Massachusetts Insurers Insolvency Fund Act

175D:01. - Definitions

As used in this chapter the following words shall, unless the context clearly requires otherwise, have the following meanings: - -
1) "Commissioner", the commissioner of insurance.
2) "Covered claim", an unpaid claim, including one for unearned premiums, which arises out of and is within the coverage of an insurance policy to which this chapter applies issued by an insurer, if such insurer becomes an insolvent insurer and (a) the claimant or insured is a resident of the commonwealth; or (b) the property from which the claim arises is permanently located in the commonwealth.

"Covered claim" shall not include (1) claims excluded pursuant to section 17 due to the high net worth of an insured, and (2) any amount due a reinsurer, insurer, insurance pool or underwriting association; provided, that a claim for the amount, asserted against a person insured under a policy issued by an insurer which has become an insolvent insurer, which, if it were not a claim by or for the benefit of a reinsurer, insurer, insurance pool or underwriting association, would be a "covered claim" may be filed directly with the receiver of the insolvent insurer, but in no event may the claim be asserted against the insured of the insolvent insurer.
3) "Fund", the Massachusetts Insurers Insolvency Fund created under section three.
4) "Insolvent Insurer", an insurer authorized to transact insurance in this commonwealth either at the time the policy was issued or when the insured event occurred and determined to be insolvent by a court of competent jurisdiction.
5) "Insurer", any person, except as provided in the ninth paragraph of section six of chapter three hundred and sixty-two of the acts of nineteen hundred and seventy-five, who (a) writes any kind of insurance to which this chapter applies, including the exchange of reciprocal or interinsurance contracts, and (b) is licensed to transact insurance in the commonwealth.
6) "Net direct written premiums", direct gross premiums written in the commonwealth on insurance policies to which this chapter applies, less return premiums thereon and dividends paid or credited to policy holders on such direct business. Premiums written by any insurer on policies issued to self-insurers, whether or not designated reinsurance contracts, shall be deemed net direct written premiums. For workers' compensation policies issued with deductibles under paragraph (4) of section 25A of chapter 152, net direct written premiums shall be deemed to be an amount equal to standard premium plus any applicable all risk adjustment program amounts.
[Editors Note: Last sentence effective October 10, 2002]
7) "Plan", the plan of operation established and approved under section six.

175D:02. - Applicability of Chapter
This chapter shall apply to all kinds of direct insurance except life, accident and health, title, surety, disability credit, mortgage guaranty, financial guaranty or other forms of insurance offering protection against investment risks, insurance of warranties of any type of service contracts and ocean marine insurance.
175D:03. - Insolvency Fund Established
There is hereby created a nonprofit unincorporated legal entity to be known as the Massachusetts Insurers Insolvency Fund consisting of all insurers. The Fund shall perform its functions under a plan of operation established and approved under section six, and shall exercise its powers through a board of directors.
175D:04. - Board of Directors; Membership; Appointment; Compensation
The board of directors of the Fund shall consist of not less than five nor more than nine persons serving such terms as are established in the plan of operation. The members of the board shall be nominated by members of the Fund subject to the approval of the commissioner; provided, however, that at least one member of the board shall be appointed by the commissioner as a representative of insurance producers. Vacancies on the board shall be filled for the remaining period of the term by a majority vote of the remaining board members, subject to the approval of the commissioner. In approving nominations to the board the commissioner shall consider whether all insurers are fairly represented. Members of the board may be reimbursed from the assets of the Fund for expenses incurred by them as members of the board of directors.
175D:05. - Powers and Duties of Fund

1) The Fund shall:

