(2) In the case of a single assuming insurer, the trust must consist of a trusteed account representing the assuming insurer's liabilities attributable to reinsurance ceded by United States ceding insurers and, in addition, include a trusteed surplus of at least $20,000,000.

(3) A group of incorporated insurers under common administration may in the superintendent's discretion secure its obligations with a pooled trust fund if the group has an aggregate policyholders' surplus of $10,000,000,000 and has continuously transacted insurance during the 3 years preceding the period for which credit for reinsurance is to be taken. The trust must be in an amount equal to the group's several liabilities attributable to reinsurance ceded by United States ceding insurers. In addition, the group shall maintain a joint trusteed surplus of at least $100,000,000 that must be held jointly for the benefit of the United States ceding insurers of any member of the group. Each member of the group shall make available to the superintendent an annual certification of the member's solvency by that member's domiciliary regulator and the member's independent public accountant. Each group member shall comply with the filing requirements of subparagraph 1, submit to the State's authority to examine the member's books and records and bear the expense of the examination.

(4) A group including incorporated and individual unincorporated underwriters may secure its obligations with a pooled trust fund if and, in the trust consists of a trusteed account in an amount at least equal to the group's liabilities attributable to reinsurance ceded by United States ceding insurers, for reinsurance ceded under reinsurance agreements with an inception, amendment or renewal date on or after August 1, 1995, the trust consists of a trusteed account in an amount not less than the group's several liabilities attributable to business ceded by United States domiciled ceding insurers to any member of the group; or for reinsurance ceded under reinsurance agreements with an inception date on or before July 31, 1995 and not amended or renewed after that date, notwithstanding the other provisions of this Act, the trust consists of a trusteed account in an amount not less than the group's several insurance and reinsurance liabilities

attributable to business written in the United States.__ In addition, includes the group in either case must maintain a trusteed surplus of at least $100,000,000 that must be held jointly for the benefit of United States ceding insurers of any member of the group. An incorporated member of the group may not be engaged in any business other than underwriting as a member of the group and must be subject to the same level of solvency regulation and control by the group's domiciliary regulator as are the unincorporated members. Within 90 days after its financial statements are due to be filed with the group's domiciliary regulator, the group shall provide to the superintendent an annual certification by the group's domiciliary regulator of the solvency of each underwriter member of the group or, if a certification is unavailable, financial statements prepared by independent public accountants.

(4-A) The superintendent in rules adopted pursuant to subsection 7 may establish alternative criteria for approval of a reinsurance trust if the superintendent determines that the criteria provide adequate protection to policyholders of United States ceding insurers and are in substantial conformance with standards approved by the National Association of Insurance Commissioners.

(5) The trust must be established in a form approved by the superintendent and consistent with any rules adopted by the superintendent pursuant to this section. The form of the trust and any amendments to the trust must also have been approved by the insurance regulatory official of the state where the trust is domiciled or of another state that, pursuant to the terms of the trust instrument, has accepted principal regulatory oversight of the trust. The trust instrument must provide that contested claims are valid and enforceable upon the final order of any court of competent jurisdiction in the United States. The trust must vest legal title to its assets in the trustees of the trust for the benefit of the assuming insurer's United States ceding insurers, their assigns and successors in interest. The trust and the assuming insurer are subject to examination, as determined by the superintendent, at the assuming insurer's expense. The trust must remain in effect for as long as the assuming insurer has outstanding obligations due under the reinsurance agreements subject to the trust.

(6) The trustees of the trust shall report to the superintendent in writing by February 28th of each year, setting forth the balance of the trust and listing the trust's investments at the end of the preceding year and certifying the date of termination of the trust, if so planned, or certifying that the trust does not expire before December 31st of the current year.

(7) The corpus of the trust is to be valued as any other admitted asset or assets;

Sec. 3. 24-A MRSA §731-B, sub-§1, ¶D, as amended by PL 1999, c. 113, §20, is further amended to read:

D. Does not meet the requirements of paragraph A, B B-1 or C or subsection 1-A, but only with respect to risks located in a jurisdiction where that reinsurance is required by law. The superintendent for good cause after notice and opportunity for hearing may disallow or reduce the credit otherwise permitted under this paragraph.

Sec. 4. 24-A MRSA §731-B, sub-§2-A is enacted to read:

2-A.__If the assuming insurer does not meet the requirements of subsection 1, paragraph A or B, the credit permitted by subsection 1, paragraph C is not allowed unless the assuming insurer agrees in the trust agreements to the following conditions:

A.__Notwithstanding any other provisions in the trust instrument, if the trust fund is inadequate because it contains an amount less than the amount required by subsection 1, paragraph C or if the grantor of the trust has been declared insolvent or placed into receivership, rehabilitation, liquidation or similar proceedings under the laws of its state or country of domicile, the trustee shall comply with an order of the commissioner with regulatory oversight over the trust or with an order of a court of competent jurisdiction directing the trustee to transfer to the commissioner with regulatory oversight all of the assets of the trust fund;

B.__The assets must be distributed by and claims must be filed with and valued by the commissioner with regulatory oversight in accordance with the laws of the state in which the trust is domiciled that are applicable to the liquidation of domestic insurance companies;

C.__If the commissioner with regulatory oversight determines that the assets of the trust fund or any part of the trust fund are not necessary to satisfy the claims of the United States ceding insurers of the grantor of the trust, the assets or part of the assets must be returned by the commissioner with regulatory oversight to the trustee for distribution in accordance with the trust agreement; and

D.__The grantor shall waive any right otherwise available to it under federal law that is inconsistent with this provision.

