(1) Notwithstanding any other provision of this title, mutual debts or mutual credits, whether arising out of one or more contracts between the insurer and another person in connection with any action or proceeding under this part 5, shall be set off, and the balance only shall be allowed or paid, except as provided in subsections (2) and (4) of this section and section 10-3-532.
(2) No setoff shall be allowed in favor of any person where:
The obligation of the insurer to the person would not at the date of the filing of apetition for receivership entitle the person to share as a claimant in the assets of the insurer; or
The obligation of the insurer to the person was purchased by or transferred to theperson with a view to its being used as a setoff; or
The obligation of the insurer is owed to an affiliate of such person, or any other entityor association other than the person; or
The obligation of the person is owed to an affiliate of the insurer or to any otherentity or association other than the insurer; or
The obligation of the person is to pay an assessment levied against the members orsubscribers of the insurer, or is to pay a balance upon a subscription to the capital stock of the insurer, or is in any other way in the nature of a capital contribution; or
The obligations between the person and the insurer arise from business in whicheither the person or the insurer has assumed risks and obligations from the other party and then has ceded back to that party substantially the same risks and obligations; except that, with regard to such business, the commissioner has discretion to allow certain setoffs if the commissioner deems them appropriate.
(Deleted by amendment, L. 2001, p. 229, § 1, effective July 1, 2001.)
The commissioner may promulgate rules and regulations to implement this sectionincluding the establishment of reasonable accounting requirements.
Notwithstanding any other provision of this section to the contrary, a setoff of sumsdue on obligations in the nature of those set forth in paragraph (f) of subsection (2) of this section shall be allowed for those sums accruing from business written where the contracts were entered into, renewed, or extended with the express written approval of the insurance department of the state of domicile of the now insolvent insurer and, in the judgment of such insurance department, it was necessary to provide reinsurance in order to prevent or mitigate a threatened impairment or insolvency of a domiciliary insurer in connection with the exercise of the said insurance department's regulatory responsibilities.
This section shall be effective January 1, 1993, and shall apply to all contracts entered into, renewed, extended, or amended on or after said date and to debts or credits arising from any business written or transactions occurring after January 1, 1993, pursuant to any contract including those in existence prior to January 1, 1993, and shall supersede any agreements or contractual provisions which might be construed to enlarge the setoff rights of any person under any contract with the insurer. For purposes of this section, any change in the terms of, or consideration for, any such contract shall be deemed an amendment.
Source: L. 92: Entire part R&RE, p. 1463, § 14, effective July 1. L. 2001: (1), (2)(a), (2)(f), and (3) amended, p. 229, § 1, effective July 1.