Section Ins 5.40 - Costs to prevailing party(1) MOTION. (a) An individual or small business or small nonprofit corporation, as defined in s. 227.485(2) (c) and (d), Stats., that believes it may be entitled to costs under s. 227.485(3), Stats., may make a motion for costs as provided in par. (b), (c) or (d). The motion shall include proof that the party is eligible for an award of costs under s. 227.485(7), Stats.(b) If a hearing is held, a party believing that it may prevail shall make a motion for costs, if any, before the close of the hearing. The moving party and the attorney representing the office in a class 2 proceeding or the office, board, plan, fund or council in a class 1 or class 3 proceeding shall include arguments on the motion in the briefs ordered by the administrative law judge.(c) If the matter is submitted to the administrative law judge on briefs without a hearing, a party believing that it may prevail shall file a motion for costs, if any, at the time the parties agree to submit the matter on briefs or within a reasonable time thereafter as permitted by the administrative law judge, but not later than the due date of the party's brief. The moving party and the attorney representing the office in a class 2 proceeding or the office, board, plan, fund or council in a class 1 or class 3 proceeding shall include arguments on the motion in the briefs ordered by the administrative law judge.(d)1. If the matter is finally disposed of other than by a decision under s. Ins 5.45, the prevailing party shall file a motion for costs, if any, and a brief in support of the motion within 30 calendar days after receiving notice of the final disposition, except that if the parties settle the matter by stipulation, a prevailing party may not file a motion for costs unless the stipulation expressly authorizes the party to do so.2. The attorney representing the office in a class 2 proceeding or the office, board, plan, fund or council in a class 1 or class 3 proceeding shall file a brief in opposition to the motion within 30 calendar days after the deadline for filing under subd. 1.(2) PROPOSED DECISION ON MOTION. (a) If the motion for costs is filed under sub. (1) (b) or (c), the administrative law judge shall decide the motion as part of the proposed decision under s. Ins 5.43. Even if the administrative law judge is the final decision maker in the matter, the decision on the motion for costs shall be issued as a proposed decision.(b) If the motion for costs is filed under sub. (1) (d), the administrative law judge shall issue a proposed decision on the motion under s. Ins 5.43. (c) The parties may file written objections to the proposed decision under s. Ins 5.43(2).(3) PROCEDURE FOR DETERMINING COSTS. (a)Documentation. If the administrative law judge recommends that the prevailing party be awarded costs, the prevailing party shall, within 30 calendar days after service of the proposed decision under sub. (2), submit documentation of all of the following to the administrative law judge and to the office, board, plan, fund or council: 1. The number of hours for which compensation is sought, itemized according to the work performed, the dates it was performed and the identity of the individual performing the work.2. The hourly rate customarily charged by each individual for whom compensation is sought and, if compensation in excess of $75 an hour for attorney fees is sought, justification for a higher rate as required under s. 814.245(5) (a) 2, Stats.3. Costs for which reimbursement is sought.(b)Reply. Within 15 calendar days after the submission of documentation under par. (a), the attorney representing the office, board, plan, fund or council which is a party to the contested case may file a written response contesting any of the costs. (c)Determination of costs. The administrative law judge shall determine the eligible costs as provided under s. 227.485(5), Stats., and if the final decision maker awards costs, the amount awarded shall be included in the final decision.(4) FINAL DECISION. If the final decision maker awards costs despite the administrative law judge's recommendation to the contrary, the parties and the administrative law judge shall, after the final decision is issued, follow the procedure in sub. (3) within the specified time periods.(5) JUDICIAL REVIEW. A final decision awarding costs is subject to judicial review under s. 227.52, Stats. A party may seek judicial review of a final decision granting or denying an award of costs, regardless of whether the party petitions for judicial review of the final decision on the merits of the contested case.Wis. Admin. Code Office of the Commissioner of Insurance Ins 5.40
Cr. Register, March, 1996, No. 483, eff. 4-1-96.