HB5534eng 102ND GENERAL ASSEMBLY

HB5534 Engrossed LRB102 26077 BMS 35542 b

AN ACT concerning regulation.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Insurance Business Transfer Act.

Section 3. Purpose and intent. The purpose of this Act is to provide options to address the significant limitations in the current methods available to insurers to transfer or assume blocks of insurance business in an efficient and cost-effective manner that provides needed legal finality for such transfers in order to provide for improved operational and capital efficiency for insurance companies, stimulates the economy by attracting segments of the insurance industry to this State, makes this State an attractive home jurisdiction for insurance companies, encourages economic growth and increased investment in the financial services sector, and increases the availability of quality insurance industry jobs in this State. These purposes are accomplished by providing a basis and procedures for the transfer and statutory novation of policies from a transferring insurer to an assuming insurer by way of an insurance business transfer without the affirmative consent of policyholders or reinsureds. This Act establishes the requirements for notice and disclosure and standards and procedures for the approval of the transfer and novation by the Director and a court pursuant to an insurance business transfer plan. This Act does not limit or restrict other means of effecting a transfer or novation.

Section 5. Definitions. As used in this Act:

"Affiliate" means a person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with the person specified.

"Applicant" means a transferring insurer or reinsurer applying under this Act.

"Assuming insurer" means an insurer domiciled in this State that assumes or seeks to assume policies from a transferring insurer pursuant to this Act.

"Department" means the Department of Insurance.

"Director" means the Director of Insurance.

"Implementation order" means an order issued by a court under this Act.

"Insurance business transfer" means a transfer and novation that, once approved pursuant to this Act, transfers insurance obligations or risks, or both, of existing or in-force contracts of insurance or reinsurance from a transferring insurer to an assuming insurer, and effects a novation of the transferred contracts of insurance or reinsurance with the result that the assuming insurer becomes directly liable to the policyholders of the transferring insurer and the transferring insurer's insurance obligations or risks, or both, under the contracts are extinguished.

"Insurance business transfer plan" means the plan submitted to the Department to accomplish the transfer and novation pursuant to an insurance business transfer, including any associated transfer of assets and rights from or on behalf of the transferring insurer to the assuming insurer.

"Independent expert" means an impartial person who has no financial interest in either the assuming insurer or transferring insurer, has not been employed by or acted as an officer, director, consultant, or other independent contractor for either the assuming insurer or transferring insurer within the past 12 months, is not appointed by the Director to assist in any capacity in any insurer rehabilitation or delinquency proceeding, is receiving no compensation in connection with the transaction governed by this Act other than a fee based on a fixed or hourly basis that is not contingent on the approval or consummation of an insurance business transfer, and provides proof of insurance coverage that is satisfactory to the Director.

"Insurer" means an insurance, surety, or reinsurance company, corporation, partnership, association, society, order, individual, or aggregation of individuals engaging in or proposing or attempting to engage in any kind of insurance or surety business, including the exchanging of reciprocal or inter-insurance contracts between individuals, partnerships, and corporations.

"Policy" means a policy, annuity contract, certificate of insurance, or a contract of reinsurance pursuant to which an insurer agrees to assume an obligation or risk, or both, of the policyholder or to make payments on behalf of, or to, the policyholder or its beneficiaries, including property, casualty, life, health, and any other line of insurance the Director approves by rule as suitable for an insurance business transfer.

"Policyholder" means an insured or a reinsured under a policy that is part of the subject business.

"Subject business" means the policy or policies that are the subject of the insurance business transfer plan.

"Transfer and novation" means the transfer of insurance obligations or risks, or both, of existing or in-force policies from a transferring insurer to an assuming insurer that is intended to effect a novation of the transferred policies with the result that the assuming insurer becomes directly liable to the policyholders of the transferring insurer on the transferred policies and the transferring insurer's obligations or risks, or both, under the transferred policies are extinguished.

"Transferring insurer" means an insurer or reinsurer that transfers and novates or seeks to transfer and novate obligations or risks, or both, under one or more policies to an assuming insurer pursuant to an insurance business transfer plan.

Section 10. Court authority. Notwithstanding any other provision of law, a court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this Act. No provision of this Act shall be construed to preclude a court from, on its own motion, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules or to prevent an abuse of power.

Section 15. Notice requirements.

