§ 38-90-160 — Application of provisions of title; director discretion; exemption of special purpose captive insurance companies.

South Carolina § 38-90-160

• Jurisdiction: South Carolina
• Title 38: INSURANCE
• Ch. 90: CAPTIVE INSURANCE COMPANIES

Text

(A) No provisions of this title or regulations, other than those contained in this chapter or contained in specific references contained in this chapter and regulations applicable to them, apply to captive insurance companies. The South Carolina Insurance Data Security Act set forth in Chapter 99, Title 38 applies to captive insurance companies unless the captive insurer qualifies for an exemption set forth in that chapter. (B) The director may exempt, by rule, regulation, or written approval, special purpose captive insurance companies, other than a risk retention group formed as a special purpose captive insurance company, on a case by case basis, from provisions of this chapter that he determines to be inappropriate given the nature, scale, and complexity of the risks to be insured. (C) The provisions of Sections 38-5-120(A)(5), 38-5-120(B), 38-5-120(D)(1), 38-5-120(D)(2), 38-9-225, 38-9-230, 38-21-10, 38-21-30, 38-21-60, 38-21-70, 38-21-80, 38-21-90, 38-21-95, 38-21-100, 38-21-110, 38-21-120, 38-21-130, 38-21-140, 38-21-150, 38-21-160, 38-21-170, 38-21-220, 38-21-225, 38-21-230, 38-21-250, 38-21-270, 38-21-280, 38-21-285, 38-21-290, 38-21-310, 38-21-320, 38-21-330, 38-21-360, 38-55-75 and Chapters 44, 46, and 99, Title 38 and applicable regulations apply in full to a risk retention group and, if a conflict occurs between those code sections and chapters referenced in this subsection and this chapter (Chapter 90, Title 38), then the code sections and chapters referenced in this subsection control. (D) Except as provided elsewhere in this chapter, the provisions of Chapter 87, Title 38 apply to a risk retention group. (E)(1) Except for Section 38-9-330(F) and Section 38-9-440, the provisions of Article 3 and Article 5, Chapter 9, Title 38 apply in full to a risk retention group, and if a conflict occurs between those provisions and this chapter, the provisions of this subsection control. (2) The director may elect not to take regulatory action as otherwise required by Sections 38-9-330, 38-9-340, 38-9-350, and 38-9-360 if any of the following conditions exist: (a) the director establishes that the risk retention group's members, sponsoring organizations, or both, are well-capitalized entities whose financial condition and support for the risk retention group is adequately documented. In making this determination, the director shall, at a minimum, require the filing of at least three years of historical, audited financial statements of the members, sponsor, or both, to assess the financial ability of the members', sponsor's, or both, support of the risk retention group. In addition, one year of projected financial information must be reviewed if available. The members, sponsor, or both, shall have: (i) an investment grade rating from a nationally recognized statistical rating organization or A.M. Best rating of A- or better; or (ii) equity equal to or greater than one hundred million dollars or equity equal to or greater than ten times the risk retention group's largest net retained per occurrence limit; (b) each policyholder qualifies as an industrial insured in their state or this State, depending on which has the greater requirements, provided that if the policyholder's home state does not have an industrial insured exemption or equivalent, the policyholder must qualify under the industrial insured requirement of this State; or (c) the risk retention group's certificate of authority date of issue was before January 1, 2011, and, based on a minimum five-year history of successful operations, is specifically exempted, in writing, from the requirements for mandatory risk-based capital action by the director.

Legislative History

HISTORY: 2000 Act No. 331, SECTION 1; 2002 Act No. 188, SECTION 7, eff March 12, 2002; 2010 Act No. 217, SECTION 12, eff June 7, 2010; 2013 Act No. 18, SECTION 1, eff January 1, 2014; 2014 Act No. 282 (S.909), SECTION 17, eff June 10, 2014; 2015 Act No. 2 (S.342), SECTION 17, eff March 9, 2015; 2016 Act No. 191 (S.978), SECTION 4, eff January 1, 2017; 2018 Act No. 251 (H.4675), SECTION 1, eff May 18, 2018; 2019 Act No. 6 (S.360), SECTION 10, eff July 1, 2019. Editor's Note 2014 Act No. 164, SECTION 15, effective January 1, 2015, provides as follows: "SECTION 15. (A) Article 3, Chapter 9, Title 38, designated 'Risk Based Capital' is redesignated 'Risk-Based Capital'. "(B) Sections 38-9-400, 38-9-410, 38-9-420, 38-9-430, 38-9-440, 38-9-450, and 38-9-460 of the 1976 Code, which are designated as Article 5, Chapter 9, Title 38, are redesignated as part of Article 3, Chapter 9, Title 38, and Article 5, Chapter 9, Title 38 is deleted." Effect of Amendment 2014 Act No. 282, SECTION 17, in subsection (B), inserted "other than a special purpose captive insurance company formed as a risk retention group,"; in subsection (C), substituted "38-5-120(A)(5), 38-5-120(B), 38-5-120(D)(1), 38-5-120(D)(2)," for "38-5-120(A)(3), 38-5-120(C), 38-5-120(D),"; and in subsections (C), (D), (E)(1) substituted "a captive insurance company" for "an industrial insured a captive insurance company". 2015 Act No. 2, SECTION 17, in (C), inserted reference to the following sections: 38-21-80, 38-21-100, 38-21-110, 38-21-220, 38-21-225, 38-21-230, 38-21-285, and 38-21-290. 2016 Act No. 191, SECTION 4, in (D) added the second sentence. 2018 Act No. 251, SECTION 1, rewrote the section. 2019 Act No. 6, SECTION 10, in (A), added the second sentence, applying the South Carolina Insurance Data Security Act to captive insurance companies; and in (C), substituted "Chapters 44, 46, and 99" for "Chapters 44 and 46".