645.57(2)(a)(a) Upon the basis of the report provided in
sub. (1), including any supplements and amendments thereto, the court may levy ex parte one or more assessments against all members of the insurer who are subject to assessment.
645.57(2)(b)
(b) Subject to any applicable legal limits on assessability, the aggregate assessment shall be for the amount that the sum of the probable liabilities, the expenses of administration and the estimated cost of collection of the assessment exceeds the value of existing assets, with due regard being given to assessments that cannot be collected economically.
645.57(3)
(3) Order to show cause. After levy of assessment under
sub. (2), the court shall issue an order directing each member who has not paid the assessment pursuant to the order to show cause why the liquidator shall not have a judgment therefor. If a member of the insurer also appears to be indebted to the insurer apart from the assessment, the court, upon application of the liquidator, may also direct the member to show cause why the member should not pay the other indebtedness. Liability for such indebtedness shall be determined in the same manner and at the same time as the liability to pay the assessment.
645.57(4)
(4) Notice. The liquidator shall give notice of the order to show cause by publication if so directed by the court and by first class mail to each member liable thereunder mailed at least 20 days before the return day of the order to show cause to the member's last-known address as it appears on the records of the insurer.
645.57(5)(a)(a) If a member does not appear and serve duly verified objections upon the liquidator upon the return day of the order to show cause under
sub. (3), the court shall make an order adjudging the member liable to the liquidator for the amount of the assessment against the member and other indebtedness, under
sub. (3), together with costs.
645.57(5)(b)
(b) If on such return day, the member appears and serves duly verified objections upon the liquidator, the court may hear and determine the matter or may appoint a referee to hear it and make such order as the facts warrant. Any order made by a referee under this paragraph shall have the same force and effect as if it were a judgment of the court, subject to review by the court upon application within 30 days.
645.57(6)
(6) Collection. The liquidator may enforce any order or collect any judgment under
sub. (5) by any lawful means.
645.58
645.58
Reinsurer's liability; arbitration clauses. 645.58(1)(1)
Liability. The amount recoverable by the liquidator from a reinsurer shall not be reduced as a result of delinquency proceedings, regardless of any provision in the reinsurance contract or other agreement. Payment made directly to an insured or other creditor shall not diminish the reinsurer's obligation to the insurer's estate except when the reinsurance contract provided for direct coverage of an individual named insured and the payment was made in discharge of that obligation.
645.58(2)
(2) Arbitration. After December 31, 1989, a domestic insurer may not enter into a reinsurance contract that contains an arbitration provision permitting its reinsurer to require arbitration of an action on or related to the contract when the domestic insurer is subject to a delinquency proceeding under this subchapter.
645.58 History
History: 1989 a. 23.
645.59
645.59
Uncollected, unearned premiums. An agent or broker who is a resident of this state is not liable to the liquidator of a domestic or foreign insurer for the amount of any uncollected, unearned premium.
645.59 History
History: 1987 a. 325.
645.60
645.60
Applicability of claims settlement provisions to loss claims. Sections 645.46 (18),
645.61 (2) and
(3),
645.63 (1),
(3),
(4) and
(6),
645.64 (3),
645.65,
645.71,
645.86 and
645.87 (2) do not apply to those loss claims that are subject to
ch. 646 or to corresponding laws of other states that conform to
s. 646.60 (1). In addition,
ss. 645.61 (1),
645.62 (1),
645.63 (2),
645.64 (1),
(2) and
(4),
645.83 (3) and
645.87 (1) do not apply to those loss claims under contracts subject to
s. 646.35 or to corresponding laws of other states that conform to
ss. 646.35 and
646.60 (1).
645.60 History
History: 1979 c. 109;
1985 a. 216.
645.61
645.61
Filing of claims. 645.61(1)(1)
Deadline for filing. Proof of all claims must be filed with the liquidator in the form required by
s. 645.62 on or before the last day for filing specified in the notice required under
s. 645.47, except that proof of claims under
s. 645.68 (9) to
(11) need not be filed at all, and proof of claims for unearned premiums and claims for cash surrender values or other investment values in life insurance and annuities need not be filed unless the liquidator expressly so requires.
