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This document includes House Floor Amendments incorporated into the bill on Wed, Jan 27, 2010 at 12:59 PM by lerror. --> This document includes Senate Committee Amendments incorporated into the bill on Tue, Feb 2, 2010 at 7:45 AM by rday. --> 1
8 LONG TITLE
9 Committee Note:
10 The Business and Labor Interim Committee recommended this bill.
11 General Description:
12 This bill modifies the Utah Life and Health Insurance Guaranty Association Act to
13 make various amendments.
14 Highlighted Provisions:
15 This bill:
16 . addresses the coverage and limitations under the act;
17 . modifies definition provisions and terminology;
18 . directs the commissioner to appoint public members to the board of directors;
19 . addresses provisions related to the powers and duties under the act;
20 . adds additional requirements for a plan of operation;
21 . modifies reporting requirements of the commissioner;
22 . modifies time frames under the act; and
23 . makes technical and conforming amendments.
24 Monies Appropriated in this Bill:
26 Other Special Clauses:
28 Utah Code Sections Affected:
30 31A-28-103, as last amended by Laws of Utah 2001, Chapters 116 and 161
31 31A-28-105, as last amended by Laws of Utah 2001, Chapter 161
32 31A-28-107, as last amended by Laws of Utah 2001, Chapter 161
33 31A-28-108, as last amended by Laws of Utah 2007, Chapter 309
34 31A-28-109, as last amended by Laws of Utah 2001, Chapters 116 and 161
35 31A-28-110, as last amended by Laws of Utah 2001, Chapter 161
36 31A-28-111, as last amended by Laws of Utah 2001, Chapter 161
37 31A-28-112, as last amended by Laws of Utah 2001, Chapter 161
38 31A-28-114, as last amended by Laws of Utah 2008, Chapter 250
39 31A-28-118, as repealed and reenacted by Laws of Utah 1991, Chapter 211
40 31A-28-119, as last amended by Laws of Utah 2001, Chapter 161
41 31A-28-120, as enacted by Laws of Utah 2001, Chapter 161
43 Be it enacted by the Legislature of the state of Utah:
44 Section 1. Section 31A-28-103 is amended to read:
45 31A-28-103. Coverage and limitations.
46 (1) (a) This part provides coverage for [
47 specified in Subsection (2) to a person who is:
48 (i) a beneficiary, assignee, or payee of a person covered by Subsection (1)(a)(ii)
49 regardless of where that person resides, except for a nonresident certificate holder under a
50 group policy or contract; or
51 (ii) an owner of or a certificate holder under a policy or contract, other than an
52 unallocated annuity contract or structured settlement annuity, if the owner or certificate holder
54 (A) a resident of Utah; or
55 (B) not a resident of Utah, but only if:
56 (I) the insurer that issued the policy or contract is domiciled in this state;
57 (II) the state in which the person resides has an association similar to the association
58 created by this part; and
59 (III) the person is not eligible for coverage by an association in any other state because
60 the insurer was not licensed in the state at the time specified in the state's guaranty association's
62 (b) For an unallocated annuity contract specified in Subsection (2):
63 (i) [
64 (ii) except as provided in Subsections (1)(d) and (1)(e), this part [
65 provides coverage for the unallocated annuity contract specified in Subsection (2) to a person
66 who is:
67 (A) the owner of the unallocated annuity contract if the contract is issued to or in
68 connection with a specific benefit plan whose plan sponsor has its principal place of business
69 in this state; and
70 (B) an owner of an unallocated annuity contract issued to or in connection with a
71 government lottery if the owner is a resident.
72 (c) For a structured settlement annuity specified in Subsection (2):
73 (i) [
74 (ii) except as provided in Subsections (1)(d) and (1)(e), this part [
75 provides coverage for the structured settlement annuity specified in Subsection (2) to a person
76 who is a payee under a structured settlement annuity, or beneficiary of a payee if the payee is
77 deceased, if the payee:
78 (A) is a resident, regardless of where the contract owner resides; or
79 (B) is not a resident, but only if [
80 structured settlement annuity is a resident, or [
81 settlement annuity is [
82 (I) the insurer that issued the structured settlement annuity is domiciled in this state;
83 (II) the state in which the contract owner resides has an association similar to the
84 association created by this part; and
85 (III) the payee, beneficiary, or the contract owner is not eligible for coverage by the
86 association of the state in which the payee or contract owner resides.
87 (d) This part may not provide coverage for [
88 contract specified in Subsection (2) to:
89 (i) a person who is a payee or beneficiary of a contract owner resident of this state, if
90 the payee or beneficiary is afforded any coverage by the association of another state; or
91 (ii) a person covered under Subsection (1)(b), if any coverage is provided to the person
92 by the association of another state.
93 (e) (i) This part provides coverage for a policy or contract specified in Subsection (2) to
94 a person who is a resident of this state and, in special circumstances, to a nonresident.
95 (ii) To avoid duplicate coverage, if a person who would otherwise receive coverage
96 under this part is provided coverage under the laws of any other state, the person may not be
97 provided coverage under this part.
98 (iii) In determining the application of this Subsection (1)(e) [
99 a person could be covered by the association of more than one state, whether as an owner,
100 payee, beneficiary, or assignee, this part shall be construed in conjunction with other state laws
101 to result in coverage by only one association.
102 (2) (a) (i) Except as limited by this part, this part provides coverage to [
103 person specified in Subsection (1) for:
104 (A) a direct, nongroup life, accident and health, or annuity policy or contract;
105 (B) a supplemental contract to a policy or contract described in Subsection (2)(a)(i)(A);
106 (C) a certificate under a direct group policy or contract; and
107 (D) an unallocated annuity contract issued by a member insurer.
108 (ii) For purposes of Subsection (2)(a)(i), an annuity contract and a certificate under a
109 group annuity contract includes:
110 (A) a guaranteed investment contract;
111 (B) a deposit administration contract;
112 (C) an unallocated funding agreement;
113 (D) an allocated funding agreement;
117 (b) This part does not provide coverage for:
118 (i) a portion of a policy or contract:
119 (A) not guaranteed by the insurer; or
120 (B) under which the risk is borne by the policy or contract owner;
121 (ii) a policy or contract of reinsurance, unless:
122 (A) an assumption certificate is issued before the coverage date;
123 (B) the assumption certificate required by Subsection (2)(b)(ii)(A) is in effect pursuant
124 to the reinsurance policy or contract; and
125 (C) the reinsurance contract is approved by the appropriate regulatory authorities; [
126 (iii) a portion of a policy or contract to the extent that the rate of interest on which it is
127 based or the interest rate, crediting rate, or similar factor determined by use of an index or other
128 external reference stated in the policy or contract employed in calculating returns or changes in
129 value, if the interest rate, crediting rate, or similar factor:
130 (A) is not excluded from coverage by Subsection (2)(b)[
131 (B) averaged over the period of four years [
132 association becomes obligated with respect to the policy or contract, exceeds a rate of interest
133 determined by subtracting two percentage points from Moody's Corporate Bond Yield Average
135 (I) for that same four-year period; or
136 (II) for the corresponding lesser period if the policy or contract was issued less than
137 four years before the association became obligated; and
138 (C) exceeds the rate of interest determined by subtracting three percentage points from
139 Moody's Corporate Bond Yield Average as most recently available as determined on or after
140 the earlier of the day on which the member insurer becomes:
141 (I) an impaired insurer under this part; or
142 (II) an insolvent insurer under this part;
143 (iv) a portion of a policy or contract issued to a plan or program of an employer,
144 association, or other person to provide life, accident and health, or annuity benefits to its
145 employees, members, or others, to the extent that the plan or program is self-funded or
146 uninsured, including benefits payable by an employer, association, or other person under:
147 (A) a multiple employer welfare arrangement as defined in 29 U.S.C. Sec. 1144;
148 (B) a minimum premium group insurance plan;
149 (C) a stop-loss group insurance plan; or
150 (D) an administrative services only contract;
151 (v) a portion of a policy or contract to the extent that it provides:
152 (A) a dividend;
153 (B) an experience rating credit;
154 (C) voting rights; or
155 (D) payment of a fee or allowance to any person, including the policy or contract
