SENATE . . . . . . . . . . . . . . No. 2399
|
The Commonwealth of Massachusetts
_______________
In the Year Two Thousand Fourteen
_______________
SENATE, Wednesday, November 26, 2014
The committee on Ways and Means, to whom was referred the House Bill relative to credit for reinsurance requirements (House, No. 4326); reports, recommending that the same ought to pass with an amendment striking out all after the enacting clause and inserting in place thereof the text of Senate document numbered 2401.
For the committee,
Stephen M. Brewer
SENATE . . . . . . . . . . . . . . No. 2399
|
The Commonwealth of Massachusetts
_______________
In the Year Two Thousand Fourteen
_______________
SECTION 1. Subsection (1) of section 20A of chapter 175 of the General Laws, as appearing in the 2012 Official Edition, is hereby amended by striking out the first paragraph and inserting in place thereof the following paragraph:-
Credit for reinsurance shall be allowed a domestic ceding insurer as either an asset or a deduction from liability on account of reinsurance ceded only when the reinsurer meets the requirements of paragraph (A), (B), (C), (D), (E) or (F) of this subsection. If meeting the requirements of paragraph (C), the requirements of paragraph (G) shall also be met. If meeting the requirements of paragraph (D), the requirements of paragraphs (G) and (H) shall also be met.
SECTION 2. Said subsection (1) of said section 20A of said chapter 175, as so appearing, is hereby further amended by striking out paragraphs (E) to (G), inclusive, and inserting in place thereof the following 4 paragraphs:-
(E) Credit shall be allowed when the reinsurance is ceded to an assuming insurer that has been certified by the commissioner as a reinsurer in the commonwealth and secures its obligations in accordance with the requirements of this subsection.
(i) In order to be eligible for certification, the assuming insurer shall meet the following requirements:
(a) the assuming insurer shall be domiciled and licensed to transact insurance or reinsurance in a qualified jurisdiction, as determined by the commissioner pursuant to subparagraph (iii);
(b) the assuming insurer shall maintain minimum capital and surplus, or its equivalent, in an amount to be determined by the commissioner pursuant to regulation;
(c) the assuming insurer shall maintain financial strength ratings from 2 or more rating agencies deemed acceptable by the commissioner pursuant to regulation;
(d) the assuming insurer shall agree to submit to the jurisdiction of the commonwealth, appoint the commissioner as its agent for service of process in the commonwealth and agree to provide security for 100 per cent of the assuming insurer’s liabilities attributable to reinsurance ceded by United States ceding insurers if it resists enforcement of a final United States judgment;
(e) the assuming insurer shall agree to meet applicable information filing requirements as determined by the commissioner, both with respect to an initial application for certification and on an ongoing basis; and
(f) the assuming insurer shall satisfy any other requirements for certification deemed relevant by the commissioner.
(ii) An association, including incorporated and individual unincorporated underwriters, may be a certified reinsurer. In order to be eligible for certification, in addition to satisfying the requirements of subparagraph (i):
(a) the association shall satisfy its minimum capital and surplus requirements through the capital and surplus equivalents, net of liabilities, of the association and its members, which shall include a joint central fund that may be applied to any unsatisfied obligation of the association or any of its members, in an amount determined by the commissioner to provide adequate protection;
(b) the incorporated members of the association shall not be engaged in any business other than underwriting as a member of the association and shall be subject to the same level of regulation and solvency control by the association’s domiciliary regulator as are the unincorporated members; and
(c) within 90 days after its financial statements are due to be filed with the association’s domiciliary regulator, the association shall provide to the commissioner an annual certification by the association’s domiciliary regulator of the solvency of each underwriter member; or if a certification is unavailable, financial statements, prepared by independent public accountants, of each underwriter member of the association.
(iii) The commissioner shall create and publish a list of qualified jurisdictions, under which an assuming insurer licensed and domiciled in such jurisdiction is eligible to be considered for certification by the commissioner as a certified reinsurer.
(a) In order to determine whether the domiciliary jurisdiction of a non-United States assuming insurer is eligible to be recognized as a qualified jurisdiction, the commissioner shall evaluate the appropriateness and effectiveness of the reinsurance supervisory system of the jurisdiction, both initially and on an ongoing basis, and consider the rights, benefits and the extent of reciprocal recognition afforded by the non-United States jurisdiction to reinsurers licensed and domiciled in the United States. A qualified jurisdiction shall agree to share information and cooperate with the commissioner with respect to all certified reinsurers domiciled within that jurisdiction. A jurisdiction may not be recognized as a qualified jurisdiction if the commissioner has determined that the jurisdiction does not adequately and promptly enforce final United States judgments and arbitration awards. Additional factors may be considered in the discretion of the commissioner.
(b) A list of qualified jurisdictions shall be published through the National Association of Insurance Commissioners’ committee process. The commissioner shall consider this list in determining qualified jurisdictions. If the commissioner approves a jurisdiction as qualified that does not appear on the list of qualified jurisdictions, the commissioner shall provide thoroughly documented justification in accordance with criteria to be developed under regulations.
(c) United States jurisdictions that meet the requirement for accreditation under the National Association of Insurance Commissioners’ financial standards and accreditation program shall be recognized as qualified jurisdictions.
(d) If a certified reinsurer’s domiciliary jurisdiction ceases to be a qualified jurisdiction, the commissioner may suspend the reinsurer’s certification indefinitely, in lieu of revocation.
(iv) The commissioner shall assign a rating to each certified reinsurer, giving due consideration to the financial strength ratings that have been assigned by rating agencies deemed acceptable to the commissioner pursuant to regulation. The commissioner shall publish a list of all certified reinsurers and their ratings.