645.61(2)
(2) Excused late filings. For a good cause shown, the liquidator shall recommend and the court shall permit a claimant making a late filing to share in dividends, whether past or future, as if the claim were not late, to the extent that any such payment will not prejudice the orderly administration of the liquidation. Good cause includes but is not limited to the following:
645.61(2)(a)
(a) That existence of a claim was not known to the claimant and which the claimant filed within 30 days after learning of it;
645.61(2)(b)
(b) That a claim for unearned premiums or for cash surrender values or other investment values in life insurance or annuities which was not required to be filed was omitted from the liquidator's recommendations to the court under
s. 645.71, and that it was filed within 30 days after the claimant learned of the omission;
645.61(2)(c)
(c) That a transfer to a creditor was avoided under
ss. 645.52 to
645.54 or was voluntarily surrendered under
s. 645.55, and that the filing satisfies the conditions of
s. 645.55;
645.61(2)(d)
(d) That valuation under
s. 645.67 of security held by a secured creditor shows a deficiency, which is filed within 30 days after the valuation; and
645.61(2)(e)
(e) That a claim was contingent and became absolute, and was filed within 30 days after it became absolute.
645.61(3)
(3) Unexcused late filings. The liquidator may consider any claim filed late which is not covered by
sub. (2), and permit it to receive dividends, other than the first dividend, which are subsequently declared on any claims of the same or lower priority if the payment does not prejudice the orderly administration of the liquidation. The late-filing claimant shall receive, at each distribution, the same percentage of the amount allowed on the late claim as is then being paid to other claimants of the same priority plus the same percentage of the amount allowed on the late claim as is then being paid to claimants of any lower priority. This shall continue until the late claim has been paid in full.
645.61(4)
(4) Filing of claims by funds. Claims by funds under
s. 646.33 and corresponding provisions of funds of other jurisdictions that satisfy
s. 646.60 (1) (b) shall be filed periodically by the funds pursuant to rules promulgated by the commissioner.
645.61 History
History: 1971 c. 260;
1979 c. 93,
102,
109.
645.62(1)(a)(a) Unless otherwise prescribed by the liquidator, a proof of claim shall consist of a verified statement that includes all of the following that are applicable:
645.62(1)(a)1.
1. The particulars of the claim, including the consideration given for it.
645.62(1)(a)2.
2. The identity and amount of the security on the claim.
645.62(1)(a)4.
4. That the sum claimed is justly owing and that there is no setoff, counterclaim or defense to the claim.
645.62(1)(a)5.
5. Any right of priority of payment or other specific right asserted by the claimant.
645.62(1)(a)6.
6. A copy of any written instrument which is the foundation of the claim.
645.62(1)(a)7.
7. In the case of any 3rd party claim based on a liability policy issued by the insurer, a conditional release of the insured pursuant to
s. 645.64 (1).
645.62(1)(a)8.
8. The name and address of the claimant and the attorney, if any, who represents the claimant.
645.62(1)(b)
(b) No claim need be considered or allowed if it does not contain all the information under
par. (a) which may be applicable. The liquidator may require that a prescribed form be used and may require that other information and documents be included.
645.62(2)
(2) Supplementary information. At any time the liquidator may request the claimant to present information or evidence supplementary to that required under
sub. (1), and may take testimony under oath, require production of affidavits or depositions or otherwise obtain additional information or evidence.
645.62(3)
(3) Conclusiveness of judgments. No judgment or order against an insured or the insurer entered after the filing of a successful petition for liquidation and no judgment or order against an insured or the insurer entered at any time by default or by collusion need be considered as evidence of liability or of the amount of damages. No judgment or order against an insured or the insurer entered within 4 months before the filing of the petition need be considered as evidence of liability or of the amount of damages.
645.62 History
History: 1979 c. 102,
110;
1989 a. 23.
645.63(1)(1)
Claims contingent on judgments. The claim of a 3rd party which is contingent only on the party's first obtaining a judgment against the insured shall be considered and allowed as if there were no such contingency.
645.63(2)
(2) Claims under terminated policies. Any claim that would have become absolute if there had been no termination of coverage under
s. 645.43, and which was not covered by insurance acquired to replace the terminated coverage, shall be allowed as if the coverage had remained in effect, unless at least 10 days before the insured event occurred either the claimant had actual notice of the termination or notice was mailed to the claimant as prescribed by
s. 645.47 (1) or
645.48 (1). If allowed the claim shall share in distributions under
s. 645.68 (8).
645.63(3)
(3) Other contingent claims. A claim may be allowed even if contingent, if it is filed in accordance with
s. 645.61 (2). It may be allowed and may participate in all dividends declared after it is filed, to the extent that it does not prejudice the orderly administration of the liquidation.
645.63(4)
(4) Immature claims. Claims that are due except for the passage of time shall be treated as absolute claims are treated, except that where justice requires the court may order them discounted at the legal rate of interest.
645.63(5)
(5) Claims under security fund. The board of the insurance security fund shall file a claim with the liquidator for all claims to which the fund has been subrogated under
s. 646.33 (1).
