ratemaking.
1.All risk-based capital reports, to the extent the information therein is not required to be
set forth in a publicly available annual statement schedule, and risk-based capital
plans, including the results or report of any examination or analysis of an insurer
performed under this chapter and any corrective order issued by the commissioner
pursuant to examination or analysis, with respect to any domestic insurer or foreign
insurer that are in the possession or control of the insurance department are
confidential and privileged, not subject to section 44-04-18, not subject to subpoena,
and not subject to discovery and are not admissible in evidence in any private civil
action. However, the commissioner may use any document, material, or other
information in the furtherance of
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ratemaking.
1. All risk-based capital reports, to the extent the information therein is not required to be
set forth in a publicly available annual statement schedule, and risk-based capital
plans, including the results or report of any examination or analysis of an insurer
performed under this chapter and any corrective order issued by the commissioner
pursuant to examination or analysis, with respect to any domestic insurer or foreign
insurer that are in the possession or control of the insurance department are
confidential and privileged, not subject to section 44-04-18, not subject to subpoena,
and not subject to discovery and are not admissible in evidence in any private civil
action. However, the commissioner may use any document, material, or other
information in the furtherance of any regulatory or legal action brought as a part of the
commissioner's official duties.
2. Neither the commissioner nor any person that received any document, material, or
other information while acting under the authority of the commissioner may be
permitted or required to testify in any private civil action concerning any confidential
document, material, or information subject to subsection 1.
3. To assist in the performance of the commissioner's duties, the commissioner:
a. May share any document, material, or other information, including any
confidential and privileged document, material, or information subject to
subsection 1, with any other state, federal, or international regulatory agency; the
national association of insurance commissioners and its affiliates and
subsidiaries; and any state, federal, and international law enforcement authority,
provided the recipient agrees to maintain the confidentiality and privileged status
of the document, material, or other information.
b. May receive any document, material, or information, including any otherwise
confidential and privileged document, material, or information, from the national
association of insurance commissioners and its affiliates and subsidiaries and
from any regulatory and law enforcement official of any other foreign or domestic
jurisdiction, and shall maintain as confidential or privileged any document,
material, or information received with notice or the understanding that it is
confidential or privileged under the laws of the jurisdiction that is the source of the
document, material, or information.
c. May enter any agreement governing sharing and use of information consistent
with this subsection.
4. Waiver of any applicable privilege or claim of confidentiality in any document, material,
or information does not occur as a result of disclosure to the commissioner under this
section or as a result of sharing as authorized in subsection 3.
5. It is the judgment of the legislative assembly that the comparison of an insurer's total
adjusted capital to any of its risk-based capital levels is a regulatory tool that may
indicate the need for possible corrective action with respect to the insurer, and is not
intended as a means to rank insurers generally. Therefore, except as otherwise
required under this chapter, the making, publishing, disseminating, circulating, or
placing before the public, or causing, directly or indirectly, to be made, published,
disseminated, circulated, or placed before the public, in a newspaper, magazine, or
other publication, or in the form of a notice, circular, pamphlet, letter, or poster, or over
any radio or television station, or in any other way, an advertisement, announcement,
or statement containing an assertion, representation, or statement with regard to the
risk-based capital levels of any insurer, or of any component derived in the calculation,
by any insurer, insurance producer, broker, or other person engaged in any manner in
the insurance business would be misleading and is therefore prohibited. However, if
any materially false statement with respect to the comparison regarding an insurer's
total adjusted capital to its risk-based capital levels, or any of them, or an inappropriate
comparison of any other amount to the insurer's risk-based capital levels is published
in any written publication and the insurer is able to demonstrate to the commissioner
with substantial proof the falsity of the statement, or the inappropriateness, as the case
may be, then the insurer may publish an announcement in a written publication if the
sole purpose of the announcement is to rebut the materially false statement.
6. It is the further judgment of the legislative assembly that the risk-based capital
instructions, risk-based capital reports, adjusted risk-based capital reports, risk-based
capital plans, and revised risk-based capital plans are intended solely for use by the
commissioner in monitoring the solvency of insurers and the need for possible
corrective action with respect to insurers and may not be used by the commissioner for
ratemaking nor considered or introduced as evidence in any rate proceeding nor used
by the commissioner to calculate or derive any elements of an appropriate premium
level or rate of return for any line of insurance that an insurer or any affiliate is
authorized to write.