618.39(2)
(2) Personal liability for violation. Any person who violates
sub. (1) is personally liable to any claimant under the policy for any damage proximately caused by the person's violation. That damage may include damage resulting from the necessity of replacing the insurance in an authorized insurer or the failure of the unauthorized insurer to perform the insurance contract.
618.39 History
History: 1971 c. 260;
1975 c. 371,
421.
618.39 Annotation
Legislative Council Note, 1975: Sub. (2) is added as an effective sanction to suppress knowing placement of insurance with unauthorized insurers. It is adapted from Conn. Insurance Laws, Sec. 38-90. Insurance agents and others should guarantee performance of insurance contracts they negotiate knowingly with unlicensed insurers, unless legally negotiated under the surplus lines law. In addition, the sanctions of s. 601.64 apply to violators of this provision. [Bill 16-S]
618.41
618.41
Surplus lines insurance. 618.41(1)
(1)
General permission. A nondomestic insurer which has not obtained a certificate of authority to do business in this state under
s. 618.12 may negotiate for and make insurance contracts with persons in this state and on risks located in this state, subject to the limitations and requirements specified in this section.
618.41(2)
(2) Incidental acts permitted. With respect to contracts made under this section, the insurer may in this state also inspect risks to be insured, collect premiums and adjust losses, and do all other acts reasonably incidental to the contract.
618.41(3)
(3) Solicitation prohibited. Nothing in
subs. (1) and
(2) permits the solicitation of business in this state by or on behalf of an insurer without a certificate of authority. The commissioner may by rule prescribe the manner in which insurance agents or brokers may advertise the availability of their services in procuring, on behalf of persons seeking insurance, contracts with insurers without a certificate of authority.
618.41(4)
(4) Information to policyholder. The insurer and any agent or broker are obligated promptly to furnish the policyholder a statement in a form prescribed or approved by the commissioner, informing the policyholder that the insurer has not obtained a certificate of authority to do business in this state and is not regulated in this state except as provided in this section.
618.41(5)
(5) Trade practices. With respect to contracts made under this section, nondomestic insurers are subject to
s. 628.34 and rules promulgated thereunder.
618.41(6)
(6) Prohibited and restricted surplus lines business. 618.41(6)(a)(a) Prohibited classes. The commissioner may by rule prohibit the making of contracts under
sub. (1) in a specified class of insurance if authorized insurers provide an established market for the class in this state which is adequate and reasonably competitive with reputable unauthorized insurers.
618.41(6)(b)
(b)
Restricted classes. The commissioner may by rule place restrictions and limitations on and create special procedures for the making of contracts under
sub. (1) for a specified class of insurance if there have been abuses of placements in the class or if the policyholders in the class, because of limited financial resources, business experience or knowledge, cannot be expected to protect their own interests adequately.
618.41(6)(c)
(c)
Exclusion of individual insurers. The commissioner may prohibit an individual insurer or group policyholder, including but not limited to a risk purchasing group, from making any contracts under
sub. (1) or issuing evidence of coverage and may prohibit all insurance agents and brokers from dealing with the insurer or group policyholder, if:
618.41(6)(c)3.
3. The commissioner has reason to believe that the insurer, or the insurer which issued the policy to a group policyholder, is in an unsound condition or the insurer or group policyholder is operated in a fraudulent, dishonest or incompetent manner or in violation of the law of its domicile.
618.41(6)(d)
(d)
Evaluations. The commissioner may issue lists of unauthorized nondomestic insurers whose solidity he or she believes to be doubtful or whose practices he or she believes to be objectionable. The commissioner may issue lists of unauthorized nondomestic insurers he or she believes to be reliable and solid. The commissioner may also issue other relevant evaluations of unauthorized insurers. No action may lie against the commissioner or any employe of the office for anything said in the issuance of such lists and evaluations.
618.41(6m)
(6m) Rustproofing warranties insurance. An insurer issuing a policy of insurance to cover a warranty, as defined in
s. 100.205 (1) (g), shall comply with
s. 632.18 and the policy shall be on a form approved by the commissioner under
s. 631.20.