156 owner, in connection with the service to or administration of the policy or contract;
161 protected under the federal Pension Benefit Guaranty Corporation, regardless of whether the
162 federal Pension Benefit Guaranty Corporation has yet become liable to make any payment with
163 respect to the benefit plan;
165 connection with:
166 (A) a specific benefit plan of:
167 (I) employees;
168 (II) a union; or
169 (III) an association of natural persons; or
170 (B) a government lottery;
172 by Section 31A-28-109 that applies to the policy or contract is preempted by federal or state
175 or contract issued by an insurer to the contract owner or policy owner, including:
176 (A) a claim based on marketing materials;
177 (B) a claim based on [
178 issued by the insurer without meeting applicable policy form filing or approval requirements;
179 (C) a misrepresentation regarding a policy benefit;
180 (D) an extra-contractual claim;
181 (E) a claim for penalties; or
182 (F) a claim for consequential or incidental damages;
184 value accounting guaranty for defined contribution benefit plan participants by reference to a
185 portfolio of assets that is owned by a person that is:
186 (A) (I) the benefit plan; or
187 (II) the benefit plan's trustee; and
188 (B) not an affiliate of the member insurer; H. [
190 changes in value:
191 (A) to be determined by the use of an index or other external reference stated in the
192 policy or contract; and
193 (B) (I) that have not been credited to the policy or contract; or
194 (II) as to which the policy or contract owner's rights are subject to forfeiture as of the
195 date the member insurer becomes an impaired or insolvent insurer under this part H. [
195a S. [
195b pursuant to United States Code, Title 42, Subchapter XVIII, Chapter 7, Part C or D, or federal
195c regulations issued under Part C or D. .H
196 (3) Subject to Subsection (4), the benefits for which the association may become liable
197 may not exceed the lesser of:
198 (a) the contractual obligations for which the insurer is liable or would have been liable
199 if it were not an impaired or insolvent insurer;
200 (b) with respect to one life, regardless of the number of policies or contracts:
201 (i) for a life insurance policy:
202 (A) if the insured died before the coverage date, $500,000 of the death benefit;
203 (B) if the insurer received a valid request for cash surrender before the coverage date
204 but has not paid the cash surrender value before the coverage date, H. [
205 cash surrender benefits; or
206 (C) if neither Subsection (3)(b)(i)(A) nor (B) apply, the covered portion of each benefit
207 provided under the policy;
208 (ii) for an annuity contract, the covered portion of each benefit provided under the
210 (iii) for an accident and health policy:
211 (A) classified as health insurance, $500,000; or
212 (B) not classified as health insurance, the covered portion of each benefit provided
213 under the policy;
214 (c) for an individual, or a beneficiary of that individual if the individual is deceased,
215 participating in a governmental retirement plan established under Section 401, 403(b), or 457,
216 Internal Revenue Code, covered by an unallocated annuity contract, in the aggregate,
218 (i) net cash surrender; and
219 (ii) net cash withdrawal values; or
220 (d) for a payee of a structured settlement annuity or a beneficiary of the payee if the
221 payee is deceased, the limits set forth in Subsection (3)(b).
222 (4) Notwithstanding Subsections (3)(a) through (d), the association may not be
223 obligated to cover more than:
224 (a) an aggregate of $500,000 in benefits for any one life under:
225 (i) Subsection (3)(b)(i)(A);
226 (ii) Subsection (3)(b)(i)(B);
227 (iii) Subsection (3)(b)(ii); [
228 (iv) Subsection (3)(b)(iii)(B);
229 (b) $5,000,000 in benefits for one owner of multiple nongroup policies of life
231 (i) whether the policy owner is an individual, firm, corporation, or other person;
232 (ii) whether the persons insured are officers, managers, employees, or other persons;
234 (iii) regardless of the number of policies and contracts held by the owner; and
235 (c) $5,000,000 in benefits, regardless of the number of contracts held by the contract
236 owner or plan sponsor, for:
237 (i) one contract owner provided coverage under Subsection (1)(b)(ii)(B); or
238 (ii) one plan sponsor whose plans own, directly or in trust, one or more unallocated
239 annuity contracts not included in Subsection (3)(b)(ii).
240 (5) (a) Notwithstanding Subsection (4)(c) and except as provided in Subsection (5)(b),
241 the association shall provide coverage if one or more unallocated annuity contracts are:
242 (i) covered contracts under this part;
243 (ii) owned by a trust or other entity for the benefit of two or more plan sponsors; and
244 (iii) the largest interest in the trust or entity owning the contract or contracts is held by
245 a plan sponsor whose principal place of business is in the state.
246 (b) Notwithstanding Subsection (5)(a) the association may not be obligated to cover
247 more than $5,000,000 in benefits with respect to [
248 Subsection (5)(a).
249 (6) (a) The limitations set forth in Subsections (3) and (4) are limitations on the
250 benefits for which the association is obligated before taking into account:
251 (i) the association's subrogation and assignment rights; or
252 (ii) the extent to which those benefits could be provided out of the assets of the
253 impaired or insolvent insurer attributable to covered policies.
254 (b) The costs of the association's obligations under this part may be met by the use of
256 (i) attributable to covered policies, as described in Subsection 31A-28-114 (3)(c); or
257 (ii) reimbursed to the association pursuant to the association's subrogation and
258 assignment rights.
259 (c) On and after the date on which the association becomes obligated for [
260 covered policy, the association may not be obligated to provide benefits to the extent that the
261 benefits are based on an interest rate, crediting rate, or similar factor determined by use of an
262 index or other external reference stated in the policy or contract employed in calculating returns
263 or changes in value if the interest rate, crediting rate, or similar factor exceeds the rate of
264 interest determined by subtracting three percentage points from Moody's Corporate Bond Yield
265 Average as most recently available on each date on which interest is credited or attributed to
266 the covered policy.
267 (d) In performing its obligations to provide coverage under Section 31A-28-108 , the
268 association may not be required to guarantee, assume, reinsure, perform, or cause to be
269 guaranteed, assumed, reinsured, or performed a contractual obligation of the insolvent or
270 impaired insurer under a covered policy or contract that does not materially affect the economic
271 values or economic benefits of the covered policy or contract.
272 Section 2. Section 31A-28-105 is amended to read:
273 31A-28-105. Definitions.
274 As used in this part:
275 (1) "Association" means the Utah Life and Health Insurance Guaranty Association
276 continued under Section 31A-28-106 .
277 (2) (a) "Authorized assessment" or "authorized," when used in the context of
278 assessments, means that the board of directors passed a resolution whereby an assessment will
279 be called immediately or in the future from member insurers for an amount set forth in the
281 (b) An assessment is authorized when the resolution is passed.
282 (3) "Benefit plan" means a specific benefit plan of:
283 (a) employees;
284 (b) a union; or
285 (c) an association of natural persons.
286 (4) (a) "Called assessment" or "called," when used in the context of assessments,
287 means that the association issued a notice to member insurers requiring that an authorized
288 assessment be paid within the time frame set forth in the notice.
289 (b) All or part of an authorized assessment becomes a called assessment when notice is
290 mailed by the association to member insurers.
291 (5) "Cash surrender value" means the cash surrender value without reduction for an
292 outstanding policy loan or surrender charge.
294 which coverage is provided under Section 31A-28-103 :
295 (a) a policy or contract;
296 (b) a certificate under a group policy or contract; or
297 (c) a portion of a policy or contract.
299 for the obligations of a member insurer.
301 in Section 31A-28-103 :
302 (a) a policy or contract; or
303 (b) a portion of a policy or contract.
305 (i) for [
307 (A) the numerator being the lesser of:
308 (I) H. (Aa) [
(Bb) .H $250,000 H. for a covered policy that is not a life insurance policy .H ; or
309 (II) the cash surrender value of the policy; [
310 (B) the denominator being the cash surrender value of the policy; and
311 (ii) for [
313 (A) the numerator being the lesser of:
314 (I) H. (Aa) [
314a (Bb) .H $250,000 H. for a covered policy that is not a life insurance policy .H ; or
315 (II) the policy's minimum statutory reserve; [
316 (B) the denominator being the policy's minimum statutory reserve.
