(A) A captive insurance company, when permitted by its articles of incorporation, articles of organization, operating agreement, or charter, may apply to the director for a license to provide any and all insurance, except workers' compensation insurance written on a direct basis, authorized by this title; however:
(1) a pure captive insurance company may not insure any risks other than those of its parent, affiliated companies, controlled unaffiliated business, risks assumed from a risk pool for the purpose of risk sharing, or a combination of them;
(2) an association captive insurance company may not insure any risks other than those of the member organizations of its association and their affiliated companies;
(3) an industrial insured captive insurance company may not insure any risks other than those of the industrial insureds that comprise the industrial insured group and their affiliated companies;
(4) a special purpose captive insurance company may provide insurance or reinsurance, or both, for risks as approved by the director;
(5) a captive insurance company may not provide personal motor vehicle or homeowner's insurance coverage written on a direct basis;
(6) a captive insurance company may not accept or cede reinsurance except as provided in Section 38-90-110.
(B) To conduct insurance business in this State a captive insurance company shall:
(1) obtain from the director a license authorizing it to conduct insurance business in this State;
(2) beginning the year immediately following the issuance of its license, annually hold at least one board of director's meeting, or in the case of a reciprocal insurer, a subscriber's advisory committee meeting, or in the case of a limited liability company a meeting of the managing board, at which a majority of the directors are physically present in this State;
(3) maintain its principal place of business in this State, or in the case of a branch captive insurance company, maintain the principal place of business for its branch operations in this State; and
(4) appoint a resident registered agent to accept service of process and to otherwise act on its behalf in this State. In the case of a captive insurance company:
(a) formed as a corporation, a nonprofit corporation, or a limited liability company, whenever the registered agent cannot with reasonable diligence be found at the registered office of the captive insurance company, the director must be an agent of the captive insurance company upon whom any process, notice, or demand may be served;
(b) formed as a reciprocal insurer, whenever the registered agent cannot with reasonable diligence be found at the registered office of the captive insurance company, the director must be an agent of the captive insurance company upon whom any process, notice, or demand may be served.
(C)(1) Before receiving a license, a captive insurance company:
(a) formed as a corporation or a nonprofit corporation, shall file with the director a certified copy of its articles of incorporation and bylaws, a statement under oath of its president and secretary showing its financial condition, and any other statements or documents required by the director;
(b) formed as a limited liability company, shall file with the director a certified copy of its articles of organization and operating agreement, a statement under oath by its managers showing its financial condition, and any other statements or documents required by the director;
(c) formed as a reciprocal shall:
(i) file with the director a certified copy of the power of attorney of its attorney-in-fact, a certified copy of its subscribers' agreement, a statement under oath of its attorney-in-fact showing its financial condition, and any other statements or documents required by the director; and
(ii) submit to the director for approval a description of the coverages, deductibles, coverage limits, and rates and any other information the director may reasonably require. If there is a subsequent material change in an item in the description, the reciprocal captive insurance company shall submit to the director for approval an appropriate revision and may not offer any additional kinds of insurance until a revision of the description is approved by the director. The reciprocal captive insurance company shall inform the director of any material change in rates within thirty days of the adoption of the change.
(2) In addition to the information required by item (1), an applicant captive insurance company shall file with the director evidence of:
(a) the amount and liquidity of its assets relative to the risks to be assumed;
(b) the adequacy of the expertise, experience, and character of the person or persons who will manage it;
(c) the overall soundness of its plan of operation;
(d) the adequacy of the loss prevention programs of its parent, member organizations, or industrial insureds as applicable; and
(e) such other factors considered relevant by the director in ascertaining whether the proposed captive insurance company will be able to meet its policy obligations.
(3) In addition to the information required by items (1) and (2) an applicant sponsored captive insurance company shall file with the director:
(a) a business plan demonstrating how the applicant will account for the loss and expense experience of each protected cell at a level of detail found to be sufficient by the director, and how it will report the experience to the director;
(b) all contracts or sample contracts between the sponsored captive insurance company and any participants; and
(c) a statement that expenses will be allocated to each protected cell in an equitable manner.
