628.46 History
History: 1975 c. 375;
1979 c. 109 s.
16;
1979 c. 110 s.
60 (13);
1981 c. 38 s.
24; Stats. 1981 s. 628.46;
2001 a. 16,
65.
628.46 Annotation
Receipt of a legally binding offer to settle a claim against the insured is not required for the insured to have a claim against the insurer for bad-faith failure to settle. Alt v. American Family Mutual Insurance Co.
71 Wis. 2d 340,
237 N.W.2d 706 (1976).
628.46 Annotation
An insured may bring a tort action against an insurer for failure to exercise good faith in settling the insured's claim. This section is unrelated to such a tort action. Anderson v. Continental Insurance Co.
85 Wis. 2d 675,
271 N.W.2d 368 (1978).
628.46 AnnotationThe tort of bad faith handling of a claim is discussed. Davis v. Allstate Ins. Co.
101 Wis. 2d 1,
303 N.W.2d 596 (1981).
628.46 Annotation
A third-party claimant cannot assert a bad faith claim against an insurer. Kranzush v. Badger State Mutual Casualty Co.
103 Wis. 2d 56,
307 N.W.2d 256 (1981).
628.46 Annotation
This section applies to service insurance corporations. Physicians Service Insurance Corp. v. Mitchell,
114 Wis. 2d 338,
338 N.W.2d 326 (Ct. App. 1983).
628.46 Annotation
A jury's imposition of punitive damages and finding of bad faith is adequate to show that the insurer did not have reasonable proof that it was not responsible for a claim and supports an award of prejudgment interest under sub. (1). Upthegrove v. Lumbermans Mutual Insurance Co.
146 Wis. 2d 470,
431 N.W.2d 689 (Ct. App. 1988).
628.46 Annotation
Interest under s. 807.01 (4) is not in addition to interest under sub. (1). Upthegrove v. Lumbermans Insurance Co.
152 Wis. 2d 7,
447 N.W.2d 367 (Ct. App. 1989).
628.46 Annotation
This section makes no distinction between the payment of claims based on judgments and all other claims; a claim may be due under sub. (2) far in advance of a judgment or award. Fritsche v. Ford Motor Credit Co.
171 Wis. 2d 280,
491 N.W.2d 119 (Ct. App. 1992).
628.46 Annotation
Whether to assess 12 percent interest is dependent on whether the insurer had reasonable proof establishing that it was not responsible for payment. U.S. Fire Insurance Co. v. Good Humor Corp.
173 Wis. 2d 804,
496 N.W.2d 730 (Ct. App. 1993).
628.46 Annotation
This section applies to the insurance company of a negligent tortfeasor and, thus, allows the recovery of interest by a 3rd-party claimant. When there is clear liability, a sum certain owed, and written notice of both, the plain language of this section, incorporating by reference s. 646.31 (2), imposes 12 percent simple interest on overdue payments to 3rd-party claimants. Kontowicz v. American Standard Insurance Co. of Wisconsin,
2006 WI 48,
290 Wis. 2d 302,
714 N.W.2d 105,
03-2177.
628.46 Annotation
An insurer's subrogation interest did not permit it to step into the insured's shoes to assert a 12 percent interest claim under the facts and circumstances of the case. Legal subrogation gives indemnity only, and an insurer who possesses a cause of action for subrogation cannot recover beyond the amount actually dispersed by it. Zurich American Insurance Company v. Wisconsin Physicians Services Insurance Corporation,
2007 WI App 259,
306 Wis. 2d 617,
743 N.W.2d 710,
06-2320.
628.46 Annotation
“Reasonable proof" in sub. (1) means that amount of information that is sufficient to allow a reasonable insurer to conclude that it may not be responsible for payment of a claim. Generally, reasonable proof is equated with whether coverage is considered “fairly debatable." An insurer should not have been penalized for exercising its right to litigate when policy language was ambiguous, the court of appeals was divided on the question of coverage, the issue of coverage was one of 1st impression in this state, and administrative rules were subsequently modified to clarify required coverage. Froedtert Memorial Lutheran Hospital, Inc. v. National States Insurance Company,
2009 WI 33,
317 Wis. 2d 54,
765 N.W.2d 251,
07-0934.
628.46 Annotation
This section is limited to situations where an insurer fails to pay an insurance claim within 30 days. In this case an insurer failed to pay a contractual settlement of an insurance claim within 30 days. There is no authority for the proposition that this section can apply when an insurer fails to pay an amount required by a settlement agreement resolving a disputed claim. Singler v. Zurich American Insurance Company,
2014 WI App 108,
357 Wis. 2d 604,
855 N.W.2d 707,
14-0391.
