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(1) If an insurer has excess surplus, as defined under Section 31A-1-301, then to the extent of its excess surplus, the insurer may invest in a manner inconsistent with the limitations of Section 31A-18-106 or in other assets approved by the commissioner.
(2) This section does not empower any insurer to make investments that are:
(a) illegal; or
(b) prohibited under Section 31A-4-107.
(3) Each insurer has the burden of establishing the extent of its excess surplus.