(a) Whenever notice is required to be given by an applicant under this Act, except as otherwise permitted by a court or the Director, the applicant shall within 15 days after the event triggering the requirement transmit the notice:

(1) to the chief insurance regulator in each jurisdiction:

(A) in which the applicant holds or has ever held a certificate of authority; and

(B) in which policies that are part of the subject business were issued or policyholders currently reside;

(2) to the National Conference of Insurance Guaranty Funds, the National Organization of Life and Health Insurance Guaranty Associations, and all state insurance guaranty associations for the states:

(A) in which the applicant holds or has ever held a certificate of authority; and

(B) in which policies that are part of the subject business were issued or policyholders currently reside;

(3) to reinsurers of the applicant pursuant to the notice provisions of the reinsurance agreements applicable to the policies that are part of the subject business or, where an agreement has no provision for notice, by internationally recognized delivery service;

(4) to all policyholders holding policies that are part of the subject business at their last known address as indicated by the records of the applicant or to the address to which premium notices or other policy documents are sent. A notice of transfer shall also be sent to the transferring insurer's agents or brokers of record on the subject business; and

(5) by publication in a newspaper of general circulation in the state in which the applicant has its principal place of business and in such other publications that the Director requires.

(b) If notice is given in accordance with this Section, any orders under this Act shall be conclusive with respect to all intended recipients of the notice whether or not they receive actual notice.

(c) If this Act requires that the applicant provide notice but the Director has been named receiver of the applicant, the Director shall provide the required notice.

(d) Notice under this Section may take the form of first-class mail, facsimile, or electronic notice.

Section 20. Application procedure.

(a) An insurance business transfer plan shall be filed by the applicant with the Director for his or her review and approval. The plan may be supplemented by other information deemed necessary by the Director, and shall contain the following information or an explanation as to why the following information is not included:

(1) the name, address, and telephone number of the transferring insurer and the assuming insurer and their respective direct and indirect controlling persons, if any;

(2) a summary of the insurance business transfer plan;

(3) an identification and description of the subject business;

(4) the most recent audited financial statements and statutory annual and quarterly reports of the transferring insurer and the assuming insurer filed with their domiciliary regulator;

(5) the most recent actuarial report and opinion that quantify the liabilities associated with the subject business;

(6) pro forma financial statements showing the projected statutory balance sheet, results of operation, and cash flows of the assuming insurer for the 3 years following the proposed transfer and novation;

(7) officers' certificates of the transferring insurer and the assuming insurer attesting that each has obtained all required internal approvals and authorizations regarding the insurance business transfer plan and completed all necessary and appropriate actions relating thereto;

(8) a proposal for plan implementation and administration, including the form of notice to be provided under the insurance business transfer plan to any policyholder whose policy is part of the subject business;

(9) a full description as to how notice under the insurance business transfer plan shall be provided;

(10) a description of any reinsurance arrangements that would pass to the assuming insurer under the insurance business transfer plan;

(11) a description of any guarantees or additional reinsurance that will cover the subject business following the transfer and novation;

(12) a statement describing the assuming insurer's proposed investment policies and any contemplated third-party claims management and administration arrangements;

(13) a description of how the transferring and assuming insurers will be licensed for the following guaranty association coverage purposes:

(A) guaranty association coverage;

(B) the financial implications of the transaction including solvency, capital adequacy, cash flow, reserves, asset quality, and risk-based capital;

(C) an analysis of the assuming insurer's corporate governance structure to ensure that there is proper board management oversight and expertise to manage the subject business;

(D) the competency, experience, and integrity of the persons who would control the operation of an involved insurer; and

(E) ensuring the transaction is not being made for improper purposes, including fraud;

(14) evidence of approval or nonobjection of the transfer from the chief insurance regulator of the state of the transferring insurer's domicile; and

(15) a report from an independent expert, selected by the Director from a list of at least 2 nominees submitted jointly by the transferring insurer and the assuming insurer, to assist the Director and a court in connection with their review of the proposed transaction. If the Director, in his or her sole discretion, rejects the nominees, he or she may appoint the independent expert. The report shall provide the following:

(A) a statement of the independent expert's professional qualifications and descriptions of the experience that qualifies him or her as an expert suitable for the engagement;

(B) whether the independent expert has, or has had, direct or indirect interest in the transferring or assuming insurer or any of their respective affiliates;

(C) the scope of the report;

(D) a summary of the terms of the insurance business transfer plan to the extent relevant to the report;

(E) a listing and summaries of documents, reports, and other material information the independent expert has considered in preparing the report and whether any information requested was not provided;

