Section 16-168-6 - Credit for reinsurance; reinsurers maintaining trust funds(a) Pursuant to section 431:4A-101(d), HRS, the commissioner shall allow credit for reinsurance ceded by a domestic insurer to an assuming insurer which, as of the date of the ceding insurer's statutory financial statement, maintains a trust fund in an amount prescribed below in a qualified United States financial institution as defined in section 431:4A-103(b), HRS, for the payment of the valid claims of its United States policyholders and ceding insurers, their assigns, and successors in interest. The assuming insurer shall report annually to the commissioner substantially the same information as that required to be reported on the National Association of Insurance Commissioners ("NAIC") annual statement form by licensed insurers, to enable the commissioner to determine the sufficiency of the trust fund.(b) The following requirements apply to the following categories of assuming insurer: (1) The trust fund for a single assuming insurer shall consist of funds in trust in an amount not less than the assuming insurer's liabilities attributable to business written in the United States, and, in addition, a trusteed surplus of not less than $20,000,000, except as provided in paragraph (2) of this subsection.(2) At any time after the assuming insurer has permanently discontinued underwriting new business secured by the trust for at least three full years, the commissioner with principal regulatory oversight of the trust may authorize a reduction in the required trusteed surplus, but only after a finding, based on an assessment of the risk, that the new required surplus level is adequate for the protection of U.S. ceding insurers, policyholders, and claimants in light of reasonably foreseeable adverse loss development. The risk assessment may involve an actuarial review, including an independent analysis of reserves and cash flows, and shall consider all material risk factors, including when applicable, the lines of business involved, the stability of the incurred loss estimates, and the effect of the surplus requirements on the assuming insurer's liquidity or solvency. The minimum required trusteed surplus may not be reduced to an amount less than thirty per cent of the assuming insurer's liabilities attributable to reinsurance ceded by U.S. ceding insurers covered by the trust.(3) Notwithstanding the other provisions of this chapter, the trust fund for a group of individual unincorporated underwriters shall consist of funds in trust in an amount not less than the: (A) Respective underwriters' several liabilities attributable to business ceded by United States domiciled ceding insurers to any underwriter of the group for reinsurance ceded under reinsurance agreements with an inception, amendment, or renewal date on or after January 1, 1993; or(B) Several insurance and reinsurance liabilities attributable to business written in the United States for reinsurance ceded under reinsurance agreements with an inception date on or before December 31, 1992 and not amended or renewed after that date. In addition, the group shall maintain a trusteed surplus of which $100,000,000 shall be held jointly for the benefit of the United States domiciled ceding insurers of any member of the group for all the years of account. The incorporated members of the group shall not be engaged in any business other than underwriting as a member of the group, and shall be subject to the same level of regulation and solvency control by the group's domiciliary regulator as are the unincorporated members. The group [shall make available], within ninety days after its financial statements are due to be filed with the group's domiciliary regulator, shall provide to the commissioner 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, a financial statement prepared by independent public accountants of each underwriter member of the group.
(4) The trust fund for a group of incorporated insurers under common administration, whose members possess aggregate policyholders surplus of $10,000,000,000 (calculated and reported in substantially the same manner as prescribed by the annual statement instructions and Accounting Practices and Procedures Manual of the National Association of Insurance Commissioners) and which has continuously transacted an insurance business outside the United States for at least three years immediately prior to making application for accreditation, shall consist of funds in trust in an amount not less than the assuming insurers' liabilities attributable to business ceded by United States ceding insurers to any members of the group pursuant to reinsurance contracts issued in the name of such group. In addition, the group shall maintain a joint trusteed surplus of which $100,000,000 shall be held jointly for the benefit of United States ceding insurers of any member of the group. The group shall file a properly executed Form AR-1 as evidence of the submission to this State's authority to examine the books and records of any of its members and shall certify that any member examined will bear the expense of any such examination. The group, within ninety days after its financial statements are due to be filed with the group's domiciliary regulator, shall provide to the commissioner an annual certification by the members' domiciliary regulators of the solvency of each underwriter member of the group and [their] financial statements prepared by independent public accountants of each underwriter member of the group.