Section 38a-136 - (Formerly Sec. 38-39h). Requirements re transactions within an insurance holding company system. Prohibited transactions. Extraordinary dividends or distributions(a) Transactions within an insurance holding company system to which an insurance company subject to registration under section 38a-135 is a party shall be subject to the following requirements: (1) The terms shall be fair and reasonable;(2) Charges or fees for services performed shall be reasonable;(3) Expenses incurred and payment received shall be allocated to the insurance company in conformity with customary insurance accounting practices consistently applied;(4) The books, accounts and records of each party shall be so maintained as to clearly and accurately disclose the precise nature and details of the transactions, including such accounting information as is necessary to support the reasonableness of the charges or fees to the respective parties;(5) The insurance company's surplus shall be reasonable in relation to such company's outstanding liabilities and adequate to its financial needs; (6) Agreements for cost-sharing services and management shall include such provisions as may be required by regulations adopted by the commissioner; (7) If an insurance company subject to sections 38a-129 to 38a-140, inclusive, is determined by the commissioner to be in a hazardous financial condition as set forth in sections 38a-8-101 to 38a-8-104, inclusive, of the regulations of Connecticut state agencies or a condition that would be grounds for supervision, conservation or a delinquency proceeding as set forth in chapter 704c, the commissioner may require the insurance company to secure and maintain either a deposit, held by the commissioner, or a bond, as determined by the insurance company at the insurance company's discretion, for the protection of the insurance company for the duration of the contracts or agreements, or the existence of the condition for which the commissioner required the deposit or the bond. In determining whether the bond is required, the commissioner shall consider whether concerns exist with respect to affiliates of the insurance company to fulfill the contracts or agreements if the insurance company were to be put into liquidation. Once the insurance company is determined to be in a hazardous financial condition or a condition that is grounds for supervision, conservation or a delinquency proceeding, and a deposit or bond is necessary, the commissioner may determine the amount of the deposit or bond, not to exceed the value of the contracts or agreements in any one year, and whether such deposit or bond shall be required for a single contract, multiple contracts or a contract only with a specific affiliate of the insurance company;(8) All records and data of the insurance company held by an affiliate shall remain the property of the insurance company and shall be subject to control of the insurance company, identifiable, and segregated or readily capable of segregation, at no additional cost to the insurance company, from all other persons' records and data, including, but not limited to, all records and data that are otherwise the property of the insurance company, in whatever form maintained, including, but not limited to, claims and claim files, policyholder lists, application files, litigation files, premium records, rate books, underwriting manuals, personnel records, financial records or similar records within the possession, custody or control of the affiliate. At the request of the insurance company, the affiliate shall provide that the receiver can obtain a complete set of all records of any type that pertain to the insurance company's business; obtain access to the operating systems on which the data is maintained; obtain the software that runs such systems either through assumption of licensing agreements or otherwise; and restrict the use of the data by the affiliate if it is not operating the insurance company's business. The affiliate shall provide a waiver of any landlord lien or other encumbrance to give the insurance company access to all records and data in the event of the affiliate's default under a lease or other agreement; and(9) Premiums or other funds that belong to the insurance company that are collected by or held by an affiliate or affiliates are the exclusive property of the insurance company and shall be subject to the control of the insurance company. Any right of offset of amounts due to or due from the insurance company and an affiliate or affiliates in the event an insurance company is placed into receivership shall be subject to chapter 704c.(b)(1) The following transactions involving a domestic insurance company and any person in its holding company system, including amendments to or modifications of affiliate agreements previously filed pursuant to this section and that are subject to any materiality standards specified in subparagraphs (A) to (G), inclusive, of this subdivision, may not be entered into unless the insurance company has notified the commissioner in writing of its intention to enter into such transaction at least thirty days prior thereto, or such shorter period as the commissioner may permit, and the commissioner has approved or not disapproved it within such period. The written notice for such amendments or modifications shall specify the reasons for the change and the financial impact on the domestic insurance company. Not later than thirty days after the termination of a previously filed agreement, the domestic insurance company shall notify the commissioner of such termination for the commissioner's determination of what written notice or filing shall be required, if any: (A) Sales, purchases, exchanges, loans or extensions of credit, or investments, provided such transactions are equal to or exceed: (i) With respect to nonlife insurance companies, the lesser of three per cent of the insurance company's admitted assets or twenty-five per cent of surplus; or (ii) with respect to life insurance companies, three per cent of the insurance company's admitted assets; each as of the thirty-first day of December next preceding;(B) Loans or extensions of credit to any person who is not an affiliate, where the insurance company makes such loans or extensions of credit with the agreement or understanding that the proceeds of such transactions, in whole or in substantial part, are to be used to make loans or extensions of credit to, to purchase assets of, or to make investments in, any affiliate of the insurance company making such loans or extensions of credit, provided such transactions are equal to or exceed: (i) With respect to nonlife