(F) the extent to which the independent expert has relied on information provided by and judgment of others;

(G) the people on whom the independent expert has relied and why, in his or her opinion, such reliance is reasonable;

(H) the independent expert's opinion of the likely effects of the insurance business transfer plan on policyholders, reinsurers, and claimants, distinguishing between:

(i) transferring policyholders, reinsurers, and claimants;

(ii) policyholders, reinsurers, and claimants of the transferring insurer whose policies will not be transferred; and

(iii) policyholders, reinsurers, and claimants of the assuming insurer;

(I) the facts and circumstances supporting each opinion that the independent expert expresses in the report; and

(J) consideration as to whether the security position of policyholders that are affected by the insurance business transfer are materially adversely affected by the transfer.

(b) The independent expert's report as required by paragraph (15) of subsection (a) shall include, but not be limited to, a review of the following:

(1) analysis of the transferring insurer's actuarial review of resources for the subject business to determine the reserve adequacy;

(2) analysis of the financial condition of the transferring and assuming insurers and the effect the transfer will have on the financial condition of each company;

(3) review of the plans or proposals the assuming insurer has with respect to the administration of the policies subject to the proposed transfer;

(4) whether the proposed transfer has a material, adverse impact on the policyholders, reinsurers, and claimants of the transferring and the assuming insurers;

(5) analysis of the assuming insurer's corporate governance structure to ensure that there is proper board and management oversight and expertise to manage the subject business; and

(6) any other information that the Director requests in order to review the insurance business transfer.

(c) The Director shall have 60 business days after the date of receipt of a complete insurance business transfer plan to review the plan to determine if the applicant is authorized to submit it to a court. The Director may extend the 60-day review period for an additional 30 business days.

(d) The Director shall authorize the submission of the insurance business transfer plan to a court unless he or she finds that the insurance business transfer would have a material adverse impact on the interests of policyholders, reinsurers, or claimants that are part of the subject business.

(e) If the Director determines that the insurance business transfer would have a material adverse impact on the interests of policyholders, reinsurers, or claimants that are part of the subject business, he or she shall notify the applicant and specify any modifications, supplements, or amendments and any additional information or documentation with respect to the plan that must be provided to the Director before he or she shall allow the applicant to proceed with the court filing.

(f) The applicant shall have 30 days following the date the Director notifies him or her of a determination under subsection (e) to file an amended insurance business transfer plan providing the modifications, supplements, or amendments and additional information or documentation as requested by the Director. If necessary, the applicant may request in writing an extension of time of 30 days. If the applicant does not make an amended filing within the time period provided in this subsection, including any extension of time granted by the Director, the insurance business transfer plan filing shall terminate and a subsequent filing by the applicant shall be considered a new filing which shall require compliance with all provisions of this Act as if the prior filing had never been made.

(g) The Director's review period in subsection (c) shall recommence when the modification, supplement, amendment, or additional information requested in subsection (e) is received.

(h) If the Director determines that the plan may proceed with the court filing, the Director shall confirm that fact in writing to the applicant.

Section 25. Application to the court for approval of a plan.

(a) Within 30 days after notice from the Director that the applicant may proceed with the court filing, the applicant shall apply to the court for approval of the insurance business transfer plan. Upon written request by the applicant, the Director may extend the period for filing an application with the court for an additional 30 days.

(b) The applicant shall inform the court of the reasons why he or she petitions the court to find no material adverse impact to policyholders, reinsurers, or claimants affected by the proposed transfer.

(c) The application shall be in the form of a verified petition for implementation of the insurance business transfer plan in the court. The petition shall include the insurance business transfer plan and shall identify any documents and witnesses which the applicant intends to present at a hearing regarding the petition.

(d) The Director shall be a party to the proceedings before the court concerning the petition and shall be served with copies of all filings. The Director's position in the proceeding shall not be limited by his or her initial review of the plan.

(e) Following the filing of the petition, the applicant shall file a motion for a scheduling order setting a hearing on the petition.

(f) Within 15 days after receipt of the scheduling order, the applicant shall cause notice of the hearing to be provided in accordance with the notice provisions of Section 15 of this Act. Following the date of distribution of the notice, there shall be a 60-day comment period.