645.63(6)
(6) Claims under employment contracts with directors and others. Claims made under employment contracts by directors, principal officers or persons in fact performing similar functions or having similar powers are limited to payment for services rendered prior to the issuance of any order of rehabilitation or liquidation under
s. 645.32 or
645.42.
645.63 Annotation
Sub. (1) governs technically contingent claims of 3rd parties, (2) governs truly contingent claims, and (3) governs other contingent claims, including technically contingent claims of those not 3rd parties. Bell Captain North v. Anderson, 112 W (2d) 396, 332 NW (2d) 860 (Ct. App. 1983).
645.64
645.64
Special provisions for third party claims. 645.64(1)(1)
Third party's claim. Whenever any third party asserts a cause of action against an insured of an insurer in liquidation, the third party may file a claim with the liquidator. The filing of the claim shall release the insured's liability to the third party on that cause of action in the amount of the applicable policy limit, but the liquidator shall also insert in any form used for the filing of third party claims appropriate language to constitute such a release. The release shall be void if the insurance coverage is avoided by the liquidator.
645.64(2)
(2) Insured's claim. Whether or not the 3rd party files a claim, the insured may file a claim on his or her own behalf in the liquidation. If the insured fails to file a claim by the date for filing claims specified in the order of liquidation or within 60 days after mailing of the notice required by
s. 645.47 (1) (b), whichever is later, the insured is an unexcused late filer.
645.64(3)(a)(a) The liquidator shall make recommendations to the court under
s. 645.71 for the allowance of an insured's claim under
sub. (2) after consideration of the probable outcome of any pending action against the insured on which the claim is based, the probable damages recoverable in the action and the probable costs and expenses of defense. After allowance by the court, the liquidator shall withhold any dividends payable on the claim, pending the outcome of litigation and negotiation with the insured. Whenever it seems appropriate, the liquidator shall reconsider the claim on the basis of additional information and amend the recommendations to the court. The insured shall be afforded the same notice and opportunity to be heard on all changes in the recommendation as in its initial determination. The court may amend its allowance as it thinks appropriate.
645.64(3)(b)
(b) As claims against the insured are settled or barred, the insured shall be paid from the amount withheld the same percentage dividend as was paid on other claims of like priority, based on the lesser of the following:
645.64(3)(b)1.
1. The amount actually recovered from the insured by action or paid by agreement plus the reasonable costs and expenses of defense.
645.64(3)(c)
(c) After all claims are settled or barred, any sum remaining from the amount withheld shall revert to the undistributed assets of the insurer. Delay in final payment under this subsection shall not be a reason for unreasonable delay of final distribution and discharge of the liquidator.
645.64(4)
(4) Multiple claims. If several claims founded upon one policy are filed, whether by third parties or as claims by the insured under this section, and the aggregate allowed amount of the claims to which the same limit of liability in the policy is applicable exceeds that limit, each claim as allowed shall be reduced in the same proportion so that the total equals the policy limit. Claims by the insured shall be evaluated as in
sub. (3). If any insured's claim is subsequently reduced under
sub. (3), the amount thus freed shall be apportioned ratably among the claims which have been reduced under this subsection.
645.64 History
History: 1979 c. 102;
1995 a. 225.
645.64 Annotation
Third party and insured are not required to file their claims with liquidator. Riley v. Heil, 624 F Supp. 695 (1985)
645.65
645.65
Disputed claims. 645.65(1)(1)
Notice of rejection and request for hearing. When a claim is denied in whole or in part by the liquidator, written notice of the determination and of the right to object shall be given promptly to the claimant and the claimant's attorney by first class mail at the address shown in the proof of claim. Within 60 days from the mailing of the notice, the claimant may file objections with the court. If objections are not filed within that period, the claimant may not further object to the determination.
645.65(2)
(2) Notice of hearing. Whenever objections are filed with the court, the liquidator shall ask the court for a hearing as soon as practicable and give notice of the hearing by first class mail to the claimant or the claimant's attorney and to any other persons directly affected, not less than 10 nor more than 20 days before the date of the hearing. The matter may be heard by the court or by a court-appointed referee.
645.65 History
History: 1979 c. 93,
102;
1991 a. 316.
645.66
645.66
Claims of surety. Whenever a creditor whose claim against an insurer is secured in whole or in part by the undertaking of another person fails to prove and file that claim, the other person may do so in the creditor's name, and is subrogated to the rights of the creditor, whether the claim has been filed by the creditor or by the other person in the creditor's name, to the extent that the other person discharges the undertaking. In the absence of an agreement with the creditor to the contrary, the other person shall not be entitled to any dividend until the amount paid to the creditor on the undertaking plus the dividends paid on the claim from the insurer's estate to the creditor equals the amount of the entire claim of the creditor. Any excess received by the creditor shall be held in trust for such other person.
