Full Text of HB4443 97th General Assembly
HB4443 97TH GENERAL ASSEMBLY |
| | 97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012 HB4443 Introduced 1/30/2012, by Rep. Frank J. Mautino SYNOPSIS AS INTRODUCED: |
| 215 ILCS 5/245.21 | from Ch. 73, par. 857.21 | 215 ILCS 5/531.03 | from Ch. 73, par. 1065.80-3 | 215 ILCS 5/531.05 | from Ch. 73, par. 1065.80-5 | 215 ILCS 5/531.07 | from Ch. 73, par. 1065.80-7 | 215 ILCS 5/531.08 | from Ch. 73, par. 1065.80-8 | 215 ILCS 5/531.09 | from Ch. 73, par. 1065.80-9 | 215 ILCS 5/531.14 | from Ch. 73, par. 1065.80-14 | 215 ILCS 125/6-14 | from Ch. 111 1/2, par. 1418.14 |
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Amends the Illinois Insurance Code in the Article concerning the Illinois Life and Health Insurance Guaranty Association. In provisions related to separate accounts, provides that the assets of any separate account equal to the reserves and other contract liabilities with respect to the account may not be charged with liabilities arising out of any other business the company may conduct, except with approval of the Director under conditions as to investments and other matters as the Director may prescribe. Further amends the Illinois Insurance Code in the Article concerning the Illinois Life and Health Insurance Guaranty Association. Changes the organization of provisions concerning coverage and limitations and powers and duties of the Association. Makes changes in the provisions concerning definitions; the Board of Directors of the Association; assessments; and miscellaneous provisions.
Amends the Health Maintenance Organization Act. Provides that no distribution to stockholders, if any, of an impaired or insolvent organization may be made until and unless the total amount of valid claims of the Association for funds expended in carrying out its powers and duties, with interest, (rather than merely the funds expended) with respect to such organization have been fully recovered by the Association.
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| | A BILL FOR |
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| 1 | | AN ACT concerning insurance.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Illinois Insurance Code is amended by | 5 | | changing Sections 245.21, 531.03, 531.05, 531.07, 531.08, | 6 | | 531.09, and 531.14 as follows:
| 7 | | (215 ILCS 5/245.21) (from Ch. 73, par. 857.21)
| 8 | | Sec. 245.21.
Establishment of separate accounts by | 9 | | domestic companies
organized to do a life, annuity, or accident | 10 | | and health insurance business. A
domestic company, including | 11 | | for the purposes of this
Article all domestic fraternal benefit
| 12 | | societies, may, for authorized
classes of insurance, establish | 13 | | one or more
separate accounts, and may allocate thereto amounts | 14 | | (including without
limitation proceeds applied under optional | 15 | | modes of settlement or under
dividend options) to provide for | 16 | | life, annuity, or accident and health
insurance (and benefits
| 17 | | incidental thereto), payable in fixed or variable amounts or | 18 | | both, subject
to the following:
| 19 | | (1) The income, gains and losses, realized or unrealized, | 20 | | from
assets allocated to a separate account must be credited to | 21 | | or charged
against the account, without regard to other income, | 22 | | gains or losses of
the company.
| 23 | | (2) Except as may be provided with respect to reserves for
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| 1 | | guaranteed benefits and funds referred to in paragraph (3) of | 2 | | this
Section (i) amounts allocated to any separate account and | 3 | | accumulations
thereon may be invested and reinvested without | 4 | | regard to any requirements
or limitations of Part 2 or Part 3 | 5 | | of Article VIII of this Code and (ii) the
investments in any | 6 | | separate account or accounts may not be taken into
account in | 7 | | applying the investment limitations otherwise applicable to | 8 | | the
investments of the company.
| 9 | | (3) Except with the approval of the Director and under the
| 10 | | conditions as to investments and other matters as the Director | 11 | | may
prescribe,
that must recognize the guaranteed nature of the | 12 | | benefits provided,
reserves for (i) benefits guaranteed as to | 13 | | dollar amount and duration
and (ii) funds guaranteed as to | 14 | | principal amount or stated rate of
interest may not be | 15 | | maintained in a separate account.
| 16 | | (4) Unless otherwise approved by the Director, assets | 17 | | allocated to a
separate account must be valued at their market | 18 | | value on the date of
valuation, or if there is no readily | 19 | | available market, then as provided
in the contract or the rules | 20 | | or other written agreement applicable to
the separate account. | 21 | | Unless otherwise approved by the Director, the
portion, if any, | 22 | | of the assets of the separate account equal to the
company's | 23 | | reserve liability with regard to the guaranteed benefits and
| 24 | | funds referred to in paragraph (3) of this Section must be | 25 | | valued in
accordance with the rules otherwise applicable to the | 26 | | company's assets.
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| 1 | | (5) Amounts allocated to a separate account under this | 2 | | Article are
owned by the company, and the company may not be, | 3 | | nor hold itself out to
be, a trustee with respect to those | 4 | | amounts. The assets of any
separate account equal to the | 5 | | reserves and other contract liabilities
with respect to the | 6 | | account may not be charged with liabilities arising
out of any | 7 | | other business the company may conduct , except with approval of | 8 | | the Director under conditions as to investments and other | 9 | | matters as the Director may prescribe .
| 10 | | (6) No sale, exchange or other transfer of assets may be | 11 | | made by a
company between any of its separate accounts or | 12 | | between any other
investment account and one or more of its | 13 | | separate accounts unless, in
case of a transfer into a separate | 14 | | account, the transfer is made solely
to establish the account | 15 | | or to support the operation of the contracts
with respect to | 16 | | the separate account to which the transfer is made, and
unless | 17 | | the transfer, whether into or from a separate account, is made
| 18 | | (i) by a transfer of cash, or (ii) by a transfer of securities | 19 | | having a
readily determinable market value, if the transfer of | 20 | | securities is
approved by the Director. The Director may | 21 | | approve other transfers among
those accounts if, in his or her | 22 | | opinion, the transfers would not be
inequitable.
| 23 | | (7) To the extent a company considers it necessary to | 24 | | comply with
any applicable federal or state laws, the company, | 25 | | with respect to any
separate account, including without | 26 | | limitation any separate account
which is a management |
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| 1 | | investment company or a unit investment trust, may
provide for | 2 | | persons having an interest therein appropriate voting and
other | 3 | | rights and special procedures for the conduct of the business | 4 | | of
the account, including without limitation special rights and | 5 | | procedures
relating to investment policy, investment advisory | 6 | | services, selection
of independent public accountants, and the | 7 | | selection of a committee, the
members of which need not be | 8 | | otherwise affiliated with the company, to
manage the business | 9 | | of the account.
| 10 | | (Source: P.A. 90-381, eff. 8-14-97; 90-418, eff. 8-15-97;
| 11 | | 90-655, eff. 7-30-98.)
| 12 | | (215 ILCS 5/531.03) (from Ch. 73, par. 1065.80-3)
| 13 | | Sec. 531.03. Coverage and limitations.
| 14 | | (1) This Article shall provide
coverage for the policies | 15 | | and contracts specified in paragraph (2) of this
Section:
| 16 | | (a) to persons who, regardless of where they reside | 17 | | (except for
non-resident certificate holders under group | 18 | | policies or contracts), are the
beneficiaries, assignees | 19 | | or payees of the persons covered under subparagraph
(1)(b), | 20 | | and
| 21 | | (b) to persons who are owners of or certificate holders | 22 | | under the policies or contracts (other than unallocated | 23 | | annuity contracts and structured settlement annuities) and | 24 | | in each case who: | 25 | | (i) are residents; or |
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| 1 | | (ii) are not residents, but only under all of the | 2 | | following conditions: | 3 | | (A) the insurer that issued the policies or | 4 | | contracts is domiciled in this State; | 5 | | (B) the states in which the persons reside have | 6 | | associations similar to the Association created by | 7 | | this Article; | 8 | | (C) the persons are not eligible for coverage | 9 | | by an association in any other state due to the | 10 | | fact that the insurer was not licensed in that | 11 | | state at the time specified in that state's | 12 | | guaranty association law. | 13 | | (c) For unallocated annuity contracts specified in | 14 | | subsection (2), paragraphs (a) and (b) of this subsection | 15 | | (1) shall not apply and this Article shall (except as | 16 | | provided in paragraphs (e) and (f) of this subsection) | 17 | | provide coverage to: | 18 | | (i) persons who are the owners of the unallocated | 19 | | annuity contracts if the contracts are issued to or in | 20 | | connection with a specific benefit plan whose plan | 21 | | sponsor has its principal place of business in this | 22 | | State; and | 23 | | (ii) persons who are owners of unallocated annuity | 24 | | contracts issued to or in connection with government | 25 | | lotteries if the owners are residents. | 26 | | (d) For structured settlement annuities specified in |
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| 1 | | subsection (2), paragraphs (a) and (b) of this subsection | 2 | | (1) shall not apply and this Article shall (except as | 3 | | provided in paragraphs (e) and (f) of this subsection) | 4 | | provide coverage to a person who is a payee under a | 5 | | structured settlement annuity (or beneficiary of a payee if | 6 | | the payee is deceased), if the payee: | 7 | | (i) is a resident, regardless of where the contract | 8 | | owner resides; or | 9 | | (ii) is not a resident, but only under both of the | 10 | | following conditions: | 11 | | (A) with regard to residency: | 12 | | (I) the contract owner of the structured | 13 | | settlement annuity is a resident; or | 14 | | (II) the contract owner of the structured | 15 | | settlement annuity is not a resident but the | 16 | | insurer that issued the structured settlement | 17 | | annuity is domiciled in this State and the | 18 | | state in which the contract owner resides has | 19 | | an association similar to the Association | 20 | | created by this Article; and | 21 | | (B) neither the payee or beneficiary nor the | 22 | | contract owner is eligible for coverage by the | 23 | | association of the state in which the payee or | 24 | | contract owner resides. | 25 | | (e) This Article shall not provide coverage to: | 26 | | (i) a person who is a payee or beneficiary of a |
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| 1 | | contract owner resident of this State if the payee or | 2 | | beneficiary is afforded any coverage by the | 3 | | association of another state; or | 4 | | (ii) a person covered under paragraph (c) of this | 5 | | subsection (1), if any coverage is provided by the | 6 | | association of another state to that person. | 7 | | (f) This Article is intended to provide coverage to a | 8 | | person who is a resident of this State and, in special | 9 | | circumstances, to a nonresident. In order to avoid | 10 | | duplicate coverage, if a person who would otherwise receive | 11 | | coverage under this Article is provided coverage under the | 12 | | laws of any other state, then the person shall not be | 13 | | provided coverage under this Article. In determining the | 14 | | application of the provisions of this paragraph in | 15 | | situations where a person could be covered by the | 16 | | association of more than one state, whether as an owner, | 17 | | payee, beneficiary, or assignee, this Article shall be | 18 | | construed in conjunction with other state laws to result in | 19 | | coverage by only one association.