628.46 Annotation
The purpose of this section is to discourage insurance companies from creating unnecessary delays in paying claims and to compensate claimants for the value of the use of their money. If the insurer has “reasonable proof" that it is not responsible, the statute does not apply. Reasonable proof of nonresponsibility is equated with whether the “coverage issue was fairly debatable." Dilger v. Metropolitan Property and Casualty Insurance Company,
2015 WI App 54, 364Wis. 2d 410,
868 N.W.2d 177,
14-1851.
628.46 AnnotationThis section applies to all insurers. Allison v. Ticor Title Ins. Co.
979 F.2d 1187 (1992).
628.46 Annotation
Excess liability insurance. Griffin. 62 MLR 375 (1979).
628.48
628.48
Risk retention groups. 628.48(1)
(1)
Prohibited marketing. A risk retention group may not do any of the following:
628.48(1)(a)
(a) Solicit or sell insurance to any person who is not eligible for membership in the risk retention group.
628.48(1)(b)
(b) Solicit or sell insurance or otherwise operate if the risk retention group is in a hazardous financial condition or is financially impaired.
628.48(2)
(2) Notice in policies. A risk retention group may not issue an insurance policy unless the following notice, in 10-point type, is included on the front page and declarations page of the policy:
Notice
This policy is issued by your risk retention group. Your risk retention group may not be subject to all of the insurance laws and regulations of your state. State insurance insolvency guaranty funds are not available for your risk retention group.
628.48 History
History: 1987 a. 247.
628.49
628.49
Regulation of managing general agents, reinsurance brokers and managers and controlling producers. After considering the applicable model acts adopted by the National Association of Insurance Commissioners, the commissioner may promulgate rules that are reasonably necessary to regulate the business practices and transactions of the following:
628.49(4)
(4) Intermediaries that control an insurer.
628.49 History
History: 1991 a. 269.
COMPENSATION OF INTERMEDIARIES
628.51
628.51
Controlled business. No intermediary may receive any compensation from an insurer for effecting insurance upon the intermediary's property, life or other risk unless during the preceding 12 months the intermediary had effected other insurance with the same insurer with aggregate premiums exceeding the premiums on the intermediary's risks.
628.51 History
History: 1975 c. 371,
421.
628.61
628.61
Sharing commissions. 628.61(1)
(1)
Prohibition. No intermediary or insurer may pay any consideration, nor reimburse out-of-pocket expenses, to any natural person for services performed within this state as an intermediary if he or she knows or should know that the payee is not licensed under
s. 628.04 or
628.09. No natural person may accept compensation for service performed as an intermediary unless the natural person is licensed under
s. 628.04 or
628.09.
628.61(2)
(2) Exceptions. This section does not prohibit:
628.61(2)(a)
(a) The payment of deferred commissions to formerly licensed agent and broker intermediaries or their assignees; or
628.61(2)(b)
(b) The proper exchange of business between agent and broker intermediaries lawfully licensed in this state.
628.61 Cross-reference
Cross-reference: See also s.
Ins 6.66, Wis. adm. code.
628.78
628.78
Benefit plans for agents. A domestic insurer may establish retirement, insurance and other benefit plans for agents on an actuarial basis approved by the commissioner.
628.78 History
History: 1975 c. 371.
REGULATION OF NAVIGATORS
628.90
628.90
Definitions. In this subchapter:
628.90(3)(a)(a) Except as provided in
par. (b), “navigator" means a natural person, or an entity that supervises or employs a natural person, who does all of the following:
628.90(3)(b)
(b) “Navigator" does not include a person acting as an insurance intermediary licensed under
subch. II, but an insurance intermediary may apply to be licensed as a navigator under this subchapter.
628.90(4)
(4) “Nonnavigator assister" means a natural person who has been designated by the exchange, or could reasonably be described as working at the behest of the exchange, as a nonnavigator assister, including an in-person assister, enrollment assister, application assister, or certified application counselor.
628.90 History
History: 2013 a. 20.
628.91
628.91
Requirement of licensure or registration. No natural person or entity may act as a navigator in this state unless licensed or registered as a navigator under
s. 628.92.
628.91 History
History: 2013 a. 20.
628.92
628.92
Issuance of license and registration. 628.92(1)
(1)
Individual license. A natural person applying for a navigator license shall make application to the commissioner on a form developed by the commissioner and shall declare under penalty of refusal, suspension, or revocation of the license that the statements made in the application are true, correct, and complete to the best of the individual's knowledge and belief. Before approving the application, the commissioner shall find that the person satisfies all of the following:
628.92(1)(b)
(b) Resides in this state or maintains his or her principal place of business in this state.
628.92(1)(c)
(c) Has completed the training and course of study requirements under
sub. (7) and any training and course of study requirements mandated by the exchange.
628.92(1)(d)
(d) Has successfully passed a written examination approved by the commissioner under
sub. (7) that tests the applicant's knowledge concerning the duties and responsibilities of a navigator, the insurance laws and regulations of this state, and state public assistance programs and eligibility.