(c) The trust shall be established in a form approved by the commissioner and in compliance with section 431:4A-101, HRS, and this section. (1) The trust instrument shall provide that: (A) Contested claims shall be valid and enforceable out of funds in trust to the extent remaining unsatisfied thirty days after entry of the final order of any court of competent jurisdiction in the United States;(B) Legal title to the assets of the trust shall be vested in the trustee for the benefit of the grantor's United States policyholders and ceding insurers, their assigns, and successors in interest;(C) The trust shall be subject to examination as determined by the commissioner;(D) The trust shall remain in effect for as long as the assuming insurer, or any member or former member of a group of insurers, shall have outstanding obligations under reinsurance agreements subject to the trust;(E) No later than February 28 of each year the trustees of the trust shall report to the commissioner in writing setting forth the balance in the trust and listing the trust's investments at the preceding year end, and shall certify the date of termination of the trust, if so planned, or certify that the trust shall not expire prior to the next following December 31; and(F) No amendment to the trust shall be effective unless reviewed and approved in advance by the commissioner.(2) Notwithstanding any other provisions in the trust instrument: (A) If the trust fund is inadequate because it contains an amount less than the amount required by this subsection, 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 over the trust or other designated receiver all of the assets of the trust fund;(B) The assets shall be distributed by, and claims shall be filed with and valued by, the commissioner with regulatory oversight over the trust in accordance with the laws of the state in which the trust is domiciled applicable to the liquidation of domestic insurance companies;(C) If the commissioner with regulatory oversight over the trust determines that the assets of the trust fund, or any part thereof, are not necessary to satisfy the claims of the United States beneficiaries of the trust, the commissioner shall return the assets, or any part thereof, to the trustee for distribution in accordance with the trust agreement; and(D) The grantor shall waive any right otherwise available to it under United States law that is inconsistent with this paragraph.(d) For purposes of this section, the term "liabilities" means the assuming insurer's gross liabilities attributable to reinsurance ceded by United States domiciled insurers excluding liabilities that are otherwise secured by acceptable means and shall include: (1) For business ceded by domestic insurers authorized to write accident and health and property and casualty insurance: (A) Losses and allocated loss expenses paid by the ceding insurer recoverable from the assuming insurer;(B) Reserves for losses reported and outstanding;(C) Reserves for losses incurred but not reported;(D) Reserves for allocated loss expenses; and(2) For business ceded by domestic insurers authorized to write life, health, and annuity insurance:(A) Aggregate reserves for life policies and contracts reduced by policy loans and net due and deferred premiums;(B) Aggregate reserves for accident and health policies;(C) Deposit funds and other liabilities without life or disability contingencies; and(D) Liabilities for policy and contract claims.(e) Assets deposited in trusts established pursuant to section 431:4A-101, HRS, and this section shall be valued according to their current fair market value and shall consist only of cash in United States dollars, certificates of deposit issued by a qualified United States financial institution, as defined in section 431:4A-103(b), HRS, clean, irrevocable, unconditional, and "evergreen" letters of credit issued or confirmed by a qualified United States financial institution, and investments of the type specified in this subsection. Investments in or issued by an entity controlling, controlled by, or under common control with either the grantor or beneficiary of the trust shall not exceed five per cent of total investments. In addition, no more than twenty per cent of the total of the investments in the trust may be foreign investments authorized under paragraph (1)(E), (3), (6)(B), or (7), and no more than ten per cent of the total of the investments in the trust may be securities denominated in foreign currencies. For purposes of applying the preceding sentence, a depository receipt denominated in United States dollars and representing rights conferred by a foreign security shall be classified as a foreign investment denominated in a foreign currency. The assets of a trust established to satisfy the requirements of section 431:4A-101, HRS, shall be invested only as follows:(1) Government obligations that are not in default as to principal or interest, that are valid and legally authorized, and that are issued, assumed, or guaranteed by: (A) The United States or by any agency or instrumentality of the United States;(B) A state of the United States;(C) A