| 20 | | (2)(a) This Article shall provide coverage to the persons
| 21 | | specified in paragraph (l) of this Section for direct, (i)
| 22 | | nongroup life, health, annuity and
supplemental policies, or | 23 | | contracts, (ii) for
certificates under direct group policies or | 24 | | contracts, (iii) for unallocated
annuity contracts and (iv) for | 25 | | contracts to furnish
health care services and subscription | 26 | | certificates for medical or health
care services issued by |
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| 1 | | persons licensed to transact insurance business
in this State | 2 | | under the Illinois Insurance Code.
Annuity contracts and | 3 | | certificates under group annuity contracts include
but are not | 4 | | limited to guaranteed investment contracts, deposit
| 5 | | administration contracts, unallocated funding agreements, | 6 | | allocated funding
agreements, structured settlement | 7 | | agreements, lottery contracts
and any immediate or deferred | 8 | | annuity contracts.
| 9 | | (b) This Article shall not provide coverage for:
| 10 | | (i) that portion of a policy or contract not guaranteed | 11 | | by the insurer, or under which the risk is borne by the | 12 | | policy or contract owner;
| 13 | | (ii) any such policy or contract or part thereof | 14 | | assumed by the impaired
or insolvent insurer under a | 15 | | contract of reinsurance, other than reinsurance
for which | 16 | | assumption certificates have been issued;
| 17 | | (iii) any portion of a policy or contract to the extent | 18 | | that the rate of interest on which it is based or the | 19 | | interest rate, crediting rate, or similar factor is | 20 | | determined by use of an index or other external reference | 21 | | stated in the policy or contract employed in calculating | 22 | | returns or changes in value:
| 23 | | (A) averaged over the period of 4 years prior to | 24 | | the date on which the member insurer becomes an | 25 | | impaired or insolvent insurer under this Article, | 26 | | whichever is earlier, exceeds the rate of interest |
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| 1 | | determined by subtracting 2 percentage points from | 2 | | Moody's Corporate Bond Yield Average averaged for that | 3 | | same 4-year period or for such lesser period if the | 4 | | policy or contract was issued less than 4 years before | 5 | | the member insurer becomes an impaired or insolvent | 6 | | insurer under this Article, whichever is earlier; and
| 7 | | (B) on and after the date on which the member | 8 | | insurer becomes an impaired or insolvent insurer under | 9 | | this Article, whichever is earlier, exceeds the rate of | 10 | | interest determined by subtracting 3 percentage points | 11 | | from Moody's Corporate Bond Yield Average as most | 12 | | recently available;
| 13 | | (iv) any unallocated annuity contract issued to or in | 14 | | connection with a benefit plan protected under the federal | 15 | | Pension Benefit Guaranty Corporation, regardless of | 16 | | whether the federal Pension Benefit Guaranty Corporation | 17 | | has yet become liable to make any payments with respect to | 18 | | the benefit plan;
| 19 | | (v) any portion of any unallocated annuity contract | 20 | | which is not issued
to or in connection with a specific | 21 | | employee, union or association of
natural persons benefit | 22 | | plan or a government lottery;
| 23 | | (vi) an obligation that does not arise under the | 24 | | express written terms of the policy or contract issued by | 25 | | the insurer to the contract owner or policy owner, | 26 | | including without limitation: |
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| 1 | | (A) a claim based on marketing materials; | 2 | | (B) a claim based on side letters, riders, or other | 3 | | documents that were issued by the insurer without | 4 | | meeting applicable policy form filing or approval | 5 | | requirements; | 6 | | (C) a misrepresentation of or regarding policy | 7 | | benefits; | 8 | | (D) an extra-contractual claim; or | 9 | | (E) a claim for penalties or consequential or | 10 | | incidental damages;
| 11 | | (vii) any stop-loss insurance, as defined in clause (b) | 12 | | of Class 1 or
clause (a) of Class 2 of Section 4, and | 13 | | further defined in subsection (d) of
Section 352;
| 14 | | (viii) any policy or contract providing any hospital, | 15 | | medical, prescription drug, or other health care benefits | 16 | | pursuant to Part C or Part D of Subchapter XVIII, Chapter 7 | 17 | | of Title 42 of the United States Code (commonly known as | 18 | | Medicare Part C & D) or any regulations issued pursuant | 19 | | thereto; | 20 | | (ix) any portion of a policy or contract to the extent | 21 | | that the assessments required by Section 531.09 of this | 22 | | Code with respect to the policy or contract are preempted | 23 | | or otherwise not permitted by federal or State law; | 24 | | (x) any portion of a policy or contract issued to a | 25 | | plan or program of an employer, association, or other | 26 | | person to provide life, health, or annuity benefits to its |
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| 1 | | employees, members, or others to the extent that the plan | 2 | | or program is self-funded or uninsured, including, but not | 3 | | limited to, benefits payable by an employer, association, | 4 | | or other person under: | 5 | | (A) a multiple employer welfare arrangement as | 6 | | defined in 29 U.S.C. Section 1002 29 U.S.C. Section | 7 | | 1144 ; | 8 | | (B) a minimum premium group insurance plan; | 9 | | (C) a stop-loss group insurance plan; or | 10 | | (D) an administrative services only contract; | 11 | | (xi) any portion of a policy or contract to the extent | 12 | | that it provides for: | 13 | | (A) dividends or experience rating credits; | 14 | | (B) voting rights; or | 15 | | (C) payment of any fees or allowances to any | 16 | | person, including the policy or contract owner, in | 17 | | connection with the service to or administration of the | 18 | | policy or contract; | 19 | | (xii) any policy or contract issued in this State by a | 20 | | member insurer at a time when it was not licensed or did | 21 | | not have a certificate of authority to issue the policy or | 22 | | contract in this State; | 23 | | (xiii) any contractual agreement that establishes the | 24 | | member insurer's obligations to provide a book value | 25 | | accounting guaranty for defined contribution benefit plan | 26 | | participants by reference to a portfolio of assets that is |
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| 1 | | owned by the benefit plan or its trustee, which in each | 2 | | case is not an affiliate of the member insurer; | 3 | | (xiv) any portion of a policy or contract to the extent | 4 | | that it provides for interest or other changes in value to | 5 | | be determined by the use of an index or other external | 6 | | reference stated in the policy or contract, but which have | 7 | | not been credited to the policy or contract, or as to which | 8 | | the policy or contract owner's rights are subject to | 9 | | forfeiture, as of the date the member insurer becomes an | 10 | | impaired or insolvent insurer under this Code, whichever is | 11 | | earlier. If a policy's or contract's interest or changes in | 12 | | value are credited less frequently than annually, then for | 13 | | purposes of determining the values that have been credited | 14 | | and are not subject to forfeiture under this Section, the | 15 | | interest or change in value determined by using the | 16 | | procedures defined in the policy or contract will be | 17 | | credited as if the contractual date of crediting interest | 18 | | or changing values was the date of impairment or | 19 | | insolvency, whichever is earlier, and will not be subject | 20 | | to forfeiture; or
| 21 | | (xv) that portion or part of a variable life insurance | 22 | | or
variable
annuity
contract not guaranteed by an insurer.
