§ 58-29B-3 — Definition of terms.

Terms used in this chapter mean: (1) "Ancillary state," any state other than a domiciliary state; (2) "Creditor," a person having any claim, whether matured or unmatured, liquidated or unliquidated, secured or unsecured, absolute, fixed, or contingent; (3) "Delinquency proceeding," any proceeding instituted against an insurer for the purpose of liquidating, rehabilitating, reorganizing, or conserving such insurer, and any summary proceeding under § 58-29B-9 or 58-29B-10 . A "formal delinquency proceeding" is any liquidation or rehabilitation proceeding; (4) "Director," the director of the Division of Insurance; (5) "Doing business," includes, but is not limited to, any of the following acts, whether effected by mail or otherwise: (a) The issuance or delivery of contracts of insurance to persons resident in this state; (b) The solicitation of applications; (c) The collection of premiums, membership fees, assessments, or other consideration of such contracts, or the transaction of matters subsequent to execution of such contracts and matters arising out of the contracts; (d) Operating under a license or certificate of authority, as an insurer, issued by the Division of Insurance. (6) "Domiciliary state," the state in which an insurer is incorporated or organized, or, in the case of an alien insurer, its state of entry; (7) "Fair consideration," is given for property or obligation: (a) When in exchange for such property or obligation, as a fair equivalent therefor, and in good faith, property or services are rendered or an obligation is incurred or an antecedent debt is satisfied; or (b) When property or obligation is received in good faith to secure a present advance or antecedent debt in an amount not disproportionate when compared to the value of the property or obligation obtained; (8) "Foreign country," any other jurisdiction not in any state of the United States; (9) "General assets," all property, real, personal, or otherwise, not specifically mortgaged, pledged, deposited, or otherwise encumbered for the security or benefit of specified persons or classes of persons. As to specifically encumbered property, the term "general assets" includes all such property or its proceeds in excess of the amount necessary to discharge the sum or sums secured thereby. Assets held in trust and on deposit for the security or benefit of all policyholders in more than a single state shall be treated as general assets; (10) "Guaranty association," the South Dakota Insurance Guaranty Association created by chapter 58-29A for the payment of claims of insolvent insurers. A foreign guaranty association is any similar entity of any other state; (11) "Insolvency" or "insolvent," for an insurer issuing only assessable fire insurance policies: (a) The inability to pay any obligation within thirty days after it becomes payable, or (b) If an assessment be made within thirty days after such date, the inability to pay such obligation thirty days following the date specified in the first assessment notice issued after the date of loss. For any other insurer, "insolvency" or "insolvent" means that it is unable to pay its obligations when they are due, or when its admitted assets do not exceed its liabilities plus the greater of any capital and surplus required by law for its organization or the total par or stated value of its authorized and issued capital stock. For purposes of this section the term "liabilities" includes, but is not limited to, reserves required by statute or by insurance division general regulations or specific requirements imposed by the director upon a subject company at the time of admission or subsequent thereto. (12) "Insurer," any person who has done, purports to do, is doing or is licensed to do an insurance business, and is or has been subject to the authority of, or to liquidation, rehabilitation, reorganization, supervision, or conservation by any insurance director. For purposes of this chapter, any other person included under § 58-29B-2 is an insurer; (13) "Preferred claim," any claim with respect to which the terms of this chapter accord priority of payment from the general assets of the insurer; (14) "Receiver," receiver, liquidator, rehabilitator, or conservator as the context requires; (15) "Reciprocal state," any state other than this state which has laws similar in substance to §§ 58-29B-42 , 58-29B-144 to 58-29B-150 , inclusive, and 58-29B-152 to 58-29B-157 , inclusive, and in which provisions are in force requiring that the director or equivalent official be the receiver of a delinquent insurer, and in which some provision exists for the avoidance of fraudulent conveyances and preferential transfers; (16) "Secured claim," any claim secured by mortgage, trust deed, pledge, deposit as security, escrow, or otherwise, but not including special deposit claims or claims against general assets. The term also includes claims which have become liens upon specific assets by reason of judicial process; (17) "Special deposit claim," any claim secured by a deposit made pursuant to statute for the security or benefit of a limited class or classes of persons, but not including any claim secured by general assets; (18) "State," any state, district or territory of the United States and the Panama Canal Zone; (19) "Transfer," includes the sale and every other and different mode, direct or indirect, of disposing of or of parting with property or with an interest therein, or with the possession thereof or of fixing a lien upon property or upon an interest therein, absolutely or conditionally, voluntarily, by or without judicial proceedings. The retention of a security title to property delivered to a debtor shall be deemed a transfer suffered by the debtor.

Legislative History

SL 1989, ch 436, § 3.