Sec. 1. (Short Title) This chapter may be cited as the "Indiana Insurance Guaranty Association Law of 1971."
(Formerly: Acts 1971, P.L.390, SEC.1.)
Sec. 2. (Purpose) The purpose of this chapter is to provide a mechanism for the payment of claims under certain insurance policies to avoid excessive delay in payment and to avoid excessive financial loss to claimants or policyholders because of the insolvency of an insurer, to assist in the detection and prevention of insurer insolvencies, and to provide an association to assess the cost of this protection among insurers.
(Formerly: Acts 1971, P.L.390, SEC.1.)
Sec. 3. This chapter applies to all kinds of direct insurance except:
(1) life, annuity, health, or disability insurance;
(2) mortgage guaranty, financial guaranty, or other forms of insurance offering protection against investment risks;
(3) fidelity or surety bonds, or any other bonding obligations;
(4) credit insurance, vendors' single interest insurance, or collateral protection insurance or similar insurance with the primary purpose of protecting the interests of a creditor arising out of a creditor-debtor transaction;
(5) warranty or service contract insurance;
(6) title insurance;
(7) ocean marine insurance;
(8) a transaction between a person or an affiliate of a person and an insurer or an affiliate of an insurer that involves the transfer of investment or credit risk without a transfer of insurance risk;
(9) insurance provided by or guaranteed by a government entity; and
Sec. 4. As used in this chapter, unless otherwise provided:
(1) The term "account" means any one (1) of the three (3) accounts created by section 5 of this chapter.
(2) The term "association" means the Indiana Insurance Guaranty Association created by section 5 of this chapter.
(3) The term "commissioner" means the commissioner of insurance of this state.
(4) The term "covered claim" means an unpaid claim which arises out of and is within the coverage and not in excess of the applicable limits of an insurance policy to which this chapter applies issued by an insurer, if the insurer becomes an insolvent insurer after the effective date (January 1, 1972) of this chapter and (a) the claimant or insured is a resident of this state at the time of the insured event or (b) the property from which the claim arises is permanently located in this state. "Covered claim" shall be limited as provided in section 7 of this chapter, and shall not include (1) any amount due any reinsurer, insurer, insurance pool, or underwriting association, as subrogation recoveries or otherwise. However, a claim for any such amount, asserted against a person insured under a policy issued by an insurer which has become an insolvent insurer, which if it were not a claim by or for the benefit of a reinsurer, insurer, insurance pool or underwriting association, would be a "covered claim" may be filed directly with the receiver or liquidator of the insolvent insurer, but in no event may any such claim be asserted in any legal action against the insured of such insolvent insurer; nor (2) any supplementary obligation including but not limited to adjustment fees and expenses, attorney fees and expenses, court costs, interest and bond premiums, whether arising as a policy benefit or otherwise, prior to the appointment of a liquidator; nor (3) any unpaid claim that is not both filed within one (1) year after an order of liquidation and permitted to share in liquidation distributions under IC 27-9-3-33 if the insolvent insurer is a domestic insurer or in accordance with the applicable provisions of the law of the state of domicile if the insolvent insurer is not a domestic insurer; nor (4) any claim by a person whose net worth at the time an insured event occurred was more than five million dollars ($5,000,000); nor (5) a claim against a person insured by an insolvent insurer if the person's net worth at the time an insured event occurred was more than fifty million dollars ($50,000,000); nor (6) any claim by a person who directly or
indirectly controls, is controlled, or is under common control
with an insolvent insurer on December 31 of the year before the
order of liquidation. All covered claims filed in the liquidation
proceedings shall be referred immediately to the association by
the liquidator for processing as provided in this chapter.
(5) The term "insolvent insurer" means (a) a member insurer holding a valid certificate of authority to transact insurance in this state either at the time the policy was issued or when the insured event occurred and (b) against whom a final order of liquidation, with a finding of insolvency, to which there is no further right of appeal, has been entered by a court of competent jurisdiction in the company's state of domicile. "Insolvent insurer" shall not be construed to mean an insurer with respect to which an order, decree, judgment or finding of insolvency whether preliminary or temporary in nature or order to rehabilitation or conservation has been issued by any court of competent jurisdiction prior to January 1, 1972 or which is adjudicated to have been insolvent prior to that date.
