§ 33-52-15 — Application to Commissioner; petition to and approval by court; rules and regulations; confidentiality

Georgia § 33-52-15

• Jurisdiction: Georgia
• Title: 33

Text

(a) Application to the Commissioner for approval of an insurance business transfer plan. (1) An insurance business transfer plan shall be filed by the applicant with the Commissioner for review and approval. The plan shall contain the information set forth below or an explanation as to why such information is not included. The plan may be supplemented or revised with additional, updated, or other information when deemed necessary by the Commissioner and as it becomes available: (A) The name, address, and telephone number of the transferring insurer and the assuming insurer and their respective direct and indirect controlling persons, if any; (B) A summary of the insurance business transfer plan; (C) Identification and description of the subject business; (D) The most recent audited financial statements and annual and quarterly reports of the transferring insurer and assuming insurer filed with their respective domiciliary regulator; (E) The most recent actuarial report and actuarial opinion that quantify the liabilities associated with the subject business; (F) Pro-forma financial statements showing the projected statutory balance sheet, results of operations, and cash flows of the assuming insurer for the three years following the proposed transfer and novation; (G) 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; (H) Proposal for plan implementation and administration; (I) Form of notice to be provided under the plan to any policyholder whose policy is part of the subject business, including a full description as to how such notice shall be provided and whether certificates of assumption shall be issued to policyholders; (J) Description of any reinsurance arrangements that will pass to the assuming insurer under the insurance business transfer plan; (K) Description of any guarantees or additional reinsurance that will cover the subject business following the transfer and novation; (L) A statement describing the assuming insurer's proposed investment policies and any contemplated third-party claims management and administration arrangements; (M) A statement of whether any policyholder or group of policyholders shall lose or gain coverage of a state insurance guaranty association and a description of how the transferring and assuming insurers shall be licensed for the purpose of state insurance guaranty association coverage; (N) Evidence of approval or nonobjection of the transfer from the chief insurance regulatory official of the jurisdiction of the transferring insurer's domicile; and (O) An opinion report from an independent expert. Such report shall provide the following: (i) A statement of the independent expert's professional qualifications and experience that qualify him or her as an expert suitable for the engagement; (ii) The scope of the report; (iii) A summary of the terms of the insurance business transfer plan relevant to the report; (iv) A list of and summaries for documents, reports, and other material information the independent expert has considered in preparing the report and whether any information requested was not provided; (v) The extent to which the independent expert has relied on information and judgment provided by others; (vi) The persons upon whom the independent expert has relied and why such reliance is reasonable; (vii) 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; (viii) For each opinion that the independent expert expresses in the report, the facts and circumstances supporting such opinion; and (ix) Consideration as to whether the security position of any policyholder or group of policyholders affected by the insurance business transfer are materially adversely affected by the transfer, including, but not limited to, coverage by a state insurance guaranty association. (2) The independent expert's opinion report as required by subparagraph (a)(1)(O) of this Code section shall include, but shall not be limited to, a review of the following: (A) Analysis of the transferring insurer's actuarial review of reserves for the subject business to determine the reserve adequacy; (B) Analysis of the financial condition of the transferring insurer and of the assuming insurer and the effect the insurance business transfer shall have on the financial condition of each insurance company; (C) The plans or proposals the assuming insurer has with respect to the administration of the subject business; (D) Whether the proposed transfer will likely have a material adverse effect on the policyholders, reinsurers, or claimants of the transferring insurer and the assuming insurer; (E) Analysis of the assuming insurer's corporate governance structure to ensure proper board and management oversight and expertise to manage the subject business; and (F) Any other information the Commissioner deems necessary to review the insurance business transfer plan. (3) The Commissioner shall have 60 business days from the date of receipt of a complete insurance business transfer plan to review such plan to determine if the applicant is authorized to submit such plan to the court. The Commissioner may extend such review period for an additional 30 business days. (4) The Commissioner shall authorize the submission of the plan to the court unless he or she finds that the insurance business transfer will likely have a material adverse effect on the interests of policyholders, reinsurers, or claimants that are part of the subject business. (5) When the Commissioner determines that the insurance business transfer will likely have a material adverse effect on the interests of policyholders, reinsurers, or claimants that are part of the subject business, the Commissioner shall notify the applicant and specify any modifications, supplements, or amendments, and any additional information or documentation with respect to the plan that shall be provided to the Commissioner before he or she