(1) If a member insurer is an impaired insurer, the association may, in its discretion and subject to any conditions imposed by the association that do not impair the contractual obligations of the impaired insurer and that are approved by the commissioner:
Guarantee, assume, or reinsure or cause to be guaranteed, assumed, or reinsured anyor all of the policies or contracts of the impaired insurer; or
Provide such moneys, pledges, loans, notes, guarantees, or other means as proper toeffectuate paragraph (a) of this subsection (1) and assure payment of the contractual obligations of the impaired insurer pending action under said paragraph (a).
(2) If a member insurer is an insolvent insurer, the association shall, in its discretion, either:
Guarantee, assume, or reinsure or cause to be guaranteed, assumed, or reinsured thecovered policies of the insolvent insurer and provide such moneys, pledges, notes, guarantees, or other means as are reasonably necessary to discharge those duties; or
Assure payment of the contractual obligations of the insolvent insurer to the residentsand provide such moneys, pledges, notes, guarantees, or other means as are reasonably necessary to discharge those duties; or
Provide benefits and coverages in accordance with the following provisions:
(I) With respect only to life and health insurance policies and annuities, assure payment of benefits for premiums identical to the premiums and benefits, except for terms of conversion and renewability, that would have been payable under the policies of the insolvent insurer for claims incurred:
With respect to group policies and contracts, not later than the earlier of the nextrenewal date under such policies or contracts or forty-five days, but in no event less than thirty days, after the date on which the association becomes obligated with respect to such policies or contracts;
With respect to nongroup policies, contracts, and annuities, not later than the earlierof the next renewal date, if any, under such policies or contracts, or one year, but in no event less than thirty days, after the date on which the association becomes obligated with respect to such policies or contracts.
Make diligent efforts to provide to all known insureds or annuitants for nongrouppolicies and contracts, or to group policy owners with respect to group policies and contracts, thirty days' notice of the termination under subparagraph (I) of this paragraph (c) of the benefits provided.
With respect to nongroup life and health insurance policies and annuities coveredby the association, make available to each known insured or annuitant, or owner if other than the insured or annuitant, and with respect to an individual formerly insured or formerly an annuitant under a group policy who is not eligible for replacement group coverage, substitute coverage on an individual basis in accordance with the provisions of subparagraph (IV) of this paragraph (c), if the insureds or annuitants had a right under law or the terminated policy or annuity to convert coverage to individual coverage or to continue an individual policy or annuity in force until a specified age or for a specified time, during which the insurer had no right to unilaterally make changes in any provisions of the policy or annuity or had a right only to make changes in premium by class.
(A) In providing the substitute coverage required under subparagraph (III) of thisparagraph (c), the association may offer either to reissue the terminated coverage or to issue an alternative policy.
The association shall offer alternative or reissued policies without requiring evidenceof insurability, and the policies must not provide for any waiting period or exclusion that would not have applied under the terminated policy.
The association may reinsure any alternative or reissued policy.
(V) (A) Alternative policies adopted by the association are subject to the approval of the domiciliary commissioner and the receivership court. The association may adopt alternative policies of various types for future issuance without regard to any particular impairment or insolvency.
Alternative policies must contain at least the minimum statutory provisions requiredin this state and provide benefits reasonably related to the premium charged. The association shall set the premium in accordance with a table of rates which it shall adopt. The premium must reflect the amount of insurance to be provided and the age and class of risk of each insured, but shall not reflect any changes in the health of the insured after the original policy was last underwritten.
Any alternative policy issued by the association must provide coverage of a typesimilar to that of the policy issued by the impaired or insolvent insurer, as determined by the association.
If the association elects to reissue terminated coverage at a premium rate differentfrom that charged under the terminated policy, the association shall set the premium in accordance with the amount of insurance provided and the age and class of risk, subject to approval by the commissioner or by a court of competent jurisdiction.
The obligations of the association, with respect to coverage under any policy of theimpaired or insolvent insurer or under any reissued or alternative policy, cease on the date such coverage or policy is replaced by another similar policy by the policy owner, the insured, or the association.