| 23 | | (3) The benefits for which the Association may become | 24 | | liable shall in
no event exceed the lesser of:
| 25 | | (a) the contractual obligations for which the insurer | 26 | | is liable or would
have been liable if it were not an |
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| 1 | | impaired or insolvent insurer, or
| 2 | | (b)(i) with respect to any one life, regardless of the | 3 | | number of policies
or
contracts:
| 4 | | (A) $300,000 in life insurance death benefits, but | 5 | | not more than
$100,000 in net cash surrender and net | 6 | | cash withdrawal values for life
insurance;
| 7 | | (B) in health insurance benefits: | 8 | | (I) $100,000 for coverages not defined as | 9 | | disability insurance or basic hospital, medical, | 10 | | and surgical insurance or major medical insurance | 11 | | or long-term care insurance, including any net | 12 | | cash surrender and net cash withdrawal values; | 13 | | (II) $300,000 for disability insurance and | 14 | | $300,000 for long-term care insurance as defined | 15 | | in Section 351A-1 of this Code ; and | 16 | | (III) $500,000 for basic hospital medical and | 17 | | surgical insurance or major medical insurance;
| 18 | | (C) $250,000 in the present value of annuity | 19 | | benefits, including net cash surrender and net cash | 20 | | withdrawal values; | 21 | | (ii) with respect to each individual participating in a | 22 | | governmental retirement benefit plan established under | 23 | | Sections 401, 403(b), or 457 of the U.S. Internal Revenue | 24 | | Code covered by an unallocated annuity contract or the | 25 | | beneficiaries of each such individual if deceased, in the | 26 | | aggregate, $250,000 in present value annuity benefits, |
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| 1 | | including net cash surrender and net cash withdrawal | 2 | | values; | 3 | | (iii) with respect to each payee of a structured | 4 | | settlement annuity or beneficiary or beneficiaries of the | 5 | | payee if deceased, $250,000 in present value annuity | 6 | | benefits, in the aggregate, including net cash surrender | 7 | | and net cash withdrawal values, if any; or | 8 | | (iv) with respect to either (1) one contract owner | 9 | | provided coverage under subparagraph (ii) of paragraph (c) | 10 | | of subsection (1) of this Section or (2) one plan sponsor | 11 | | whose plans own directly or in trust one or more | 12 | | unallocated annuity contracts not included in subparagraph | 13 | | (ii) of paragraph (b) of this subsection, $5,000,000 in | 14 | | benefits, irrespective of the number of contracts with | 15 | | respect to the contract owner or plan sponsor. However, in | 16 | | the case where one or more unallocated annuity contracts | 17 | | are covered contracts under this Article and are owned by a | 18 | | trust or other entity for the benefit of 2 or more plan | 19 | | sponsors, coverage shall be afforded by the Association if | 20 | | the largest interest in the trust or entity owning the | 21 | | contract or contracts is held by a plan sponsor whose | 22 | | principal place of business is in this State. In no event | 23 | | shall the Association be obligated to cover more than | 24 | | $5,000,000 in benefits with respect to all these | 25 | | unallocated contracts. | 26 | | (3.1) Notwithstanding the provisions of subsection (3), in |
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| 1 | | In no event shall the Association be obligated to cover more | 2 | | than (1) an aggregate of $300,000 in benefits with respect to | 3 | | any one life under subparagraphs (i), (ii), and (iii) of this | 4 | | paragraph (b) of subsection (3) except with respect to benefits | 5 | | for basic hospital, medical, and surgical insurance and major | 6 | | medical insurance under item (B) of subparagraph (i) of this | 7 | | paragraph (b) of subsection (3) , in which case the aggregate | 8 | | liability of the Association shall not exceed $500,000 with | 9 | | respect to any one individual or (2) with respect to one owner | 10 | | of multiple nongroup policies of life insurance, whether the | 11 | | policy owner is an individual, firm, corporation, or other | 12 | | person and whether the persons insured are officers, managers, | 13 | | employees, or other persons, $5,000,000 in benefits, | 14 | | regardless of the number of policies and contracts held by the | 15 | | owner. | 16 | | (3.2) The limitations set forth in subsections (3) and | 17 | | (3.1) this subsection are limitations on the benefits for which | 18 | | the Association is obligated before taking into account either | 19 | | its subrogation and assignment rights or the extent to which | 20 | | those benefits could be provided out of the assets of the | 21 | | impaired or insolvent insurer attributable to covered | 22 | | policies. The costs of the Association's obligations under this | 23 | | Article may be met by the use of assets attributable to covered | 24 | | policies or reimbursed to the Association pursuant to its | 25 | | subrogation and assignment rights.
| 26 | | (4) In performing its obligations to provide coverage under |
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| 1 | | Section 531.08 of this Code, the Association shall not be | 2 | | required to guarantee, assume, reinsure, or perform or cause to | 3 | | be guaranteed, assumed, reinsured, or performed the | 4 | | contractual obligations of the insolvent or impaired insurer | 5 | | under a covered policy or contract that do not materially | 6 | | affect the economic values or economic benefits of the covered | 7 | | policy or contract. | 8 | | (Source: P.A. 96-1450, eff. 8-20-10.)
| 9 | | (215 ILCS 5/531.05) (from Ch. 73, par. 1065.80-5)
| 10 | | Sec. 531.05. Definitions. As used in this Act:
| 11 | | "Account" means either of the 2 3 accounts created under | 12 | | Section
531.06.
| 13 | | "Association" means the Illinois Life and Health Insurance
| 14 | | Guaranty Association created under Section 531.06.
| 15 | | "Authorized assessment" or the term "authorized" when used | 16 | | in the context of assessments means a resolution by the Board | 17 | | of Directors has been passed whereby an assessment shall be | 18 | | called immediately or in the future from member insurers for a | 19 | | specified amount. An assessment is authorized when the | 20 | | resolution is passed. | 21 | | "Benefit plan" means a specific employee, union, or | 22 | | association of natural persons benefit plan. | 23 | | "Called assessment" or the term "called" when used in the | 24 | | context of assessments means that a notice has been issued by | 25 | | the Association to member insurers requiring that an authorized |
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| 1 | | assessment be paid within the time frame set forth within the | 2 | | notice. An authorized assessment becomes a called assessment | 3 | | when notice is mailed by the Association to member insurers. | 4 | | "Director" means the Director of Insurance of this State.
| 5 | | "Contractual obligation" means any obligation under a | 6 | | policy or
contract or certificate under a group policy or | 7 | | contract, or portion
thereof for which coverage is provided | 8 | | under Section 531.03.
| 9 | | "Covered person" means any person who is entitled to the
| 10 | | protection of the Association as described in Section 531.02.
| 11 | | "Covered policy" means any policy or contract within the | 12 | | scope
of this Article under Section 531.03.
| 13 | | "Extra-contractual claims" shall include , for example, | 14 | | claims relating to bad faith in the payment of claims, punitive | 15 | | or exemplary damages, or attorneys' fees and costs. | 16 | | "Impaired insurer" means (A) a member insurer which, after | 17 | | the effective date of this amendatory Act of the 96th General | 18 | | Assembly, is not an insolvent insurer, and is placed under an | 19 | | order of rehabilitation or conservation by a court of competent | 20 | | jurisdiction or (B) a member insurer deemed by the Director | 21 | | after the effective date of this amendatory Act of the 96th | 22 | | General Assembly to be potentially unable to fulfill its | 23 | | contractual obligations and not an insolvent insurer.
| 24 | | "Insolvent insurer" means a member insurer that, after the | 25 | | effective date of this amendatory Act of the 96th General | 26 | | Assembly, is placed under a final order of liquidation by a |
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| 1 | | court of competent jurisdiction with a finding of insolvency.
| 2 | | "Member insurer" means an insurer licensed or holding a | 3 | | certificate of authority to transact in this State any kind of | 4 | | insurance for which coverage is provided under Section 531.03 | 5 | | of this Code and includes an insurer whose license or | 6 | | certificate of authority in this State may have been suspended, | 7 | | revoked, not renewed, or voluntarily withdrawn or whose | 8 | | certificate of authority may have been suspended pursuant to | 9 | | Section 119 of this Code, but does not include: | 10 | | (1) a hospital or medical service organization, | 11 | | whether profit or nonprofit; | 12 | | (2) a health maintenance organization; | 13 | | (3) any burial society organized under Article XIX of | 14 | | this Code, any fraternal benefit society organized under | 15 | | Article XVII of this Code, any mutual benefit association | 16 | | organized under Article XVIII of this Code, and any foreign | 17 | | fraternal benefit society licensed under Article VI of this | 18 | | Code or
a fraternal benefit society ; | 19 | | (4) a mandatory State pooling plan; | 20 | | (5) a mutual assessment company or other person that | 21 | | operates on an assessment basis; | 22 | | (6) an insurance exchange; | 23 | | (7) an organization that is permitted to issue | 24 | | charitable gift annuities pursuant to Section 121-2.10 of | 25 | | this Code; | 26 | | (8) any health services plan corporation established |
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| 1 | | pursuant to the Voluntary Health Services Plans Act; | 2 | | (9) any dental service plan corporation established | 3 | | pursuant to the Dental Service Plan Act; or | 4 | | (10) an entity similar to any of the above.