(v) A certified reinsurer shall secure obligations assumed from United States ceding insurers under this subsection at a level consistent with its rating, as specified in regulations promulgated by the commissioner.
(a) In order for a domestic ceding insurer to qualify for full financial statement credit for reinsurance ceded to a certified reinsurer, the certified reinsurer shall maintain security in a form acceptable to the commissioner and consistent with subsection (2) or in a multibeneficiary trust in accordance with paragraph (D), except as otherwise provided in this subsection.
(b) If a certified reinsurer maintains a trust to fully secure its obligations, subject to paragraph (D), and chooses to secure its obligations incurred as a certified reinsurer in the form of a multibeneficiary trust, the certified reinsurer shall maintain separate trust accounts for its obligations incurred under reinsurance agreements issued or renewed as a certified reinsurer with reduced security as permitted by this subsection or comparable laws of other United States jurisdictions and for its obligations subject to paragraph (D). It shall be a condition to the grant of certification under paragraph (E) that the certified reinsurer shall have bound itself, by the language of the trust and agreement with the commissioner with principal regulatory oversight of each such trust account, to fund, upon termination of any such trust account, out of the remaining surplus of such trust any deficiency of any other such trust account.
(c) The minimum trusteed surplus requirements provided in paragraph (D) are not applicable with respect to a multibeneficiary trust maintained by a certified reinsurer for the purpose of securing obligations incurred under this subsection, except that such trust shall maintain a minimum trusteed surplus of not less than $10,000,000.
(d) With respect to obligations incurred by a certified reinsurer under this subsection, if the security is insufficient, the commissioner shall reduce the allowable credit by an amount proportionate to the deficiency and may impose further reductions in allowable credit upon finding that there is a material risk that the certified reinsurer’s obligations will not be paid in full when due.
(e) For purposes of this subsection, a certified reinsurer whose certification has been terminated for any reason shall be treated as a certified reinsurer required to secure 100 per cent of its obligations. As used in this subsection, the term “terminated” shall refer to revocation, suspension, voluntary surrender and inactive status. If the commissioner continues to assign a higher rating as permitted by other provisions of this section, this requirement shall not apply to a certified reinsurer in inactive status or to a reinsurer whose certification has been suspended.
(vi) If an applicant for certification has been certified as a reinsurer in a National Association of Insurance Commissioner’s accredited jurisdiction, the commissioner may defer to that jurisdiction’s certification and may defer to the rating assigned by that jurisdiction and such assuming insurer shall be considered to be a certified reinsurer in this state.
(vii) A certified reinsurer that ceases to assume new business in the commonwealth may request to maintain its certification in inactive status in order to continue to qualify for a reduction in security for its in-force business. An inactive certified reinsurer shall continue to comply with all applicable requirements of this subsection and the commissioner shall assign a rating that takes into account, if relevant, the reasons why the reinsurer is not assuming new business.
(F) Credit shall be allowed when the reinsurance is ceded to an assuming insurer not meeting the requirements of paragraph (A), (B), (C), (D) or (E) but only with respect to the insurance of risks located in jurisdictions where such reinsurance is required by applicable law or regulation of that jurisdiction.
(G) If the assuming insurer is not licensed or accredited to transact insurance or reinsurance in the commonwealth, the credit permitted by paragraphs (C) and (D) shall not be allowed unless the assuming insurer agrees in the reinsurance agreements:
(I) that in the event of the failure of the assuming insurer to perform its obligations under the terms of the reinsurance agreement, the assuming insurer, at the request of the ceding insurer, shall submit to the jurisdiction of an alternative dispute resolution panel or any court of competent jurisdiction in any state of the United States, shall comply with all requirements necessary to give such panel or court jurisdiction and shall abide by the final decision of such panel or court or of any appellate court in the event of an appeal; and
(II) to designate the commissioner or a designated attorney as its true and lawful attorney upon whom any lawful process may be served in any action, suit or proceeding instituted by or on behalf of the ceding company.
This paragraph shall not create a conflict with or override the obligation of the parties to a reinsurance agreement to arbitrate their disputes, if such an obligation is created in the agreement.
(H) If the assuming insurer does not meet the requirements of paragraphs (A), (B) or (C), the credit permitted by paragraph (D) shall not be allowed unless the assuming insurer agrees in substance in the trust agreements to the following conditions:
(I) notwithstanding any other provisions in the trust instrument, if the trust fund is inadequate because it contains an amount less than the amount set forth in paragraph (D), or if the grantor of the trust has been declared insolvent or placed into receivership, rehabilitation, liquidation or similar proceedings under the laws of its state or country of domicile, the trustee shall comply with an order of the commissioner with regulatory oversight over the trust or with an order of a court of competent jurisdiction directing the trustee to transfer to the commissioner with regulatory oversight all of the assets of the trust fund;
(II) the assets shall be distributed by and claims of United States trust beneficiaries shall be filed with and valued by the commissioner with regulatory oversight in accordance with the laws of the state in which the trust is domiciled that are applicable to the liquidation of domestic insurance companies;
(III) if the commissioner with regulatory oversight determines that the assets of the trust fund or any part thereof are not necessary to satisfy the claims of the United States ceding insurers, which are United States trust beneficiaries, the assets or part thereof shall be returned by the commissioner with regulatory oversight to the trustee for distribution in accordance with the trust agreement; and
(IV) the grantor shall waive any right otherwise available to it under United States law that is inconsistent with these provisions.
SECTION 3. Subsection (2) of said section 20A of said chapter 175, as so appearing, is hereby amended by adding the following paragraph:-
(D) Any other form of security acceptable to the commissioner.
SECTION 4. Credit for reinsurance ceded to a certified reinsurer shall only be allowed for reinsurance contracts entered into or renewed on or after the effective date of the certification of the assuming insurer by the commissioner of insurance.