territory, possession, or other governmental unit of the United States;(D) An agency or instrumentality of a governmental unit referred to in subparagraphs (B) and (C) if the obligations shall be by law payable, as to both principal and interest, from: (i) Taxes levied or by law required to be levied; or(ii) Adequate special revenues pledged, or otherwise appropriated or by law required to be provided, for making these payments, but shall not be obligations eligible for investment under this paragraph if payable solely out of special assessments on properties benefited by local improvements; or(E) The government of any other country that is a member of the Organization for Economic Cooperation and Development and whose government obligations are rated A or higher, or the equivalent, by a rating agency recognized by the Securities Valuation Office of the National Association of Insurance Commissioners;(2) Obligations that are issued in the United States, or that are dollar denominated and issued in a non-United States market, by a solvent United States institution other than an insurance company or that are assumed or guaranteed by a solvent United States institution other than an insurance company and that are not in default as to principal or interest if the obligations: (A) Are rated A or higher (or the equivalent) by a securities rating agency recognized by the Securities Valuation Office of the National Association of Insurance Commissioners, or, if not so rated, are similar in structure and other material respects to other obligations of the same institution that are so rated;(B) Are insured by at least one authorized insurer (other than the investing insurer or a parent, subsidiary, or affiliate of the investing insurer) licensed to insure obligations in this State, and, after considering the insurance, are rated AAA (or the equivalent) by a securities rating agency recognized by the Securities Valuation Office of the National Association of Insurance Commissioners; or(C) Have been designated as Class One or Class Two by the Securities Valuation Office of the National Association of Insurance Commissioners;(3) Obligations issued, assumed, or guaranteed by a solvent non-United States institution chartered in a country that is a member of the Organization for Economic Cooperation and Development or obligations of United States corporations issued in a non-United States currency, provided that in either case the obligations are rated A or higher, or the equivalent, by a rating agency recognized by the Securities Valuation Office of the National Association of Insurance Commissioners;(4) An investment made pursuant to the provisions of paragraph (1), (2), or (3) shall be subject to the following additional limitations:(A) An investment in or loan upon the obligations of an institution other than an institution that issues mortgage-related securities shall not exceed five per cent of the assets of the trust;(B) An investment in any one mortgage-related security shall not exceed five per cent of the assets of the trust;(C) The aggregate total investment in mortgage-related securities shall not exceed twenty-five per cent of the assets of the trust; and(D) Preferred or guaranteed shares issued or guaranteed by a solvent United States institution are permissible investments if all of the institution's obligations are eligible as investments under paragraphs (2)(A) and (2)(C), but shall not exceed two per cent of the assets of the trust;(5) As used in this chapter:(A) "Mortgage-related security" means an obligation that is rated AA or higher, or the equivalent, by a securities rating agency recognized by the Securities Valuation Office of the National Association of Insurance Commissioners and that either: (i) Represents ownership of one or more promissory notes or certificates of interest or participation in the notes, (including any rights designed to assure servicing of, or the receipt or timeliness of receipt by, the holders of the notes, certificates, or participation of amounts payable under, the notes, certificates, or participation), that are directly secured by a first lien on a single parcel of real estate, including stock allocated to a dwelling unit in a residential cooperative housing corporation, upon which is located a dwelling or mixed residential and commercial structure;(ii) Represents ownership of one or more promissory notes or certificates of interest or participation in the notes, (including any rights designed to assure servicing of, or the receipt or timeliness of receipt by, the holders of the notes, certificates, or participation of amounts payable under, the notes, certificates, or participation), that are directly secured by a first lien on a residential manufactured home as defined in 42 United States Code section 5402(6), whether the manufactured home is considered real or personal property under the laws of the state in which it is located and were originated by a savings and loan association, savings bank, commercial bank, credit union, insurance company, or similar institution that is supervised and examined by a federal or state housing authority, or by a financial institution or mortgagee approved by the Secretary of Housing and Urban Development pursuant to 12 United States Code sections 1703, 1709, or 1715 -b; or(iii) Is secured by one or more