NONADMITTED INSURANCE

Section:
10-5-101	Short Title.
10-5-101.1	Legislative declaration.
10-5-101.2	Definitions.
10-5-101.5	Exemptions.
10-5-102	Validity of certain contracts.
10-5-103	Conditions for export.
10-5-103.5	Producing broker's affidavit.
10-5-104	Endorsement of contract.
10-5-105	Surplus line insurance valid.
10-5-106	When export declared eligible.
10-5-107	Brokers may accept business from agents.
10-5-108	Placement of surplus line insurance.
10-5-109	Records of surplus line broker.
10-5-110	Annual statement.
10-5-111	Tax on premiums.
10-5-112	Penalty for failure to comply.
105-113	Revocation of broker's license.
10-5-114	Actions against insurer -- service.
10-5-115	Requirements imposed upon commissioner -- assistance of broker's association.
10-5-116	Records produced on order.
10-5-117	Rules and regulations.
10-5-118	Notice provisions not applicable to surplus lines.
10-5-119	Disclosures regarding claims-made policies by surplus line brokers or insurers.

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10-5-101 Short title

This article shall be known and may be cited as the "Nonadmitted Insurance Act."

History -- L. 49: p. 474; %22; CSA: C. 87, %334; CRS 53: %72-14-17; C.R.S. 1963: %72-18-17; L. 95: p. 491, %6, effective May 16.

10-5-101.1 Legislative declaration

(1) The general assembly finds and declares that property and casualty insurance transaction with nonadmitted insurers are so affected with a public interest as to require regulation, taxation, supervision, and control of such transactions and matters relating thereto, as provided in this article, in order to:

(a) Protect the insured and claimants of this state in transactions involving the purchase of insurance from insurers not authorized to transact business in this state:

(b) Provide for the public, except for transactions related to the diligent effort requirements of this article for exempt commercial policyholders, as defined pursuant to section 10-4-1402 and rules adopted by the commissioner pursuant to that section, to the extent that insurance is not procurable from admitted insurers, orderly, reasonable, and regulated access to such insurance from approved nonadmitted insurers through qualified, licensed, and supervised surplus line agents and brokers;

(c) Protect the revenues of this state:

(d) Protect regulated, admitted insurers from unregulated and unfair competition by nonadmitted insurers:

(e) Regulate and supervise the effectuation of surplus line insurance in accordance with the laws of this state and federal law, including the federal "McCarran-Ferguson Act"; and

(f) Maintain reliable insurance markets.

History -- L. 81: p. 537, %1: L. 95: p. 491, %7; L. 99: p. 388, %9, effective January 15, 2000.

Note -- As in original. There is no (2).

10-5-101.2 Definitions

As used in this article, unless the context otherwise required:

(1) "Broker" means a surplus lines producer duly licensed to export insurance under this article.

(2) "Export" means to place with an insurer under this article insurance covering a subject of insurance that is resident, located, or to be performed in Colorado.

(3) "Nonadmitted insurers" means insurers not having a certificate of authority to transact business in this state.

(4) "Surplus lines insurance" means coverage placed with an approved nonadmitted insurer as provided by section 10-5-108.

History -- L. 81: p. 588, %1; L. 95: p. 491, %8, effective May 16.

10-5-101.5 Exemptions

(1) The provisions of this article controlling the placing of insurance with nonadmitted insurers shall not apply to reinsurance or, except as to subsection (2) of this section, to the following types of insurance when placed by licensed agents or brokers of this state:

(a) Insurance on vessels or crafts or their hulls or cargoes or on marine builders' risks or marine protection and indemnity or other risks, including strikes and war risks commonly insured under ocean or wet marine forms of policy;

(b) Insurance on subjects located, resident, or to be performed wholly outside of this state or on vehicles or aircraft owned and principally garaged outside this state;

(c) Insurance on the operations of railroads engaged in transportation in interstate commerce and their property used in such operations;

(d) Insurance on aircraft owned or operated by manufacturers of aircraft or on aircraft operated in commercial scheduled interstate flight or the cargo of such aircraft or against liability, other than worker's compensation and employers' liability, arising out of the ownership, maintenance, or use of such aircraft.