will authorize the filing of such insurance business transfer plan with the court. (6) The applicant shall have 30 days from the date the Commissioner notifies him or her, as provided in paragraph (5) of this subsection, to file an amended plan providing the modifications, supplements, or amendments, and additional information or documentation as requested by the Commissioner. If necessary, the applicant may request in writing an extension of up to 30 days. If the applicant does not make an amended filing within the time period provided for in this paragraph, including any extension of time granted by the Commissioner, the 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 article as if the prior filing had never been made. (7) The Commissioner's review period provided for in paragraph (3) of this subsection shall recommence upon receipt of the amended plan providing the modification, supplement, amendment, and the additional information or documentation requested in paragraph (5) of this subsection. (8) When the Commissioner authorizes the applicant to proceed with filing a petition with the court seeking approval and implementation of the plan, the Commissioner shall confirm such determination in writing to the applicant. (b) Petition to the court for approval of the insurance business transfer plan and an implementation order. (1) Within 30 days of the Commissioner's order determining an insurance business transfer plan satisfies the requirements of this article, the assuming insurer, transferring insurer, or reinsurer may file a petition with the court seeking an approval order and an implementation order of such plan. Upon written request by the applicant to the Commissioner, the period for filing a petition with the court may be extended for an additional 30 days. (2) The petition provided for in paragraph (1) of this subsection shall include: (A) The relief sought; (B) Information, arguments, and authorities supporting the requested relief, including information and analysis in support of the court's finding that the plan will not likely have a material adverse effect to any policyholder, reinsurer, or claimant; (C) The insurance business transfer plan; (D) A preliminary list of witnesses and exhibits that the petitioner reasonably intends to present to the court; and (E) A request for the court to enter judgment in favor of the petitioner and that such judgment shall include findings of fact, conclusions of law, an approval order, an implementation order, and the court's retention of jurisdiction to allow the parties to request any orders regarding incidental, consequential, and supplementary matters necessary to assure the full and effective implementation of such plan. (3) The Commissioner shall be a party to the proceeding before the court concerning the petition and shall be served with copies of all filings. The Commissioner's position in the proceeding shall not be limited by his or her initial review of the plan. (4) Within 30 days after the filing of the petition provided for in paragraph (1) of this subsection, the petitioner shall file a request for a preliminary scheduling order, which shall include a date and time for a status conference. The status conference shall occur no fewer than 14 days after the conclusion of the 60 day comment period provided in paragraph (7) of this subsection. (5) Within 45 days after the court enters the preliminary scheduling order, the petitioner shall cause the transmission and publication of a notice of the matter before the court in accordance with the notice provisions of Code Section 33-52-14 . (6) The notice provided for in paragraph (5) of this subsection shall include: (A) The date and time of the status conference; (B) The name, address and telephone number of the assuming insurer, transferring insurer, and Commissioner; (C) A statement regarding whether any policyholder or group of policyholders may or shall lose or gain coverage by a state insurance guaranty association as a result of the transfer and the implication of losing or gaining such coverage; (D) Procedures and deadlines for policyholders, claimants, and third parties to submit comments, objections, or requests to be heard at the trial regarding the plan; (E) The procedure for a policyholder that is unable to access or acquire an electronic copy of the plan and associated information to request the petitioner to provide one free hard copy to a policyholder; (F) A summary of the order entered by the Commissioner, including the effect the plan shall have on policyholders, if any; (G) The name and location of the court in which the petition is filed; (H) The case number, parties, and other identifying information of the matter in the petition; (I) The relief sought in the petition; (J) The procedure to access an electronic copy of the insurance business transfer plan and associated information, if any; (K) Further notice of filings, schedules, orders, and other information, as provided in paragraph (9) of this subsection; and (L) If the plan is approved by the court, the court shall enter a judgment consistent with paragraph (3) of subsection (c) of this Code section. (7) The last date of the transmission and publication of the notice shall be followed by a comment period of no fewer than 60 days. (8) Any person, including by their legal representative, that provides written notice within the 60 day comment period provided for in paragraph (7) of this subsection and that asserts to be materially adversely affected by the approval and implementation of a plan may present comment or evidence to the court at the trial; provided, however, that such comment or evidence shall not confer standing as a party on any person. Any person participating in the pretrial proceeding or the trial of the petitioner's request for an order of approval and an implementation order of the plan shall follow the process established by the court and shall bear their own costs and attorney's fees. (9) Only parties to this matter and those persons and other third parties that