317 (b) The cash surrender value and the minimum statutory reserve are determined as of
318 the coverage date in accordance with the exclusions in Subsection 31A-28-103 (2)(b)(iii).
320 (a) bad faith in the payment of a claim;
321 (b) punitive or exemplary damages; or
322 (c) [
325 (a) is considered by the commissioner to be hazardous pursuant to this title; or
326 (b) is placed under an order of rehabilitation or conservation by a court of competent
329 liquidation by a court of competent jurisdiction with a finding of insolvency.
331 insurer that holds a certificate of authority to transact in this state any kind of insurance for
332 which coverage is provided under Section 31A-28-103 .
333 (b) "Member insurer" includes an insurer whose license or certificate of authority in
334 this state may have been:
335 (i) suspended;
336 (ii) revoked;
337 (iii) not renewed; or
338 (iv) voluntarily withdrawn.
339 (c) "Member insurer" does not include:
340 (i) a for-profit or nonprofit:
341 (A) hospital;
342 (B) hospital service organization; or
343 (C) medical service organization;
350 (vii) an organization described in Subsection 31A-22-1305 (2); or
352 through [
354 Corporates as published by Moody's Investors Service, Inc., or any successor to Moody's
355 Investors Service, Inc.
357 means [
358 (i) is identified as the legal owner under the terms of the policy or contract; or
359 (ii) is otherwise vested with legal title to the policy or contract through a valid
361 (A) completed in accordance with the terms of the policy or contract; and
362 (B) properly recorded as the owner on the books of the insurer.
363 (b) "Owner," "policy owner," or "contract owner" does not include a person with only a
364 beneficial interest in a policy or contract.
366 (a) an individual;
367 (b) a corporation;
368 (c) a limited liability company;
369 (d) a partnership;
370 (e) an association;
371 (f) a governmental body or entity; [
372 (g) a trust; or
375 (a) the employer, in the case of a benefit plan established or maintained by a single
377 (b) the employee organization, in the case of a benefit plan established or maintained
378 by an employee organization; or
379 (c) the association, committee, joint board of trustees, or other similar group of
380 representatives of the parties who establish or maintain a benefit plan, in the case of a benefit
381 plan established or maintained by:
382 (i) two or more employers; or
383 (ii) jointly by:
384 (A) one or more employers; and
385 (B) one or more employee organizations.
387 policies or contracts, less:
388 (i) returned:
389 (A) premiums;
390 (B) considerations; and
391 (C) deposits; and
392 (ii) dividends and experience credits.
393 (b) (i) "Premiums" does not include an amount or consideration received for:
394 (A) a policy or contract for which coverage is not provided under Subsection
395 31A-28-103 (2); or
396 (B) the portion of a policy or contract for which coverage is not provided under
397 Subsection 31A-28-103 (2).
398 (ii) Notwithstanding Subsection [
399 reduced on account of:
400 (A) Subsection 31A-28-103 (2)(b)(iii) relating to interest limitations; and
401 (B) Subsection 31A-28-103 (3) relating to limitations for:
402 (I) one individual;
403 (II) any one participant; and
404 (III) any one contract owner.
405 (c) "Premiums" [
406 (i) on [
407 plan established under Section 401, 403(b), or 457, Internal Revenue Code; or
408 (ii) for multiple nongroup policies of life insurance owned by one owner:
409 (A) whether the policy owner is an individual, firm, corporation, or other person;
410 (B) whether the persons insured are officers, managers, employees, or other persons;
412 (C) regardless of the number of policies or contracts held by the owner.
414 business" of a plan sponsor or a person other than a natural person means the single state:
415 (i) in which the natural persons who establish policy for the direction, control, and
416 coordination of the operations of the entity as a whole primarily exercise the function; and
417 (ii) determined by the association in its reasonable judgment by considering the
418 following factors:
419 (A) the state in which the primary executive and administrative headquarters of the
420 entity are located;
421 (B) the state in which the principal office of the chief executive officer of the entity is
423 (C) the state in which the board of directors, or similar governing person or persons, of
424 the entity conducts the majority of its meetings;
425 (D) the state in which the executive or management committee of the board of
426 directors, or similar governing person, of the entity conducts the majority of its meetings;
427 (E) the state from which the management of the overall operations of the entity is
428 directed; and
429 (F) in the case of a benefit plan sponsored by affiliated companies comprising a
430 consolidated corporation, the state in which the holding company or controlling affiliate has its
431 principal place of business as determined using the factors described in Subsections [
432 (19)(a)(ii)(A) through (E).
433 (b) Notwithstanding Subsection [
434 than 50% of the participants in the benefit plan are employed in a single state, the state where
435 more than 50% of the participants are employed is considered to be the principal place of
436 business of the plan sponsor.
437 (c) (i) The principal place of business of a plan sponsor of a benefit plan described in
438 Subsection (3) is considered to be the principal place of business of the association, committee,
439 joint board of trustees, or other similar group of representatives of the parties who establish or
440 maintain the benefit plan.
441 (ii) If for a benefit plan described in Subsection (3) there is not a specific or clear
442 designation of a principal place of business under Subsection [
443 place of business is considered to be the principal place of business of the employer or
444 employee organization that has the largest investment in the benefit plan.
445 (20) "Receiver" means, as the context requires:
446 (a) a rehabilitator;
447 (b) a liquidator;
448 (c) an ancillary receiver; or
449 (d) a conservator.
451 state having jurisdiction over the conservation, rehabilitation, or liquidation of the insurer.
453 (i) to whom a contractual obligation is owed; and
454 (ii) who resides in this state on the earlier of the date a member insurer is an:
455 (A) impaired insurer; or
456 (B) insolvent insurer.
457 (b) A person may be a resident of only one state, which in the case of a person other
458 than a natural person [
459 (c) A citizen of the United States that is either a resident of a foreign country or a
460 resident of a United States possession, territory, or protectorate that does not have an
461 association similar to the association created by this part, is considered a resident of the state of
462 domicile of the insurer that issued the policy or contract.
464 (a) a state;
465 (b) the District of Columbia;
466 (c) Puerto Rico; and
467 (d) a United States possession, territory, or protectorate.
469 periodic payments for a plaintiff or other claimant in payment for personal injury suffered by
470 the plaintiff or other claimant.
472 distribution of proceeds under a policy or contract for:
473 (a) life;
474 (b) accident and health; or
475 (c) annuity.
477 certificate that is not issued to and owned by an individual, except to the extent of any annuity
478 benefits guaranteed to an individual by an insurer under the contract or certificate.
479 Section 3. Section 31A-28-107 is amended to read:
480 31A-28-107. Board of directors.
481 (1) (a) The board of directors of the association shall consist of:
482 (i) at least five but not more than nine member insurers [
483 (A) subject to Subsection (1)(e), serve terms as established in the plan of operation[
486 (B) are selected by member insurers, subject to the approval of the commissioner[
488 (ii) two public representatives appointed by the commissioner.
489 (b) (i) The commissioner shall make the appointment of a public representative
490 coincide with the association's annual meeting at which the association's board of directors is
492 (ii) A public representative may not be:
493 (A) an officer, director, or employee of an insurer; or
494 (B) a person engaged in the business of insurance.
495 (iii) Subject to Subsection (1)(e), a public representative shall serve a term of three
499 (i) if the vacancy is of a member insurer, a replacement may be elected for the
500 unexpired term by a majority vote of the remaining board members, subject to the approval of
501 the commissioner[
502 (ii) if the vacancy is of a public representative, the commissioner shall appoint a
503 replacement for the unexpired term.
505 the board of directors, the commissioner shall consider, among other things, whether all
506 member insurers are fairly represented.
508 commissioner shall, at the time of election [
509 adjust the length of terms to ensure that the terms of board members are staggered so that
510 approximately half of the board of directors is selected during any two-year period.
511 (2) (a) A member of the board of directors may be reimbursed from the assets of the
512 association for expenses incurred by the member as a member of the board of directors.
513 (b) Except as provided in Subsection (2)(a), a member of the board of directors may
514 not be compensated by the association for the member's services.
515 Section 4. Section 31A-28-108 is amended to read:
516 31A-28-108. Powers and duties of the association.
