Commissioner Appointed as Liquidator; Seizure and Administration of Assets; Effect of Filing Order; Petition for Declaration of Insolvency; Financial Reports; Plan for Continued Performance Pending Appeal

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  2. Georgia Code
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  4. Insurers Rehabilitation and Liquidation
  5. Procedure for Rehabilitation
  6. Commissioner Appointed as Liquidator; Seizure and Administration of Assets; Effect of Filing Order; Petition for Declaration of Insolvency; Financial Reports; Plan for Continued Performance Pending Appeal

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  1. An order to liquidate the business of a domestic insurer shall appoint the Commissioner and his successors in office liquidator and shall direct the liquidator forthwith to take possession of the assets of the insurer and to administer them under the general supervision of the court.The liquidator shall be vested by operation of law with the title to all of the property, contracts, and rights of action, and all of the books and records of the insurer ordered liquidated, wherever located, as of the entry of the final order of liquidation. The filing or recording of the order with the clerk of the superior court and the recorder of deeds of the county in which its principal office or place or business is located, or, in the case of real estate, with the recorder of deeds of the county where the property is located, shall impart the same notice as a deed, bill of sale, or other evidence of title duly filed or recorded with that recorder of deeds would have imparted.
  2. Upon issuance of the order, the rights and liabilities of any such insurer and of its creditors, policyholders, shareholders, members, and all other persons interested in its estate shall become fixed as of the date of entry of the order of liquidation, except as provided in Code Sections 33-37-18 and 33-37-36.
  3. An order to liquidate the business of an alien insurer domiciled in this state shall be in the same terms and have the same legal effect as an order to liquidate a domestic insurer, except that the assets and the business in the United States shall be the only assets and business included therein.
  4. At the time of petitioning for an order of liquidation, or at any time thereafter, the Commissioner, after making appropriate findings of an insurer's insolvency, may petition the court for a judicial declaration of such insolvency. After providing such notice and hearing as it deems proper, the court may make the declaration.
  5. Any order issued under this Code section shall require financial reports to the court by the liquidator.Financial reports shall include at a minimum the assets and liabilities of the insurer and all funds received or disbursed by the liquidator during the current period.Financial reports shall be filed within one year of the liquidation order and at least annually thereafter.
    1. Within five days after the initiation of an appeal of an order of liquidation, which order has not been stayed, the Commissioner shall present for the court's approval a plan for the continued performance of the defendant company's policy claims obligations, including the duty to defend insureds under liability insurance policies, during the pendency of an appeal.Such plan shall provide for the continued performance and payment of policy claims obligations in the normal course of events, notwithstanding the grounds alleged in support of the order of liquidation including the ground of insolvency. In the event the defendant company's financial condition will not, in the judgment of the Commissioner, support the full performance of all policy claims obligations during the appeal pendency period, the plan may prefer the claims of certain policyholders and claimants over creditors and interested parties as well as other policyholders and claimants as the Commissioner finds to be fair and equitable considering the relative circumstances of such policyholders and claimants. The court shall examine the plan submitted by the Commissioner and if it finds the plan to be in the best interests of the parties, the court shall approve the plan.No action shall lie against the Commissioner or any of his or her deputies, agents, clerks, assistants, or attorneys by any party based on preference in an appeal pendency plan approved by the court.
    2. The appeal pendency plan shall not supersede or affect the obligations of any insurance guaranty association.
    3. Any such plans shall provide for equitable adjustments to be made by the liquidator to any distributions of assets to guaranty associations, in the event that the liquidator pays claims from assets of the estate, which would otherwise be the obligations of any particular guaranty association but for the appeal of the order of liquidation, such that all guaranty associations equally benefit on a pro rata basis from the assets of the estate.Further, in the event an order of liquidation is set aside upon any appeal, the company shall not be released from delinquency proceedings unless and until all funds advanced by any guaranty association, including reasonable administrative expenses in connection therewith relating to obligations of the company, shall be repaid in full, together with interest at the judgment rate of interest or unless an arrangement for repayment thereof has been made with the consent of all applicable guaranty associations.

(Code 1981, §33-37-17, enacted by Ga. L. 1991, p. 1424, § 7; Ga. L. 2019, p. 386, § 135/SB 133.)

The 2019 amendment, effective July 1, 2019, in paragraph (f)(1), substituted "Within" for "Within ten days of July 1, 1991, or, if later, within" at the beginning of the first sentence, and inserted "or her" in the last sentence.

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 56-1503, are included in the annotations for this Code section.

Disposing of accumulated, undisbursed funds held by Commissioner.

- Proper method of disposing of accumulated and undisbursed receivership funds held by the Commissioner in cases where creditors or claimants of defunct domestic stock and mutual insurance companies cannot be located or where checks issued to the companies for the companies' pro rata portion have been, for any reason, returned unpaid, is to turn such funds over to the Fiscal Division of the Department of Administrative Services (now Office of Treasury and Fiscal Services), which shall ultimately remit the funds to the Board of Regents of the University System of Georgia; in cases involving all other types of defunct insurance companies, the Commissioner should petition the superior court that supervised the particular insurance company's dissolution proceedings for leave to deposit the accumulated and undisbursed receivership funds in its registry to be subsequently dealt with by order of the court as the court deems advisable. 1975 Op. Att'y Gen. No. 75-83 (decided under former Code 1933, § 56-1503).

RESEARCH REFERENCES

Am. Jur. 2d.

- 43 Am. Jur. 2d, Insurance, § 83 et seq.

C.J.S.

- 44 C.J.S., Insurance, § 267 et seq.


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