2017 Wisconsin Statutes & Annotations
Chapter 645. Insurers rehabilitation and liquidation.
645.33 Powers and duties of the rehabilitator.
645.33 Powers and duties of the rehabilitator.
(1) Special deputy commissioner. The rehabilitator may appoint a special deputy commissioner to rehabilitate the insurer. The special deputy commissioner shall have all of the powers of the rehabilitator granted under this section. Subject to court approval, the rehabilitator shall make such arrangements for compensation as are necessary to obtain a special deputy commissioner of proven ability. The special deputy commissioner shall serve at the pleasure of the rehabilitator.
(2) General power. Subject to court approval, the rehabilitator may take the action he or she deems necessary or expedient to reform and revitalize the insurer. The rehabilitator shall have all the powers of the officers and managers, whose authority shall be suspended, except as they are redelegated by the rehabilitator. The rehabilitator shall have full power to direct and manage, to hire and discharge employees subject to any contract rights they may have, and to deal with the property and business of the insurer.
(3) Advice from experts. The rehabilitator may consult with and obtain formal or informal advice and aid of insurance experts.
(4) Pursuit of insurer's claims against insiders. If the rehabilitator finds that there has been criminal or tortious conduct or breach of any contractual or fiduciary obligation detrimental to the insurer by any person, the rehabilitator may pursue all appropriate legal remedies on behalf of the insurer.
(5) Reorganization plan. The rehabilitator may prepare a plan for the reorganization, consolidation, conversion, reinsurance, merger or other transformation of the insurer. Upon application of the rehabilitator for approval of the plan, and after such notice and hearing as the court prescribes, the court may either approve or disapprove the plan proposed, or may modify it and approve it as modified. If it is approved, the rehabilitator shall carry out the plan. In the case of a life insurer, the plan proposed may include the imposition of liens upon the equities of policyholders of the company, if all rights of shareholders are first relinquished. A plan for a life insurer may also propose imposition of a moratorium upon loan and cash surrender rights under policies, for such period and to such an extent as are necessary.
(6) Fraudulent transfers. The rehabilitator shall have the power to avoid fraudulent transfers under ss. 645.52 and 645.53.
Under s. 645.32 (1), an order to rehabilitate the business of an insurer “ shall appoint the commissioner . . . rehabilitator and shall direct the rehabilitator to take possession of the assets of the insurer and to administer them under the orders of the court." In the context of insurance rehabilitations, a circuit court erroneously exercises its discretion when the circuit court exceeds its statutory authority or the court unreasonably substitutes the rehabilitator's beliefs for its own beliefs. The court will uphold the determinations made by the rehabilitator unless the rehabilitator abused his or her discretion. It is appropriate to afford great weight deference to the commissioner's interpretation and application of the statutes governing the rehabilitation of an insurer and other related statutes the commissioner is charged with administering. Nickel v. Wells Fargo Bank, 2013 WI App 129, 351 Wis. 2d 539, 841 N.W.2d 482, 10-2022.
The legislature intended for rehabilitation proceedings to be informal and without cumbersome procedures. There is no statutory requirement in ch. 645 providing that a court must specify the facts upon which it relied in approving a rehabilitation plan. Upon submission of a plan for approval, a court “may either approve or disapprove the plan proposed, or may modify it and approve it as modified." Nothing more is required. Nickel v. Wells Fargo Bank, 2013 WI App 129, 351 Wis. 2d 539, 841 N.W.2d 482, 10-2022.
Wisconsin's rehabilitation statutory scheme does not require that policyholders fare as well in rehabilitation as they would in liquidation. The statutory scheme provides the commissioner with minimal guidance as to how to structure a rehabilitation plan and certainly no requirement that each plan must provide policyholders the liquidation value of their claims or the right to opt out and receive the liquidation value of their claims. Nickel v. Wells Fargo Bank, 2013 WI App 129, 351 Wis. 2d 539, 841 N.W.2d 482, 10-2022.
The rules of civil procedure, including the rules pertaining to discovery, do not apply to rehabilitation proceedings. Chapter 645 prescribes its own rules of procedure in insurer delinquency proceedings. The legislature did not intend to bind the court to the rules of civil procedure when applying these rules would transform an informal management task into a formal and cumbersome legal task. Nickel v. Wells Fargo Bank, 2013 WI App 129, 351 Wis. 2d 539, 841 N.W.2d 482, 10-2022.
Sub. (5) provides in broad and liberal terms that after a rehabilitation plan is filed with the circuit court for approval, the court may approve or disapprove the proposed plan, or modify it and approve it as modified after providing “notice and hearing as the court prescribes." This language permits the circuit court to establish procedures that are tailored to the procedural necessities presented by the circumstances of each rehabilitation proceeding. That means that the rehabilitation court has the discretion to grant or deny a motion to intervene. Nickel v. Wells Fargo Bank, 2013 WI App 129, 351 Wis. 2d 539, 841 N.W.2d 482, 10-2022.