promissory notes or certificates of deposit or participations in the notes (with or without recourse to the insurer of the notes) and, by its terms, provides for payments of principal in relation to payments, reasonable projections of payments, or notes meeting the requirements of clause (i); and(B) "Promissory note," when used in connection with a manufactured home, shall also include a loan, advance, or credit sale as evidenced by a retail installment sales contract or other instrument;(6) Equity interests: (A) Investments in common shares or partnership interests of a solvent United States institution are permissible if:(i) Its obligations and preferred shares, if any, are eligible as investments under this subsection; and(ii) The equity interests of the institution, other than an insurance company, are registered on a national securities exchange as provided in the Securities Exchange Act of 1934, 15 United States Code sections 78a to 78kk, or otherwise registered pursuant to the Securities Exchange Act of 1934. If otherwise registered, price quotations shall be furnished through a nationwide automated quotations system approved by the Financial Industry Regulatory Authority or successor organization. A trust shall not invest in equity interests under this paragraph an amount exceeding one per cent of the assets of the trust even though the equity interests are not so registered and are not issued by an insurance company;(B) Investments in common shares of a solvent institution organized under the laws of a country that is a member of the Organization for Economic Cooperation and Development, if: (i) All its obligations are rated A or higher, or the equivalent, by a rating agency recognized by the Securities Valuation Office of the National Association of Insurance Commissioners; and(ii) The equity interests of the institution are registered on a securities exchange regulated by the government of a country that is a member of the Organization for Economic Cooperation and Development;(C) An investment in or loan upon any one institution's outstanding equity interests shall not exceed one per cent of the assets of the trust. The cost of an investment in equity interests made pursuant to this paragraph, when added to the aggregate cost of other investments in equity interests then held pursuant to this paragraph, shall not exceed ten per cent of the assets in the trust;(7) Obligations issued, assumed, or guaranteed by a multinational development bank, provided the obligations are rated A or higher, or the equivalent, by a rating agency recognized by the Securities Valuation Office of the National Association of Insurance Commissioners;(8) Investment companies:(A) Securities of an investment company registered pursuant to the Investment Company Act of 1940, 15 United States Code section 80a, are permissible investments if the investment company: (i) Invests at least ninety per cent of its assets in the types of securities that qualify as an investment under paragraph (1), (2), or (3) or invests in securities that are determined by the commissioner to be substantively similar to the types of securities set forth in paragraph (1), (2), or (3); or(ii) Invests at least ninety per cent of its assets in the types of equity interests that qualify as an investment under paragraph (6)(A);(B) Investments made by a trust in investment companies under this paragraph shall not exceed the following limitations:(i) An investment in an investment company qualifying under subparagraph (A)(i) shall not exceed ten per cent of the assets in the trust and the aggregate amount of investment in qualifying investment companies shall not exceed twenty-five per cent of the assets in the trust; and(ii) Investments in an investment company qualifying under subparagraph (A)(ii) shall not exceed five per cent of the assets in the trust and the aggregate amount of investment in qualifying investment companies shall be included when calculating the permissible aggregate value of equity interests pursuant to paragraph (6)(A);(9) Letters of credit: (A) In order for a letter of credit to qualify as an asset of the trust, the trustee shall have the right and the obligation pursuant to the deed of trust, or some other binding agreement as duly approved by the commissioner, to immediately draw down the full amount of the letter of credit and hold the proceeds in trust for the beneficiaries of the trust if the letter of credit will otherwise expire without being renewed or replaced;(B) The trust agreement shall provide that the trustee shall be liable for its negligence, wilful misconduct, or lack of good faith. The failure of the trustee to draw against the letter of credit in circumstances where the draw would be required shall be deemed to be negligence, wilful misconduct, or both.(f) A specific security provided to a ceding insurer by an assuming insurer pursuant to section 16168-8 shall be applied, until exhausted, to the payment of liabilities of the assuming insurer to the ceding insurer holding the specific security prior to, and as a condition precedent for, presentation of a claim by the ceding insurer for payment by a trustee of a trust established by the assuming insurer pursuant to this section.[Eff 1/25/97; Am and comp 7/28/2022] (Auth: HRS §§ 431:2-201, 431:4A-104) (Imp: HRS §§ 431:4A-101, 431:4A-103)