517 (1) (a) If a member insurer is an impaired insurer, subject to any conditions imposed by
518 the association that do not impair the contractual obligations of the impaired insurer, the
519 association may [
521 (b) If the association makes the election described in Subsection (1)(a), the association
522 may proceed under one or more of the options described in Subsection (3).
523 (2) If a member insurer is an insolvent insurer, the association shall provide the
524 protections provided by this part [
525 discretion to proceed under one or more of the options in Subsection (3).
526 (3) With respect to the covered portions of covered policies of an impaired or insolvent
527 insurer, the association may:
528 (a) (i) (A) guaranty, assume, or reinsure, or cause to be guaranteed, assumed, or
529 reinsured, the policies or contracts of the insurer; or
530 (B) assure payment of the contractual obligations of the insolvent insurer; and
531 (ii) provide [
532 reasonably necessary to discharge such duties; or
533 (b) provide benefits and coverages in accordance with Subsection (4).
534 (4) (a) In accordance with Subsection (3)(b), the association may:
535 (i) assure payment of benefits for premiums identical to the premiums and benefits,
536 except for terms of conversion and renewability, that would have been payable under the
537 policies or contracts of the insurer, for claims incurred:
538 (A) with respect to group policies:
539 (I) not later than the earlier of the next renewal date under the policies or contracts or
540 45 days after the coverage date; and
541 (II) in no event less than 30 days after the coverage date; or
542 (B) with respect to nongroup policies or contracts:
543 (I) not later than the earlier of the next renewal date, if any, under the policies or
544 contracts or one year from the coverage date; and
545 (II) in no event less than 30 days from the coverage date;
546 (ii) make diligent efforts to [
547 before any termination of the benefits that are provided [
549 (A) [
550 (B) owners if other than an insured or annuitant; or
552 (iii) with respect to nongroup life and accident and health insurance policies and
553 annuities, make available substitute coverage on an individual basis, in accordance with
554 Subsection (4)(b), to each known insured, annuitant, or owner and to each individual formerly
555 insured or formerly an annuitant under a group policy who is not eligible for replacement group
556 coverage on an individual basis in accordance with Subsection (4)(b), if the insured or
557 annuitant had a right under law or the terminated policy or annuity contract to:
558 (A) convert coverage to individual coverage; or
559 (B) continue an individual policy in force until a specified age or for a specified time
560 during which the insurer had:
561 (I) no right unilaterally to make changes in any provision of the policy; or
562 (II) a right only to make changes in premium by class.
563 (b) (i) In providing the substitute coverage required under Subsection (4)(a)(iii), the
564 association may offer to:
565 (A) reissue the terminated coverage; or
566 (B) issue an alternative policy.
567 (ii) An alternative or reissued policy under Subsection (4)(b)(i):
568 (A) shall be offered without requiring evidence of insurability; and
569 (B) may not provide for any waiting period or exclusion that would not have applied
570 under the terminated policy.
571 (iii) The association may reinsure [
572 (c) (i) An alternative policy adopted by the association [
573 approval of the commissioner.
574 (ii) The association may adopt alternative policies of various types for future issuance
575 without regard to any particular impairment or insolvency.
576 (iii) An alternative policy:
577 (A) shall contain at least the minimum statutory provisions required in this state; and
578 (B) provide benefits that are not unreasonable in relation to the premium charged.
579 (iv) The association shall set the premium for an alternative policy in accordance with
580 a table of rates that the association adopts. The premium shall reflect:
581 (A) the amount of insurance to be provided; and
582 (B) the age and class of risk of each insured.
583 (v) For an alternative policy issued under an individual policy of the impaired or
584 insolvent insurer:
585 (A) age shall be determined in accordance with the original policy provisions; and
586 (B) class of risk [
587 (vi) For an alternative policy issued to individuals insured under a group policy:
588 (A) age and class of risk shall be determined by the association in accordance with the
589 alternative policy provisions and risk classification standards approved by the commissioner;
591 (B) the premium may not reflect any changes in the health of the insured after the
592 original policy was last underwritten.
593 (vii) [
594 type similar to that of the policy issued by the impaired or insolvent insurer, as determined by
595 the association.
596 (d) If the association elects to reissue terminated coverage at a premium rate different
597 from that charged under the terminated policy, the association shall set the premium [
599 class of risk, subject to the approval of the commissioner or by a court of competent
601 (e) The association's obligations with respect to coverage under any policy of the
602 impaired or insolvent insurer or under any reissued or alternative policy [
603 the date the coverage or policy is replaced by another similar policy by:
604 (i) the [
605 (ii) the insured; or
606 (iii) the association.
607 (f) (i) With respect to a claim unpaid as of the coverage date and a claim incurred
608 during the period defined in Subsection (4)(a)(i), a provider of health care services, by
609 accepting a payment from the association upon a claim of the provider against an insured
610 whose health care insurer is an insolvent member insurer, agrees to forgive the insured of 20%
611 of the debt which otherwise would be paid by the insurer had it not been insolvent, subject to a
612 maximum of $8,000 being required to be forgiven by any one provider as to each claimant.
613 (ii) The obligations of a solvent insurer to pay all or part of the covered claim are not
614 diminished by the forgiveness provided for in this section.
615 (5) When proceeding under Subsection (3)(b) with respect to any policy or contract
616 carrying guaranteed minimum interest rates, the association shall assure the payment or
617 crediting of a rate of interest consistent with Subsection 31A-28-103 (2)(b)(iii).
618 (6) Nonpayment of premiums within 31 days after the date required under the terms of
619 any guaranteed, assumed, alternative, or reissued policy or contract or substitute coverage
621 this part with respect to the policy or coverage, except with respect to any claims incurred or
622 any net cash surrender value that may be due in accordance with this part.
623 (7) (a) [
624 portion of a policy or contract of an impaired or insolvent insurer [
625 belongs to and is payable at the direction of the association. If a liquidator of an insolvent
626 insurer requests the report, the association shall report to the liquidator the premium collected
627 by the association.
628 (b) The association is liable to [
629 premiums due to the policy or contract [
630 respect to the covered portion of the policy or contract.
631 (8) The protection provided by this part does not apply if any guaranty protection is
632 provided to residents of this state by laws of the domiciliary state or jurisdiction of the
633 impaired or insolvent insurer other than this state.
634 (9) In carrying out its duties under [
635 approval by a court in this state, the association may:
636 (a) impose permanent policy or contract liens in connection with a guarantee,
637 assumption, or reinsurance agreement, if the association finds that:
638 (i) the amounts that can be assessed under this part are less than the amounts needed to
639 assure full and prompt performance of the association's duties under this part; or
640 (ii) the economic or financial conditions as they affect member insurers are sufficiently
641 adverse to render the imposition of the permanent policy or contract liens to be in the public
643 (b) impose temporary moratoriums or liens on payments of cash values and policy
644 loans, or any other right to withdraw funds held in conjunction with policies or contracts, in
645 addition to any contractual provisions for deferral of cash or policy loan value; and
646 (c) if the receivership court imposes a temporary moratorium or moratorium charge on
647 payment of cash values or policy loans, or on any other right to withdraw funds held in
648 conjunction with policies or contracts, out of the assets of the impaired or insolvent insurer,
649 defer the payment of cash values, policy loans, or other rights by the association for the period
650 of the moratorium or moratorium charge imposed by the receivership court, except for claims
651 covered by the association to be paid in accordance with a hardship procedure:
652 (i) established by the [
653 (ii) approved by the receivership court.
654 (10) (a) A special deposit in this state held pursuant to law or required by the
655 commissioner for the benefit of creditors, including policy owners, that is not turned over to the
656 domiciliary [
657 approving a rehabilitation plan of an insurer domiciled in any state shall be promptly paid to
658 the association.
659 (b) Any amount paid under Subsection (10)(a) to the association less the amount
660 retained by the association shall be treated as a distribution of estate assets pursuant to Sections
661 31A-27a-601 , 31A-27a-602 , and [
662 (11) If the association fails to act within a reasonable period of time as provided in this
663 section, the commissioner [
664 part with respect to an impaired or insolvent insurer.
