduct with respect to an opinion re quired under this subsection.

SB533,11,18 (e) The commissioner shall specify by rule any disciplinary action that the com missioner may take against an insurance company or a qualified actuary related to any of the requirements under this subsection.

SB533,11,25 (f) 1. The commissioner shall keep confidential any memorandum in support of, and any other material provided by an insurance company to the commissioner in connection with, an opinion required under this subsection. Any such memoran dum or other material may not be made public and may not be subject to subpoena except for the purpose of defending an action seeking damages from any person on account of an act required under this subsection or required by a rule authorized or required under this subsection.

SB533,12,6 2. The commissioner may release any such memorandum or other material with the written consent of the insurance company, or to the American academy of actuaries upon its request if the memorandum or other material is required for pro fessional disciplinary proceedings and if the request sets forth procedures that are satisfactory to the commissioner for preserving the confidentiality of the memoran dum or other material.

SB533,12,10 3. A memorandum loses its confidentiality if the insurance company cites any portion of the memorandum for marketing purposes or before any governmental agency other than a state insurance department or if the insurance company releases any portion of the memorandum to the news media.

SB533, s. 13 Section 13. 623.06 (5) of the statutes is renumbered 623.06 (5) (a) and amended to read:

SB533,12,18 623.06 (5) (a) In no event shall may a company's aggregate reserves for all life insurance policies, excluding disability and accidental death benefits, issued on or after the effective date of this section, be less than the aggregate reserves calculated in accordance with the method set forth in subs. (3) to (4m) and (7) and the mortality table or tables and rate or rates of interest used in calculating nonforfeiture benefits for such policies.

SB533, s. 14 Section 14. 623.06 (5) (b) of the statutes is created to read:

SB533,12,23 623.06 (5) (b) In no event may a company's aggregate reserves for all policies, contracts and benefits be less than the aggregate reserves determined by a qualified actuary in an opinion under sub. (1m) (b) 1. to be necessary to make adequate provi sion for the company's obligations under the policies and contracts.

SB533, s. 15 Section 15. 623.06 (6) of the statutes is amended to read:

SB533,13,20 623.06 (6) Reserves for all policies and contracts issued prior to the effective date of this section subsection may be calculated, at the option of the company, ac cording to any standards which that produce greater aggregate reserves for all such policies and contracts than the minimum reserves required by the laws in effect im mediately prior to such date. Reserves for any category of policies, contracts or bene fits as established by the commissioner, issued on or after the effective date of this section subsection, may be calculated, at the option of the company, according to any standards which that produce greater aggregate reserves for such category than those calculated according to the minimum standard herein provided, but the rate or rates of interest used for policies and contracts, other than annuity and pure en dowment contracts, shall not be higher than the corresponding rate or rates of inter est used in calculating any nonforfeiture benefits provided for therein. Any such company which that at any time has adopted any standard of valuation producing greater aggregate reserves than those calculated according to the minimum stan dard herein provided may, with the approval of the commissioner, adopt any lower standard of valuation, but not lower than the minimum herein provided. For the pur poses of this subsection, holding any additional reserves that a qualified actuary, in an opinion under sub. (1m) (b) 1., determined to be necessary to make adequate pro vision for the company's obligations under the policies and contracts shall not be con sidered the adoption of a higher standard of valuation.

SB533, s. 16 Section 16. 645.08 (2) of the statutes is amended to read:

SB533,14,7 645.08 (2) Immunity. No civil cause of action may arise against and no civil li ability may be imposed upon the state, commissioner, special deputy commissioner, rehabilitator or liquidator, or their employes or agents, or the insurance security fund under ch. 646 or its agents, employes, 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 to 646, including the compulso ry 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, if the. Such a cause of action is not , however, may be barred or limited by common law, sovereign immunity, governmental immunity or otherwise by law.

SB533, s. 17 Section 17. 646.01 (1) (a) 2. i. of the statutes is created to read:

SB533,14,11 646.01 (1) (a) 2. i. Nondomestic insurers that have not obtained a certificate of authority to do business in this state and that are doing business under s. 618.41 or 618.42.