| 5 | | "Moody's Corporate Bond Yield Average" means the Monthly | 6 | | Average
Corporates as published by Moody's Investors Service, | 7 | | Inc., or any successor
thereto. | 8 | | "Owner" of a policy or contract and "policy owner" and | 9 | | "contract owner" mean the person who is identified as the legal | 10 | | owner under the terms of the policy or contract or who is | 11 | | otherwise vested with legal title to the policy or contract | 12 | | through a valid assignment completed in accordance with the | 13 | | terms of the policy or contract and properly recorded as the | 14 | | owner on the books of the insurer. The terms owner, contract | 15 | | owner, and policy owner do not include persons with a mere | 16 | | beneficial interest in a policy or contract. | 17 | | "Person" means an individual, corporation, limited | 18 | | liability company, partnership, association, governmental body | 19 | | or entity, or voluntary organization. | 20 | | "Plan sponsor" means: | 21 | | (1) the employer in the case of a benefit plan | 22 | | established or maintained by a single employer; | 23 | | (2) the employee organization in the case of a benefit | 24 | | plan established or maintained by an employee | 25 | | organization; or | 26 | | (3) in a case of a benefit plan established or |
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| 1 | | maintained by 2 or more employers or jointly by one or more | 2 | | employers and one or more employee organizations, the | 3 | | association, committee, joint board of trustees, or other | 4 | | similar group of representatives of the parties who | 5 | | establish or maintain the benefit plan. | 6 | | "Premiums" mean amounts or considerations, by whatever | 7 | | name called, received on covered policies or contracts less | 8 | | returned premiums, considerations, and deposits and less | 9 | | dividends and experience credits. | 10 | | "Premiums" does not include: | 11 | | (A) amounts or considerations received for policies or | 12 | | contracts or for the portions of policies or contracts for | 13 | | which coverage is not provided under Section 531.03 of this | 14 | | Code except that assessable premium shall not be reduced on | 15 | | account of the provisions of subparagraph (iii) of | 16 | | paragraph (b) of subsection (2) (a) of Section 531.03 of | 17 | | this Code relating to interest limitations and the | 18 | | provisions of paragraph (b) of subsection (3) , subsection | 19 | | (3.1), or subsection (3.2) of Section 531.03 relating to | 20 | | limitations with respect to one individual, one | 21 | | participant, and one contract owner; | 22 | | (B) premiums in excess of $5,000,000 on an unallocated | 23 | | annuity contract not issued under a governmental | 24 | | retirement benefit plan (or its trustee) established under | 25 | | Section 401, 403(b) or 457 of the United States Internal | 26 | | Revenue Code; or |
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| 1 | | (C) with respect to multiple nongroup policies of life | 2 | | insurance owned by one owner, whether the policy owner is | 3 | | an individual, firm, corporation, or other person, and | 4 | | whether the persons insured are officers, managers, | 5 | | employees, or other persons, premiums in excess of | 6 | | $5,000,000 with respect to these policies or contracts, | 7 | | regardless of the number of policies or contracts held by | 8 | | the owner.
| 9 | | "Principal place of business" of a plan sponsor or a person | 10 | | other than a natural person means the single state in which the | 11 | | natural persons who establish policy for the direction, | 12 | | control, and coordination of the operations of the entity as a | 13 | | whole primarily exercise that function, determined by the | 14 | | Association in its reasonable judgment by considering the | 15 | | following factors: | 16 | | (A) the state in which the primary executive and | 17 | | administrative headquarters of the entity is located; | 18 | | (B) the state in which the principal office of the | 19 | | chief executive officer of the entity is located; | 20 | | (C) the state in which the board of directors (or | 21 | | similar governing person or persons) of the entity conducts | 22 | | the majority of its meetings; | 23 | | (D) the state in which the executive or management | 24 | | committee of the board of directors (or similar governing | 25 | | person or persons) of the entity conducts the majority of | 26 | | its meetings; |
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| 1 | | (E) the state from which the management of the overall | 2 | | operations of the entity is directed; and | 3 | | (F) in the case of a benefit plan sponsored by | 4 | | affiliated companies comprising a consolidated | 5 | | corporation, the state in which the holding company or | 6 | | controlling affiliate has its principal place of business | 7 | | as determined using the above factors. | 8 | | However, in the case of a plan sponsor, if more than 50% of | 9 | | the participants in the benefit plan are employed in a single | 10 | | state, that state shall be deemed to be the principal place of | 11 | | business of the plan sponsor. | 12 | | The principal place of business of a plan sponsor of a | 13 | | benefit plan described in paragraph (3) of the definition of | 14 | | "plan sponsor" this Section shall be deemed to be the principal | 15 | | place of business of the association, committee, joint board of | 16 | | trustees, or other similar group of representatives of the | 17 | | parties who establish or maintain the benefit plan that, in | 18 | | lieu of a specific or clear designation of a principal place of | 19 | | business, shall be deemed to be the principal place of business | 20 | | of the employer or employee organization that has the largest | 21 | | investment in the benefit plan in question. | 22 | | "Receivership court" means the court in the insolvent or | 23 | | impaired insurer's state having jurisdiction over the | 24 | | conservation, rehabilitation, or liquidation of the insurer. | 25 | | "Resident" means a person to whom a contractual obligation | 26 | | is owed and who resides in this State on the date of entry of a |
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| 1 | | court order that determines a member insurer to be an impaired | 2 | | insurer or a court order that determines a member insurer to be | 3 | | an insolvent insurer. A person may be a resident of only one | 4 | | state, which in the case of a person other than a natural | 5 | | person shall be its principal place of business. Citizens of | 6 | | the United States that are either (i) residents of foreign | 7 | | countries or (ii) residents of United States possessions, | 8 | | territories, or protectorates that do not have an association | 9 | | similar to the Association created by this Article, shall be | 10 | | deemed residents of the state of domicile of the insurer that | 11 | | issued the policies or contracts.
| 12 | | "Structured settlement annuity" means an annuity purchased | 13 | | in order to fund periodic payments for a plaintiff or other | 14 | | claimant in payment for or with respect to personal injury | 15 | | suffered by the plaintiff or other claimant. | 16 | | "State" means a state, the District of Columbia, Puerto | 17 | | Rico, and a United States possession, territory, or | 18 | | protectorate. | 19 | | "Supplemental contract" means a written agreement entered | 20 | | into for the distribution of proceeds under a life, health, or | 21 | | annuity policy or a life, health, or annuity contract.
| 22 | | "Unallocated annuity contract" means any annuity contract | 23 | | or group
annuity certificate which is not issued to and owned | 24 | | by an individual,
except to the extent of any annuity benefits | 25 | | guaranteed to an individual by
an insurer under such contract | 26 | | or certificate.
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| 1 | | (Source: P.A. 96-1450, eff. 8-20-10.)
| 2 | | (215 ILCS 5/531.07) (from Ch. 73, par. 1065.80-7)
| 3 | | Sec. 531.07. Board of Directors. ) The board of directors | 4 | | of the
Association consists of not less than 7 nor more than 11 | 5 | | members serving
terms as established in the plan of operation. | 6 | | The insurer members insurers of the board
are to be selected by | 7 | | member insurers subject to the approval of the
Director. In | 8 | | addition, 2 persons who must be public representatives may be | 9 | | appointed by the Director to the board of directors. A public | 10 | | representative may not be an officer, director, or employee of | 11 | | an insurance company or any person engaged in the business of | 12 | | insurance. Vacancies on the board must be filled for the | 13 | | remaining period
of the term in the manner described in the | 14 | | plan of operation.
| 15 | | In approving selections or in appointing members to the | 16 | | board, the
Director must consider, whether all member insurers | 17 | | are
fairly represented.
| 18 | | Members of the board may be reimbursed from the assets of | 19 | | the Association
for expenses incurred by them as members of the | 20 | | board of directors but
members of the board may not otherwise | 21 | | be compensated by the Association for
their services.
| 22 | | (Source: P.A. 96-1450, eff. 8-20-10.)