(6) The term "member insurer" means any person who is licensed or holds a certificate of authority under IC 27-1-6-18 or IC 27-1-17-1 to transact in Indiana any kind of insurance for which coverage is provided under section 3 of this chapter, including the exchange of reciprocal or inter-insurance contracts. The term includes any insurer whose license or certificate of authority to transact such insurance in Indiana may have been suspended, revoked, not renewed, or voluntarily surrendered. A "member insurer" does not include farm mutual insurance companies organized and operating pursuant to IC 27-5.1 other than a company to which IC 27-5.1-2-6 applies.
(7) The term "net direct written premiums" means direct gross premiums written in this state on insurance policies to which this chapter applies, less return premiums thereon and dividends paid or credited to policyholders on such direct business. "Net direct premiums written" does not include premiums on contracts between insurers or reinsurers.
(8) The term "person" means an individual, corporation, limited liability company, partnership, reciprocal or inter-insurance exchange, association, or voluntary organization.
(Formerly: Acts 1971, P.L.390, SEC.1; Acts 1973, P.L.279, SEC.1.) As amended by Acts 1977, P.L.281, SEC.5; P.L.163-1988, SEC.2; P.L.8-1993, SEC.422; P.L.255-1995, SEC.7; P.L.129-2003, SEC.12.
Creation of the association
Sec. 5. There is created a nonprofit unincorporated legal entity to be known as the Indiana Insurance Guaranty Association (referred to in this chapter as the "association"). All insurers defined as member insurers in section 4(6) of this chapter shall be and remain members of the association as a condition of their authority to transact insurance in this state. The association shall perform its functions
under a plan of operation established and approved under section 8
of this chapter and shall exercise its powers through a board of
directors established under section 6 of this chapter. For purposes of
administration and assessment, the association shall be divided into
three (3) separate accounts:
(1) The worker's compensation insurance account.
(2) The automobile insurance account.
(3) The account for all other insurance to which this chapter applies.
(Formerly: Acts 1971, P.L.390, SEC.1.) As amended by P.L.252-1985, SEC.221; P.L.28-1988, SEC.83.
Board of directors
Sec. 6. (a) The board of directors of the association shall consist of nine (9) member insurers one (1) of whom shall be selected by or from among each of the following groups representative of member insurers, such selection to be subject to the approval of the commissioner:
(1) One (1) person representing the American Insurance Association.
(2) One (1) person representing the Alliance of American Insurers.
(3) One (1) person representing the National Association of Independent Insurers.
(4) One (1) person representing the National Association of Mutual Insurance Companies.
(5) One (1) person representing the Insurance Institute of Indiana.
(6) Three (3) persons representing the:
(A) domestic stock companies;
(B) domestic mutual companies; or
(C) domestic reciprocal insurers;
with not more than two (2) persons representing any category.
(7) One (1) person representing independent unaffiliated stock, fire, and casualty companies to be appointed by the commissioner.
(b) Not more than one (1) member insurer in a group of insurers under the same management or ownership shall serve as a director at the same time.
(c) Directors shall serve such terms as shall be established in the plan of operation.
(d) Vacancies on the board shall be filled for the remaining period of the term in the same manner as the initial selection.
(e) If no directors are selected by March 1, 1972, the commissioner may appoint the initial members of the board of directors.
(f) In approving selections to the board, the commissioner shall consider among other things whether all member insurers are fairly represented.
Powers and duties of the association
Sec. 7. (a) The association shall:
(i) Be obligated to the extent of the covered claims as defined herein existing at the time of the order of liquidation or arising within thirty (30) days after the order of liquidation, or before the policy expiration date if less than thirty (30) days after the determination, or before the insured replaces the policy or causes its cancellation, if he does so within thirty (30) days of the determination. This obligation shall include only that amount of each covered claim which is less than one hundred thousand dollars ($100,000). In no event shall the association be obligated to a policyholder or claimant in an amount in excess of the applicable limits provided in the policy from which the claim arises, nor shall the association be obligated in an amount in excess of three hundred thousand dollars ($300,000) per policy for all claims arising out of one (1) occurrence. The return of unearned premium is limited to the lesser of: eighty percent (80%) of the paid but unearned premium; or six hundred fifty dollars ($650) multiplied by the number of months or partial months remaining in the policy term, not to exceed twelve (12) months.