665 (12) The association may [
666 commissioner, upon the commissioner's request, concerning:
667 (a) rehabilitation;
668 (b) payment of claims;
669 (c) continuance of coverage; or
670 (d) the performance of other contractual obligations of any impaired or insolvent
672 (13) (a) The association has standing to appear or intervene before a court or agency in
673 this state with jurisdiction over:
674 (i) an impaired or insolvent insurer concerning which the association is or may become
675 obligated under this part; or
676 (ii) any person or property against which the association may have rights through
677 subrogation or otherwise.
678 (b) The standing referred to in Subsection (13)(a) extends to all matters germane to the
679 powers and duties of the association, including:
680 (i) proposals for reinsuring, modifying, or guaranteeing the policies or contracts of the
681 impaired or insolvent insurer; and
682 (ii) the determination of the policies or contracts and contractual obligations.
683 (c) The association has the right to appear or intervene before a court in another state
684 with jurisdiction over:
685 (i) an impaired or insolvent insurer for which the association is or may become
686 obligated; or
687 (ii) any person or property against which the association may have rights through
688 subrogation of the insurer's [
689 (14) (a) [
690 have assigned the rights under, and any causes of action against any person for losses arising
691 under, resulting from, or otherwise relating to the covered policy or contract to the association
692 to the extent of the benefits received because of this part, whether the benefits are payments of,
693 or on account of:
694 (i) contractual obligations;
695 (ii) continuation of coverage; or
696 (iii) provision of substitute or alternative coverages.
697 (b) As a condition precedent to the receipt of any right or benefits conferred by this part
698 upon that person, the association may require an assignment to it of the rights and causes of
699 action described in Subsection (14)(a) by any:
700 (i) payee;
701 (ii) policy or contract owner;
702 (iii) beneficiary;
703 (iv) insured; or
704 (v) annuitant.
705 (c) The subrogation rights obtained by the association under this Subsection (14)
707 possessed by the person entitled to receive benefits under this part.
708 (d) In addition to Subsections (14)(a) through (c), the association has [
709 law rights of subrogation and any other equitable or legal remedy that would have been
710 available to the impaired or insolvent insurer or owner, beneficiary, or payee of a policy or
711 contract with respect to the policy or contract, including in the case of a structured settlement
712 annuity any rights of the owner, beneficiary, or payee of the annuity to the extent of benefits
713 received pursuant to this part against a person originally or by succession responsible for the
714 losses arising from the personal injury relating to the annuity or payment of the annuity.
715 (e) If a provision of this Subsection (14) is invalid or ineffective with respect to [
716 person or claim for any reason, the amount payable by the association with respect to the
717 related covered obligations shall be reduced by the amount realized by any other person with
718 respect to the person or claim that is attributable to the policies, or portion of the policies,
719 covered by the association.
720 (f) If the association has provided benefits with respect to a covered policy and a
721 person recovers amounts as to which the association has rights as described in this Subsection
722 (14), the person shall pay to the association the portion of the recovery attributable to the
723 covered policies.
724 (15) (a) In addition to the rights and powers elsewhere in this part, the association may:
725 (i) enter into [
726 provisions and purposes of this part;
727 (ii) sue or be sued, including taking any legal actions necessary or proper to:
728 (A) recover any unpaid assessments under Section 31A-28-109 ; and
729 (B) settle claims or potential claims against the association;
730 (iii) borrow money to effect the purposes of this part;
731 (iv) employ or retain the persons necessary or the appropriate staff members to:
732 (A) handle the financial transactions of the association; and
733 (B) perform other functions as become necessary or proper under this part;
734 (v) take necessary or appropriate legal action to avoid or recover payment of improper
736 (vi) exercise, for the purposes of this part and to the extent approved by the
737 commissioner, the powers of a domestic life or health insurer, but in no case may the
738 association issue insurance policies or annuity contracts other than those issued to perform its
739 obligation under this part;
740 (vii) request information from a person seeking coverage from the association to aid
741 the association in determining the association's obligations under this part with respect to the
743 (viii) take other necessary or appropriate action to discharge the association's duties
744 and obligations under this part or to exercise the association's powers under this part; and
745 (ix) act as a special deputy [
746 (b) Any note or other evidence of indebtedness of the association under Subsection
747 (15)(a)(iii) that is not in default:
748 (i) is a legal investment for a domestic insurer; and
749 (ii) may be carried as admitted assets.
750 (c) A person seeking coverage from the association shall promptly comply with a
751 request for information by the association under Subsection (15)(a)(vii).
752 (16) The association may join an organization of one or more other state associations
753 of similar purposes to further the purposes and administer the powers and duties of the
755 (17) (a) [
756 180 days after the coverage date, the association may elect to succeed to the rights and
757 obligations of the member insurer that:
758 (i) accrue on or after the coverage date; and
759 (ii) relate to covered policies under any one or more indemnity reinsurance agreements:
760 (A) entered into by the member insurer as a ceding insurer and its reinsurer; and
761 (B) selected by the association.
770 (b) An election made pursuant to Subsection (17)(a) is effective as of the date of the
771 order of liquidation.
772 (c) The association may make an election described in Subsection (17)(a) by notifying
773 an affected reinsurer in writing, with verification of receipt, through:
774 (i) the association; or
775 (ii) a nationally recognized association representing state guaranty associations that is
776 approved by the commissioner, that provides notice on behalf of the association.
777 (d) The association shall provide a copy of the notice described in Subsection (17)(c) to
778 the receiver.
779 (e) (i) The receiver of an insolvent insurer and each reinsurer of the ceding member
780 insurers shall make available as soon as possible after commencement of formal delinquency
781 proceedings the information described in Subsection (17)(e)(ii) to:
782 (A) the association; or
783 (B) a nationally recognized association representing state guaranty associations that is
784 approved by the commissioner, on behalf of the association.
785 (ii) This Subsection (17)(e) applies to:
786 (A) copies of in-force contracts of reinsurance and the related records relevant to the
787 determination of whether the in-force contracts of reinsurance should be assumed;
788 (B) notices of any default under a reinsurance contract; or
789 (C) any known event or condition that with the passage of time could become a default
790 under a reinsurance contract.
792 shall comply with Subsections (17)[
793 selected by the association.
794 (i) For [
795 association [
796 (A) [
797 after the coverage date; and
798 (B) the performance of [
800 (ii) The association may charge [
801 the costs for reinsurance in excess of the obligations of the association, through reasonable
802 allocation methods.
803 (iii) The association shall provide notice and an accounting to the receiver of a charge
804 made pursuant to Subsection (17)(f)(ii).
806 agreements with respect to [
807 (A) [
808 (B) [
811 association shall pay to the beneficiary under the policy or contract on account of which the
812 amounts were paid an amount equal to the [
813 (A) the amount received by the association; and
814 (B) the excess of the amount received by the association over the benefits paid or
815 payable by the association on account of the policy or contract less the retention of the insurer
816 applicable to the loss or event.
818 each indemnity reinsurer shall calculate the net balance due to or from the association under
819 each reinsurance agreement as of the date of the association's election, giving full credit to [
820 the items paid by either the member insurer, [
821 the indemnity reinsurer [
822 the association's election.
825 (B) Within five days of the completion of the calculation under Subsection
827 (I) the reinsurer shall pay the receiver the amounts due for a loss or event before the
828 coverage date, subject to any set-off for premiums unpaid for a period before the coverage date;
830 (II) the association or the reinsurer shall pay any remaining balance due the other.
831 (C) A dispute over an amount due to either party shall be resolved:
832 (I) by arbitration pursuant to the terms of the affected reinsurance contract; or
833 (II) if the reinsurance contract contains no arbitration clause, as otherwise provided by
836 receives an amount due the association pursuant to Subsection (17)[
838 promptly as practicable.
840 days of the election, pays the premiums due for periods both before and after the coverage date
841 that relate to contracts covered by the association, in whole or in part, the reinsurer may not:
842 (A) terminate the reinsurance [
843 the extent the [
844 contract covered by the association, in whole or in part; and
845 (B) set off [
846 amounts due the association[
847 (I) under another contract; or
848 (II) as an unpaid amount due from a person other than the association.
849 (g) (i) This Subsection (17)(g) applies during the period that:
850 (A) begins on the coverage date; and
851 (B) ends:
852 (I) the election date; or
853 (II) if no election date occurs, 180 days after the coverage date.
