Section 1: Definitions
[ Text of section effective until April 9, 2025. For text effective April 9, 2025, see below.]
Section 1. As used in this chapter the following words shall, unless the context clearly requires otherwise, have the following meanings:--
(1) "Commissioner'', the commissioner of insurance.
(2) "Covered claim'', an unpaid claim, including one for unearned premiums, which arises out of and is within the coverage of an insurance policy to which this chapter applies issued by an insurer, if such insurer becomes an insolvent insurer and (a) the claimant or insured is a resident of the commonwealth; or (b) the property from which the claim arises is permanently located in the commonwealth.
"Covered claim'', shall not include (1) claims excluded pursuant to section 17 due to the high net worth of an insured, and (2) any amount due a reinsurer, insurer, insurance pool or underwriting association; provided, that a claim for the amount, asserted against a person insured under a policy issued by an insurer which has become an insolvent insurer, which, if it were not a claim by or for the benefit of a reinsurer, insurer, insurance pool or underwriting association, would be a "covered claim'' may be filed directly with the receiver of the insolvent insurer, but in no event may the claim be asserted against the insured of the insolvent insurer.
(3) "Fund'', the Massachusetts Insurers Insolvency Fund created under section three.
(4) "Insolvent Insurer'', an insurer authorized to transact insurance in this commonwealth either at the time the policy was issued or when the insured event occurred and determined to be insolvent by a court of competent jurisdiction.
(5) "Insurer'', any person, except as provided in the ninth paragraph of section six of chapter three hundred and sixty-two of the acts of nineteen hundred and seventy-five, who (a) writes any kind of insurance to which this chapter applies, including the exchange of reciprocal or interinsurance contracts, and (b) is licensed to transact insurance in the commonwealth.
(6) "Net direct written premiums'', direct gross premiums written in the commonwealth on insurance policies to which this chapter applies, less return premiums thereon and dividends paid or credited to policy holders on such direct business. Premiums written by any insurer on policies issued to self-insurers, whether or not designated reinsurance contracts, shall be deemed net direct written premiums. For workers' compensation policies issued with deductibles under paragraph (4) of section 25A of chapter 152, net direct written premiums shall be deemed to be an amount equal to standard premium plus any applicable all risk adjustment program amounts.
(7) "Plan'', the plan of operation established and approved under section six.
Chapter 175D: Section 1. Definitions
[ Text of section as amended by 2024, 389, Sec. 1 effective April 9, 2025. For text effective until April 9, 2025, see above.]
Section 1. As used in this chapter, the following words shall have the following meanings unless the context clearly requires otherwise:
"Affiliate'', a person who directly or indirectly, through 1 or more intermediaries, controls, is controlled by or is under common control with another person on December 31 of the year immediately preceding the date a member insurer becomes an insolvent member insurer.
"Association similar to the Fund'', any guaranty association, security fund or other insolvency mechanism that affords protection similar to that of the Fund, including, but not limited to, any property and casualty insolvency mechanism that obtains assessments or other contributions from insurers on a pre-insolvency basis.
"Claimant'', any person instituting a covered claim; provided, however, that no person who is an affiliate of the insolvent member insurer shall be a claimant.
"Commissioner'', the commissioner of insurance.
"Control'', the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract other than a commercial contract for goods or non-management services or otherwise, unless the power is the result of an official position with or corporate office held by the person. Control shall be presumed to exist if a person, directly or indirectly, owns, controls, holds with the power to vote or holds proxies representing not less than 10 per cent of the voting securities of any other person; provided, that this presumption may be rebutted by a showing that control does not exist in fact.