(1) In the case of claims arising from bodily injury, sickness, or disease, including death resulting therefrom, except claims under IC 22-3 or similar state or federal laws providing benefits for occupational injury or disease, the amount for which the association shall be obligated shall not exceed the claimant's reasonable expenses incurred for necessary medical, surgical, x-ray, and dental services, including prosthetic devices and necessary ambulance, hospital, professional nursing, and funeral services, and any amounts actually lost by reason of the claimant's inability to work and earn wages or salary or their equivalent that would otherwise have been earned in the normal course of such injured claimant's employment, to which may be added at the discretion of the association a sum not to exceed one thousand dollars ($1,000) for all other costs and expenses incurred by the claimant prior to the insolvency. In the case of a claim for wrongful death, the foregoing obligation of the association shall, in addition to the limits set forth above, be subject to the limitations provided by the wrongful death statutes of the state. Such amounts which are legally payable because of the death of a claimant shall be paid to the claimant's estate, to the claimant's father or mother or guardian, to the surviving spouse or children, or to the next of kin as set out in IC 34-23-1 and IC 34-23-2.
The amount for which the association shall be obligated may also include payments in fact made to others, not members of claimant's
household, which were reasonably incurred to obtain from such other
persons ordinary and necessary services for the production of income
in lieu of those services the claimant would have performed for
himself had he not been injured.
In the case of claims arising from bodily injury, sickness, or disease, including those in which death results, under IC 22-3 or similar state or federal laws providing benefits for occupational injury or disease, the association is obligated only to the extent provided under IC 22-3.
(2) A third party having a covered claim against any insured of an insolvent member insurer may file such claim in the liquidation proceeding under IC 27-9-3 if such insolvent member insurer is a domestic insurer and pursuant to the applicable provisions of law of the state of domicile if such insolvent member insurer is not a domestic insurer. The liquidator shall immediately refer said claim to the association to process as provided in this chapter unless the claimant shall within thirty (30) days from the date of filing said claim in the liquidation proceeding, file with the commissioner as liquidator a written demand that said claim be processed in liquidation proceedings as a claim not covered by this chapter.
(ii) Be deemed the insurer to the extent of its obligation on the covered claims as limited by this chapter and to this extent shall have all rights, duties, and obligations of the insolvent insurer as if the insurer had not become insolvent, including those relating to reinsurance contracts and treaties entered into by the insolvent insurer. However, the association's obligation to defend any insured of the insolvent insurer or to indemnity against the costs of such defense terminates as soon as the claimant or claimants have been paid all benefits that they are entitled to under this chapter.
(iii) Allocate claims paid and expenses incurred among the three (3) accounts separately, and assess member insurers separately for each account amounts necessary to pay the obligation of the association under paragraph (i) of this subsection subsequent to an insolvency, the expenses of handling covered claims subsequent to an insolvency, the cost of examination under IC 27-6-8-12 and other expenses authorized by this chapter. The assessments of each member insurer shall be on a uniform percentage basis in the proportion that the net direct written premiums in this state of the member insurer for the preceding calendar year on the kinds of insurance in the account bears to the net direct written premiums of all member insurers for the preceding calendar year on the kinds of insurance in the account. However, in addition to the pro rata assessments already described, an assessment may be made against each member insurer in a stated amount up to fifty dollars ($50) per year for the purpose of paying the administrative expenses of the association. There shall be no assessment for any account so long as assets held in such account are sufficient to cover all estimated payments for liquidation in process under such account. Each member insurer shall be notified of the assessment not later than thirty (30) days before it is due. No member insurer may be assessed
in any year on any account an amount greater than one percent (1%)
of that member insurer's net direct written premiums in this state for
the preceding calendar year on the kinds of insurance in the account.