(2) Brokers placing any insurance referred to in subsection (1) of this section shall keep a full and true record of each such coverage in detail as required of surplus line insurance under this article. The record shall be preserved for not less than three years from the effective date of the insurance; shall be kept in this state and open to the examination of the commissioner, at his request and on forms designated and furnished by him; and shall contain a report of all such coverages so placed in a designated calendar year.

History -- L. 81: p. 538, %1.

10-5-102 Validity of certain contracts

A contract of insurance effectuated by a nonadmitted insurer in violation of provisions of this article shall be voidable except at the instance of the insurer.

History -- L. 49: p. 467, %1; CSA: C. 87, %318; CRS 53: %72-14-1; C.R.S. 1963: %72-13-1; L. 95: p. 492, %9, effective May 16.

10-5-103 Conditions for export

(1) If certain insurance coverages cannot be procured from admitted insurers, such coverages, designated in this article as "surplus lines," may be procured from nonadmitted insurers, subject to the following conditions:

(a) The insurance must be procured through a licensed broker.

(b) The full amount of insurance required shall mot be procurable, after diligent effort has been made to do so, from among insurers authorized to transact and actually transacting that kind of insurance in this state, and placing the insurance in a nonadmitted insurer shall not be for the purpose of securing a lower premium rate than that which would be accepted by an admitted insurer unless the premium rate quoted by the admitted insurer is more than ten percent higher than that quoted by the nonadmitted insurer.

(c) At the time of the procuring of any such insurance, an affidavit setting forth facts referred to in paragraph (b) of this subsection (1) must be executed by the broker. Such affidavit shall be filed with the commissioner within thirty days after the insurance is procured. In lieu thereof, the commissioner may provide for simplified monthly reporting of coverages procured pursuant to this article.

(2) The diligent effort requirements of this section shall not apply to transactions with exempt commercial policyholders, as defined pursuant to section 10-4-1402 and rules adopted by the commissioner pursuant to that section.

History -- L. 49: p. 467, %2; CSA: C. 87, %319; CRS 53: %72-14-2; C.R.S. 1963: %72-18-2; L. 81: R & RE, p. 538, %2; L. 95: p. 492, %10; L. 99: p. 388, %10, effective January 15, 2000.

10-5-103.5 Producing broker's affidavit

Any broker exporting insurance under this article, at the request of any other licensed agent or broker, may accept an affidavit executed by such other agent or broker, in such form as may be prescribed or accepted by the commissioner, as evidence that such insurance was eligible for export under section 10-5-103. Except as the commissioner may otherwise provide, the broker shall file or cause to be filed such affidavit with the commissioner within thirty days after the insurance was so procured.

History -- L. 81, p. 539, %3.

10-5-104 Endorsement of contract

Every insurance contract procured and delivered as a surplus line coverage pursuant to this article shall be initialed by or bear the name of the surplus line broker who procured it and shall have stamped upon it the following: "This contract is delivered as a surplus line coverage under the 'Nonadmitted Insurance Act.' The insurer issuing this contract is not licensed in Colorado but is an approved nonadmitted insurer. There is no protection under the provisions of the 'Colorado Insurance Guaranty Association Act.' "

History -- L. 49: p. 468, %3; CSA: C. 87, %320; CRS 53: %72-14-3; C.R.S. 1963: %72-13-3; L. 95: p. 492, %11, effective May 16.

10-5-105 Surplus line insurance valid

Insurance contracts procured as surplus line coverage from nonadmitted insurers in accordance with this article shall be fully valid and enforceable as to all parties and shall be given recognition in all matters and respects to the same effect as like contracts issued by admitted insurers.

History -- L. 49: p. 468, %4; CSA: C. 87, %321; CRS 53: %72-14-4; C.R.S. 1963: %72-13-4; L. 95: p. 492, %12, effective May 16.

10-5-106 When export declared eligible

The commissioner may, by rule, declare eligible for export generally, notwithstanding the provisions of section 10-5-103(1)(b) ad (1)(c), any class of insurance coverage or risk for which the commissioner finds that there is no reasonable or adequate market among insurers licensed in this state. For the purposes of this section, the diligent effort requirements of this article shall not apply to transactions with exempt commercial policy holders, as defined pursuant to section 10-4-1402 and rules adopted by the commissioner pursuant to that section.