When proceeding under this paragraph (c), with respect to any policy or contractcarrying guaranteed minimum interest rates, the association shall assure the payment or crediting of a rate of interest consistent with section 10-20-104 (2)(b)(III).
(3) and (4) Repealed.
Nonpayment of premiums within thirty-one days after the date required under theterms of any guaranteed, assumed, alternative, or reissued policy or contract or substitute coverage shall terminate the obligations of the association under such policy or coverage under this article with respect to such policy or coverage, except with respect to any claims incurred or any net cash surrender value which may be due in accordance with the provisions of this article.
Premiums due for coverage after entry of an order of liquidation of an insolventinsurer shall belong to and be payable at the direction of the association, and the association shall be liable for unearned premiums due to policy contract owners arising after the entry of such order.
(6.5) The protection provided by this article does not apply when guaranty protection is provided to residents of this state by the laws of the domiciliary state or jurisdiction of the impaired or insolvent insurer other than this state.
(7) In carrying out its duties under subsection (2) of this section, the association may, subject to approval by a court of competent jurisdiction:
Impose permanent policy or contract liens in connection with any guarantee, assumption, or reinsurance agreement, if the association finds that the amounts which can be assessed under this article are less than the amounts needed to assure full and prompt performance of the duties of the association under this article, or that the economic or financial conditions as they affect member insurers are sufficiently adverse to render the imposition of such permanent policy or contract liens to be in the public interest;
Impose temporary moratoriums or liens on payments of cash values and policy loans,or any other right to withdraw funds held in conjunction with policies or contracts, in addition to any contractual provisions for deferral of cash or policy loan value. In addition, in the event of a temporary moratorium or moratorium charge imposed by the receivership court on payment of cash values or policy loans or on any other right to withdraw funds held in conjunction with policies or contracts out of the assets of the impaired or insolvent insurer, the association may defer its payment of cash values, policy loans, or other rights of the association for the period of the moratorium or moratorium charge by the receivership court, except for claims covered by the association to be paid in accordance with a hardship procedure established by the liquidator or rehabilitator and approved by the receivership court.
If the association fails to act within a reasonable period of time as provided in subsection (2) of this section, the commissioner shall have the powers and duties of the association under this article with respect to insolvent insurers.
There shall be no liability on the part of, and no cause of action shall arise against,the association, or any transferee from the association in connection with the transfer by reinsurance or otherwise of all or any part of an impaired or insolvent insurer's business by reason of any action taken or any failure to take any action by the impaired or insolvent insurer at any time.
The association may render assistance and advice to the commissioner, upon thecommissioner's request, concerning rehabilitation, payment of claims, continuance of coverage, or the performance of other contractual obligations of any impaired or insolvent insurer.
The association shall have standing to appear or intervene before any court or agency in this state which has jurisdiction over a member insurer for which the association is or may become obligated under this article, or with jurisdiction over any person or property against which the association may have rights through subrogation or otherwise. Such standing shall extend to all matters germane to the powers and duties of the association, including but not limited to proposals for reinsuring, modifying, or guaranteeing the policies or contracts of the member insurer and the determination of the policies or contracts and contractual obligations. The association shall also have the right to appear or intervene before a court or agency in another state with jurisdiction over a member insurer for which the association is or may become obligated or with jurisdiction over any person or property against whom the association may have rights through subrogation or otherwise.
(a) Any person receiving benefits under this article shall be deemed to have assigned the rights under, and any causes of action against any person for losses arising under, resulting from, or otherwise relating to, the covered policy or contract to the association to the extent of the benefits received because of this article, whether the benefits are payments of or on account of contractual obligations, continuation of coverage, or the provision of substitute or alternative coverage. The association may require an assignment to it of such rights and causes of action by any payee, policy, or contract owner, beneficiary, insured, or annuitant as a condition precedent to the receipt of any right or benefits conferred by this article upon such person.