insurance companies, the lesser of three per cent of the insurance company's admitted assets or twenty-five per cent of surplus; or (ii) with respect to life insurance companies, three per cent of the insurance company's admitted assets; each as of the thirty-first day of December next preceding;(C) Reinsurance agreements or modifications thereto, including (i) all reinsurance pooling agreements, and (ii) agreements in which the reinsurance premium or a change in the insurance company's liabilities, or the projected reinsurance premium or a projected change in the insurance company's liabilities in any of the next three years, equals or exceeds five per cent of the insurance company's surplus, as of the thirty-first day of December next preceding, including those agreements that may require as consideration the transfer of assets from an insurance company to a nonaffiliate, if an agreement or understanding exists between the insurance company and nonaffiliate that any portion of such assets will be transferred to one or more affiliates of the insurance company;(D) All management agreements, service contracts, tax allocation agreements and cost-sharing arrangements;(E) Guarantees by a domestic insurance company, except that a guarantee that is (i) quantifiable as to amount, and (ii) does not exceed the lesser of one-half of one per cent of the insurance company's admitted assets or ten per cent of surplus with regard to policyholders, as of the thirty-first day of December next preceding, shall not be subject to the notice requirement of this subsection;(F) Direct or indirect acquisitions or investments in a person that controls the domestic insurance company or in an affiliate of the insurance company in an amount that, together with the insurance company's present holdings in such investments, exceeds two and one-half per cent of the insurance company's surplus with regard to policyholders. This subsection shall not apply to direct or indirect acquisitions of or investments in (i) subsidiaries acquired pursuant to section 38a-102d or authorized pursuant to any section of this title other than sections 38a-129 to 38a-140, inclusive, or (ii) nonsubsidiary affiliates that are subject to the provisions of sections 38a-129 to 38a-140, inclusive; and(G) Any material transactions, specified by regulation, that the commissioner determines may adversely affect the interests of the insurance company's policyholders.(2) Nothing contained in this section shall be deemed to authorize or permit any transactions that, in the case of an insurance company not a member of the same insurance holding company system, would be otherwise contrary to law.(c) A domestic insurance company may not enter into transactions that are part of a plan or series of like transactions with persons within the insurance holding company system if the purpose of those separate transactions is to avoid the statutory threshold amount and thus avoid the review that would otherwise occur. If the commissioner determines that such separate transactions were entered into over any twelvemonth period for such purpose, the commissioner may exercise authority under section 38a-140.(d) The commissioner, in reviewing transactions pursuant to subsection (b) of this section, shall consider whether the transactions comply with the standards set forth in subsection (a) of this section and whether they may adversely affect the interests of policyholders.(e) Except as may be exempted pursuant to regulations adopted, in accordance with the provisions of chapter 54, by the commissioner or otherwise waived by the commissioner, the commissioner shall be notified not later than thirty days after any material investment of the domestic insurance company in any one corporation if the total investment in such corporation by such insurance company's insurance holding company system exceeds ten per cent of such corporation's voting securities.(f)(1) No insurance company subject to registration under section 38a-135 shall pay any extraordinary dividend or make any other extraordinary distribution to its stockholders until the commissioner has approved such payment or until thirty days after the commissioner has received notice from such company of the declaration thereof within which period the commissioner has not disapproved such payment, whichever is sooner. For the purposes of this subsection, an extraordinary dividend or distribution is any dividend or distribution of cash or other property, whose fair market value together with that of other dividends or distributions made within the preceding twelve months, exceeds the greater of (A) ten per cent of such insurance company's surplus as of the thirty-first day of December last preceding, or (B) the net gain from operations of such insurance company, if such company is a life insurance company, or the net income, if such company is not a life insurance company, for the twelve-month period ending the thirty-first day of December last preceding, but shall not include pro rata distributions of any class of the insurance company's own securities.(2) Notwithstanding any other provision of law, an insurance company may declare an extraordinary dividend or distribution that is conditional upon the commissioner's approval thereof, but such a declaration shall confer no rights upon stockholders until (A) the commissioner has approved the payment of such dividend or distribution, or (B) until thirty days after such declaration thereof within which period the commissioner has not disapproved such declaration, whichever is sooner.(g) For purposes of sections 38a-129 to 38a-140, inclusive, in determining whether an insurance company's surplus is reasonable in relation to the insurance company's outstanding liabilities and adequate to its financial needs, the following factors, in addition to others, shall be considered: (1) The size of the insurance company as measured by its assets, capital and surplus, reserves, premium writings, insurance in force and other appropriate criteria; (2) the extent to which the insurance company's business is diversified among the several lines of insurance; (3) the number and size of risks insured in each line of business; (4) the nature of the geographical dispersion of the insurance company's insured risks; (5) the nature and extent of the insurance company's reinsurance program; (6) the quality, diversification and liquidity of the insurance company's investment portfolio; (7) the recent past and projected future trend in the size of the insurance company's surplus; (8) the surplus maintained by other comparable insurance companies; (9) the adequacy of the insurance company's reserves; (10) the quality of the company's earnings and the extent to which the reported earnings include extraordinary items; and (11) the quality and liquidity of investments in affiliates. The commissioner may discount any such investment or treat any such investment as a disallowed asset for purposes of determining the adequacy of surplus whenever, in the commissioner's judgment, such investment warrants.