History -- L. 49: p. 468, %5; CSA: C. 87, %322; CRS 53: %72-14-5; C.R.S. 1963: %72-13-5; L. 77: p. 506, %7; L. 81: RC & RE, p. 539, %4; L. 92: p. 1491, %20; L. 99: p. 388, %11. Effective January 15, 2000.

10-5-107 Brokers may accept business from agents

A licensed surplus line broker may accept and place surplus line business for any insurance agent or broker licensed in this state for the kind of insurance involved and may compensate such agent or broker therefor.

History -- L. 49: p. 468, %6; CSA: C. 87, %823; CRS 58: %72-14-6; C.R.S. 1963: %72-13-6.

10-5-108 Placement of surplus line insurance

(1) No broker shall place any coverage with a nonadmitted insurer unless, at the time of placement, such nonadmitted insurer is included on the list of approved nonadmitted insurers prepared by the commissioner at least annually. Nothing in this section shall require the commissioner to place or maintain the name of any nonadmitted insurer on the list. To be placed or maintain the name of any nonadmitted insurer on the list. To be placed and remain on said approved list, such nonadmitted insurer shall:

(a) Establish and maintain satisfactory evidence of good repute and financial integrity and submit a current year's application, a fee as prescribed by section 10-3-207, a copy of its current annual statement, an actuarial opinion, and other information required by the commissioner. In the case of an insurance exchange, an aggregate combined statement of all underwriting syndicates operating during the period reported, in addition to individual statements for each syndicate, shall be submitted.

(b) In the case of a foreign insurer, have and maintain a deposit in cash or marketable securities having a fair market value of at least two million five hundred thousand dollars with the commissioner or the duly authorized officer of some other state of the United States, to be held for the benefit of all policy holders wherever located, and qualify under one of the following:

(I) Have and maintain capital and surplus or its equivalent at least equal to fifteen million dollars, but not less than the amount that would be required by section 10-3-201 for an admitted company writing the same lines of insurance. Notwithstanding the provisions of this subsection (1), the commissioner may approve an insurer with less than the required minimum upon an affirmative finding of acceptability by the commissioner. This finding shall be based upon such factors as, but not limited to, quality of management, capital and surplus of any parent company, company underwriting profit and investment income trends, market availability, and company record and reputation within the industry. In no event shall the commissioner make an affirmative finding of acceptability when the insurer's capital and surplus is less than four million five hundred thousand dollars.

(II) In the case of an "insurance exchange" created by the laws of a state other than this state, the syndicates of the exchange shall have and maintain, under terms acceptable to the commissioner, capital and surplus of not less than seventy-five million dollars in the aggregate. The insurance exchange shall maintain, under terms acceptable to the commissioner, not less than fifty percent of the policyholder surplus of each syndicate in a custodial account accessible to the exchange or its domiciliary commissioner in the event of insolvency or impairment of the individual syndicate. In addition, each individual syndicate to be eligible to accept surplus lines insurance placements from this state shall meet either of the following requirements:

(a) For insurance exchanges that maintain funds in an amount of not less than fifteen million dollars for the protection of all exchange policyholders, the syndicate shall have and maintain, under terms acceptable to the commissioner, minimum capital and surplus of not less than five million dollars; or

(b) For insurance exchanges that do not maintain funds in an amount of not less than fifteen million dollars for the protection of all exchange policyholders, the syndicate shall maintain, under terms acceptable to the commissioner, minimum capital and surplus of not less than the minimum capital and surplus requirements under the laws of its domiciliary jurisdiction or fifteen million dollars, whichever is greater.