628.92(1)(e)
(e) Has submitted a full set of fingerprints to the commissioner and successfully completed a regulatory and criminal history background investigation in a manner prescribed by the commissioner under
sub. (6).
628.92(1)(f)
(f) Possesses the requisite character, integrity, competency, and trustworthiness as determined in accordance with the criteria under the rules promulgated under
s. 628.04.
628.92(1)(g)
(g) Has not committed any act that the commissioner finds would warrant the denial, suspension, or revocation of a license under this subchapter.
628.92(1)(h)
(h) Has identified the entity with which he or she is, or will be, affiliated and by which he or she is, or will be, supervised, if any.
628.92(2)
(2) Entity registration. An entity that acts or intends to operate as a navigator, supervises the activities of individual navigators, or receives funding to perform such activities shall first register as a navigator entity with the commissioner. This registration shall be on an application form developed by the commissioner, which shall include such documentation as the commissioner determines is necessary and appropriate. Before the commissioner may register the entity, the entity must establish to the satisfaction of the commissioner that it satisfies all of the following:
628.92(2)(a)
(a) The entity has policies and procedures in place to ensure that all acts that may be performed only by a navigator or licensed intermediary are performed by persons who are appropriately licensed under this subchapter or
subch. II, or both.
628.92(2)(b)
(b) The entity will assume full legal responsibility for the acts of the individual navigators that it employs, supervises, or is affiliated with that are performed in this state and that are within the scope of the navigator's apparent authority.
628.92(2)(c)
(c) The entity is sound, reliable, and entitled to public confidence.
628.92(2)(e)
(e) The entity has identified on the registration form a designated responsible individual navigator who is licensed under this subchapter.
628.92(3)
(3) Documentation. The commissioner may require any documents necessary to verify the information contained in an application submitted under
sub. (1) or
(2).
628.92(4)
(4) List of individual navigators. Upon initial registration, navigator entities shall, in a manner prescribed by the commissioner, provide the commissioner with a list of all individual navigators that it employs, supervises, or is affiliated with. Thereafter, the navigator entity shall provide updates, if any, to the list of individual navigators on a monthly basis. A navigator entity is bound by the acts of each individual navigator who has been, or should have been, reported under this subsection that are performed in this state and that are within the scope of the individual navigator's apparent authority.
628.92(5)
(5) Financial responsibility requirement. 628.92(5)(a)(a) Each entity that is a navigator shall furnish a bond in an amount no less than $100,000 from an insurer authorized to do business in this state or provide other evidence of financial responsibility capable of protecting all persons against the wrongful acts, misrepresentations, errors, omissions, or negligence of the navigator.
628.92(5)(b)
(b) An individual navigator not affiliated with an entity shall furnish a bond in an amount no less than $100,000 from an insurer authorized to do business in this state or provide other evidence of financial responsibility capable of protecting all persons against the wrongful acts, misrepresentations, errors, omissions, or negligence of the navigator.
628.92(5)(c)
(c) The commissioner may by rule define the amount of the financial responsibility requirement and alternative requirements for complying with this section.
628.92(6)
(6) Fingerprints and criminal and regulatory background check. Each applicant for licensure as an individual navigator shall provide fingerprints in a format specified by the commissioner and complete a criminal and regulatory background check as a condition for being granted a license to act as a navigator. The commissioner shall use the fingerprints to conduct a state criminal history background investigation of the applicant and a national criminal history background investigation of the applicant with the federal bureau of investigation.
628.92(7)
(7) Training and examination. An individual navigator shall complete at least 16 hours of prelicensing training and satisfactorily complete an approved written examination for navigators before applying for an individual navigator's license. After licensure, an individual navigator shall complete a course of study of at least 8 hours of approved training every one-year period. The commissioner may approve and designate courses and programs that an applicant for a navigator's license may complete to fulfill the prelicensing training requirement or that a licensed navigator may complete to fulfill the annual training requirement. The commissioner may make arrangements, including contracting with an outside testing service or other appropriate entity, to administer examinations and collect fees.
628.92 History
History: 2013 a. 20.
628.93
628.93
Other applicable provisions. 628.93(1)
(1)
Social security and federal employer identification numbers on applications or at time of fee payment. Applicants for individual navigator licensure and navigator entity registration are subject to
s. 628.095.
628.93(2)
(2) Refusal to issue license; failure to pay support or to comply with subpoena or warrant; delinquent taxes or unemployment insurance contributions. Applicants for individual navigator licensure and navigator entity registration are subject to
s. 628.097.
628.93(3)
(3) Termination of license. Individual navigator licenses are subject to
s. 628.10.
628.93 History
History: 2013 a. 20,
276.
