§ 27-1-33-7 — Placement of business with an insurer; contract; contents

A person, a firm, an association, or a
corporation acting in the capacity of an MGA may not place business
with an insurer unless there is in force a written contract between the
parties. A contract required by this section must set forth the
responsibilities of each party and, where both parties share
responsibility for a particular function, specify the division of those
responsibilities. The contract must, at a minimum, contain provisions
that state the following:
(1) The insurer may terminate the contract for cause upon written
notice to the MGA and may suspend the underwriting authority
of the MGA during the pendency of any dispute regarding the
cause for termination.
(2) The MGA will:
(A) render accounts to the reinsurer detailing all transactions;
and
(B) remit all funds due under the contract to the insurer on not
less than a monthly basis.
(3) All funds collected for the account of an insurer will be held
by the MGA in a fiduciary capacity in a bank that is a member of
the Federal Reserve System. This account shall be used for all
payments on behalf of the insurer. The MGA may retain not more
than three (3) months estimated claims payments and allocated
loss adjustment expenses.
(4) Separate records of business written by the MGA shall be
maintained. The insurer shall have access and right to copy all
accounts and records related to its business in a form usable by
the insurer, and the commissioner shall have access to all books,
bank accounts, and records of the MGA in a form usable to the
commissioner.
(5) The contract may not be assigned in whole or part by the
MGA.
(6) Appropriate underwriting guidelines, including the following:
(A) The maximum annual premium volume.
(B) The basis of the rates to be charged.
(C) The types of risks which may be written.
(D) Maximum limits of liability.
(E) Applicable exclusions.
(F) Territorial limitations.
(G) Policy cancellation provisions.
(H) The maximum policy period.
(7) The insurer has the right to cancel or nonrenew any policy of
insurance subject to the applicable laws and regulations
concerning the cancellation and nonrenewal of insurance policies.
(8) If the contract permits the MGA to settle claims on behalf of
the insurer, the following apply:
(A) All claims must be reported to the company in a timely
manner.
(B) A copy of the claim file will be sent to the insurer at its
request or as soon as it becomes known that the claim:
(i) has the potential to exceed an amount determined by the
commissioner or exceeds the limit set by the company,
whichever is less;
(ii) involves a coverage dispute;
(iii) may exceed the MGA's claims settlement authority;
(iv) is open for more than six (6) months; or
(v) is closed by payment of an amount set by the
commissioner or an amount set by the company, whichever
is less.
(C) All claim files will be the joint property of the insurer and
MGA. However, upon an order of liquidation of the insurer,
those files shall become the sole property of the insurer or its
estate. The MGA shall have reasonable access to and the right
to copy the files on a timely basis.
(D) Any settlement authority granted to the MGA may be
terminated for cause upon the insurer's written notice to the
MGA or upon the termination of the contract. The insurer may
suspend the settlement authority during the pendency of any
dispute regarding the cause for termination.
(9) Where electronic claims files are in existence, the contract
must address the timely transmission of the data in those files.
(10) If the contract provides for a sharing of interim profits by the
MGA, and the MGA has the authority to determine the amount of
the interim profits by establishing loss reserves or controlling
claim payments, or in any other manner, interim profits will not
be paid to the MGA:
(A) until one (1) year after the profits are earned, for property
insurance business, and five (5) years after the profits are
earned on casualty business; and
(B) until the profits have been verified pursuant to section 8 of
this chapter.
(11) An MGA may not do any of the following:
(A) Bind reinsurance or retrocessions on behalf of the insurer,
except that the MGA may bind facultative reinsurance contracts
pursuant to obligatory facultative agreements if the contract
with the insurer contains reinsurance underwriting guidelines,
including, for both reinsurance assumed and ceded, a list of
reinsurers with which the automatic agreements are in effect,
the coverages and amounts or percentages that may be
reinsured, and commission schedules.
(B) Commit the insurer to participate in insurance or
reinsurance syndicates.
(C) Appoint any producer without assuring that the producer is
lawfully licensed to transact the type of insurance for which the
producer is appointed.
(D) Without prior approval of the insurer, pay or commit the
insurer to pay a claim over a specified amount, net of
reinsurance, which may not exceed one percent (1%) of the
insurer's policyholder's surplus as of December 31 of the last
completed calendar year before the payment or commitment.
(E) Collect any payment from a reinsurer or commit the insurer
to any claim settlement with a reinsurer without prior approval
of the insurer. If prior approval is given, a report must be
promptly forwarded to the insurer.
(F) Permit its subproducer to serve on the insurer's board of
directors.
(G) Jointly employ an individual who is employed with the
insurer, unless the MGA and the insurer are affiliated in an
insurance holding company system.
(H) Appoint a sub-MGA.

Legislative History

As added by P.L.1-1992, SEC.148. Amended by P.L.186-1997, SEC.9.