a) be obligated to the extent of the covered claims against the insolvent insurer existing prior to the declaration of insolvency and arising within sixty days after the declaration of insolvency, or before the policy expiration date if less than sixty days after the declaration, or before the insured replaces the policy or requests cancellation, if he does so within sixty days of the declaration, but such obligation shall include only that amount of each covered claim which, unless it is a claim for compensation or other benefits which arises out of and is within the coverage of a workers' compensation policy, is less than three hundred thousand dollars;
b) be deemed the insurer to the extent of its obligation on the covered claims and shall have all rights, duties and obligations of the insolvent insurer to such extent;
c) assess insurers the amounts necessary to pay the obligations of the Fund and the expenses of handling covered claims subsequent to an insolvency and to pay the cost of examinations under paragraph (1) of section eight and other permissible expenses incurred under this chapter. The assessments of each insurer shall be in the proportion that the net direct written premiums of the insurer for the calendar year preceding the assessment bears to the net direct written premiums of all insurers for the calendar year preceding the assessment. Each insurer shall be notified of the assessment not later than thirty days before it is due. No insurer may be assessed in any year an amount greater than two per cent of that insurer's net direct written premiums for the calendar year preceding the assessment. If the maximum assessment, together with the other assets of the Fund, does not provide in any one year an amount sufficient to make all necessary payments, the funds available may be prorated and the unpaid portion shall be paid as soon thereafter as funds become available. The Fund shall pay claims in any order which it may deem reasonable, including the payment of claims as such are received from the claimants or in groups or categories of claims. The Fund may exempt or defer, in whole or in part, the assessment of any insurer, if the assessment would cause the insurer's financial statement to reflect amounts of capital or surplus less than the minimum amounts required for a certificate of authority by any jurisdiction in which the insurer is authorized to transact insurance, provided, however, that during the period of deferment, no dividends shall be paid to shareholders or policyholders. Deferred assessments shall be paid when such payment will not reduce capital or surplus below required minimums. Such payments shall be refunded to those companies receiving larger assessments by virtue of such deferment, or at the election of any such company, credited against future assessments. Each insurer serving as a servicing facility may set off against any assessment authorized payments made on covered claims and expenses incurred in the payment of such claims by such insurer;
d) investigate claims brought against the Fund and adjust, compromise, settle and pay covered claims to the extent of the Fund's obligation and shall deny all other claims;
e) notify such persons as the commissioner may direct;
f) handle claims through its employees or through one or more insurers designated as servicing facilities. Designation of an insurer as a servicing facility is subject to the approval of the commissioner and may be declined by the insurer; and 
g) reimburse each servicing facility for  obligations of the Fund paid by the facility and for expenses incurred by the facility while handling claims on behalf of the Fund and shall pay the other expenses of the Fund incurred under this chapter. 
2) The Fund may:
a) appear in, defend, and appeal, any action on a claim brought against the Fund; 

b) employ such personnel as are necessary to handle claims and perform other duties of the Fund;
c) borrow funds necessary to carry out the purposes of this chapter in accordance with the plan; 
d) sue or be sued;
e) request that the commissioner order an examination of any insurer when a majority of the board of directors in good faith believes such insurer may be in a financial condition hazardous to the policyholders or the public;
f) make reports and recommendations to the commissioner upon any matter germane to the solvency, liquidation, rehabilitation or conservation of any insurer. Such reports and recommendations shall not be open to public inspection; and
g) make recommendations for the detection and prevention of insurer insolvencies.

175D:06. - Plan of Operation; Adoption By Directors, or Promulgation By Commissioner; Establishment of Procedures

1) a) The Fund shall, within ninety days after the nomination of the initial board of directors, submit to the commissioner a plan of operation, and thereafter such amendments thereto as may be necessary or suitable to assure the fair, reasonable and equitable administration of the Fund. The plan of operation and any amendments thereto shall become effective as approved in writing by the commissioner. All insurers shall comply with the plan of operation so approved. 
b) If the Fund fails to submit a suitable plan of operation within said ninety day period or if at any time thereafter the Fund fails to submit suitable amendments to the plan, the commissioner shall, after notice and hearing, adopt and promulgate such reasonable rules and regulations as are necessary or advisable to carry out the provisions of this chapter. Such rules shall continue in force until modified by the commissioner or superseded by a plan submitted by the Fund and approved by the commissioner 

2) The plan shall establish:
a) procedures for carrying out the powers and duties of the Fund under section five;
b) procedures for handling assets of the Fund;
c) the method of reimbursing members of the board of directors for expenses incurred;
d) procedures by which claims may be filed with the Fund and establish acceptable forms of proof of covered claims. Notice of claims to the receiver or liquidator of the insolvent insurer shall be deemed notice to the Fund or its agent and a list of such claims shall be periodically submitted to the Fund by the receiver or liquidator;
e) regular places and times for meeting of the board;
f) procedures for records to be kept of all activities and financial transactions of the fund, its agents and the board of directors;
g) the procedures whereby nominations for the board of directors will be submitted to the commissioner; and shall 

h) provide that any insurer aggrieved by any action or decision of the Fund may appeal to the commissioner within thirty days after the action or decision.
3) The plan of operation may provide that any or all powers and duties of the Fund, except those under clause (c) of paragraph (1) of section five and clause (c) of paragraph (2) of section five, are delegated to a corporation, association or other organization which performs or will perform functions similar to those of the Fund or its equivalent in two or more states. Such  corporation, association or organization shall be reimbursed as a servicing facility would be reimbursed and shall be paid for its performance of any other functions of the Fund. A delegation of powers and duties under this section shall take effect only with the approval of both the board of directors and the commissioner and may be made only to a corporation, association or organization which is permanent and extends protection not substantially less favorable and effective than that provided by this chapter.