If the maximum assessment, together with the other assets of the
association in any account, does not provide in any one (1) year in
any account an amount sufficient to make all necessary payments
from that account, the funds available shall be prorated and the
unpaid portion shall be paid as soon thereafter as funds become
available. The association may exempt or defer, in whole or in part,
the assessment of any member insurer, if the assessment would cause
the member insurer's financial statement to reflect amounts of capital
or surplus less than the minimum amounts required for a certificate
of authority by any jurisdiction in which the member insurer is
authorized to transact insurance. However, during the period of
deferment no dividends shall be paid to shareholders or
policyholders by a company whose assessment has been deferred. A
deferred assessment shall be paid when such payment will not reduce
capital or surplus below required minimums. Such payments shall be
refunded to those companies whose assessments were increased as
the result of such deferment, or at the option of any such company,
shall be credited to future assessments against such company.
(iv) Investigate, adjust, compromise, settle, and pay covered claims to the extent of the association's obligation and deny all other claims and may review settlements, releases, and judgments to which the insolvent insurer or its insured were parties to determine the extent to which such settlements, releases, and judgments may be properly contested, and as appropriate to contest them.
(v) Notify such persons as the commissioner directs under IC 27-6-8-9(b)(i).
(vi) Handle claims through its employees or through one (1) or more insurers or other persons designated as servicing facilities. Designation of a servicing facility is subject to the approval of the commissioner, but such designation may be declined by a member insurer.
(vii) Reimburse each servicing facility for obligations of the association paid by the facility and for expenses incurred by the facility while handling claims on behalf of the association and shall pay the other expenses of the association authorized by this chapter. Any unreimbursed obligation of the association to a member insurer designated a servicing facility shall constitute an admitted asset of such member insurer.
(viii) Be entitled to and permitted to examine all claims, files, and records of an insolvent insurer at such times and to such extent as necessary or appropriate to obtain information regarding covered claims individually and in the aggregate, and to establish such procedures as appropriate to obtain prompt notice of all covered claims and information pertaining thereto during the course of liquidation.
(b) The association may:
(i) Appear in, defend, and appeal any action on a covered claim
but it shall have no obligation to pay any amount in excess of the
provisions of IC 27-6-8-7.
(ii) Employ or retain such persons as are necessary to handle claims and perform other duties of the association.
(iii) Borrow funds necessary to effect the purposes of this chapter in accord with the plan of operation.
(iv) Sue or be sued.
(v) Negotiate and become a party to any contracts as are necessary to carry out the purpose of this chapter.
(vi) Perform such other acts as are necessary or proper to effectuate the purpose of this chapter.
(vii) Refund to the then member insurers in proportion to the contribution of each such member insurer to that account that amount by which the assets of the account exceed the liabilities if, at the end of the calendar year, the board of directors finds that the assets of the association in any account exceed the liabilities of that account as estimated by the board of directors for the coming year, provided that the association may retain as a reserve fund from the excess of the assets over liabilities at the end of any calendar year an amount not to exceed ten percent (10%) of such excess assets of such account. Any such reserve fund or earnings from its investment shall be used only for the payment of covered claims and authorized association expenses. Upon appropriate action by the board of directors such reserve fund shall be refunded to the then member insurers in proportion to the total contribution of each such member insurer to such account.
(Formerly: Acts 1971, P.L.390, SEC.1; Acts 1975, P.L.280, SEC.2.) As amended by Acts 1977, P.L.281, SEC.6; P.L.163-1988, SEC.3; P.L.3-1990, SEC.95; P.L.1-1998, SEC.150.
Plan of operation
Sec. 8. (a)(i) The association shall submit to the commissioner a plan of operation and any amendments thereto necessary or suitable to assure the fair, reasonable, and equitable administration of the association. The plan of operation and amendments thereto shall become effective upon approval in writing by the commissioner.
(ii) If the association fails to submit a suitable plan of operation by March 31, 1972, or if at any time thereafter the association fails to submit suitable amendments to the plan, the commissioner shall, after notice and hearing, adopt and promulgate reasonable rules as are necessary or advisable to effectuate the provisions of this chapter. Such rules shall continue in force until modified by the commissioner or superseded by a plan submitted by the association and approved by the commissioner.
(b) All member insurers shall comply with the plan of operation.