The subrogation rights of the association under this subsection (12) shall have thesame priority against the assets of the impaired or insolvent insurer as that possessed by the person entitled to receive benefits under this article.
In addition to paragraphs (a) and (b) of this subsection (12), the association shallhave all common-law rights of subrogation and any other equitable or legal remedy which would have been available to the impaired or insolvent insurer, owner, beneficiary, or payee of a policy or contract.
If any provision of paragraph (a), (b), or (c) of this subsection (12) is invalid orineffective with respect to any person or claim for any reason, the amount payable by the association with respect to the related covered obligations is reduced by the amount realized by any other person with respect to the person or claim that is attributable to the policies or portions of the policies covered by the association.
If the association has provided benefits with respect to a covered obligation and aperson recovers amounts as to which the association has rights as described in paragraphs (a) to (d) of this subsection (12), the person shall pay to the association the portion of the recovery attributable to the policies, or portions of policies, covered by the association.
(13) The association may:
Enter into such contracts as are necessary or proper to carry out the provisions andpurposes of this article;
Sue or be sued, including taking any legal actions necessary or proper to recover anyunpaid assessments pursuant to section 10-20-109 and to settle claims or potential claims against it;
Borrow money to effect the purposes of this article, and any notes or other evidenceof indebtedness of the association not in default shall be legal investments for domestic insurers and may be carried as admitted assets;
Employ or retain such persons as are necessary to handle the financial transactions ofthe association and to perform such other functions as become necessary or proper under this article;
Take such legal action as necessary to avoid payment of improper claims or recoverpayment of improper claims;
Exercise, for the purposes of this article and to the extent approved by the commissioner, the powers of a domestic life or health insurer, but the association shall not issue insurance policies or annuity contracts other than those issued to perform its obligations under this article;
Negotiate and contract with any liquidator or ancillary receiver to carry out the powers and duties of the association;
(g.5) Request information from persons seeking coverage from the association in order to aid the association in determining its obligations under this article with respect to the person; and a person receiving such request shall promptly comply;
(g.7) Take other necessary or appropriate action to exercise its powers and discharge its duties and obligations under this article;
(h) With respect to covered policies for which the association becomes obligated after an entry of an order of liquidation, elect to succeed to the rights of an insolvent insurer arising after the date of the order of liquidation under any contract of reinsurance to which the insolvent insurer was a party, to the extent that such contract provides coverage for losses occurring after the date of the order of liquidation. As a condition to making this election, the association shall pay unpaid premiums due with respect to policies covered by the association for coverage relating to periods both before and after the date of the order of liquidation.
The association may join an organization of one or more other state associations ofsimilar purposes to further the purposes and to administer the powers and duties of the association.
Every insured or claimant seeking the protection of this article shall cooperate withthe association to the same extent the person or entity would have been required to cooperate with the impaired or insolvent insurer. The association has no cause of action against the insured of the impaired or insolvent insurer for any sums the association has paid out except those causes of action the impaired or insolvent insurer would have had if the sums had been paid by the impaired or insolvent insurer. If an impaired or insolvent insurer operates on a plan with assessment liability, payments of claims by the association do not reduce the liability of the insured to the receiver, liquidator, rehabilitator, conservator, or statutory successor for unpaid assessments.
The receiver, liquidator, rehabilitator, conservator, or statutory successor of an impaired or insolvent insurer is bound by settlements of covered claims by the association or a similar organization in another state. The association has a claim against the estate of the impaired or insolvent insurer to the extent of claims and expenses paid by the association in connection with the duties of the association as to the impaired or insolvent insurer. The court having jurisdiction shall grant these settled claims in the priority to which the claimant would have been entitled in the absence of this article against the assets of the impaired or insolvent insurer. The expenses, including legal fees of the association or similar organization in handling claims, shall be given the same priority as the expenses of the liquidator, rehabilitator, or conservator.
The association shall periodically file with the liquidator, rehabilitator, or conservator of the impaired or insolvent insurer statements of the covered claims and associated expenses paid by the association and estimates of anticipated claims against the association. This periodic filing preserves the rights of the association for claims against the assets of the impaired or insolvent insurer.