854 (ii) During the period described in Subsection (17)(g)(i):
855 (A) neither the association nor the reinsurer have a right or obligation under a
856 reinsurance contract that the association may assume under Subsection (17)(a), whether for a
857 period before or after the coverage date; and
858 (B) the reinsurer, the receiver, and the association, to the extent practicable, shall
859 provide each other data and records reasonably requested.
860 (iii) Notwithstanding Subsection (17)(g)(ii), once the association elects to assume a
861 reinsurance contract, the parties' rights and obligations are governed by Subsections (17)(f)(i)
862 through (vi).
863 (h) If the association does not elect to assume a reinsurance contract by the election
864 date pursuant to Subsection (17)(a), the association has no right or obligation with respect to
865 the reinsurance contract, whether for a period before or after the coverage date.
867 obligations of the association under Subsections (17)(a) through [
868 agreed upon by the association and the other insurer and regardless of whether the association
869 has made the election referred to in Subsections (17)(a) through [
870 (i) the association transfers its obligations to the other insurer;
871 (ii) the association and the other insurer agree to the transfer;
872 (iii) the indemnity reinsurance agreements automatically terminate for new reinsurance
873 unless the indemnity reinsurer and the other insurer agree to the contrary;
874 (iv) the obligations described in Subsection (17)[
875 after the date the indemnity reinsurance agreement is transferred to the third party insurer;
877 (v) the transferring party shall give notice in writing, with verification of receipt, to the
878 affected reinsurer not less than 30 days before the effective date of the transfer; and
880 expressly determined in writing that the association will not exercise the election referred to in
881 Subsections (17)(a) through [
883 any affected reinsurance agreement that provides for or requires any payment of reinsurance
884 proceeds on account of losses or events that occur in periods after the coverage date, to:
885 (A) the receiver[
886 (B) another person.
887 (ii) The receiver[
888 payable by the reinsurer under the reinsurance agreement with respect to [
890 applicable setoff provisions.
892 (j), this Subsection (17) does not:
893 (i) alter or modify the terms and conditions of [
895 (ii) abrogate or limit [
896 rescind a reinsurance agreement; [
897 (iii) give a policy owner or beneficiary an independent cause of action against [
900 (iv) limit or affect the association's rights as a creditor of the estate of an insolvent
901 insurer against the assets of the estate; or
902 (v) apply to a reinsurance agreement that covers property or casualty risks.
903 (18) The board of directors of the association [
904 exercise reasonable business judgment to determine the means by which the association is to
905 provide the benefits of this part in an economical and efficient manner.
906 (19) If the association [
907 benefits of this part to a covered person under a plan or arrangement that fulfills the
908 association's obligations under this part, the person is not entitled to benefits from the
909 association in addition to or other than those provided under the plan or arrangement.
910 (20) (a) Venue in a suit against the association arising under this part [
911 Salt Lake County.
912 (b) The association may not be required to give an appeal bond in an appeal that relates
913 to a cause of action arising under this part.
914 Section 5. Section 31A-28-109 is amended to read:
915 31A-28-109. Assessments.
916 (1) (a) For the purpose of providing the funds necessary to carry out the powers and
917 duties of the association, the board of directors shall assess the member insurers, separately for
918 each class or subclass, at the time and for the amounts that the board of directors finds
920 (b) Member insurer liability for an assessment is established as of the coverage date.
921 (c) Subject to Subsection (1)(d), a called assessment:
922 (i) is due not less than 30 days after prior written notice to the member insurer; and
923 (ii) shall accrue interest at 10% per annum on and after the due date.
924 (d) Notwithstanding Subsection (1)(c), the association may:
925 (i) assess the association's members as of the coverage date; and
926 (ii) defer the collection of the assessment described in Subsection (1)(d)(i).
927 (e) An assessment:
928 (i) has the force and effect of a judgment lien against the member insurer; and
929 (ii) may not be extinguished until paid.
930 (2) The two classes of assessment are described in Subsections (2)(a) and (2)(b).
931 (a) A Class A assessment shall be authorized and called for the purpose of meeting
932 administrative and legal costs and other expenses. A Class A assessment may be authorized
933 and called whether or not related to a particular impaired or insolvent insurer.
934 (b) A Class B assessment shall be authorized and called to the extent necessary to carry
935 out the powers and duties of the association under Section 31A-28-108 with regard to an
936 impaired or an insolvent insurer.
937 (3) (a) (i) The amount of a Class A assessment:
938 (A) shall be determined by the board of directors; and
939 (B) may be authorized and called on a pro rata or non-pro rata basis.
940 (ii) If the Class A assessment is pro rata, the board of directors may credit the
941 assessment against future Class B assessments.
942 (iii) The total of [
943 insurer in any one calendar year.
944 (b) The amount of a Class B assessment shall be allocated for assessment purposes
945 among subclasses pursuant to an allocation formula that may be based on:
946 (i) the premiums or reserves of the impaired or insolvent insurer; or
947 (ii) any other standard determined by the board of directors in the board of directors'
948 sole discretion as being fair and reasonable under the circumstances.
949 (c) (i) A Class B assessment against a member insurer for the life insurance subclass,
950 the annuity subclass, and the unallocated annuity subclass shall be in the proportion that the
951 premiums received on business in this state by the member insurer on policies or contracts
952 included in the subclass for the three most recent calendar years for which information is
953 available preceding the year which includes the coverage date bears to the premiums received
954 on business in this state for the same period by [
955 (ii) A Class B assessment against a member insurer for an accident and health
956 insurance subclass shall be in the proportion that the premiums received on business in this
957 state by each assessed member insurer on policies or contracts included in the subclass for the
958 most recent calendar year for which information is available preceding the year in which the
959 assessment is made bears to the premiums received on business in this state on policies or
960 contracts included in the subclass for that calendar year by [
961 (d) Assessments for funds to meet the requirements of the association with respect to
962 an impaired or insolvent insurer may not be authorized or called until necessary to implement
963 the purposes of this part.
964 (e) Classification of assessments and premiums under Subsection (3)(b) and
965 computation of assessments under this Subsection (3) shall be made with a reasonable degree
966 of accuracy, recognizing that exact determinations may not always be possible.
967 (f) The association shall notify each member insurer of its anticipated pro rata share of
968 an authorized assessment not yet called within 180 days after the day on which the assessment
969 is authorized.
970 (4) (a) The association may abate or defer, in whole or in part, the assessment of a
971 member insurer if, in the opinion of the board of directors, payment of the assessment would
972 endanger the ability of the member insurer to fulfill its contractual obligations.
973 (b) If an assessment against a member insurer is abated or deferred in whole or in part
974 under Subsection (4)(a), the amount by which the assessment is abated or deferred may be
975 assessed against the other member insurers in a manner consistent with the basis for
976 assessments set forth in this section.
977 (c) Once a condition that caused a deferral is removed or rectified, the member insurer
978 shall pay [
980 (5) (a) (i) Subject to Subsection (5)(b), the total of [
981 the association on a member insurer for each subclass may not in any one calendar year exceed
982 2% of that member's total average annual assessable premium in that subclass as defined in
983 Subsection (3).
984 (ii) If two or more assessments are authorized in one calendar year with respect to one
985 or more insurers that become impaired or insolvent in different calendar years, the average
986 annual premiums for purposes of the aggregate assessment percentage limitation in Subsection
987 (5)(a)(i) shall be equal and limited to the highest of the total average annual assessable
988 premiums of the different calendar year periods involved in the assessment or assessments.
989 (iii) If the maximum assessment together with the other assets of the association do not
990 provide in one year an amount sufficient to carry out the responsibilities of the association, the
991 necessary additional funds shall be assessed as soon after as permitted by this part.
992 (b) The board of directors may provide in the plan of operation a method of allocating
993 funds among claims, whether relating to one or more impaired or insolvent insurers, when the
994 maximum assessment will be insufficient to cover anticipated claims.
995 (c) If the maximum assessment for the life insurance or annuity subclass in any one
996 year does not provide an amount sufficient to carry out the responsibilities of the association,
997 the board of directors shall assess the other of the subclasses of the life insurance and annuity
998 class for the necessary additional amount:
999 (i) pursuant to Subsection (3)(b); and
1000 (ii) subject to the maximum stated in Subsection (5)(a).
