§ 44-8905 — Company; opinion of actuary; contents; standards; liability; confidentiality; director; powers; release of material; when

(1) Every
company with outstanding life insurance contracts, accident and health insurance
contracts, or deposit-type contracts in this state and subject to regulation
by the director shall annually submit the opinion of the appointed actuary
as to whether the reserves and related actuarial items held in support of
the policies and contracts are computed appropriately, are based on assumptions
that satisfy contractual provisions, are consistent with prior reported amounts,
and comply with applicable laws of this state. The valuation manual shall
prescribe the specifics of this opinion including any items deemed to be necessary
to its scope.
(2) Every company with outstanding
life insurance contracts, accident and health insurance contracts, or deposit-type
contracts in this state and subject to regulation by the director, except
as exempted in the valuation manual, shall also annually include in the opinion
required by subsection (1) of this section an opinion of the same appointed
actuary as to whether the reserves and related actuarial items held in support
of the policies and contracts specified in the valuation manual, when considered
in light of the assets held by the company with respect to the reserves and
related actuarial items, including, but not limited to, the investment earnings
on the assets and the considerations anticipated to be received and retained
under the policies and contracts, make adequate provision for the company's
obligations under the policies and contracts, including, but not limited to,
the benefits under and expenses associated with the policies and contracts.
(3) Each opinion required
by subsection (2) of this section shall be governed by the following provisions:
(a) A memorandum, in form
and substance as specified in the valuation manual, and acceptable to the
director, shall be prepared to support each actuarial opinion; and
(b) If the company fails
to provide a supporting memorandum at the request of the director within a
period specified in the valuation manual or the director determines that the
supporting memorandum provided by the company fails to meet the standards
prescribed by the valuation manual or is otherwise unacceptable to the director,
the director may engage a qualified actuary at the expense of the company
to review the opinion and the basis for the opinion and prepare the supporting
memorandum required by the director.
(4) Every opinion shall be governed by the following
provisions:
(a)
The opinion shall be in form and substance as specified in the valuation manual
and acceptable to the director;
(b) The opinion shall be submitted with the annual
statement reflecting the valuation of the reserves for each year ending on
or after the operative date of the valuation manual;
(c) The opinion shall apply to all policies
and contracts subject to subsection (2) of this section, plus other actuarial
liabilities as may be specified in the valuation manual;
(d) The opinion shall be
based on standards adopted from time to time by the Actuarial Standards Board
or its successor and on such additional standards as may be prescribed in
the valuation manual;
(e)
In the case of an opinion required to be submitted by a foreign or alien company,
the director may accept the opinion filed by that company with the insurance
supervisory official of another state if the director determines that the
opinion reasonably meets the requirements applicable to a company domiciled
in this state;
(f)
Except in cases of fraud or willful misconduct, the appointed actuary shall
not be liable for damages to any person other than the insurance company and
the director for any act, error, omission, decision, or conduct with respect
to the appointed actuary's opinion; and
(g) Disciplinary action by the director against the
company or the appointed actuary shall be as set forth in rules and regulations
adopted and promulgated by the director.
(5)(a) Documents, materials, or other information
in the possession or control of the director that are a memorandum in support
of the opinion and any other material provided by the company to the director
in connection with the memorandum shall be confidential by law and privileged,
shall not be a public record subject to disclosure by the director pursuant
to sections 84-712 to 84-712.09 , shall not be subject to subpoena, and shall
not be subject to discovery or admissible in evidence in any private civil
action. The director may use the documents, materials, or other information
in the furtherance of any regulatory or legal action brought as a part of
the director's official duties. Neither the director nor any person who received
documents, materials, or other information while acting under the authority
of the director shall be permitted or required to testify in any private civil
action concerning any confidential documents, materials, or other information.
(b) In order to assist in
the performance of the director's duties, the director:
(i) May share documents,
materials, or other information, including the confidential and privileged
documents, materials, or information, with other state, federal, and international
regulatory agencies, with the National Association of Insurance Commissioners
and its affiliates and subsidiaries, and with state, federal, and international
law enforcement authorities if the recipient agrees to maintain the confidentiality
and privileged status of the document, material, or other information; and
(ii) May receive documents,
materials, or other information, including otherwise confidential and privileged
documents, materials, or other information, from the National Association
of Insurance Commissioners and its affiliates and subsidiaries and from regulatory
and law enforcement officials of other foreign or domestic jurisdictions,
and shall maintain as confidential or privileged any document, material, or
other 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 other information.
(c) No waiver of any applicable privilege or claim
of confidentiality in the documents, materials, or other information shall
occur as a result of disclosure to the director under this section or as a
result of sharing information pursuant to this subsection.
(d) A memorandum in support
of the opinion, and any other material provided by the company to the director
in connection with the memorandum, may be subject to subpoena for the purpose
of defending an action seeking damages from the actuary submitting the memorandum
by reason of an action required by this section or by rules and regulations.
(e) The memorandum or other
material may otherwise be released by the director with the written consent
of the company or to the American Academy of Actuaries pursuant to a request
stating that the memorandum or other material is required for the purpose
of professional disciplinary proceedings and setting forth procedures satisfactory
to the director for preserving the confidentiality of the memorandum or other
material.
(f)
Once any portion of the confidential memorandum is cited by the company in
its marketing or is cited before a governmental agency other than a state
insurance department or is released by the company to the news media, all
portions of the confidential memorandum shall be no longer confidential.

Legislative History

Source: Laws 2014, LB755, § 5. Cross References: For operative date of valuation manual, see section 44-8908.