The association shall investigate claims brought against it and adjust, compromise,settle, and pay covered claims to the extent of the obligation of the association and deny all other claims.
A person who has a claim against an insurer pursuant to a provision of an insurancepolicy, other than a policy of an impaired or insolvent insurer, that also is a contractual obligation under this article, must first exhaust his or her right under that policy. The amount of an approved claim under this article shall be reduced by the policy limits of, or amount paid under, that insurance policy, whichever amount is greater. If a claimant exhausts all rights under a policy other than a policy of an impaired or insolvent insurer, the insurer issuing that policy is not entitled to sue or continue a suit against the insured of the impaired or insolvent insurer to recover an amount paid to the claimant under the policy; except that a person having a contractual obligation, as defined by this article, under a life insurance policy or an annuity contract issued by an impaired or insolvent insurer is not required to exhaust other coverage for that claim, and the amount of an approved claim under a life insurance policy or annuity contract issued by an impaired or insolvent insurer may not be reduced because of that duplicate coverage.
Where the association has arranged or offered to provide the benefits of this articleto a covered person under a plan or arrangement that fulfills the association's obligations under this article, the person shall not be entitled to benefits from the association in addition to or other than those provided under the plan or arrangement.
Venue in a suit against the association arising under this article shall be in the cityand county of Denver. The association shall not be required to give an appeal bond in an appeal that relates to a cause of action arising under this article.
In carrying out its duties in connection with guaranteeing, assuming, or reinsuringpolicies or contracts under this section, the association may issue substitute coverage for a policy or contract that provides for the calculation of returns or changes in value by the use of an interest rate, crediting rate, or similar factor determined by use of an index or other external reference, by issuing an alternative policy or contract in accordance with the following provisions:
In lieu of the index or other external reference provided for in the original policy orcontract, the alternative policy or contract provides for a fixed interest rate, payment of dividends with minimum guarantees, or a different method for calculating interest or changes in value;
There is no requirement for the evidence of insurability, a waiting period, or anyother exclusion that would not have applied under the replaced policy or contact;
The alternative policy or contract is substantially similar to the replaced policy orcontract in all other material terms.
The board has discretion and may exercise reasonable business judgment to determine the means by which the association is to provide the benefits of this article in an economical and efficient manner.
In carrying out its duties in connection with guaranteeing, assuming, or reinsuringpolicies or contracts under subsection (1) or (2) of this section, the association may, subject to approval by the receivership court, issue substitute coverage for a policy or contract that provides an interest rate, crediting rate, or similar factor, determined by use of an index or other external reference stated in the policy or contract, employed in calculating returns or changes in value by issuing an alternative policy or contract in accordance with the following provisions:
In lieu of the index or other external reference provided for in the original policy orcontract, the alternative policy or contract provides for a fixed interest rate, payment of dividends with minimum guarantees, or a different method for calculating interest or changes in value;
There is no requirement for evidence of insurability, waiting period, or other exclusion that would not have applied under the replaced policy or contract; and
The alternative policy or contract is substantially similar to the replaced policy orcontract in all other material terms.
Source: L. 91: Entire article added, p. 1262, § 1, effective July 1. L. 94: IP(3)(a) and (4) amended, p. 1650, § 93, effective May 31. L. 2000: (10), (11), (12)(a), and (12)(c) amended and
(13)(g.5), (13)(g.7), (20), (21), and (22) added, p. 1020, §§ 3, 4, effective July 1. L. 2002:
(13)(h) amended, p. 122, § 1, effective March 26. L. 2013: (1), (2), IP(7), (7)(b), (8), (9), (10), (12)(b), (12)(c), (13)(e), (15), (16), (17), and (19) amended, (3) and (4) repealed, and (6.5),
(12)(d), (12)(e), (23), and (24) added, (SB 13-032), ch. 34, p. 87, § 4, effective March 15.