1001 (6) (a) The board of directors may, by an equitable method established in the plan of
1002 operation, refund to member insurers in proportion to the contribution of each insurer to that
1003 subclass the amount by which the assets of the subclass exceed the amount the board of
1004 directors finds is necessary to carry out the obligations of the association with regard to that
1005 subclass, including assets accruing from:
1006 (i) assignment;
1007 (ii) subrogation;
1008 (iii) net realized gains; and
1009 (iv) income from investments.
1010 (b) Notwithstanding Subsection (6)(a), a reasonable amount may be retained to provide
1011 funds for the continuing expenses of the association and for future losses.
1012 (7) A member insurer, in determining its premium rates and policyowner dividends as
1013 to any kind of insurance within the scope of this part, may consider the amount reasonably
1014 necessary to meet its assessment obligations under this part.
1015 (8) (a) The association shall issue to each insurer paying an assessment under this part,
1016 other than a Class A assessment, a certificate of contribution, in a form approved by the
1017 commissioner, for the amount of the assessment paid.
1018 (b) [
1019 dignity and priority without reference to amounts or dates of issue.
1020 (c) (i) A certificate of contribution described in Subsection (8)(a) may be shown by the
1021 insurer in its financial statement as an asset in the amount of the certificate of contribution less
1022 the amount by which the insurer's premium taxes have already been reduced with respect to the
1024 (ii) For good cause shown, the commissioner may order the insurer to show a different
1025 amount in its financial statement than the amount under Subsection (8)(c)(i).
1026 (9) (a) The association may request information from a member insurer to aid in the
1027 exercise of the association's power under this part.
1028 (b) A member insurer shall comply promptly with a request of the association under
1029 this Subsection (9).
1030 Section 6. Section 31A-28-110 is amended to read:
1031 31A-28-110. Plan of operation.
1032 (1) (a) The association shall submit to the commissioner a plan of operation and any
1033 amendments to the plan necessary or suitable to assure the fair, reasonable, and equitable
1034 administration of the association.
1035 (b) The plan of operation and any amendments become effective:
1036 (i) upon the commissioner's written approval; or
1037 (ii) after 30 days from the date the plan of operation or amendment is submitted to the
1038 commissioner if the commissioner has not disapproved the plan or amendment.
1039 (c) (i) If the association fails to submit a suitable amendment to the plan, the
1040 commissioner, after notice and hearing, shall adopt reasonable rules that are necessary or
1041 advisable to effectuate the provisions of this part.
1042 (ii) The rules described in Subsection (1)(c)(i) [
1043 (A) modified by the commissioner; or
1044 (B) superseded by an amendment to the plan:
1045 (I) submitted by the association; and
1046 (II) approved by the commissioner.
1047 (2) [
1048 (3) The plan of operation shall, in addition to any other requirement in this part:
1049 (a) establish procedures for handling the assets of the association;
1050 (b) establish the amount and method of reimbursing members of the board of directors
1051 under Section 31A-28-107 ;
1052 (c) establish regular places and times for meetings of the board of directors, including
1053 telephone conference calls;
1054 (d) establish procedures for records to be kept of [
1055 (i) the association;
1056 (ii) the association's agents; and
1057 (iii) the board of directors;
1058 (e) subject to Section 31A-28-107 , establish the procedures to be followed for:
1059 (i) selecting members to the board of directors; and
1060 (ii) submitting the selected members to the commissioner for approval;
1061 (f) establish any additional procedures for assessments under Section 31A-28-109 ;
1063 (g) establish procedures under which a member insurer may be removed from the
1064 board of directors for cause, including when the member insurer becomes an impaired or
1065 insolvent insurer;
1066 (h) require the board of directors to establish policies and procedures that address
1067 conflicts of interests; and
1069 powers and duties of the association.
1070 (4) (a) The plan of operation may provide that any or all powers and duties of the
1071 association, except those under Subsection 31A-28-108 (14)(d) and Section 31A-28-109 , are
1072 delegated to a corporation, association, or other organization that will perform functions similar
1073 to those of the association, or its equivalent, in two or more states.
1074 (b) A corporation, association, or organization described in Subsection (4)(a) shall be:
1075 (i) reimbursed for any payments made on behalf of the association; and
1076 (ii) paid for its performance of any function of the association.
1077 (c) A delegation under this Subsection (4):
1078 (i) [
1079 (A) the board of directors; and
1080 (B) the commissioner; and
1081 (ii) may be made only to a corporation, association, or organization that extends
1082 protection not substantially less favorable and effective than that provided by this part.
1083 Section 7. Section 31A-28-111 is amended to read:
1084 31A-28-111. Duties and powers under this part.
1085 In addition to the duties and powers enumerated elsewhere in this part, the persons
1087 through (6).
1088 (1) The commissioner shall:
1089 (a) upon request of the board of directors, provide the association with a statement of
1090 the premiums for each member insurer:
1091 (i) in this state; and
1092 (ii) any other appropriate state; and
1093 (b) if an impairment is declared and the amount of the impairment is determined, serve
1094 a demand upon the impaired insurer to make good the impairment within a reasonable time[
1098 (2) Notice to the impaired insurer under Subsection (1)(b) [
1099 notice to the shareholders of the impaired insurer if the impaired insurer has shareholders.
1100 (3) The failure of the insurer to promptly comply with the commissioner's demand
1101 under Subsection (1)(b) does not excuse the association from the performance of its powers
1102 and duties under this part.
1103 (4) (a) After notice and hearing, the commissioner may suspend or revoke the
1104 certificate of authority to transact insurance in this state of [
1105 domiciled in this state that fails to:
1106 (i) pay an assessment when due; or
1107 (ii) comply with the plan of operation.
1108 (b) (i) As an alternative to suspending or revoking a certificate of authority under
1109 Subsection (4)(a), the commissioner may levy a forfeiture on any member insurer that fails to
1110 pay an assessment when due.
1111 (ii) A forfeiture described in Subsection (4)(b)(i):
1112 (A) may not exceed 5% of the unpaid assessment per month; and
1113 (B) may not be less than $100 per month.
1114 (5) (a) A final action of the board of directors or the association may be appealed to the
1115 commissioner by any member insurer if appeal is taken within 60 days of the date the member
1116 insurer received notice of the final action being appealed.
1117 (b) If a member insurer is appealing an assessment, the amount assessed shall be:
1118 (i) paid to the association; and
1119 (ii) made available to meet association obligations during the pendency of an appeal.
1120 (c) If the appeal on the assessment described in Subsection (5)(b) is upheld, the amount
1121 paid in error or excess shall be returned to the member insurer.
1122 (d) Any final action or order of the commissioner [
1123 in a court of competent jurisdiction in accordance with the laws of this state that apply to the
1124 actions or orders of the commissioner.
1125 (6) The [
1126 shall notify [
1127 Section 8. Section 31A-28-112 is amended to read:
1128 31A-28-112. Reports.
1146 (i) the commissioner takes an action set forth in Section 31A-27a-201 ;
1147 (ii) an event described in Section 31A-17-603 , 31A-17-604 , or 31A-17-605 occurs; or
1149 indicating that an action described in Subsection [
1153 (i) [
1154 (ii) the significant details of an event described in Subsection (1)(a)(ii); or
1157 reasonable cause to believe from an examination of any member insurer, whether completed or
1158 in process, that the insurer may be an impaired or insolvent insurer; and
1160 Commissioners Insurance Regulatory Information System ratios and listings of companies not
1161 included in the ratios developed by the National Association of Insurance Commissioners.
1163 listings described in Subsection [
1164 responsibilities under this [
1165 (b) The board of directors shall keep the report and the information contained in the
1166 ratios and listings [
1167 or other lawful authority publishes the information.
1169 directors concerning any matter affecting the commissioner's duties and responsibilities
1170 regarding the financial condition of member insurers and companies seeking admission to
1171 transact insurance business in this state.
1173 commissioner upon any matter germane to:
1174 (i) the solvency, liquidation, rehabilitation, or conservation of any member insurer; or
1175 (ii) the solvency of any company seeking to do an insurance business in this state.