(h)(1) Any domestic insurance company that is affiliated with an insurance holding company system shall report for informational purposes to the Insurance Commissioner all dividends and other distributions to securityholders, not later than five business days after the declaration and at least ten days, commencing from the date of receipt by the Insurance Department, prior to payment thereof.(2) No dividend or other distribution may be paid when the surplus of the insurance company is less than the surplus required by section 38a-72 for the kind or kinds of business authorized to be transacted by such company, nor when the payment of a dividend or other distribution would reduce its surplus to less than such amount.(3) Except as otherwise provided by law, no dividend or other distribution exceeding an amount equal to an insurance company's earned surplus may be paid without the Insurance Commissioner's prior approval. For purposes of this subsection, "earned surplus" means "unassigned funds-surplus", as defined in the annual report of the insurance company that was most recently submitted pursuant to section 38a-53, reduced by twenty-five per cent of unrealized appreciation in value or revaluation of assets or unrealized profits on investments, as defined in such report.(i)(1) The commissioner may require a domestic insurance company of which control has been acquired pursuant to section 38a-130 to submit to a financial examination and a market conduct examination within thirty days after such acquisition in accordance with procedures set forth by NAIC's examiner's handbook and such regulations as the commissioner may adopt.(2) No domestic insurance company of which control has been acquired pursuant to section 38a-130 shall, without the prior approval of the commissioner: (A) Pay or propose to pay any dividend during the period of two years from the date of acquisition of control of such insurance company; (B) acquire or enter into an agreement or understanding to acquire control, during the period of three years after the date of acquisition of control of such insurance company, of any other person or persons whose assets exceed twenty-five million dollars; (C) provide or propose to provide directly or indirectly, during the period of three years after the date of acquisition of control of such insurance company, any loans, advances, guarantees, pledges or other financial assistance; or (D) engage in any material transaction with any person during the period of three years after the date of acquisition of such insurance company. For purposes of this subsection, a "material transaction" shall include, but not be limited to, any transfer or encumbrance of assets not in the ordinary course of business that, together with all other transfers or encumbrances made within the preceding twelve months, exceeds in value the greater of (i) ten per cent of such insurance company's surplus as of the December thirty-first last preceding, or (ii) the net gain from operations of such insurance company, if such company is a life insurance company, or the net investment income of such company, if such company is not a life insurance company, for the twelve-month period ending the December thirty-first last preceding.(3) The commissioner shall, upon a written request from the controlled domestic insurance company and, upon public hearing after notice to all interested parties, determine whether any limitations contained in subdivision (2) of this subsection shall be continued, or whether and on what conditions they may be waived. Such determination shall be predicated on the results of the examinations under subdivision (1) of this subsection and such further examinations, if any, the commissioner may require concerning the adequacy of the insurance company's reserves, the effect any proposed transaction will have on the insurance company's surplus, its cash flow needs and its ability to satisfy any reasonably anticipated obligations in the foreseeable future, and any other effect the proposed transaction would have on the financial stability or solvency of the insurance company and the quality and liquidity of its assets. All fees and expenses relating to such examinations shall be paid by the insurance company.(4) Nothing in this subsection shall be interpreted to prohibit any transactions between a domestic insurance company and any of its subsidiaries in the ordinary course of business.(j)(1) Any affiliate that is a party to an agreement or contract with a domestic insurance company that is subject to subparagraph (D) of subdivision (1) of subsection (b) of this section shall be subject to the jurisdiction of any order of rehabilitation or liquidation against the insurance company and to the authority of any rehabilitator or liquidator for the insurance company appointed pursuant to chapter 704c, for the purpose of interpreting, enforcing and overseeing the affiliate's obligations under the agreements or contracts to perform services for the insurance company that:(A) Are an integral part of the insurance company's operations, including, but not limited to, management, administration, accounting, data processing, marketing, underwriting, claims handling, investment or any other similar functions; or(B) Are essential to the insurance company's ability to fulfill its obligations under insurance policies.(2) The commissioner may require that an agreement or contract pursuant to subparagraph (D) of subdivision (1) of subsection (b) of this section for provisions or services set forth in subparagraphs (A) and (B) of subdivision (1) of this subsection specify that the affiliate consents to the jurisdiction described in subdivision (1) of this subsection.Conn. Gen. Stat. § 38a-136
(1969, P.A. 444, S. 8; 1971, P.A. 368, S. 2; P.A. 85-16, S. 4, 6; P.A. 92-112 , S. 19 , 35 ; P.A. 93-57 , S. 6 , 7 , 12 ; 93-239 , S. 29 ; P.A. 00-30 , S. 10 , 14 ; P.A. 12-103 , S. 7 ; P.A. 15-144 , S. 8 .)
Amended by P.A. 22-0118, S. 214 of the Connecticut Acts of the 2022 Regular Session, eff. 7/1/2022.Amended by P.A. 15-0144, S. 8 of the Connecticut Acts of the 2015 Regular Session, eff. 7/1/2015.Amended by P.A. 12-0103, S. 7 of the the 2012 Regular Session, eff. 10/1/2012. Annotation to former section 38-39h: Cited. 184 Conn. 352 .