(c)(I) In the case of an alien insurer, as defined in section 10-8-801(1), have and maintain in force in the United States an irrevocable trust account in a qualified United States financial institution, for the benefit of United States policy holders, that is in an amount not less than two million five hundred thousand dollars or such greater amount as may be determined by the commissioner and adopted by rule and that consists of cash, securities, letters of credit, or investments of substantially the same character and quality as those that are eligible investments for the capital and statutory reserves of admitted insurers to write like kinds of insurance in this state maintain status on the current national association of insurance commissioners' international insurers department listing;

(II) In the case of a Lloyd's plan or other similar unincorporated group of individual insurers, or a combination of both unincorporated and incorporated insurers, such alien insurer shall have and maintain a trust fund, in the United States, in an amount of not less than one hundred million dollars, which trust fund shall be available for the benefit of United States surplus lines policyholders of any member of the group. The group shall, in addition, maintain in the United States a trust fund or trust funds in an amount satisfactory to the commissioner that is not less than the amount required by the law of the state where the trust fund or trust funds are located. The incorporated members of the group shall not be engaged in any business other than underwriting as a member of the group and shall be subject to the same level of solvency regulation and control by the group's domiciliary regulator as are the unincorporated members. The trust funds shall be maintained in an irrevocable trust account in the United States in a qualified financial institution and shall consist of cash, securities, letters of credit, or investments of substantially the same character and quality as those that are eligible investments for the capital and statutory reserves of admitted insurers to write like kinds of insurance in this state, and the trust instrument representing the surplus portion of the trust deposit shall satisfy the requirements of the standard trust agreement required for listing with the national association of insurance commissioners' international insurers department.

(III) In the case of a group of incorporated insurers under common administration that has continuously transacted an insurance business outside the United States for at least three years immediately before May 16, 1995, and that submits to this state's authority to examine its books and records and bears the expense of the examination, have an maintain an aggregate policyholders' surplus of ten billion dollars and have and maintain in trust a surplus in the amount of one hundred million dollars, all of which surplus funds shall be available for the benefit of United States surplus lines policyholders of any member of the group. Each insurer shall individually maintain capital and surplus of not less than twenty-five million dollars per company. The trust funds shall satisfy the requirements of the standard trust agreement requirement for listing with the national association of insurance commissioners' international insurers department, shall be maintained in an irrevocable trust account in the United States in a qualified financial institution, and shall consist of cash, securities, letters of credit, or investments of substantially the same character and quality as those that are eligible investments for the capital and statutory reserves of admitted insurers to write like kinds of insurance in this state. Additionally, each member of the group shall make available to the commissioner an annual certification of the member's solvency by the member's domiciliary regulator and its independent public accountant.

(d) Deleted by amendment, L. 95: p. 493, 13, effective May 16, 1995.

(2) Any surplus line broker who places insurance with a nonadmitted insurance company that has not been approved by the commissioner is subject to a penalty of up to ten thousand dollars as determined by the commissioner and the surplus line broker's license may be revoked.

History -- L. 49: p. 469, %7; CSA: C. 87, %324; CRS 53: %72-14-7; C.R.S. 1963: %72-13-7; L. 71: p. 725, %1; L. 73: p. 856, %1; L. 75: R & RE, p. 342, %1; L. 81: p. 539, %5; L. 91: p. 1232, %6; L. 92: p. 1492, %21; L. 93: p. 485, %2; L. 95: p. 493, %13; L. 98: p. 227, %1, effective April 10.

10-5-109 Records of surplus line broker

Each licensed surplus line broker shall keep in his office a full and true record of each surplus line contract procured by him, including a copy of the daily report, if any, showing such of the following items as may be applicable: Amount of the insurance; gross premiums charged; return premium paid, if any; rate of premium charged upon the several items of property; effective date of the contract and the terms thereof; name and address of the insurer; name and address of the insured; brief general description of property insured and where located; other information as may be required by the commissioner. The record shall at all times be open to examination by the commissioner.

History -- L. 49: p. 469, %8; CSA: C. 87, %325; CRS 53: %72-14-8; C.R.S. 1963, %72-13-8.

10-5-110 Annual statement

(1) Each surplus line broker shall, on or before the first day of March of each year, file with the commissioner a verified statement of all surplus line insurance transacted by him during the preceding calendar year.

(2) The statement shall be on forms as prescribed and furnished by the commissioner, and shall show: Gross amount of each kind of insurance transacted; aggregate gross premiums charged; aggregate of returned premiums paid to insureds; aggregate of net premiums; additional information as required by the commissioner.