1176 (b) The reports and recommendations of the board of directors described in
1179 any information indicating a member insurer may be an impaired or insolvent insurer.
1181 the detection and prevention of insurer insolvencies.
1183 obligated to pay covered claims, the board of directors shall prepare a report to the
1184 commissioner containing the information the board of directors has in its possession bearing on
1185 the history and causes of the insolvency.
1186 (b) In preparing a report on the history and causes of insolvency of a particular insurer,
1187 the board of directors may cooperate with:
1188 (i) the board of directors of a guaranty association in another state; or
1189 (ii) an organization described in Subsection 31A-28-108 (16).
1190 (c) The board of directors may adopt by reference any report prepared by:
1191 (i) a guaranty association in another state; or
1192 (ii) an organization described in Subsection 31A-28-108 (16).
1193 Section 9. Section 31A-28-114 is amended to read:
1194 31A-28-114. Miscellaneous provisions.
1195 (1) Nothing in this part shall be construed to reduce the liability for unpaid assessments
1196 of the insureds of an impaired or insolvent insurer operating under a plan with assessment
1198 (2) (a) [
1199 record of a meeting of the board of directors to discuss the activities of the association in
1200 carrying out its powers and duties under Section 31A-28-108 .
1201 (b) [
1202 insurer may not be disclosed before the earlier of:
1203 (i) the termination of a liquidation, rehabilitation, or conservation proceeding involving
1204 the impaired or insolvent insurer;
1205 (ii) the termination of the impairment or insolvency of the insurer; or
1206 (iii) upon the order of a court of competent jurisdiction.
1207 (c) Nothing in this Subsection (2) [
1208 render a report of its activities under Section 31A-28-115 .
1209 (3) (a) For the purpose of carrying out its obligations under this part, the association
1211 assets attributable to covered policies reduced by any amounts to which the association is
1212 entitled as subrogee pursuant to Subsection 31A-28-108 (14).
1213 (b) Assets of the impaired or insolvent insurer attributable to covered policies shall be
1214 used to continue [
1215 impaired or insolvent insurer as required by this part.
1216 (c) As used in this Subsection (3), assets attributable to covered policies are that
1217 proportion of the assets which the reserves that should have been established for covered
1218 policies bear to the reserves that should have been established for all policies of insurance
1219 written by the impaired or insolvent insurer.
1220 (4) (a) As a creditor of the impaired or insolvent insurer under Subsection (3) and
1221 consistent with Section 31A-27a-701 , the association and any other similar association are
1222 entitled to receive a disbursement of assets out of the marshaled assets, from time to time as the
1223 assets become available to reimburse the association and any other similar association.
1224 (b) If, within [
1225 receivership court, the [
1226 approval of a proposal to disburse assets out of marshaled assets to [
1227 associations having obligations because of the insolvency, the association is entitled to make
1228 application to the receivership court for approval of the association's proposal for disbursement
1229 of these assets.
1230 (5) (a) [
1231 conservation proceeding, the court may take into consideration the contributions of the
1232 respective parties, including:
1233 (i) the association;
1234 (ii) the shareholders;
1235 (iii) policyowners of the insolvent insurer; and
1236 (iv) any other party with a bona fide interest in making an equitable distribution of the
1237 ownership rights of the insolvent insurer.
1238 (b) In making a determination under Subsection (5)(a), the court shall consider the
1239 welfare of the [
1240 (c) A distribution to any stockholder of an impaired or insolvent insurer may not be
1241 made until and unless the total amount of valid claims of the association with interest has been
1242 fully recovered by the association for funds expended in carrying out its powers and duties
1243 under Section 31A-28-108 with respect to the insurer.
1269 Section 10. Section 31A-28-118 is amended to read:
1270 31A-28-118. Stay of proceedings -- Reopening default judgments.
1272 court in this state shall be stayed [
1273 rehabilitation, or conservation is final to permit proper legal action by the association on any
1274 matters germane to its powers or duties.
1275 (2) The association may apply to have a judgment under any decision, order, verdict, or
1276 finding based on default set aside by the same court that made the judgment. The association
1277 shall be permitted to defend against the suit on the merits.
1278 Section 11. Section 31A-28-119 is amended to read:
1279 31A-28-119. Prohibited advertisement of the association -- Notice to owners of
1280 policies and contracts.
1281 (1) (a) Except as provided in Subsection (1)(b), a person, including an insurer, agent, or
1282 affiliate of an insurer may not make, publish, disseminate, circulate, or place before the public,
1283 or cause directly or indirectly to be made, published, disseminated, circulated, or placed before
1284 the public, in [
1285 circular, pamphlet, letter, or poster, or over [
1286 other way, any advertisement, announcement, or statement written or oral, [
1287 existence of the association for the purpose of sales, solicitation, or inducement to purchase any
1288 form of insurance.
1289 (b) Notwithstanding Subsection (1)(a), this section does not apply to:
1290 (i) the association; or
1291 (ii) [
1292 (2) (a) [
1293 (i) [
1294 limitations of this part that complies with Subsection (3); and
1295 (ii) submit the summary document described in Subsection (2)(a)(i) to the
1296 commissioner for approval.
1297 (b) [
1299 a policy or contract owner unless the summary document is also delivered to the policy or
1300 contract owner [
1301 (c) The summary document shall be available upon request by a policy owner.
1302 (d) The distribution, delivery, or contents or interpretation of the summary document
1303 does not guarantee that:
1304 (i) the policy or the contract is covered in the event of the impairment or insolvency of
1305 a member insurer; or
1306 (ii) the owner of the policy or contract is covered in the event of the impairment or
1307 insolvency of a member insurer.
1308 (e) The summary document shall be revised by the association as amendments to this
1309 part may require.
1310 (f) Failure to receive the summary document as required in Subsection (2)(b) does not
1311 give the [
1312 insured any greater rights than those stated in this part.
1313 (3) (a) The summary document [
1314 contain a clear and conspicuous disclaimer on its face.
1315 (b) The commissioner shall, by rule, establish the form and content of the disclaimer
1316 described in Subsection (3)(a), except that the disclaimer shall:
1317 (i) state the name and address of:
1318 (A) the association; and
1319 (B) the [
1320 (ii) prominently warn [
1321 (A) the association may not cover the policy or contract; or
1322 (B) if coverage is available, it is:
1323 (I) subject to substantial limitations and exclusions; and
1324 (II) conditioned on continued residence in the state;
1325 (iii) state the types of policies or contracts for which the association will provide
1327 (iv) state that the insurer and its agents are prohibited by law from using the existence
1328 of the association for the purpose of sales, solicitation, or inducement to purchase any form of
1330 (v) state that the policy or contract owner should not rely on coverage under the
1331 association when selecting an insurer;
1332 (vi) explain the rights available and procedures for filing a complaint to allege a
1333 violation of this part; and
1334 (vii) provide other information as directed by the commissioner including sources for
1335 information about the financial condition of insurers provided that the information:
1336 (A) is not proprietary; and
1337 (B) is subject to disclosure under public records laws.
1338 (4) (a) An insurer or agent may not deliver a policy or contract described in Subsection
1339 31A-28-103 (2)(a) and wholly excluded under Subsection 31A-28-103 (2)(b)(i) from coverage
1340 under this part unless the insurer or agent, prior to or at the time of delivery, gives the policy or
1341 contract holder a separate written notice that clearly and conspicuously discloses that the policy
1342 or contract is not covered by the association.
1343 (b) The commissioner shall by rule specify the form and content of the notice required
1344 by Subsection (4)(a).
1345 (5) A member insurer shall retain evidence of compliance with Subsection (2) for the
1346 later of:
1347 (a) three years; or
1348 (b) until the conclusion of the next market conduct examination by the department of
1349 insurance where the member insurer is domiciled.
1350 Section 12. Section 31A-28-120 is amended to read:
1351 31A-28-120. Prospective application.
1352 Notwithstanding any prior or subsequent law, the provisions of this part that are in
1353 effect on the date on which the association first becomes obligated for the policies or contracts
1354 of an insolvent or impaired member [
1355 the [
Legislative Review Note
as of 10-26-09 9:08 AM
Office of Legislative Research and General Counsel
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