Sec. 5. 24-A MRSA §731-B, sub-§3, as amended by PL 1993, c. 313, §18, is further amended to read:

3. A An asset or a reduction from liability for the reinsurance ceded to an assuming insurer not meeting the requirements of subsection 1 is allowed in an amount not exceeding the liabilities carried by the ceding insurer. The reduction must equal the value of funds held by or on behalf of the ceding insurer, including funds held in trust for the ceding insurer, under a reinsurance contract with such assuming insurer as security for the payment of obligations under the contract, if such security is held in the United States subject to withdrawal solely by, and under the exclusive control of, the ceding insurer or, in the case of a trust, held in a qualified United States financial institution. This security may be in the form of:

A. Cash;

B. Securities listed by the Securities Valuation Office of the National Association of Insurance Commissioners and qualifying as admitted assets; or

C. Clean, irrevocable, unconditional letters of credit, issued or confirmed by a qualified United States financial institution no later than December 31st of the year for which filing is being made and in the possession of the ceding company on or before the filing date of its annual statement.

(1) A letter of credit from an issuer determined to be acceptable as of the date of issuance or the date of confirmation of the letter, notwithstanding the issuing or confirming institution's subsequent failure to meet applicable standards of issuer acceptability, continues to be acceptable as security until its expiration, extension, renewal, modification or amendment, whichever first occurs. The ceding insurer shall

replace a nonqualifying letter of credit at its earliest opportunity.

(2) The letter of credit must indicate that it is not subject to any condition or qualification outside the letter of credit, and that the beneficiary need only draw a sight draft under the letter and present the letter to obtain funds and that no other document need be presented.

Sec. 6. 24-A MRSA §731-B, sub-§5, as enacted by PL 1989, c. 846, Pt. E, §2 and affected by §4, is amended to read:

5. Credit is allowed as an asset or deduction from liability to any ceding insurer only for reinsurance ceded to an assuming insurer qualified under this section, except that no credit is allowed, unless the reinsurance is contract provides, in substance, that in the event of the insolvency of the ceding insurer the reinsurance must be payable under a contract reinsured by the assuming insurer on the basis of the liability of the ceding insurer under the contracts reinsured reported claims allowed by the court without diminution because of the insolvency of the ceding insurer. The payments must be made directly to the ceding insurer or to its domiciliary liquidator except:

A.__When the contract or other written agreement specifically provides another payee of the reinsurance in the event of the insolvency of the ceding insurer; or

B.__When the assuming insurer, with the consent of the direct insured, has assumed the policy obligations of the ceding insurer as direct obligations of the assuming insurer to the payees under the policies and in substitution for the obligations of the ceding insurer to such payees.

The reinsurance agreement may provide that the domiciliary liquidator of an insolvent ceding insurer shall give written notice to the assuming insurer of the pendency of a claim against the ceding insurer on the contract reinsured within a reasonable time after the claim is filed in the liquidation proceeding.__ During the pendency of the claim, the assuming insurer may investigate the claim and interpose, at its own expense, in the proceeding by which the claim is to be adjudicated any defenses that it considers available to the ceding insurer or its liquidator.__The expense may be filed as a claim against the insolvent ceding insurer to the extent of a proportionate share of the benefit that may accrue to the ceding insurer solely as a result of the defense undertaken by the assuming

insurer.__When 2 or more assuming insurers are involved in the same claim and a majority in interest elects to interpose a defense to the claim, the expense must be apportioned in accordance with the terms of the reinsurance agreement as though the expense had been incurred by the ceding insurer.

Sec. 7. 24-A MRSA §731-B, sub-§7, as enacted by PL 1989, c. 846, Pt. E, §2 and affected by §4, is amended to read:

7. The superintendent may adopt rules, subject to Title 5, chapter 375, to implement this section. Rules adopted under this section are routine technical rules pursuant to Title 5, chapter 375, subchapter II-A.

SUMMARY

This bill amends the State's credit for reinsurance statutes to adopt provisions from the 1996 National Association of Insurance Commissioners Credit for Reinsurance Model Act, including provisions that protect the interest of policyholders, claimants, ceding insurers, reinsurers and the public generally by establishing appropriate oversight and regulation of ceding insurers and reinsurers. The proposed legislation also incorporates technical clean-up provisions to the credit for reinsurance and rehabilitation and liquidation laws to eliminate confusing and ambiguous language and clarify a reinsurer's responsibility in the event of an insurance company insolvency.