"Covered claim'', an unpaid claim, including a claim for unearned premiums, submitted by a claimant, which arises out of, and is within the coverage and is subject to the applicable limits of, an insurance policy to which this chapter applies issued by a member insurer if the member insurer becomes an insolvent member insurer after July 1, 2025 and: (i) the claimant or insured is a resident of the commonwealth at the time of the insured event; provided, that for entities other than an individual, the residence or principal place of business of a claimant, insured or policyholder shall be located in the commonwealth at the time of the insured event; or (ii) the claim is a first-party claim for damage to property with a permanent location in the commonwealth. Unless otherwise provided "covered claim'' shall not include: (A) any amount awarded as punitive or exemplary damages; (B) any amount sought as a return of premium under any retrospective rating plan; (C) any amount due any reinsurer, insurer, insurance pool or underwriting association, health maintenance organization, hospital plan corporation, professional health service corporation or self-insurer as subrogation recoveries, reinsurance recoveries, contribution, indemnification or otherwise; provided, however, that no claim for any amount due any reinsurer, insurer, insurance pool, underwriting association, health maintenance organization, hospital plan corporation, professional health service corporation or self-insurer shall be asserted against a person insured under a policy issued by an insolvent member insurer other than to the extent the claim exceeds the association obligation limitations set forth in section 5; (D) claims excluded pursuant to section 12 due to the high net worth of an insured; (E) any first-party claims by an insured that is an affiliate of the insolvent member insurer; (F) any fee or other amount relating to goods or services sought by or on behalf of any attorney or other provider of goods or services retained by the insolvent member insurer or an insured prior to the date it was determined to be insolvent; (G) any fee or other amount sought by or on behalf of any attorney or other provider of goods or services retained by any insured or claimant in connection with the assertion or prosecution of any claim, covered or otherwise, against the Fund; (H) any claims for interest; or (I) any claim filed with the Fund or a liquidator for protection afforded under the insured's policy for incurred-but-not-reported losses.
"Cybersecurity insurance'', insurance that provides first- and third-party coverage, in a policy or endorsement, written on a direct, admitted basis, providing indemnity for losses or loss mitigation arising out of or relating to data privacy breaches, unauthorized information network security intrusions, computer viruses, ransomware, cyber extortion, identity theft and similar exposures.
"Director'', an individual serving on behalf of an insurer member on the board of directors or an insurance producer representative on the board of directors.
"Fund'', the Massachusetts Insurers Insolvency Fund established under section 3.
"High net worth insured'', any insured whose net worth exceeds $25,000,000 on December 31 of the year prior to the year in which the insurer becomes an insolvent member insurer; provided that an insured's net worth on that date shall be deemed to include the aggregate net worth of the insured and all of its subsidiaries and affiliates as calculated on a consolidated basis; and provided further, that "high net worth insured'' shall not include a federal, state or local government entity.
"Insolvent member insurer'', a member insurer against whom a final order of liquidation, which has not been stayed and to which there is no further right of appeal, has been entered with a finding of insolvency by a court of competent jurisdiction in the insurer's state of domicile after July 1, 2025.
"Insured'', any named insured, any additional insured, any vendor, lessor or any other party identified as an insured under the policy.
"Member insurer'', any person, except as provided in the ninth paragraph of section 6 of chapter 362 of the acts of 1975, who: (i) writes any kind of insurance to which this chapter applies, including the exchange of reciprocal or inter-insurance contracts; and (ii) is licensed to transact insurance in the commonwealth. An insurer shall cease to be a "member insurer'' in the Fund effective on the day following the termination or expiration of its license to transact the kinds of insurance to which this chapter applies; provided further, that the insurer shall remain liable as a "member insurer'' for any and all obligations, including obligations for assessments levied prior to the termination or expiration of the insurer's license and assessments levied after the termination or expiration of the insurer's license, which relate to any insurer that became an insolvent member insurer prior to the termination or expiration of the insurer's license.
"Net direct written premiums'', direct gross premiums written in the commonwealth on insurance policies to which this chapter applies, including policy and membership fees, less return premiums thereon, and dividends paid or credited to policyholders on such direct business. Premiums written by any insurer on policies issued to self-insurers, whether or not designated reinsurance contracts, shall be deemed "net direct written premiums''. For workers' compensation policies issued with deductibles under paragraph (4) of section 25A of chapter 152, "net direct written premiums'' shall be deemed to be an amount equal to standard premium plus any applicable all risk adjustment program amounts. "Net direct written premiums'' shall not include premiums on contracts between insurers or reinsurers.
"Novation'', a transaction whereby existing policy obligations became the direct obligations of another insurer through consent of the policyholder and that thereafter the ceding insurer or entity initially obligated under the claims or policies is released by the policyholder from performing its obligations under the policy; provided, however, that consent may be express or implied based upon the circumstances, notice provided and conduct of the parties.
"Person'', any individual, aggregation of individuals, corporation, partnership or other legal entity, including, but not limited to, governmental entities.
"Receiver'', a liquidator, rehabilitator, conservator or ancillary receiver, as the context requires, including, but not limited to, any receiver appointed pursuant to section 180C of chapter 175.
"Self-insurer'', a person that covers its liability through a qualified individual or group self-insurance program or any other formal program created for the specific purpose of covering liabilities typically covered by insurance.