History -- L. 49: p. 469, %9; CRS 53: %72-14-9; C.R.S. 1963: %72-18-9.

10-5-111 Tax on premiums

(1) On or before the first day of March of each year, each surplus line broker shall remit to the division of insurance a tax of three percent on the net premiums, exclusive of sums collected to cover federal and other state taxes and examination fees, on surplus line insurance subject to tax transacted by him during the preceding calendar year as shown by his annual statement filed with the commissioner.

(2) If a surplus line policy covers risks or exposures only partially in this state, the tax so payable shall be computed upon the proportion of the premium which is properly allocable to the risks or exposures located in this state.

History -- L. 49: p. 470, %10; CSA: C. 87, %327; CRS 53: %72-14-10; C.R.S. 1963: %72-13-10; L. 92: p. 1761, %2.

10-5-112 Penalty for failure to comply

If any surplus line broker fails to file his annual statement, or fails to remit the tax provided by section 10-5-111, prior to the first day of April after the tax is due, he shall be liable for a fine of twenty-five dollars for each day of delinquency commencing with the first day of April. The tax may be collected by distraint, or the tax and fine may be recovered by an action instituted by the commissioner in any court of competent jurisdiction.

History -- L. 49: p. 470, %11; CSA: 87, %328; CRS 53: %72-14-11; C.R.S. 1963: %72-13-11.

10-5-113 Revocation of broker's license

(1) The commissioner may revoke any surplus line broker's license:

(a) If the broker fails to file his annual statement or to remit the tax as required by this article; or

(b) If the broker fails to maintain an office in this state, or to keep the records, or to allow the commissioner to examine his records as required by this article; or

(c) For any of the causes for which a general broker's license may be revoked.

(2) The commissioner may suspend or revoke any such license whenever he deems suspension or revocation to be for the best interest of the people of the state.

(3) The procedures provided by law for the suspension or revocation of general brokers' licenses shall be applicable to suspension or revocation of a surplus line broker's license.

(4) No broker whose license has been so revoked or suspended shall again be so licensed within one year thereafter or until any fines or delinquent taxes owing by him have been paid.

History -- L. 49: p. 470, %12; CSA: C. 87, %329; CRS 53: %72-14-12; C.R.S. 1963: %72-18-12; L. 95: p. 496, %14, effective May 16.

10-5-114 Actions against insurer -- service

(1) A nonadmitted insurer may be sued, upon any cause of action arising in this state under any contract issued by it as a surplus line contract, pursuant to this article, in the district court of the county in which the cause of action arose.

(2) Service of legal process against the insurer may be made in any such action by service upon the commissioner. The commissioner shall forthwith mail the documents of process served, or a true copy thereof, to the person designated by the insurer pursuant to rule of the commissioner for the purpose by prepaid certified mail with return receipt requested. The insurer shall have forty days from the date of service upon the commissioner within which to plead, answer, or otherwise defend the action. Upon service of process upon the commissioner in accordance with this provision, the court shall be deemed to have jurisdiction in personam of the insurer. For each service of process, the sum of ten dollars shall be paid to the division of insurance at the time of such service.

(3) A nonadmitted insurer issuing such policy shall be deemed thereby to have authorized service of process against it, in the manner and to the effect as provided in this section, and to have appointed the commissioner as its agent for service of process issuing upon any cause of action arising in this state under any such policy. Any such policy shall contain a provision stating the substance of this section and designating the person to whom the commissioner shall mail process as provided in subsection (2) of this section.

History -- L. 49: p. 471, %13; CSA: C. 87, %330; CRS 53: %72-14-13; C.R.S. 1963: %72-13-

13; L. 73: p. 848, %4; L. 86: p. 556, %7; L. 89: p. 438, %9; L. 95: p. 496, %15; L. 98: p. 228, %2, effective April 10.

10-5-115 Requirements imposed upon commissioner -- assistance of brokers' association.

(1) The commissioner shall maintain such facilities as may be necessary to carry out the purposes of this article.