(g) The notice to policyholders shall state or provide:

(1) the date and time of the approval hearing;

(2) the name, address, and telephone number of the assuming insurer and transferring insurer;

(3) that a policyholder may comment on or object to the transfer and novation;

(4) the procedures and deadline for submitting comments or objections on the plan;

(5) a summary of any effect that the transfer and novation will have on the policyholder's rights;

(6) a statement that the assuming insurer is authorized to assume the subject business and that court approval of the plan shall extinguish all rights of policyholders under policies that are part of the subject business against the transferring insurer;

(7) that policyholders shall not have the opportunity to opt out of or otherwise reject the transfer and novation;

(8) contact information for the Department where the policyholder may obtain further information; and

(9) information on how an electronic copy of the insurance business transfer plan may be accessed. If policyholders are unable to readily access electronic copies, the applicant shall provide hard copies by first-class mail.

(h) Any person, including by their legal representative, who considers himself, herself, or itself to be adversely affected can present evidence or comments to the court at the approval hearing. However, such comment or evidence shall not confer standing on any person. Any person participating in the approval hearing must follow the process established by the court and shall bear his or her own costs and attorney's fees.

Section 30. Approval; denial; insurance business transfer plans.

(a) After the comment period pursuant to subsection (f) of Section 25 has ended the insurance business transfer plan shall be presented by the applicant for approval by the court.

(b) At any time before the court issues an order approving the insurance business transfer plan, the applicant may withdraw the insurance business transfer plan without prejudice.

(c) If the court finds that the implementation of the insurance business transfer plan would not materially adversely affect the interests of policyholders, reinsurers, or claimants that are part of the subject business, the court shall enter a judgment and implementation order. The judgment and implementation order shall:

(1) order implementation of the insurance business transfer plan;

(2) order a statutory novation with respect to all policyholders or reinsureds and their respective policies and reinsurance agreements under the subject business, including the extinguishment of all rights of policyholders under policies that are part of the subject business against the transferring insurer, and providing that the transferring insurer shall have no further rights, obligations, or liabilities with respect to such policies, and that the assuming insurer shall have all such rights, obligations, and liabilities as if it were the original insurer of such policies;

(3) release the transferring insurer from all obligations or liabilities under policies that are part of the subject business;

(4) authorize and order the transfer of property or liabilities, including, but not limited to, the ceded reinsurance of transferred policies and contracts on the subject business, notwithstanding any non-assignment provisions in any such reinsurance contracts. The subject business shall vest in and become liabilities of the assuming insurer;

(5) order that the applicant provide notice of the transfer and novation in accordance with the notice provisions in Section 15; and

(6) make such other provisions with respect to incidental, consequential, and supplementary matters as are necessary to assure the insurance business transfer plan is fully and effectively carried out.

(d) If the court finds that the insurance business transfer plan should not be approved, the court by its order may:

(1) deny the petition; or

(2) provide the applicant leave to file an amended insurance business transfer plan and petition.

(e) Nothing in this Section in any way effects the right of appeal of any party.

Section 35. Rules. The Department shall adopt rules that are consistent with the provisions of this Act. No insurance business transfer plan shall be approved in this State unless and until such rules are adopted.

Section 40. Confidentiality. The portion of the application for an insurance business transfer that would otherwise be confidential, including any documents, materials, communications, or other information submitted to the Director in contemplation of such application, shall not lose such confidentiality.

Section 45. Ongoing oversight. Insurers subject to this Act consent to the jurisdiction of the Director with regard to ongoing oversight of operations, management, and solvency relating to the transferred business, including the authority of the Director to conduct financial analysis and examinations.

Section 50. Fees and costs.

(a) At the time of filing its application with the Director for review and approval of an insurance business transfer plan, an applicant shall pay a nonrefundable fee to the Department.

(b) The Director may retain independent attorneys, appraisers, actuaries, certified public accountants, authorized consultants, or other professionals and specialists to assist Department personnel in connection with the review required by this Act. The cost of retaining professionals and specialists shall be borne by the applicant.

(c) The transferring insurer and the assuming insurer shall jointly be obligated to pay any compensation, costs, and expenses of the independent expert and any consultants retained by the independent expert and approved by the Department incurred in fulfilling the obligations of the independent expert under this Act. Nothing in this Act shall be construed to create any duty for the independent expert to any party other than the Department or a court.

(d) Failure to pay any of the requisite fees or costs within 30 days after demand shall be grounds for the Director to request that a court dismiss the petition for approval of the insurance business transfer plan before the filing of an implementation order by the court or, if after the filing of an implementation order, the Director may suspend or revoke the assuming insurer's certificate of authority to transact insurance business in this State.