| 23 | | (215 ILCS 5/531.08) (from Ch. 73, par. 1065.80-8)
| 24 | | Sec. 531.08. Powers and duties of the Association. |
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| 1 | | (a) In addition to
the powers and duties enumerated in | 2 | | other Sections of this Article:
| 3 | | (1) If a member insurer is an impaired insurer, then | 4 | | the Association may, in its discretion and subject to any | 5 | | conditions imposed by the Association that do not impair | 6 | | the contractual obligations of the impaired insurer and | 7 | | that are approved by the Director: | 8 | | (a) (A) guarantee, assume, or reinsure or cause to | 9 | | be guaranteed, assumed, or reinsured, any or all of the | 10 | | policies or contracts of the impaired insurer; or | 11 | | (b) (B) provide such money, pledges, loans, notes, | 12 | | guarantees, or other means as are proper to effectuate | 13 | | paragraph (a) (A) and assure payment of the contractual | 14 | | obligations of the impaired insurer pending action | 15 | | under paragraph (a) (A) . | 16 | | (2) If a member insurer is an insolvent insurer, then | 17 | | the Association shall, in its discretion, either: | 18 | | (a) (A) guaranty, assume, or reinsure or cause to | 19 | | be guaranteed, assumed, or reinsured the policies or | 20 | | contracts of the insolvent insurer or assure payment of | 21 | | the contractual obligations of the insolvent insurer | 22 | | and provide money, pledges, loans, notes, guarantees, | 23 | | or other means reasonably necessary to discharge the | 24 | | Association's duties; or | 25 | | (b) (B) provide benefits and coverages in | 26 | | accordance with the following provisions: |
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| 1 | | (i) with respect to life and health insurance | 2 | | policies and annuities, ensure payment of benefits | 3 | | for premiums identical to the premiums and | 4 | | benefits (except for terms of conversion and | 5 | | renewability) that would have been payable under | 6 | | the policies or contracts of the insolvent insurer | 7 | | for claims incurred: | 8 | | (A) (a) with respect to group policies and | 9 | | contracts, not later than the earlier of the | 10 | | next renewal date under those policies or | 11 | | contracts or 45 days, but in no event less than | 12 | | 30 days, after the date on which the | 13 | | Association becomes obligated with respect to | 14 | | the policies and contracts; | 15 | | (B) (b) with respect to nongroup policies, | 16 | | contracts, and annuities not later than the | 17 | | earlier of the next renewal date (if any) under | 18 | | the policies or contracts or one year, but in | 19 | | no event less than 30 days, from the date on | 20 | | which the Association becomes obligated with | 21 | | respect to the policies or contracts; | 22 | | (ii) make diligent efforts to provide all | 23 | | known insureds or annuitants (for nongroup | 24 | | policies and contracts), or group policy owners | 25 | | with respect to group policies and contracts, 30 | 26 | | days notice of the termination (pursuant to |
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| 1 | | subparagraph (i) of this paragraph (b) (B) ) of the | 2 | | benefits provided; | 3 | | (iii) with respect to nongroup life and health | 4 | | insurance policies and annuities covered by the | 5 | | Association, make available to each known insured | 6 | | or annuitant, or owner if other than the insured or | 7 | | annuitant, and with respect to an individual | 8 | | formerly insured or formerly an annuitant under a | 9 | | group policy who is not eligible for replacement | 10 | | group coverage, make available substitute coverage | 11 | | on an individual basis in accordance with the | 12 | | provisions of paragraph (iv) (3) , if the insureds | 13 | | or annuitants had a right under law or the | 14 | | terminated policy or annuity to convert coverage | 15 | | to individual coverage or to continue an | 16 | | individual policy or annuity in force until a | 17 | | specified age or for a specified time, during which | 18 | | the insurer had no right unilaterally to make | 19 | | changes in any provision of the policy or annuity | 20 | | or had a right only to make changes in premium by | 21 | | class.
| 22 | |
(iv) (b) In providing the substitute coverage | 23 | | required under subparagraph (iii) , of paragraph | 24 | | (B) of item (2) of subsection (a)
of this Section, | 25 | | the Association may offer either to reissue the
| 26 | | terminated coverage or to issue an alternative |
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| 1 | | policy.
| 2 | |
Alternative or reissued policies shall be | 3 | | offered without requiring
evidence of | 4 | | insurability, and shall not provide for any | 5 | | waiting period or
exclusion that would not have | 6 | | applied under the terminated policy.
| 7 | |
The Association may reinsure any alternative | 8 | | or reissued policy.
| 9 | |
Alternative policies adopted by the | 10 | | Association shall be subject
to the approval of the | 11 | | Director. The Association may adopt alternative
| 12 | | policies of various types for future insurance | 13 | | without regard to any
particular impairment or | 14 | | insolvency.
| 15 | |
(v) Alternative policies shall contain at | 16 | | least the minimum statutory
provisions required in | 17 | | this State and provide benefits that shall not be
| 18 | | unreasonable in relation to the premium charged. | 19 | | The
Association shall set the premium in | 20 | | accordance with a table of rates which
it shall | 21 | | adopt. The premium shall reflect the amount of | 22 | | insurance to be
provided and the age and class of | 23 | | risk of each insured, but shall not
reflect any | 24 | | changes in the health of the insured after the | 25 | | original policy
was last underwritten.
| 26 | |
Any alternative policy issued by the |
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| 1 | | Association shall provide
coverage of a type | 2 | | similar to that of the policy issued by the | 3 | | impaired or
insolvent insurer, as determined by | 4 | | the Association.
| 5 | |
(vi) (c) If the Association elects to reissue | 6 | | terminated coverage at a
premium rate different | 7 | | from that charged under the terminated policy, the
| 8 | | premium shall be set by the Association in | 9 | | accordance with the amount of
insurance provided | 10 | | and the age and class of risk, subject to approval | 11 | | of
the Director or by a court of competent | 12 | | jurisdiction.
| 13 | |
(vii) (d) The Association's obligations with | 14 | | respect to coverage under any
policy of the | 15 | | impaired or insolvent insurer or under any | 16 | | reissued or
alternative policy shall cease on the | 17 | | date such coverage or policy is
replaced by another | 18 | | similar policy by the policyholder, the insured, | 19 | | or the
Association.
| 20 | |
(viii) (e) When proceeding under this Section | 21 | | with
respect to any policy or contract carrying | 22 | | guaranteed minimum interest
rates, the Association | 23 | | shall assure the payment or crediting of a rate of
| 24 | | interest consistent with subparagraph | 25 | | (2)(b)(iii) (B) of Section 531.03.
| 26 | |
(3) (f) Nonpayment of premiums thirty-one days after |
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| 1 | | the date required under
the terms of any guaranteed, | 2 | | assumed, alternative or reissued policy or
contract or | 3 | | substitute coverage shall terminate the Association's
| 4 | | obligations under such policy or coverage under this Act | 5 | | with respect to
such policy or coverage, except with | 6 | | respect to any claims incurred or any
net cash surrender | 7 | | value which may be due in accordance with the provisions of
| 8 | | this Act.
| 9 | |
(4) (g) Premiums due for coverage after entry of an | 10 | | order of liquidation of
an insolvent insurer shall belong | 11 | | to and be payable at the direction of the
Association,
and | 12 | | the Association shall be liable for unearned premiums due | 13 | | to policy or
contract owners arising after the entry of | 14 | | such order.
| 15 | | (5) (h) In carrying out its duties under paragraph (2) | 16 | | of subsection (a) of this Section, the Association may: | 17 | | (a) (1) subject to approval by a court in this | 18 | | State , impose permanent policy or contract liens in | 19 | | connection with a guarantee, assumption, or | 20 | | reinsurance agreement if the Association finds that | 21 | | the amounts which can be assessed under this Article | 22 | | are less than the amounts needed to assure full and | 23 | | prompt performance of the Association's duties under | 24 | | this Article or that the economic or financial | 25 | | conditions as they affect member insurers are | 26 | | sufficiently adverse to render the imposition of such |
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| 1 | | permanent policy or contract liens to be in the public | 2 | | interest; or | 3 | | (b) (2) subject to approval by a court in this | 4 | | State , impose temporary moratoriums or liens on | 5 | | payments of cash values and policy loans or any other | 6 | | right to withdraw funds held in conjunction with | 7 | | policies or contracts in addition to any contractual | 8 | | provisions for deferral of cash or policy loan value. | 9 | | In addition, in the event of a temporary moratorium or | 10 | | moratorium charge imposed by the receivership court on | 11 | | payment of cash values or policy loans or on any other | 12 | | right to withdraw funds held in conjunction with | 13 | | policies or contracts, out of the assets of the | 14 | | impaired or insolvent insurer, the Association may | 15 | | defer the payment of cash values, policy loans, or | 16 | | other rights by the Association for the period of the | 17 | | moratorium or moratorium charge imposed by the | 18 | | receivership court, except for claims covered by the | 19 | | Association to be paid in accordance with a hardship | 20 | | procedure established by the liquidator or | 21 | | rehabilitator and approved by the receivership court.
| 22 | |
(6) (i) There shall be no liability on the part of and | 23 | | no cause of action
shall arise against the Association or | 24 | | against any transferee from the
Association in connection | 25 | | with the transfer by reinsurance or otherwise of
all or any | 26 | | part of an impaired or insolvent insurer's business by |
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| 1 | | reason of
any action taken or any failure to take any | 2 | | action by the impaired or
insolvent insurer at any time.
| 3 | |
(7) (j) If the Association fails to act within a | 4 | | reasonable period of
time as provided in subsection (2) of | 5 | | this Section with respect to an
insolvent insurer, the
| 6 | | Director shall have the powers and duties of the | 7 | | Association under this
Act with regard to such insolvent | 8 | | insurers.
| 9 | |
(8) (k) The Association or its designated | 10 | | representatives
may render assistance and advice to the
| 11 | | Director, upon his request, concerning rehabilitation, | 12 | | payment of
claims, continuations of coverage, or the | 13 | | performance of other
contractual obligations of any | 14 | | impaired or insolvent insurer.
| 15 | |
(9) (l) The Association shall have standing to appear | 16 | | or intervene before a court or agency in this State with | 17 | | jurisdiction over an impaired or insolvent insurer | 18 | | concerning which the Association is or may become obligated | 19 | | under this Article or with jurisdiction over any person or | 20 | | property against which the Association may have rights | 21 | | through subrogation or otherwise. Standing shall extend to | 22 | | all matters germane to the powers and duties of the | 23 | | Association, including, but not limited to, proposals for | 24 | | reinsuring, modifying, or guaranteeing the policies or | 25 | | contracts of the impaired or insolvent insurer and the | 26 | | determination of the policies or contracts and contractual |
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| 1 | | obligations. The Association shall also have the right to | 2 | | appear or intervene before a court or agency in another | 3 | | state with jurisdiction over an impaired or insolvent | 4 | | insurer for which the Association is or may become | 5 | | obligated or with jurisdiction over any person or property | 6 | | against whom the Association may have rights through | 7 | | subrogation or otherwise.
