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 employee 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 under this section 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 may not place insurance under this section with, and a person who offers liability insurance coverage under a group policy may not 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, unless this state is the insured's home state, in which case
s. 618.416 applies.
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 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 percent tax 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(12)
(12) Application when this state is not the insured's home state. The placement of insurance under this section is not subject to
subs. (4),
(7m),
(8),
(9), or
(10) if this state is not the insured's home state and the placement complies with the laws of the insured's home state.
618.41 Annotation
Independent actual notice to a policyholder, in the absence of stamping or affixing the information required under sub. (9) (a) to the policy, was insufficient. Combined Investigative v. Scottsdale Ins.,
165 Wis. 2d 262,
477 N.W.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.
618.416
618.416
Qualification for placement of surplus lines insurance with an unauthorized insurer. An intermediary may not place surplus lines insurance under
s. 618.41 with an unauthorized insurer if this state is the home state of the proposed insured, unless at the time of placement all of the following apply to the unauthorized insurer:
618.416(1)
(1) If the unauthorized insurer is domiciled in a United States jurisdiction, the insurer satisfies all of the following:
618.416(1)(a)
(a) In its domiciliary jurisdiction, the unauthorized insurer is authorized to write the type of insurance to be placed with the insurer.
618.416(1)(b)
(b) Either the unauthorized insurer has capital and surplus or its equivalent under the laws of its domiciliary jurisdiction that equals the greater of either the minimum capital and surplus requirements under the laws of this state or $15,000,000 or the commissioner affirmatively finds that the unauthorized insurer's capital and surplus are acceptable. The commissioner's finding shall be based on factors that include quality of management, capital and surplus of any parent company, company underwriting profit and investment income trends, market availability, and company record and reputation within the industry. In no event may the commissioner find that the unauthorized insurer's capital and surplus are acceptable if the unauthorized insurer's capital and surplus are less than $4,500,000.
618.416(1)(c)
(c) The unauthorized insurer provides to the commissioner, no more than 6 months after the close of the period reported on, a certified copy of its current annual statement that is filed and approved by the regulatory authority in the unauthorized insurer's domicile and certified by an accounting or auditing firm licensed in the jurisdiction of the unauthorized insurer's domicile.
618.416(2)
(2) If the unauthorized insurer is an alien insurer, the insurer is listed on the quarterly listing of alien insurers maintained by the international insurers department of the National Association of Insurance Commissioners and meets additional requirements regarding the use of the list established by rule of the commissioner.
618.416 History
History: 2011 a. 224.
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 installment 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.
618.42 Cross-reference
Cross-reference: See also ss. Ins. 6.17 and 6.19, Wis. adm. code.
618.43
618.43
Taxation of insurance written by unauthorized insurers. 618.43(1)(a)(a) Subject to
par. (bc), insurers, agents, brokers, and policyholders are liable, as provided in
sub. (2), for a premium tax of 3 percent of gross premiums charged for insurance, excluding annuities, if any of the following is satisfied:
618.43(1)(a)2.
2. The insurance is transacted by an unauthorized insurer that is a risk retention group, including a foreign risk retention group authorized to provide health care liability insurance under
s. 655.23 (3) (am) that has not been issued a certificate of authority under
s. 618.12.
618.43(1)(a)3.
3. The insurance is transacted by an unauthorized insurer for a risk purchasing group.
618.43(1)(bc)
(bc) Notwithstanding any other provision of this section, with respect to premiums charged on policies issued or renewed on or after July 21, 2011, for insurance to which
par. (a) applies, the tax under
par. (a) is required only if the home state of the insured is this state, and it shall be levied on the entire gross premium charged, including premium attributable to those portions of the risk located outside of this state.
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 percent, 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 percent 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. With respect to gross premiums charged on policies issued or renewed before July 21, 2011, 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, to be held in trust for the state.
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.
618.43 Cross-reference
Cross-reference: See also ss. Ins. 6.17 and 6.19, Wis. adm. code.
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.
618.49
618.49
Investigation, disclosure and taxation of insurance contracts. 618.49(1)(1)
Report on insurance. Whenever the commissioner has reason to believe that insurance has been effectuated by or for any person in this state with an unauthorized insurer, the commissioner may in writing order the person to produce for examination all insurance contracts and other documents evidencing insurance contracts and other documents evidencing insurance with both authorized and unauthorized insurers and to disclose to the commissioner the amount of insurance, name and address of each insurer, gross amount of premium and the name and address of any person who has assisted in the effectuation of the insurance.
618.49(2)
(2) Uninsured property. The commissioner may order any owner of property situated in this state, other than property owned by a unit of government that maintains a public fire department and furnishes full fire protection for the property, to furnish in addition to the information furnished under
sub. (1) information about amounts paid to or credited to any insurance fund or other reserve against loss or damage by fire. If the owner of the property has not insured it, the owner shall pay under
s. 601.93 (2) an amount equal to 2 percent of the annual premium that would have been charged for insuring such property by authorized insurers using the rates promulgated by the rate service organization of which the state insurance fund is a member or subscriber under
s. 604.04 (5), or which is designated for that purpose by the commissioner.