(2) The commissioner shall rely upon the advice and assistance of a duly constituted association of brokers in carrying out the purposes of this article, if the association files with the commissioner:

(a) A copy of the association's constitution and articles of agreement or association or the association's certificate of incorporation and bylaws and any rules or regulations governing the association's activities;

(b) Deleted by amendment, L. 95: p. 496, 16, effective May 16.

(c) A list of the association's members;

(d) The name and address of a resident of this state upon whom notices or orders of the commissioner or process issued by the commissioner may be served.

(2.5) The commissioner may examine the association's records concerning the functions of duties performed on behalf of the commissioner by the association.

(3) The association shall provide a means for the examination of all surplus line coverages written in this state to determine whether such coverages comply with the law and such rules or regulations as may be issued by the commissioner.

(4) The commissioner may refuse to accept, or may suspend or revoke the acceptance of, an association for any of the following reasons:

(a) It reasonably appears that the association will not be able to carry out the purpose of this article;

(b) The association does not maintain and enforce rules or regulations which will assure that members of the association and persons associated with those members will comply with this article, other applicable articles of this title, and rules or regulations promulgated under either;

(c) The rules or regulations of the association do not assure a fair representation of its members in the selection of directors and in the administration of its affairs;

(d) The rules or regulations of the association do no provide for an equitable allocation of reasonable dues, fees, and other charges among members;

(e) The rules or regulations of the association impose an undue burden on competition;

(f) The association fails to meet other applicable requirements prescribed in this article.

(5) An association shall deny membership to any person who is not a licensee.

(6) A broker shall cooperate with the association and the commissioner of insurance in fulfilling the broker's statutory responsibilities under this article.

(7) There shall not be liability on the part of, nor shall a cause of action of any nature arise against, the association or its agents, employees, or directors or authorized representatives of the commissioner for actions taken or omitted by them in the performance of their powers and duties under this section.

(8)(a) Upon request from the association, the commissioner may approve the levy of an examination fee of not more than one percent of premiums charged pursuant to this article for the operation of the association to the extent that such operation relieves the commissioner of duties otherwise required of the commissioner under this article.

(b) The association may revoke the membership and the commissioner may revoke the license in this state of any licensee who fails to pay the examination fee when sue, if the examination fee has been approved by the commissioner.

History -- L. 49: p. 472, %14; CSA: C. 87, %331; CRS 53: %72-14-14; C.R.S. 1963: %72-13-14; L. 81: p. 540, %6; L. 95: pp. 496, 1109, %%16, 56.

10-5-116 Records produced on order

Every person for whom insurance is placed with a nonadmitted insurer pursuant to or in violation of this article, upon the commissioner's order, shall produce for his examination all policies and other documents evidencing the insurance and shall disclose to the commissioner the amount of the gross premiums paid or agreed to be paid for the insurance. For each refusal to obey such order, such person shall be liable to a fine of not more than ten thousand dollars.

History -- L. 49: p. 472, %15; CSA: C. 87, %332; CRS 53: %72-14-15; C.R.S. 1963: %72-13-15; L. 95: p. 497, %17, effective May 16.

10-5-117 Rules and regulations

The commissioner may make and publish reasonable rules and regulations consistent with this article in respect to the transactions governed thereby and for the basis for his determination under this article.

History -- L. 49: p. 472, %16; CSA: C. 87, %333; CRS 53: %72-14-16; C.R.S. 1963: %72-13-16.

10-5-118 Notice provisions not applicable to surplus lines

The notice provisions in sections 10-4-109,7, 10-4-110, 10-4-110.5, and 10-4-110.7 shall not be applicable to insurance companies authorized pursuant to this article to write surplus lines insurance in Colorado.

History -- L. 87: p. 434, %9.

10-5-119 Disclosures regarding claims-made policies by surplus line brokers or insurers

In the event that a contract procured or placed by a Colorado surplus line broker is on a claims-made or other nonoccurrence policy form, the broker or the nonadmitted insurer shall stamp on the face of the policy a clear disclosure, as prescribed by the commissioner, which shall be in predominate type.

History -- L. 87: p. 434, %9; L. 92: p. 1494, %22; L. 95: p. 497, %18, effective May 16.