| 8 | |
(10)(a) (m)(1) A person receiving benefits under this | 9 | | Article shall be deemed to have assigned the rights under | 10 | | and any causes of action against any person for losses | 11 | | arising under, resulting from, or otherwise relating to the | 12 | | covered policy or contract to the Association to the extent | 13 | | of the benefits received because of this Article, whether | 14 | | the benefits are payments of or on account of contractual | 15 | | obligations, continuation of coverage, or provision of | 16 | | substitute or alternative coverages. The Association may | 17 | | require an assignment to it of such rights and cause of | 18 | | action by any payee, policy, or contract owner, | 19 | | beneficiary, insured, or annuitant as a condition | 20 | | precedent to the receipt of any right or benefits conferred | 21 | | by this Article upon the person.
| 22 | |
(b) (2) The subrogation rights of the Association | 23 | | under this subsection
have the same priority against the | 24 | | assets of the impaired or insolvent insurer as
that | 25 | | possessed by the person entitled to receive benefits under | 26 | | this
Article. |
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| 1 | | (c) (3) In addition to paragraphs (a) (1) and (b) (2) , | 2 | | the Association shall have all common law rights of | 3 | | subrogation and any other equitable or legal remedy that | 4 | | would have been available to the impaired or insolvent | 5 | | insurer or owner, beneficiary, or payee of a policy or | 6 | | contract with respect to the policy or contracts, including | 7 | | without limitation, in the case of a structured settlement | 8 | | annuity, any rights of the owner, beneficiary, or payee of | 9 | | the annuity to the extent of benefits received pursuant to | 10 | | this Article, against a person originally or by succession | 11 | | responsible for the losses arising from the personal injury | 12 | | relating to the annuity or payment therefor, excepting any | 13 | | such person responsible solely by reason of serving as an | 14 | | assignee in respect of a qualified assignment under | 15 | | Internal Revenue Code Section 130. | 16 | | (d) (4) If the preceding provisions of this subsection | 17 | | (10) (l) are invalid or ineffective with respect to any | 18 | | person or claim for any reason, then the amount payable by | 19 | | the Association with respect to the related covered | 20 | | obligations shall be reduced by the amount realized by any | 21 | | other person with respect to the person or claim that is | 22 | | attributable to the policies, or portion thereof, covered | 23 | | by the Association. | 24 | | (e) (5) If the Association has provided benefits with | 25 | | respect to a covered obligation and a person recovers | 26 | | amounts as to which the Association has rights as described |
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| 1 | | in the preceding paragraphs of this subsection (10), then | 2 | | the person shall pay to the Association the portion of the | 3 | | recovery attributable to the policies, or portion thereof, | 4 | | covered by the Association.
| 5 | |
(11) (n) The Association may:
| 6 | |
(a) (1) Enter into such contracts as are necessary | 7 | | or proper to carry
out the provisions and purposes of | 8 | | this Article.
| 9 | |
(b) (2) Sue or be sued, including taking any legal | 10 | | actions necessary or
proper for recovery of any unpaid | 11 | | assessments under Section 531.09. The
Association | 12 | | shall not be liable for punitive or exemplary damages.
| 13 | |
(c) (3) Borrow money to effect the purposes of | 14 | | this Article. Any notes
or other evidence of | 15 | | indebtedness of the Association not in default are
| 16 | | legal investments for domestic insurers and may be | 17 | | carried as admitted
assets.
| 18 | |
(d) (4) Employ or retain such persons as are | 19 | | necessary to handle the
financial transactions of the | 20 | | Association, and to perform such other
functions as | 21 | | become necessary or proper under this Article.
| 22 | |
(e) (5) Negotiate and contract with any | 23 | | liquidator, rehabilitator,
conservator, or ancillary | 24 | | receiver to carry out the powers and duties of
the | 25 | | Association.
| 26 | |
(f) (6) Take such legal action as may be necessary |
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| 1 | | to avoid payment of
improper claims.
| 2 | |
(g) (7) Exercise, for the purposes of this Article | 3 | | and to the extent
approved by the Director, the powers | 4 | | of a domestic life or health
insurer, but in no case | 5 | | may the Association issue insurance policies or
| 6 | | annuity contracts other than those issued to perform | 7 | | the contractual
obligations of the impaired or | 8 | | insolvent insurer.
| 9 | |
(h) (8) Exercise all the rights of the Director | 10 | | under Section 193(4) of
this Code with respect to | 11 | | covered policies after the association becomes
| 12 | | obligated by statute.
| 13 | | (i) (9) Request information from a person seeking | 14 | | coverage from the Association in order to aid the | 15 | | Association in determining its obligations under this | 16 | | Article with respect to the person, and the person | 17 | | shall promptly comply with the request. | 18 | | (j) (10) Take other necessary or appropriate | 19 | | action to discharge its duties and obligations under | 20 | | this Article or to exercise its powers under this | 21 | | Article. | 22 | |
(12) (o) With respect to covered policies for which | 23 | | the Association becomes
obligated after an entry of an | 24 | | order of liquidation or rehabilitation,
the Association | 25 | | may
elect to succeed to the rights of the insolvent insurer | 26 | | arising after the
date of the order of liquidation or |
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| 1 | | rehabilitation under any contract
of reinsurance to which
| 2 | | the insolvent insurer was a party, to the extent that such | 3 | | contract
provides coverage for losses occurring after the | 4 | | date of the order of
liquidation or rehabilitation. As a | 5 | | condition to making this election,
the Association must pay | 6 | | all unpaid premiums due under the contract for
coverage | 7 | | relating to periods before and after the date of the order | 8 | | of
liquidation or rehabilitation.
| 9 | | (13) (p) A deposit in this State, held pursuant to law | 10 | | or required by the Director for the benefit of creditors, | 11 | | including policy owners, not turned over to the domiciliary | 12 | | liquidator upon the entry of a final order of liquidation | 13 | | or order approving a rehabilitation plan of an insurer | 14 | | domiciled in this State or in a reciprocal state, pursuant | 15 | | to Article XIII 1/2 of this Code, shall be promptly paid to | 16 | | the Association. The Association shall be entitled to | 17 | | retain a portion of any amount so paid to it equal to the | 18 | | percentage determined by dividing the aggregate amount of | 19 | | policy owners' claims related to that insolvency for which | 20 | | the Association has provided statutory benefits by the | 21 | | aggregate amount of all policy owners' claims in this State | 22 | | related to that insolvency and shall remit to the | 23 | | domiciliary receiver the amount so paid to the Association | 24 | | less the amount retained pursuant to this subsection (13) . | 25 | | Any amount so paid to the Association and retained by it | 26 | | shall be treated as a distribution of estate assets |
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| 1 | | pursuant to applicable State receivership law dealing with | 2 | | early access disbursements. | 3 | | (14) (q) The Board of Directors of the Association | 4 | | shall have discretion and may exercise reasonable business | 5 | | judgment to determine the means by which the Association is | 6 | | to provide the benefits of this Article in an economical | 7 | | and efficient manner. | 8 | | (15) (r) Where the Association has arranged or offered | 9 | | to provide the benefits of this Article to a covered person | 10 | | under a plan or arrangement that fulfills the Association's | 11 | | obligations under this Article, the person shall not be | 12 | | entitled to benefits from the Association in addition to or | 13 | | other than those provided under the plan or arrangement. | 14 | | (16) (s) Venue in a suit against the Association | 15 | | arising under the Article shall be in Cook County. The | 16 | | Association shall not be required to give any appeal bond | 17 | | in an appeal that relates to a cause of action arising | 18 | | under this Article. | 19 | | (17) (t) The Association may join an organization of | 20 | | one or more other State associations of similar purposes to | 21 | | further the purposes and administer the powers and duties | 22 | | of the Association. | 23 | | (18) (u) In carrying out its duties in connection with | 24 | | guaranteeing, assuming, or reinsuring policies or | 25 | | contracts under subsections (1) or (2), the Association | 26 | | may, subject to approval of the receivership court, issue |
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| 1 | | substitute coverage for a policy or contract that provides | 2 | | an interest rate, crediting rate, or similar factor | 3 | | determined by use of an index or other external reference | 4 | | stated in the policy or contract employed in calculating | 5 | | returns or changes in value by issuing an alternative | 6 | | policy or contract in accordance with the following | 7 | | provisions: | 8 | | (a) (1) in lieu of the index or other external | 9 | | reference provided for in the original policy or | 10 | | contract, the alternative policy or contract provides | 11 | | for (i) a fixed interest rate, or (ii) payment of | 12 | | dividends with minimum guarantees, or (iii) a | 13 | | different method for calculating interest or changes | 14 | | in value; | 15 | | (b) (2) there is no requirement for evidence of | 16 | | insurability, waiting period, or other exclusion that | 17 | | would not have applied under the replaced policy or | 18 | | contract; and | 19 | | (c) (3) the alternative policy or contract is | 20 | | substantially similar to the replaced policy or | 21 | | contract in all other material terms. | 22 | | (Source: P.A. 96-1450, eff. 8-20-10; 97-333, eff. 8-12-11.)