618.41(7)(a)(a) The commissioner may, pursuant to
s. 628.04 (2), issue to any licensed agent or broker a surplus lines license granting authority to procure insurance under this section.
618.41(7m)
(7m) Risk purchasing groups; licensed agents. A natural person may not solicit, negotiate or obtain liability insurance for a risk purchasing group from an unauthorized insurer unless the natural person is licensed as a surplus lines agent under
sub. (7).
618.41(8)
(8) Surplus lines agents, brokers and group policyholders. 618.41(8)(a)(a)
Responsibility. An agent or broker, or any other person who offers liability insurance coverage under a group policy, may not place insurance under this section with, or solicit the purchase of coverage under a group policy issued by, an unauthorized insurer if all of the following exist:
618.41(8)(a)1.
1. The insurer is financially unsound, engaging in unfair practices or otherwise substandard.
618.41(8)(a)2.
2. The agent, broker or other person fails to give the applicant written notice of the insurer's deficiencies.
618.41(8)(a)3.
3. The agent, broker or other person either knows of, or fails to adequately investigate, the insurer's financial condition and general reputation.
618.41(8)(b)
(b)
Retention of notice. An agent, broker or group policyholder shall keep in its office for at least 5 years any notice provided under
par. (a) 2.
618.41(8)(c)
(c)
Financially sound. To be financially sound for purposes of
par. (a) 1., an insurer must be able to satisfy standards comparable to those applied under the laws of this state to authorized insurers.
618.41(9)
(9) Requirements for surplus lines policies. 618.41(9)(a)(a)
Required information. Every new or renewal insurance policy procured and delivered under this section shall bear the name and address of the insurance agent or broker who procured it and, except for ocean marine insurance, shall have stamped or affixed upon it the following: "This insurance contract is with an insurer which has not obtained a certificate of authority to transact a regular insurance business in the state of Wisconsin, and is issued and delivered as a surplus line coverage pursuant to
s. 618.41 of the Wisconsin Statutes.
Section 618.43 (1), Wisconsin Statutes, requires payment by the policyholder of 3% tax on gross premium". Every ocean marine insurance policy shall have stamped or affixed upon it the above statement except that the tax shall be one-half of one per cent on gross premium.
618.41(9)(b)
(b)
Additional required information. The policy shall include a description of the subject of the insurance, and indicate the coverage, conditions and term of the insurance, the premium charged and premium taxes to be collected from the policyholder, and the name and address of the policyholder and insurer. If the direct risk is assumed by more than one insurer, the policy shall state the names and addresses of all insurers and the portion of the entire direct risk each has assumed.
618.41(10)
(10) Issuance of evidence of insurance. Upon placing a new or renewal coverage under this section, the agent or broker shall promptly deliver to the policyholder or his or her agent evidence of the insurance consisting either of the policy as issued by the insurer or, if the policy is not then available, a certificate, cover note or other confirmation of insurance.
618.41(11)
(11) Form regulation. The commissioner may by rule subject policies written under this section to as much of the regulation provided by
chs. 600 to
646 and
655 for comparable policies written by authorized insurers as the commissioner finds to be necessary to protect the interests of insureds and the public in this state.
618.41 Annotation
Independent actual notice to policyholder in absence of stamping or affixing information required under (9) (a) to policy held insufficient. Combined Investigative v. Scottsdale Ins., 165 W (2d) 262, 477 NW (2d) 82 (Ct. App. 1991).
618.415
618.415
Group liability insurance issued by an unauthorized insurer. 618.415(1)(1)
Notice before taking application. A person may not take an application for liability insurance coverage under a group liability insurance policy which is issued by an unauthorized insurer and which is for a risk that resides or is otherwise located in this state, unless before taking the application the person gives the applicant clear and prominent written notice of all of the following:
618.415(1)(b)
(b) That the insurer has not obtained a certificate of authority in this state and is not regulated in this state.
618.415(1)(c)
(c) That the risk is not protected by the Wisconsin insurance security fund.
