TITLE 41

INSURANCE

CHAPTER 48

RISK RETENTION GROUPS

41-4803.  Definitions. As used in this chapter:

(1)  "Director" means the director of the department of insurance of this state or the director, commissioner, or superintendent of the department of insurance of any other state.

(2)  "Completed operations liability" means liability arising out of the installation, maintenance or repair of any product at a site which is not owned or controlled by:

(a)  Any person who performs that work; or

(b)  Any person who hires an independent contractor to perform that work, but shall include liability for activities which are completed or abandoned before the date of the occurrence giving rise to the liability.

(3)  "Domicile" for purposes of determining the state in which a purchasing group is domiciled means:

(a)  For a corporation, the state in which the purchasing groups is incorporated; or

(b)  For an unincorporated entity, the state of its principal place of business.

(4)  "Hazardous financial condition" means that, based on its present or reasonably anticipated financial condition, a risk retention group, although not yet financially impaired or insolvent, is unlikely to be able:

(a)  To meet obligations to policyholders with respect to known claims and reasonably anticipated claims; or

(b)  To pay other obligations in the normal course of business.

(5)  "Insurance" means primary insurance, excess insurance, reinsurance, surplus lines insurance, or any other arrangement for shifting and distributing risk which is determined to be insurance under this code.

(6)  "Liability" means legal liability for damages, including costs of defense, legal costs and fees, and other claims expenses because of injuries to other persons, damage to their property, or other damage or loss to such other persons resulting from or arising out of any business whether profit or nonprofit, trade, product, services including professional services, premises, or operations, or arising out of any activity of any state or local government, or any agency or political subdivision thereof, but does not include personal risk liability or with the exception of an employer’s legal liability with respect to its employees under the federal employers’ liability act (45 U.S.C. 51 et seq.), an employer’s liability.

(7)  "Personal risk liability" means liability for damages because of injury to any person, damage to property, or other loss or damage resulting from any person, familial, or household responsibilities or activities apart from responsibilities or activities referred to in subsection (6) of this section.

(8)  "Plan of operation or feasibility study" means an analysis which presents the expected activities and results of a risk retention group, including, at a minimum:

(a)  The coverages, deductibles, coverage limits and rates and rating classifications systems for each line of insurance the group would offer;

(b)  Historical and expected loss experience of the proposed members and national experience of similar exposures to the extent that this experience is reasonably available;

(c)  Pro forma financial statements and projections;

(d)  Appropriate opinions by a qualified, independent casualty actuary, including a determination of minimum premium or participation levels required to commence operations and to prevent hazardous financial conditions;

(e)  Identification of management, underwriting procedures and guidelines, managerial oversight methods, and investment policies; and

(f)  Such other items as may be required by the director for liability insurance companies authorized by the insurance laws of the state in which the risk retention group is chartered.

(9)  "Product liability" means liability for damages because of any personal injury, death, emotional harm, consequential economic damage or property damage (including damages resulting from the loss of use of property) arising out of the manufacture, design, importation, distribution, packaging, labeling, lease, or sale of a product, but does not include the liability of any person for those damages if the product involved was in the possession of such a person when the incident giving rise to the claim occurred.

(10)  "Purchasing group" means any group which:

(a)  Has as one of its purposes the purchase of liability insurance on a group basis;

(b)  Purchases such insurance only for its group members and only to cover their similar or related liability exposure, as described in paragraph (c) of this subsection;

(c)  Is composed of members whose businesses or activities are similar or related with respect to the liability to which members are exposed by virtue of any related, similar, or common business, trade, product, services, premises, or operations; and

(d)  Is domiciled in any state.

(11)  "Risk retention group" means any corporation or other limited liability association:

(a)  Whose primary activity consists of assuming and spreading all, or any portion of the liability exposure of its group members;

(b)  Which is organized for the primary purpose of conducting the activity described under paragraph (a) of this subsection which:

(i)  Is chartered and licensed as a liability insurance company and authorized to engage in the business of insurance under the laws of any state; or

(ii) Before January 1, 1985, was chartered or licensed and authorized to engage in the business of insurance under the laws of Bermuda or the Cayman Islands and, before such date, had certified to the insurance director of at least one (1) state that it satisfied the capitalization requirements of such state, except that any such group shall be considered to be a risk retention group only if it has been engaged in such business continuously since such date and only for the purpose of continuing to provide insurance to cover product liability or completed operations liability, as such terms were defined in the federal product liability risk retention act of 1981 before the date of the enactment of the federal liability risk retention act of 1986;

(c)  Which does not exclude any person from membership in the group solely to provide for members of such a group a competitive advantage over such a person which:

(i)  Has as its members only persons who have an ownership interest in the group and which has as its owners only persons who are members who are provided insurance by the risk retention group; or

(ii) Has as its sole member and sole owner an organization which is owned by persons who are provided insurance by the risk retention group;

(d)  Whose members are engaged in businesses or activities similar or related with respect to the liability of which such members are exposed by virtue of any related, similar or common business trade, product, services, premises or operations; or

(e)  Whose activities do not include the provision of insurance other than:

(i)  Liability insurance for assuming and spreading all or any portion of the liability of its group members; and

(ii) Reinsurance with respect to the liability of any other risk retention group or any members of such other group, which is engaged in businesses or activities so that such group or member meets the requirement described in paragraph (d) of this subsection from membership in the risk retention group which provides such reinsurance;

(f)  The name of which includes the phrase "risk retention group".

(12)  "State" means any state of the United States or the District of Columbia.

History:

[41-4803, added 1987, ch. 140, sec. 1, p. 275.]