645.66 History
History: 1979 c. 93,
102,
177.
645.67
645.67
Secured creditors' claims. 645.67(1)
(1) The value of any security held by a secured creditor shall be determined in one of the following ways, as the court directs:
645.67(1)(a)
(a) By converting the same into money according to the terms of the agreement pursuant to which the security was delivered to such creditor;
645.67(1)(b)
(b) By agreement, arbitration, compromise or litigation between the creditor and the liquidator.
645.67(2)
(2) The determination shall be under the supervision and control of the court. The amount so determined shall be credited upon the secured claim, and any deficiency shall be treated as an unsecured claim. If the claimant surrenders his or her security to the liquidator, the entire claim shall be allowed as if unsecured.
645.67 History
History: 1979 c. 102 s.
236 (13).
645.68
645.68
Order of distribution. The order of distribution of claims from the insurer's estate shall be as stated in this section. The first $50 of the amount allowed on each claim in the classes under
subs. (2) to
(6) shall be deducted from the claim and included in the class under
sub. (8). Claims may not be cumulated by assignment to avoid application of the $50 deductible provision. Subject to the $50 deductible provision, every claim in each class shall be paid in full or adequate funds retained for the payment before the members of the next class receive any payment. No subclasses shall be established within any class.
645.68(1)
(1) Administration costs. The costs and expenses of administration, including but not limited to the following: the actual and necessary costs of preserving or recovering the assets of the insurer; compensation for all services rendered in the liquidation; any necessary filing fees; the fees and mileage payable to witnesses; and reasonable attorney fees.
645.68(2)(a)(a) Debts due to employes for services performed, not to exceed $1,000 to each employe which have been earned within one year before the filing of the petition for liquidation. Officers shall not be entitled to the benefit of this priority.
645.68(2)(b)
(b) Such priority shall be in lieu of any other similar priority authorized by law as to wages or compensation of employes.
645.68(3)
(3) Loss claims. All claims under policies for losses incurred including third party claims, and all claims against the insurer for liability for bodily injury or for injury to or destruction of tangible property which are not under policies, except the first $200 of losses otherwise payable to any claimant under this subsection. All claims under life insurance and annuity policies, whether for death proceeds, annuity proceeds or investment values, shall be treated as loss claims. Claims may not be cumulated by assignment to avoid application of the $200 deductible provision. That portion of any loss for which indemnification is provided by other benefits or advantages recovered or recoverable by the claimant shall not be included in this class, other than benefits or advantages recovered or recoverable in discharge of familial obligations of support or by way of succession at death or as proceeds of life insurance, or as gratuities. No payment made by an employer to an employe shall be treated as a gratuity. The claims described in
s. 645.69 are among the claims not subject to this subsection.
645.68(4)
(4) Unearned premiums and small loss claims. Claims under nonassessable policies for unearned premiums or other premium refunds and the first $200 of loss excepted by the deductible provision in
sub. (3).
645.68(5)
(5) Residual classification. All other claims including claims of the federal or any state or local government, not falling within other classes under this section and claims described in
s. 645.69. Claims, including those of any governmental body, for a penalty or forfeiture, shall be allowed in this class only to the extent of the pecuniary loss sustained from the act, transaction or proceeding out of which the penalty or forfeiture arose, with reasonable and actual costs occasioned thereby. The remainder of such claims shall be postponed to the class of claims under
sub. (8).
645.68(6)
(6) Judgments. Claims based solely on judgments. If a claimant files a claim and bases it both on the judgment and on the underlying facts, the claim shall be considered by the liquidator who shall give the judgment such weight as he or she deems appropriate. The claim as allowed shall receive the priority it would receive in the absence of the judgment. If the judgment is larger than the allowance on the underlying claim, the remaining portion of the judgment shall be treated as if it were a claim based solely on a judgment.
645.68(7)
(7) Interest on claims already paid. Interest at the legal rate compounded annually on all claims in the classes under
subs. (1) to
(6) from the date of the petition for liquidation or the date on which the claim becomes due, whichever is later, until the date on which the dividend is declared. The liquidator, with the approval of the court, may make reasonable classifications of claims for purposes of computing interest, may make approximate computations and may ignore certain classifications and time periods that are trifling.
645.68(8)
(8) Miscellaneous subordinated claims. The remaining claims or portions of claims not already paid, with interest as in
sub. (7):
645.68(8)(a)
(a) The first $50 of each claim in the classes under
subs. (2) to
(6) subordinated under this section;