618.415(1)(d)
(d) Any other information required by the commissioner by rule.
618.415(2)
(2) Notice in the evidence of insurance. A person may not provide liability insurance coverage under a group insurance policy which is issued by an unauthorized insurer to a member for a risk that resides or is otherwise located in this state, unless the evidence of insurance clearly and prominently includes all of the following:
618.415(2)(b)
(b) That the risk is not protected by the Wisconsin insurance security fund.
618.415(2)(c)
(c) Any other information required by the commissioner by rule.
618.415 History
History: 1987 a. 247.
618.42
618.42
Direct procurement of insurance. 618.42(1)
(1)
Permitted direct procurement. Subject to the restrictions of this section, any person seeking insurance may obtain it if no agent or broker resident or doing business in this state is involved and if negotiations occur primarily outside this state. Negotiations by mail occur within this state if a letter is sent from or to an address in this state.
618.42(2)
(2) Reports and taxation. Every policyholder who procures or renews insurance otherwise subject to
chs. 600 to
646 and
655 from any insurer not authorized to do business in this state, other than insurance procured under
s. 618.41 and the renewal of guaranteed renewable insurance lawfully issued outside this state, shall within 60 days after the insurance procured or renewed report to the commissioner in such form as he or she requires and pay the taxes specified by
s. 618.43.
618.42(3)
(3) Prohibited placement with unauthorized insurers. 618.42(3)(a)(a)
Sales of personal property. Any insurance on personal property sold on the instalment plan or under a conditional sales contract or equivalent security agreement under
chs. 401 to
411 for which a charge is made to the buyer as a part of the consideration in the agreement of sale shall be placed with an insurer authorized to do business in this state.
618.42(3)(c)
(c)
Compulsory insurance. Whenever the law of this state requires a person to purchase insurance on risks in this state, the person shall obtain it from an insurer authorized to do business in this state, or under
s. 618.41.
618.43
618.43
Taxation of insurance written by unauthorized insurers. 618.43(1)(a)(a) Except as provided in
par. (b), insurers, agents, brokers and policyholders are liable, as provided in
sub. (2), for a premium tax of 3% of gross premiums charged for insurance, excluding annuities, if any of the following are satisfied:
618.43(1)(a)2.
2. The insurance is transacted by an unauthorized insurer which is a risk retention group.
618.43(1)(a)3.
3. The insurance is transacted by an unauthorized insurer for a risk purchasing group for coverage of risks which reside or are otherwise located in this state.
618.43(1)(b)
(b) For ocean marine insurance, the tax required under this subsection is 0.5% of gross premiums charged for the insurance.
618.43(1)(c)
(c) If the tax required under this subsection is not paid within the time prescribed under
sub. (3), the commissioner shall impose a penalty of 25%, plus one percent per month from default until payment.
618.43(1)(d)
(d) Any insurance business transacted in violation of the law is subject to a premium tax of 5% of gross premiums charged for the insurance, except that for ocean marine insurance the tax is 2% of gross premiums charged for the insurance.
618.43(2)
(2) Payment of tax. The insurance agent or broker and the policyholder are jointly and severally liable for the payment of the tax required under
sub. (1) on business written under
s. 618.41 (1), and the insurer, insurance agent or broker and policyholder are jointly and severally liable for the payment of any other tax required under
sub. (1). The tax shall ultimately be paid by the policyholder. Absorption of the tax by either the agent or broker or the insurer is an unfair method of competition under
s. 628.34 (2) (b).
618.43(3)
(3) Accounting and reporting. The commissioner shall by rule prescribe accounting and reporting forms and procedures for insurers, agents or brokers and policyholders for the purpose of determining the amount of the taxes owed, and the manner and time of payment.
618.43(4)
(4) Applicability of tax law. Section 76.68 is applicable to any tax payable under this section.
618.43(5)
(5) Exclusive nature. The tax under this section is in lieu of all other taxes on insurance business and of fire department dues.