(c) The plan of operation shall:
(i) Establish the procedures whereby all the powers and duties of the association under section 7 of this chapter will be performed.
Powers and duties of commissioner
Sec. 9. (a) The commissioner shall:
(i) Notify the association of the existence of an insolvent insurer not later than three (3) working days after the commissioner receives an order of liquidation.
(ii) Upon request of the board of directors, provide the association with a statement of the net direct written premiums of each member insurer.
(b) The commissioner may:
(i) Require that the association notify the insureds of the
insolvent insurer and any other interested parties of the order of
liquidation and of their rights under this chapter. This
notification shall be by mail at their last known address, where
available, but if sufficient information for notification by mail
is not available, notice by publication in a newspaper of general
circulation in all counties in which the insolvent insurer
transacted insurance business shall be sufficient.
(ii) Require each insurance producer of the insolvent insurer to give prompt written notice by first class mail of such insolvency and the rights of the insured under this chapter to each insured of the insolvent insurer for whom the insurance producer is insurance producer of record, at such insured's last known address.
(iii) Suspend or revoke, after notice and hearing, the certificate of authority to transact insurance in this state of any member insurer which fails to pay an assessment when due or fails to comply with the plan of operation. As an alternative, the commissioner may levy a fine on any member insurer which fails to pay an assessment when due. The fine shall not exceed five percent (5%) of the unpaid assessment per month, except that no fine shall be less than one hundred dollars ($100) per month.
(iv) Revoke the designation of any servicing facility if the commissioner finds claims are being handled unsatisfactorily.
(v) Any final action or order of the commissioner under this chapter shall be subject to judicial review in a court of competent jurisdiction.
(Formerly: Acts 1971, P.L.390, SEC.1.) As amended by P.L.163-1988, SEC.4; P.L.178-2003, SEC.41.
Effect of paid claims
Sec. 10. (Effect of Paid Claims) (a) Any person recovering under this chapter shall be deemed to have assigned the person's rights under the policy to the association to the extent of the person's recovery from the association. Every insured or claimant seeking the protection of this chapter shall cooperate with the association to the same extent as the person would have been required to cooperate with the insolvent insurer. The association shall have no cause of action against the insured of the insolvent insurer for any sums it has paid out except such causes of action as the insolvent insurer would have had if such sums had been paid by the insolvent insurer. In the case of an insolvent insurer operating on a plan with assessment liability, payments of claims of the association shall not operate to reduce the liability of insureds to the receiver, liquidator, or statutory successor for unpaid assessments previously made and no assessment shall be thereafter made for the purpose of reimbursing the association.
(b) The receiver, liquidator, or statutory successor of an insolvent insurer shall be bound by settlements of covered claims by the
association or a similar organization in another state functioning
pursuant to IC 27-6-8-8(d). The court having jurisdiction shall grant
such claims priority equal to that which the claimant would have
been entitled in the absence of this chapter against the assets of the
insolvent insurer. The expenses of the association or similar
organization in handling claims shall be accorded the same priority
as the liquidator's expenses.
(c) The association shall periodically file with the receiver or liquidator of the insolvent insurer statements of the covered claims paid by the association and estimates of anticipated claims on the association which shall preserve the rights of the association against the assets of the insolvent insurer.
(d) The association shall have a right to recover from the insurance producer of record any part of the paid claim for unearned premium that represents unearned commission to the insurance producer.
(Formerly: Acts 1971, P.L.390, SEC.1.) As amended by Acts 1977, P.L.281, SEC.7; P.L.178-2003, SEC.42.
Nonduplication of recovery
Sec. 11. (a) Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer which is also a covered claim, shall be required to exhaust first the person's right under the policy. Any amount payable on a covered claim under this chapter shall be reduced by the amount of recovery under the insurance policy.
(b) Any person having a claim which may be recovered under more than one (1) insurance guaranty association or its equivalent shall seek recovery first from the association of the place of residence of the insured except that if it is a first party claim for damage to property with a permanent location, the person shall seek recovery first from the association of the location of the property, and if it is a worker's compensation claim, the person shall seek recovery first from the association of the residence of the claimant. Any recovery under this chapter shall be reduced by the amount of recovery from any other insurance guaranty association or its equivalent.