| 23 | | (215 ILCS 5/531.09) (from Ch. 73, par. 1065.80-9)
| 24 | | Sec. 531.09. Assessments. | 25 | | (1) For the purpose of providing the funds
necessary to |
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| 1 | | carry out the powers and duties of the Association, the board
| 2 | | of directors shall assess the member insurers, separately for | 3 | | each account, at such
times and for such amounts as the board | 4 | | finds necessary. Assessments shall
be due not less than 30 days | 5 | | after written notice to the member insurers
and shall accrue | 6 | | interest from the due date at such adjusted rate as is
| 7 | | established under Section 6621 of Chapter 26 of the United | 8 | | States Code and
such interest shall be compounded daily.
| 9 | | (2) There shall be 2 classes of assessments, as follows:
| 10 | | (a) Class A assessments shall be made for the purpose | 11 | | of meeting administrative
costs and other general expenses | 12 | | and examinations conducted under the authority
of the | 13 | | Director under subsection (5) of Section 531.12.
| 14 | | (b) Class B assessments shall be made to the extent | 15 | | necessary to carry
out the powers and duties of the | 16 | | Association under Section 531.08 with regard
to an impaired | 17 | | or insolvent domestic insurer or insolvent foreign or alien | 18 | | insurers.
| 19 | | (3)(a) The amount of any Class A assessment shall be | 20 | | determined at the discretion of the board of directors and such | 21 | | assessments shall be authorized and called on a non-pro rata | 22 | | basis. The amount of any Class B
assessment shall be allocated | 23 | | for assessment
purposes among the accounts
and subaccounts | 24 | | pursuant to an allocation formula which may be based on
the | 25 | | premiums or reserves of the impaired or insolvent insurer or | 26 | | any other
standard deemed by the board in its sole discretion |
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| 1 | | as being fair and
reasonable under the circumstances.
| 2 | | (b) Class B assessments against member insurers for each | 3 | | account and
subaccount shall
be in the proportion that the | 4 | | premiums received on business in this State
by each assessed | 5 | | member insurer on policies or contracts covered by
each account | 6 | | or subaccount for the three most recent calendar years
for | 7 | | which information is available preceding the year in which the | 8 | | insurer
became impaired or insolvent, as the case may be, bears | 9 | | to such premiums
received on business in this State for such | 10 | | calendar years by all assessed
member insurers.
| 11 | | (c) Assessments for funds to meet the requirements of the | 12 | | Association
with respect to an impaired or insolvent insurer | 13 | | shall not be made until
necessary to implement the purposes of | 14 | | this Article. Classification
of assessments
under subsection | 15 | | (2) and computations of assessments under this subsection
shall | 16 | | be made with a reasonable degree of accuracy, recognizing that | 17 | | exact
determinations may not always be possible.
| 18 | | (4) The Association may abate or defer, in whole or in | 19 | | part, the assessment of a member insurer if, in the opinion of | 20 | | the board, payment of the assessment would endanger the ability | 21 | | of the member insurer to fulfill its contractual obligations. | 22 | | In the event an assessment against a member insurer is abated | 23 | | or deferred in whole or in part the amount by which the | 24 | | assessment is abated or deferred may be assessed against the | 25 | | other member insurers in a manner consistent with the basis for | 26 | | assessments set forth in this Section. Once the conditions that |
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| 1 | | caused a deferral have been removed or rectified, the member | 2 | | insurer shall pay all assessments that were deferred pursuant | 3 | | to a repayment plan approved by the Association. | 4 | | (5) (a) (i) Subject to the provisions of subparagraph (ii) | 5 | | of this paragraph, the total of all assessments authorized by | 6 | | the Association with respect to a member insurer for each | 7 | | subaccount of the life insurance and annuity account and for | 8 | | the health account shall not in one calendar year exceed 2% of | 9 | | that member insurer's average annual premiums received in this | 10 | | State on the policies and contracts covered by the subaccount | 11 | | or account during the 3 calendar years preceding the year in | 12 | | which the insurer became an impaired or insolvent insurer. | 13 | | (ii) If 2 or more assessments are authorized in one | 14 | | calendar year with respect to insurers that become impaired or | 15 | | insolvent in different calendar years, the average annual | 16 | | premiums for purposes of the aggregate assessment percentage | 17 | | limitation referenced in subparagraph (a) of this paragraph | 18 | | shall be equal and limited to the higher of the 3-year average | 19 | | annual premiums for the applicable subaccount or account as | 20 | | calculated pursuant to this Section. | 21 | | (iii) If the maximum assessment, together with the other | 22 | | assets of the Association in an account, does not provide in | 23 | | one year in either account an amount sufficient to carry out | 24 | | the responsibilities of the Association, the necessary | 25 | | additional funds shall be assessed as soon thereafter as | 26 | | permitted by this Article. |
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| 1 | | (b) The board may provide in the plan of operation a method | 2 | | of allocating funds among claims, whether relating to one or | 3 | | more impaired or insolvent insurers, when the maximum | 4 | | assessment will be insufficient to cover anticipated claims. | 5 | | (c) If the maximum assessment for a subaccount of the life | 6 | | insurance and annuity account in one year does not provide an | 7 | | amount sufficient to carry out the responsibilities of the | 8 | | Association, then pursuant to paragraph (b) of subsection (3), | 9 | | the board shall assess the other subaccounts of the life and | 10 | | annuity account for the necessary additional amount, subject to | 11 | | the maximum stated in paragraph (a) of this subsection.
| 12 | | (6) The board may, by an equitable method as established in | 13 | | the
plan of operation, refund to member insurers, in proportion | 14 | | to the contribution
of each insurer to that account, the amount | 15 | | by which the assets of the account
exceed the amount the board | 16 | | finds is necessary to carry out during the coming
year the | 17 | | obligations of the Association with regard to that account, | 18 | | including
assets accruing from net realized gains and income | 19 | | from investments. A
reasonable amount may be retained in any | 20 | | account to provide funds for the
continuing expenses of the | 21 | | Association and for future losses.
| 22 | | (7) An assessment is deemed to occur on the date upon which | 23 | | the board
votes such assessment. The board may defer calling | 24 | | the payment of the
assessment or may call for payment in one or | 25 | | more installments.
| 26 | | (8) It is proper for any member insurer, in determining its |
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| 1 | | premium
rates and policyowner dividends as to any kind of | 2 | | insurance within the scope of
this Article, to consider the | 3 | | amount reasonably necessary to meet its assessment
obligations | 4 | | under this Article.
| 5 | | (9) The Association must issue to each insurer paying a
| 6 | | Class B assessment
under this Article a certificate of | 7 | | contribution,
in a form acceptable to the
Director, for the | 8 | | amount of the assessment so paid. All outstanding certificates
| 9 | | are of equal
dignity and priority without reference to amounts | 10 | | or dates of issue. A certificate
of contribution may be shown | 11 | | by the insurer in its financial statement as an asset
in such | 12 | | form and for such amount, if any, and period of time as the | 13 | | Director
may approve, provided the insurer shall in any event | 14 | | at its option have
the right to show a certificate of | 15 | | contribution as an admitted asset at
percentages of the | 16 | | original face amount for calendar years as follows:
| 17 | | 100% for the calendar year after the year of issuance;
| 18 | | 80% for the second calendar year after the year of | 19 | | issuance;
| 20 | | 60% for the third calendar year after the year of issuance;
| 21 | | 40% for the fourth calendar year after the year of | 22 | | issuance;
| 23 | | 20% for the fifth calendar year after the year of issuance.
| 24 | | (10) The Association may request information of member | 25 | | insurers in order to aid in the exercise of its power under | 26 | | this Section and member insurers shall promptly comply with a |
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| 1 | | request. | 2 | | (Source: P.A. 95-86, eff. 9-25-07 (changed from 1-1-08 by P.A. | 3 | | 95-632); 96-1450, eff. 8-20-10.)
| 4 | | (215 ILCS 5/531.14) (from Ch. 73, par. 1065.80-14)
| 5 | | Sec. 531.14. Miscellaneous Provisions. | 6 | | (1) Nothing in this
Article may be construed to reduce the | 7 | | liability for unpaid assessments of the insured
of an impaired | 8 | | or insolvent insurer operating under a plan with assessment | 9 | | liability.
| 10 | | (2) Records must be kept of all negotiations and meetings | 11 | | in which
the Association or its representatives are involved to | 12 | | discuss the activities of the
Association in carrying out its | 13 | | powers and duties under Section 531.08. Records of such
| 14 | | negotiations or meetings may be made public only upon the | 15 | | termination of a
liquidation, rehabilitation, or conservation | 16 | | proceeding involving the impaired
or insolvent insurer, upon | 17 | | the termination of the impairment or insolvency
of the insurer, | 18 | | or upon the order
of a court of competent jurisdiction. Nothing | 19 | | in this paragraph (2) limits the
duty of the Association to | 20 | | render a report of its activities under Section
531.15.