618.43(6)
(6) Allocation of tax. If a policy covers risks that are only partially located in this state, the premium shall be reasonably allocated among the states on the basis of risk locations in computing the tax, except that all premiums received in this state or charged on policies written or negotiated in this state shall be taxable in full under this section, with a credit for any tax actually paid in another state to the extent of a reasonable allocation on the basis of risk locations.
618.43(7)
(7) Taxes as trust funds. All premium taxes collected under this section by an agent or broker or by an insurer are the property of this state. They shall be kept in a separate account and may not be commingled with funds belonging to anyone else.
618.43(8)
(8) Taxes as preferred claims. If the property of any agent or broker is seized upon any process in any court in this state, or when his or her business is suspended by the action of creditors or put into the hands of any assignee, receiver or trustee, all taxes and penalties due the state from him or her under this section are preferred claims and the state is to that extent a preferred creditor.
618.44
618.44
Effect of illegal contracts. An insurance contract entered into in violation of this chapter is unenforceable by, but enforceable against, the insurer. The terms of the contract are governed by
chs. 600 to
646 and
655 and rules promulgated thereunder. If the insurer does not pay a claim or loss payable under the contract, any person who assisted in the procurement of the contract is liable to the insured for the full amount of the claim or loss, if the person knew or should have known the contract was illegal.
618.45
618.45
Servicing of contracts made out of state. 618.45(1)(1)
Servicing permitted. A nondomestic insurer which does not have a certificate of authority to do business in this state under
s. 618.12 may in this state collect premiums and adjust losses and do all other acts reasonably incidental thereto, with respect to contracts lawfully made outside this state.
618.45(2)
(2) Contract changes prohibited. Nothing in
sub. (1) shall be interpreted to permit any renewal, extension, increase or other substantial change in the terms of any contract under
sub. (1) unless:
618.45(2)(b)
(b) The contract is for life or disability insurance; or
618.45(2)(c)
(c) It is permitted by a rule promulgated by the commissioner, under circumstances in which the interests of the policyholder and the public appear to be sufficiently protected.
618.45 History
History: 1971 c. 260.
618.47
618.47
Defense of action by unauthorized person. 618.47(1)(1)
Conditions for filing. No pleading, notice, order or process in any court action or in any administrative proceeding before the commissioner instituted against an unauthorized person under
ss. 601.72 or
601.73 may be filed by or on behalf of the unauthorized person unless the person either:
618.47(1)(a)
(a) Deposits with the clerk of the court in which the action or proceeding is pending, or with the commissioner in administrative proceedings before the commissioner, bond with sureties in an amount fixed by the court or the commissioner, sufficient to secure the payment of any probable final judgment or order. The court, or the commissioner in administrative proceedings before the commissioner, may make an order dispensing with a deposit or bond where the person makes a satisfactory showing that in a state of the United States he or she maintains funds or securities, in trust or otherwise, sufficient and available to satisfy any probable final judgment or order; or
618.47(1)(b)
(b) Procures proper authorization to do an insurance business in this state.
618.47(2)
(2) Postponement. The court in any such action or proceeding, or the commissioner in any administrative proceeding before the commissioner, may order any postponement necessary to afford the unauthorized person reasonable opportunity to comply with
sub. (1).
618.47(3)
(3) Exception. Subsection (1) does not prevent an unauthorized person from filing a motion to quash a writ or to set aside service on the ground that he or she has not done an insurance business in this state.
618.47 History
History: 1971 c. 260;
1979 c. 102 ss.
149,
236 (5), (8).
618.48
618.48
Attorney fees. In an action against an unauthorized person upon a contract of insurance issued in violation of this chapter, if the unauthorized person fails to make payment in accordance with the contract for 30 days after the payment is due and demand is made, and it appears to the court that the refusal was without reasonable cause, the court may allow the plaintiff a reasonable attorney fee and include the fee in any judgment that may be rendered in the action. Failure of the unauthorized person to defend any such action is prima facie evidence that the failure to pay was without reasonable cause. If the unauthorized person knew or should have known that the contract was in violation of this chapter, the court may also award punitive damages.
618.48 History
History: 1971 c. 260.