(4) Information submitted pursuant to this section is confidential as provided in Section 38-90-35 except that information is discoverable by a party in a civil action or contested case to which the captive insurance company that submitted the information is a party, upon a specific finding by the court that:
(a) the captive is a necessary party to the action and not joined only for the purposes of evading the confidentiality provisions of this chapter;
(b) the information sought is relevant, material to, and necessary for the prosecution or defense of the claim asserted in litigation; and
(c) the information sought is not available through another source.
(D)(1) A captive insurance company shall pay to the department a nonrefundable fee of two hundred dollars for processing its application for license. In addition, the director may retain legal, financial, and examination services from outside the department to examine and investigate the application, the reasonable cost of which may be charged against the applicant in an amount that is determined to be appropriate by the director given the nature, scale, and complexity of the application being investigated.
(2) Section 38-13-60 applies to examinations, investigations, and processing conducted pursuant to the authority of this section.
(3) In addition, a captive insurance company shall pay a license fee for the year of registration of three hundred dollars and an annual renewal fee of five hundred dollars.
(4) The department may charge a fifteen-dollar fee for any document requiring certification of authenticity or the signature of the director.
(E) If the director is satisfied that the documents and statements filed by the captive insurance company comply with the provisions of this chapter, the director may grant a license authorizing the company to do insurance business in this State until March first at which time the license may be renewed.
(F) A foreign or alien captive insurance company, upon approval of the director, may become a domestic captive insurance company by complying with all of the requirements of law relative to the organization and licensing of a domestic captive insurance company of the same or equivalent type in this State and by filing with the Secretary of State its articles of association, charter, or other organizational document, together with appropriate amendments to them adopted in accordance with the laws of this State bringing those articles of association, charter, or other organizational document into compliance with the laws of this State. After this is accomplished, the captive insurance company is entitled to the necessary or appropriate certificates and licenses to continue transacting business in this State and is subject to the authority and jurisdiction of this State. In connection with this redomestication, the director may waive any requirements for public hearings. It is not necessary for a company redomesticating into this State to merge, consolidate, transfer assets, or otherwise engage in any other reorganization, other than as specified in this section.
HISTORY: 2000 Act No. 331, Section 1; 2002 Act No. 188, Section 3, eff March 12, 2002; 2002 Act No. 228, Section 12, eff May 1, 2002; 2003 Act No. 73, Section 24.B, eff June 25, 2003; 2004 Act No. 221, Section 38, eff April 29, 2004; 2004 Act No. 291, Sections 17, 18, eff July 29, 2004; 2009 Act No. 28, Section 1, eff June 2, 2009; 2009 Act No. 28, Section 2, eff June 2, 2009; 2014 Act No. 282 (S.909), Section 5, eff June 10, 2014; 2018 Act No. 251 (H.4675), Section 1, eff May 18, 2018.
Effect of Amendment
2014 Act No. 282, Section 5, in subsection (F), inserted "along with a certificate of general good issued by the director" at the end of the first sentence.
2018 Act No. 251, Section 1, in (A), in (1), inserted "risks assumed from a risk pool for the purpose of risk sharing," following "controlled unaffiliated business,", and rewrote (4); in (B), in (2), inserted "beginning the year immediately following the issuance of its license, annually" at the beginning, and substituted "at which a majority of the directors are physically present" for "each year" following "meeting of the managing board,"; in (C)(3), deleted (b), which related to a statement acknowledging that all financial records of the sponsored captive insurance company must be made available for inspection or examination, and redesignated (c) to (d) as (b) to (c); in (D), in (1), in the second sentence, substituted "in an amount" for "or the director may use internal resources to examine and investigate the application for a fee of two thousand four hundred dollars or such other amount" following "charged against the applicant" and ", scale, and complexity" for "or his designee", and in (4), deleted "or his designee" following "director"; and in (F), in the first sentence, deleted "or his designee" following "upon approval of the director".