| 21 | | (3) For the purpose of carrying out its obligations under | 22 | | this Article,
the Association is deemed to be a creditor of the | 23 | | impaired or insolvent
insurer to the extent of assets | 24 | | attributable to covered policies reduced by any
amounts to | 25 | | which the Association is entitled as subrogee (under paragraph |
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| 1 | | (10) (8)
of Section 531.08). All assets of the impaired or | 2 | | insolvent insurer
attributable to covered policies must be used | 3 | | to continue all covered policies
and pay all contractual | 4 | | obligations of the impaired insurer as required by this
| 5 | | Article. "Assets attributable to covered policies", as used in | 6 | | this paragraph
(3), is that proportion of the
assets which the | 7 | | reserves that should have been established
for such policies | 8 | | bear to the reserve that should have been
established for all | 9 | | policies of
insurance written by the impaired or insolvent | 10 | | insurer.
| 11 | | (4) (a) Prior to the termination of any liquidation, | 12 | | rehabilitation,
or conservation proceeding, the court may take | 13 | | into consideration the contributions
of the respective | 14 | | parties, including the Association, the shareholders and
| 15 | | policyowners of the impaired or insolvent insurer, and any | 16 | | other party with
a bona fide interest,
in making an equitable | 17 | | distribution of the ownership rights of such impaired
or | 18 | | insolvent
insurer. In such a determination, consideration must | 19 | | be given to the welfare of the
policyholders of the continuing | 20 | | or successor insurer.
| 21 | | (b) No distribution to stockholders, if any, of an impaired | 22 | | or insolvent insurer
may be made until and unless the total
| 23 | | amount of valid claims of the Association for funds expended , | 24 | | with interest, in carrying
out its powers and duties under | 25 | | Section 531.08, with respect to such insurer
have been fully | 26 | | recovered by the Association.
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| 1 | | (5) (a) If an order for liquidation or rehabilitation of
an | 2 | | insurer
domiciled in this State has been entered, the receiver | 3 | | appointed under such
order has a right to recover on behalf of | 4 | | the insurer, from any affiliate that
controlled it, the amount | 5 | | of distributions, other than stock dividends paid by
the | 6 | | insurer on its capital stock, made at any time during the 5 | 7 | | years preceding
the petition for liquidation or rehabilitation | 8 | | subject to the limitations of
paragraphs (b) to (d).
| 9 | | (b) No such dividend is recoverable if the insurer shows | 10 | | that when
paid the distribution was lawful and reasonable, and | 11 | | that the insurer did not
know and could not reasonably have | 12 | | known that the distribution might adversely affect
the ability | 13 | | of the insurer to fulfill its contractual obligations.
| 14 | | (c) Any person who as an affiliate that controlled the | 15 | | insurer at
the time the distributions were paid is liable up to | 16 | | the amount of distributions
he received. Any person who was an | 17 | | affiliate that controlled the insurer at the
time the | 18 | | distributions were declared, is liable up to the amount of | 19 | | distributions
he would have received if they had been paid | 20 | | immediately. If 2 persons are
liable with respect to the same | 21 | | distributions, they are jointly and severally liable.
| 22 | | (d) The maximum amount recoverable under subsection (5) of | 23 | | this Section is
the amount needed in excess of all other | 24 | | available assets of the insolvent insurer
to pay the | 25 | | contractual obligations of the insolvent insurer.
| 26 | | (e) If any person liable under paragraph (c) of subsection |
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| 1 | | (5) of this
Section is insolvent, all its
affiliates that | 2 | | controlled it at the time the dividend was paid are jointly and
| 3 | | severally liable for any resulting deficiency in the amount | 4 | | recovered from
the insolvent affiliate.
| 5 | | (6) As a creditor of the impaired or insolvent insurer as | 6 | | established in subsection (3) of this Section and consistent | 7 | | with subsection (2) of Section 205 of this Code, the | 8 | | Association and other similar associations shall be entitled to | 9 | | receive a disbursement of assets out of the marshaled assets, | 10 | | from time to time as the assets become available to reimburse | 11 | | it, as a credit against contractual obligations under this | 12 | | Article. If the liquidator has not, within 120 days after a | 13 | | final determination of insolvency of an insurer by the | 14 | | receivership court, made an application to the court for the | 15 | | approval of a proposal to disburse assets out of marshaled | 16 | | assets to guaranty associations having obligations because of | 17 | | the insolvency, then the Association shall be entitled to make | 18 | | application to the receivership court for approval of its own | 19 | | proposal to disburse these assets. | 20 | | (Source: P.A. 96-1450, eff. 8-20-10.)
| 21 | | Section 10. The Health Maintenance Organization Act is | 22 | | amended by changing Section 6-14 as follows:
| 23 | | (215 ILCS 125/6-14) (from Ch. 111 1/2, par. 1418.14)
| 24 | | Sec. 6-14. Miscellaneous Provisions. (1) Records must be |
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| 1 | | kept of all
negotiations and meetings in which the Association | 2 | | or its representatives
are involved to discuss the activities | 3 | | of the Association in carrying out
its powers and duties under | 4 | | Section 6-8. Records of such
negotiations or meetings may be | 5 | | made public only upon the termination of a
liquidation, | 6 | | rehabilitation, or conservation proceeding involving the | 7 | | impaired
or insolvent organization, upon the termination of the | 8 | | impairment or
insolvency of the organization, or upon the order | 9 | | of a court of competent
jurisdiction. Nothing in this | 10 | | subsection (1) limits the duty of the
Association to submit a | 11 | | report of its activities under Section 6-15.
| 12 | | (2) For the purpose of carrying out its obligations under | 13 | | this Article,
the Association is deemed to be a creditor of the | 14 | | impaired or insolvent
organization to the extent of assets | 15 | | attributable to covered health care plan
certificates reduced | 16 | | by any amounts to which the Association is entitled as
subrogee | 17 | | (under subsection (7) of Section 6-8). All assets of the | 18 | | impaired
or insolvent organization attributable to covered | 19 | | health care plan
certificates must be used to continue all | 20 | | covered health care plan
certificates and pay all contractual | 21 | | obligations of the impaired
organization as required by this | 22 | | Article. "Assets attributable to covered
health care plan | 23 | | certificates", as used in this subsection (2), is that
| 24 | | proportion of the assets which the reserves that should have | 25 | | been
established for such health care plan certificates bear to | 26 | | the reserve that
should have been established for all health |
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| 1 | | care plan certificates of the
impaired or insolvent | 2 | | organization.
| 3 | | (3) (a) Prior to the termination of any liquidation, | 4 | | rehabilitation,
or conservation proceeding, the court may take | 5 | | into consideration the
contributions of the respective | 6 | | parties, including the Association, the
shareholders of the | 7 | | impaired or insolvent organization, and any other party
with a | 8 | | bona fide interest, in making an equitable distribution of the
| 9 | | ownership rights of such impaired or insolvent organization. In | 10 | | such a
determination, consideration must be given to the | 11 | | welfare of the enrollees
of the continuing or successor | 12 | | organization.
| 13 | | (b) No distribution to stockholders, if any, of an impaired | 14 | | or insolvent
organization may be made until and unless the | 15 | | total
amount of valid claims of the Association for funds | 16 | | expended in carrying
out its powers and duties under Section | 17 | | 6-8, with interest, with respect to such organization
have been | 18 | | fully recovered by the Association.
| 19 | | (4) (a) If an order for liquidation or rehabilitation of an | 20 | | organization
domiciled in this State has been entered, the | 21 | | receiver appointed under such
order has a right to recover on | 22 | | behalf of the organization, from any
affiliate that controlled | 23 | | it, the amount of distributions, other than stock
dividends | 24 | | paid by the organization on its capital stock, made at any time
| 25 | | during the 5 years preceding the petition for liquidation or | 26 | | rehabilitation
subject to the limitations of paragraphs (b) to |
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| 1 | | (d).
| 2 | | (b) No such distribution is recoverable if the organization | 3 | | shows that when
paid the distribution was lawful and | 4 | | reasonable, and that the organization
did not know and could | 5 | | not reasonably have known that the distribution
might adversely | 6 | | affect the ability of the organization to fulfill its
| 7 | | contractual obligations.
| 8 | | (c) Any person who was an affiliate that controlled the | 9 | | organization at
the time the distributions were paid is liable | 10 | | up to the amount of
distributions he received. Any person who | 11 | | was an affiliate that controlled
the organization at the time | 12 | | the distributions were declared, is liable up
to the amount of | 13 | | distributions he would have received if they had been paid
| 14 | | immediately. If 2 persons are liable with respect to the same
| 15 | | distributions, they are jointly and severally liable.
| 16 | | (d) The maximum amount recoverable under subsection (4) of | 17 | | this Section is
the amount needed in excess of all other | 18 | | available assets of the insolvent
organization to pay the | 19 | | contractual obligations of the insolvent organization.
| 20 | | (e) If any person liable under paragraph (c) of subsection | 21 | | (4) of this
Section is insolvent, all its affiliates that | 22 | | controlled it at the time the
distribution was paid are jointly | 23 | | and severally liable for any resulting
deficiency in the amount | 24 | | recovered from the insolvent affiliate.
| 25 | | (Source: P.A. 86-620.)
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