file a request to provide comment or evidence as provided for in paragraph (8) of this subsection shall receive further notice and copies of filings with the court. (10) Within 45 days of the status conference required as provided for in paragraph (4) of this subsection, the petitioner shall file a motion for a scheduling order and to enter this matter on the court's trial docket. (c) Approval order by the court of an insurance business transfer plan and implementation order. (1) Pursuant to the court's scheduling order or other orders by the court, the petitioner shall present the insurance business transfer plan, evidence, and arguments to the court for approval and implementation of the plan. (2) At any time before the court issues a judgment, the petitioner may withdraw the petition without prejudice to refiling. (3) When the court finds that the approval and implementation of the insurance business transfer plan will not materially adversely affect the interests of policyholders or claimants to policies that are part of the subject business, the court shall enter judgment in favor of the petitioner and an implementation order. Such judgment and order shall include and provide for: (A) Findings of fact; (B) Conclusions of law; (C) The approval order and the implementation order, including: (i) The simultaneous transfer and novation from the transferring insurer to the assuming insurer of the subject business with respect to all policyholders, reinsurers, and claimants and their respective policies and reinsurance agreements under the subject business; (ii) The simultaneous transfer and novation from the transferring insurer and the assuming insurer of all insurance obligations, risks, rights, or any combination thereof, including, but not limited to, the ceded reinsurance of transferred policies and contracts included in the subject business, notwithstanding any non-assignment provisions in any such reinsurance contracts or other agreements; (iii) Documentation that the assuming insurer shall have all of transferring insurer's obligations, risks, rights, or any combination thereof, regarding the subject business as if it were the original insurer of such policies, including the same standing as the transferring insurer pursuant to contract, statute, and interpretation, relating back to the issuance of such policies; and (iv) Documentation that the policyholders' and claimants' obligations, risks, rights, or any combination thereof, if any, under their respective policies which are part of the subject business shall not be enlarged, extended, limited, or reduced; provided, however, that the policyholders and claimants may not pursue or be pursued by the transferring insurer to satisfy their respective obligations, risks, rights, or any combination thereof, but rather, the policyholders and claimants may pursue or be pursued by the assuming insurer; (D) Notice of such judgment, including the resulting transfer and novation, shall be provided by the petitioner in accordance with the notice requirements as provided in Code Section 33-52-14 ; (E) Other orders and provisions with respect to incidental, consequential, and supplementary matters as are necessary to assure full and effective implementation of the insurance business transfer plan; and (F) The retention of jurisdiction of the matter so as to allow the parties to request such additional orders regarding incidental, consequential, and supplemental matters necessary to assure the full and effective implementation of the plan. (4) When the court finds that the insurance business transfer plan should not be approved, the court by its order may: (A) Deny the petition; or (B) Provide the petitioner leave to file an amended petition, including an amended insurance business transfer plan. (5) Nothing in this Code section in any way affects the right of appeal of any party. (d) An unexpired and in-force policy issued to a policyholder that resides in a state other than this state shall not be transferred and novated unless or until the assuming insurer is licensed, authorized, permitted, or otherwise legally allowed to administer the subject business in the same manner as the transferring insurer in the state of such policyholder's residence. (e) The court may approve the requested transfer and novation of the subject business, with effectiveness of all or part of the implementation deferred until the assuming insurer is able to satisfy the requirements pursuant to subsection (d) of this Code section. (f) The Commissioner shall promulgate rules and regulations to effectuate the provisions of this article. No insurance business transfer plan shall be approved in this state unless and until such rules and regulations are promulgated. Such rules and regulations may address, but shall not be limited to, the following issues: (1) State insurance guaranty association coverage; (2) The financial implications of the transaction, including solvency, capital adequacy, cash flow, reserves, asset quality, and risk-based capital; (3) An analysis of the assuming insurer's corporate governance structure to ensure proper board management oversight and expertise to manage the subject business; (4) The competency, experience, and integrity of the persons who would control the operations of an involved insurer; and (5) Ensuring the transaction is not being made for improper purposes, including fraud. (g) All testimony, documents, exhibits, analysis, communications, or other information or evidence submitted to the Commissioner or independent expert in contemplation of an application, submitted to the court in support of a petition, or developed by the Commissioner or independent expert in connection with such application or petition for an approval order and an implementation order of a plan, shall be treated for purposes of confidentiality as an examination of the financial condition or market conduct of the transacting companies as provided in Code Section 33-2-14 .

Legislative History

Added by 2024 Ga. Laws 592,§ 4, eff. 5/6/2024.