(Formerly: Acts 1971, P.L.390, SEC.1.) As amended by P.L.28-1988, SEC.84.
Prevention of insolvencies
Sec. 12. To aid in the detection and prevention of insurer insolvencies:
(1) Every member insurer shall file with the National Association of Insurance Commissioners for use in their Early Warning System on or before March 1, of each year a financial statement of the same type and content as required by IC 27-1-20-21.
such examination shall be paid by the association and the
examination report shall be treated as are other examination
reports. In no event shall such examination report be released to
the board of directors prior to its release to the public, but this
shall not preclude the commissioner from complying with
subsection (1). The commissioner shall notify the board of
directors when the examination is completed. The request for an
examination shall be kept on file by the commissioner but it
shall not be open to public inspection prior to the release of the
examination report to the public.
(6) The board of directors may, upon majority vote, make recommendations to the commissioner for the detection and prevention of insurer insolvencies.
(Formerly: Acts 1971, P.L.390, SEC.1.) As amended by Acts 1977, P.L.281, SEC.8; P.L.163-1988, SEC.5.
Examination of the association
Sec. 13. (Examination of the Association) The Association shall be subject to examination and regulation by the commissioner. The board of directors shall submit, not later than March 30th of each year, a financial report for the preceding calendar year in a form approved by the commissioner.
(Formerly: Acts 1971, P.L.390, SEC.1.)
Sec. 14. (Tax Exemption) The association shall be exempt from payment of all fees and all taxes levied by this state or any of its subdivisions except taxes levied on real or personal property.
(Formerly: Acts 1971, P.L.390, SEC.1.)
Recoupment of assessments; tax credits
Sec. 15. (a) Member insurers, which during any preceding calendar year shall have paid one (1) or more assessments levied pursuant to section 7 of this chapter, shall be allowed a credit against premium taxes, adjusted gross income taxes, or any combination thereof upon revenue or income of member insurers which may be imposed by the state, up to twenty percent (20%) of the assessment described in section 7 of this chapter for each calendar year following the year the assessment was paid until the aggregate of all assessments paid to the guaranty association shall have been offset by either credits against such taxes or refunds from the association. The provisions herein are applicable to all assessments levied after the passage of this article.
(b) To the extent a member insurer elects not to utilize the tax credits authorized by subsection (a), the member insurer may utilize the provisions of subsection (c) as a secondary method of recoupment.
Sec. 16. (Immunity) There shall be no liability on the part of and no cause of action of any nature shall arise against any member insurer, the association or its agents or employees, the board of directors, or the commissioner or his representatives for any action taken by them in the performance of their powers and duties under this chapter.
(Formerly: Acts 1971, P.L.390, SEC.1.)
Stay of proceedings; reopening of default judgments
Sec. 17. (Stay of Proceedings; Reopening of Default Judgments) All proceedings in which the insolvent insurer is a party or is obligated to defend a party in court in this state shall be stayed for up to six (6) months and such additional time thereafter as may be determined by the court from the date the insolvency is determined or an ancillary proceeding is instituted in the state whichever is later to permit proper defense by the association of all pending causes of action. As to any covered claims arising from a judgment under any decision, verdict or finding based on the default of the insolvent insurer or its failure to defend an insured, the association either on its own behalf or on behalf of such insured may apply to have the judgment, order, decision, verdict or finding set aside by the same court or administrator that made the judgment, order, decision, verdict or findings and shall be permitted to defend against the claim on the merits.
(Formerly: Acts 1971, P.L.390, SEC.1; Acts 1973, P.L.279, SEC.2.)
Records of insolvent insurers; access; copies
Sec. 18. The liquidator, receiver, or statutory successor of an insolvent insurer covered by this chapter shall permit access by the board or its authorized representative to such of the insolvent insurers records which are necessary for the board in carrying out its functions under this chapter with regard to covered claims. In addition, the liquidator, receiver, or statutory successor shall provide the board or its representative with copies of such records upon the request by the board and at the expense of the board.
(Formerly: Acts 1971, P.L.390, SEC.1; Acts 1973, P.L.279, SEC.3.)