§ 36-1686 — Application for Approval of Insurance Business Transfer

Plan. A. Application to the Commissioner for Approval of Insurance Business Transfer Plan. 1. An Insurance Business Transfer Plan must be filed by the applicant with the Insurance Commissioner for his or her review and approval. The Plan must contain the information set forth below or an explanation as to why the information is not included. The Plan may be supplemented or revised with additional, updated, or other information as it becomes available or when deemed necessary by the Commissioner: 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. summary of the Insurance Business Transfer Plan, c. identification and description of the subject business, d. most recent audited financial statements and statutory annual and quarterly reports of the transferring insurer and assuming insurer filed with their domiciliary regulator, e. the most recent actuarial report and 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 (3) 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 Insurance Business Transfer Plan to any policyholder whose policy is part of the subject business including full description as to how such notice shall be provided, 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. evidence of approval or nonobjection of the transfer from the chief insurance regulator of the state of the transferring insurer's domicile, and n. an opinion report from an independent expert, which shall provide the following: (1) a statement of the independent expert's professional qualifications and descriptions of the experience that qualifies him or her as an expert suitable for the engagement, (2) whether the independent expert has, or has had, direct or indirect interest in the transferring or assuming insurer or any of their respective affiliates, (3) the scope of the report, (4) a summary of the terms of the Insurance Business Transfer Plan to the extent relevant to the report, (5) a listing and summaries of documents, reports and other material information the independent expert has considered in preparing the report and whether any information requested was not provided, (6) the extent to which the independent expert has relied on information provided by and the judgment of others, (7) the people upon whom the independent expert has relied and why, in his or her opinion, such reliance is reasonable, (8) the independent expert's opinion of the likely effects of the Insurance Business Transfer Plan on policyholders, reinsurers, and claimants, distinguishing between: (a) transferring policyholders, reinsurers, and claimants, (b) policyholders, reinsurers, and claimants of the transferring insurer whose policies will not be transferred, and (c) policyholders, reinsurers, and claimants of the assuming insurer, (9) for each opinion that the independent expert expresses in the report the facts and circumstances supporting the opinion, and (10) consideration as to whether the security position of policyholders that are affected by the Insurance Business Transfer are materially adversely affected by the transfer. 2. The independent expert's opinion report as required by subparagraph n of paragraph 1 of this subsection shall include, but 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 assuming insurer and the effect the Insurance Business Transfer will have on the financial condition of each insurance company, c. review of the plans or proposals the assuming insurer has with respect to the administration of the policies subject to the plan, d. whether the proposed transfer has a material adverse effect on the policyholders, reinsurers, and claimants of the transferring and the assuming insurers, 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 requests in order to review the Insurance Business Transfer. 3. The Commissioner shall have sixty (60) business days from the date of receipt of a complete Insurance Business Transfer Plan to review the Plan to determine if the applicant is authorized to submit it to the court. The Commissioner may extend the sixty-day review period for an additional thirty (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 cause a material adverse effect on the interests of policyholders, reinsurers, or claimants that are part of the subject business. 5. If the Commissioner determines that the Insurance Business Transfer will cause 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 must be provided to the Commissioner before he or she will allow the applicant to proceed with the court filing. 6. The applicant shall have thirty (30) days from the date the Commissioner notifies him or her, pursuant to paragraph 5 of this subsection, to file an amended Insurance Business Transfer 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 time of thirty (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 Insurance Business Transfer Plan filing will terminate and a subsequent filing by the applicant will be considered a new filing which shall require compliance with all provisions of this act as if the prior filing had never been made. 7. The Commissioner's review period in paragraph 3 of this subsection shall recommence when the modification, supplement, amendment or additional information requested in paragraph 5 of this subsection is received. 8. If the Commissioner determines that the applicant may proceed with filing a petition with the court seeking approval and implementation of the Plan, the Commissioner shall confirm that fact in writing to the applicant. B. Petition to the court for approval and implementation of the Insurance Business Transfer Plan. 1. Within thirty (30) days after the filing and transmission of the Commissioner's order determining the Plan satisfies the requirements of this act, the assuming insurer, transferring insurer, or reinsurer may file a petition with the court seeking an order of approval and implementation of the Insurance Business Transfer Plan. Upon written request by the applicant to the Commissioner, the period for filing a petition under this subsection with the court may be extended for an additional thirty (30) days. 2. The petition shall include: a. relief sought, b. information, arguments, and authorities supporting the requested relief including information and analysis which will support the court's finding that the plan will not result in a material adverse effect to policyholders, reinsurers, or claimants, c. the Insurance Business Transfer Plan, d. preliminary list of witnesses and exhibits which the petitioner reasonably intends to present to the court, and e. request for the court to enter judgment in favor of the petitioner, which shall include finding of fact, conclusion of law, order of approval and implementation of the Plan, and retention of jurisdiction to allow the parties to request such orders regarding incidental, consequential, and supplementary matters necessary to assure the full and effective implementation of the Plan. 3. The Commissioner shall be a party to the proceedings before the court concerning the petition and shall be served with copies of all filings pursuant to subsection D of Section 2005 of Title 12 of the Oklahoma Statutes and the Rules for District Courts of Oklahoma. 4. The Commissioner's position in the proceeding shall not be limited by his or her initial review of the Plan. 5. Within thirty (30) days after the filing of the petition, the petitioner shall file a request for the court to enter a preliminary scheduling order, which shall include a date and time for a status conference. The status conference shall occur no less than fourteen (14) days after the conclusion of the sixty (60) day comment period required in paragraph 8 of this subsection. 6. Within forty-five (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 Section 1685 of this title. 7. The notice shall include: a. the date and time of the status conference required in paragraph 5 of this subsection, b. the name, address and telephone number of the assuming insurer, transferring insurer, and Commissioner for policyholders to contact to obtain further information, c. procedures and deadlines for policyholders, claimants, and third parties to submit comments, objections, and requests to be heard at trial regarding the Plan, d. procedure for policyholders to request the petitioner provide one (1) hard copy, free of charge, to policyholders unable to access or acquire an electronic copy of the Plan and associated information, if any, e. a summary of the order entered by the Commissioner pursuant to paragraph 8 of subsection A of this section including the effect the plan will have on the policy holders, if any, f. name and location of the court in which the petition is filed, g. case number, parties, and other identifying information of the matter in the petition, h. relief sought in the petition, i. procedure to access an electronic copy of the Plan and associated information, if any, j. further notice of filings, schedules, orders, and other information will only be provided pursuant to paragraph 10 of this subsection, and k. if the Plan is approved by the court, the court shall enter judgment consistent with paragraph 3 of subsection C of this section. 8. The last date of transmission and publication of the notice shall be followed by a comment period no less than sixty (60) days. 9. Any person including by their legal representative, who provides written notice within the sixty (60) day comment period identified in paragraph 8 of this subsection, and states the person considers himself, herself or itself to be materially adversely affected by the approval and implementation of the Plan may present evidence or comments to the court at trial. However, such comment or evidence shall not confer standing as a party on any person. Any person participating in any pretrial proceeding or the trial of petitioner's request for approval and implementation of the Plan must follow the process established by the court and shall bear his or her own costs and attorney fees. 10. Only parties to this matter and those persons and other third parties who file a request to provide comments, objections, or requests to be heard pursuant to paragraph 8 of this subsection shall receive further notice and copies of filings with the court, pursuant to subsection D of Section 2005 of Title 12 of the Oklahoma Statutes and the Rules for District Courts of Oklahoma; provided, however, all persons and other third parties shall receive notice pursuant to subparagraph d of paragraph 3 of subsection C of this section. 11. Within forty-five (45) days of the status conference required pursuant to paragraph 5 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 by the court of the Insurance Business Transfer Plan. 1. Pursuant to a scheduling order set forth in paragraph 11 of subsection B of this section, and 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 judgment, the petitioner may withdraw the petition without prejudice to refiling. 3. If 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 of policies which are part of the subject business, the court shall enter judgment in favor of the petitioner. The judgment and order shall include: a. findings of fact, b. conclusion of law, c. approval and implementation of the Plan including: (1) simultaneous transfer and novation from the transferring insurer to the assuming insurer of the subject business with respect to all policyholders, reinsurers, claimants and their respective policies, and reinsurance agreements under the subject business, (2) simultaneous transfer and novation from the transferring insurer and the assuming insurer of all property, rights, obligations, and liabilities including, but not limited to, the ceded reinsurance of transferred policies and contracts included in the subject business, notwithstanding any nonassignment provisions in any such reinsurance contracts or other agreements, (3) assuming insurer shall have all of transferring insurer's rights, obligations, and liabilities 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 (4) policyholders' and claimants' rights obligations and liabilities, if any, under their respective policies which are part of the subject business shall not be enlarged, extended, limited, or reduced; provided, however, the policyholders and claimants may not pursue or be pursued by the transferring insurer to satisfy their respective rights, obligations, and liabilities, but instead the policyholders and claimants may pursue or be pursued by the assuming insurer, d. petitioner to provide notice of the judgment including the resulting transfer and novation in accordance with the notice provisions in Section 1685 of this title, e. make such other orders and provisions with respect to incidental, consequential and supplementary matters as are necessary to assure the full and effective implementation of the Insurance Business Transfer Plan, and f. retain jurisdiction of the matter 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. If 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 and petition. 5. Nothing in this section in any way affects the right of appeal of any party. D. An unexpired and in-force policy issued to a policyholder who resides in a state other than Oklahoma 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 the 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 can satisfy the requirements pursuant to subsection D of this section. F. Rules. The Commissioner shall have the authority to promulgate rules to effectuate the provisions of the Insurance Business Transfer Act. 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 approval and implementation of an Insurance Business Transfer Plan, shall be treated for purposes of confidentiality as an examination of the financial condition and/or market conduct of the transacting companies under Sections 309.1 through 309.7 of this title.

Legislative History

Added by Laws 2018, c. 232, § 6, eff. Nov. 1, 2018. Amended by Laws 2019, c. 381, § 3, eff. Nov. 1, 2019; Laws 2022, c. 126, § 4, emerg. eff. April 29, 2022.