175D:07. - Authority of Commissioner

1) The commissioner shall:
a) notify the Fund of each insolvent insurer not later than three days after he receives notice of such insolvency and furnish to the Fund a copy of any complaint seeking an order of liquidation with a finding of insolvency against a company at the same time that such complaint is filed with a court of competent jurisdiction;
b) provide the Fund with a statement of the net direct written premiums of each insurer; and
c) begin an examination not later than thirty days after receiving a request for examination of an insurer under clause (e) of paragraph (2) of section five. Such examination may be conducted as a National Association of Insurance Commissioners examination or may be conducted by such persons as the commissioner shall designate. The cost of such examination shall be paid by the Fund and the examination report shall be treated as are other examination reports. In no event shall such examination report be released to the board of directors prior to its release to the public. The commissioner shall notify the board of directors when the examination is completed. The request for an examination shall be kept on file by the commissioner but it shall not be open to public inspection 

2) The commissioner may:
a) require that the Fund notify the insureds of the insolvent insurer and any other interested parties of the insolvency and of their rights under this chapter;
b) suspend or revoke, after notice and hearings, the certificate of authority to transact insurance in this state of any insurer which fails to pay an assessment when due or fails to comply with the plan; and
c) revoke the authority of any servicing facility if he finds claims are being handled unsatisfactorily.

175D:08. - Fund Subrogated to Rights of Insured Claimants; Receivers Bound by Fund`s Settlement of Claims; Statements of Claims Paid and Anticipated

1) Any person recovering under this chapter shall be deemed to have assigned his rights under the policy to the Fund to the extent of his recovery from the Fund, but shall retain the right to recover from the receiver or liquidator of the insolvent insurer any amount of his claim under the coverage of the policy not paid by the Fund. Every person with a right to recover under this chapter shall cooperate with the Fund in the handling of the claim to the same extent as such person would have been required to cooperate with the insolvent insurer. The Fund shall have no cause of action against the insured of the insolvent insurer for any sums it has paid out. 

2) The receiver, liquidator or statutory successor of an insolvent insurer shall be bound by settlements of claims by the Fund and shall grant, against the assets of the insolvent insurer, priority equal to that which the claimant would have been entitled in the absence of this chapter.
3) The Fund shall periodically file with the receiver or liquidator of the insolvent insurer statements of the covered claims paid by the Fund and estimates of anticipated claims on the Fund which shall preserve the rights of the Fund against the assets of the insolvent insurer.

175D:09. - Insured Claimant Must Exhaust Remedies Under Policy; Claims Covered by More Than One Insolvency Fund
Any person having a claim against his insurer under any insolvency provision in his insurance policy which is also a covered claim shall be required to exhaust first his right under such policy. Any amount payable on a covered claim under this chapter shall be reduced by the amount of such recovery under the claimant's insurance policy. Any person having a claim which may be recovered under more than one insurer's insolvency fund or its equivalent shall seek recovery first from the fund of the place of residence of the insured except that if it is a first party claim for damage to property with a permanent location, such person shall seek recovery first from the fund of the location of the property, but if it is a claim for compensation or other benefits under a workers' compensation policy, such person shall seek recovery first from the fund of the jurisdiction of the claimant's contract of hire. Any recovery under this chapter shall be reduced by the amount of the recovery from any other insurers' insolvency fund or its equivalent.
175D:10. - Examination and Regulation of Fund
The Fund shall be deemed an insurer for purposes of examination and regulation by the commissioner.
175D:11. - Tax and Fee Exemptions
The Fund shall be exempt from payment of all fees and all taxes levied by the commonwealth or any of its subdivisions except taxes levied on real or personal property.
175D:12. - Return of Surplus Assets to Insurers
If, at the end of any calendar year, the board of directors finds that the assets of the Fund exceed the liabilities of the Fund as estimated by the board of directors for the coming year, the board may order that the amount by which the assets of the fund exceed the liabilities shall be returned to the insurers in proportion to the contribution of each insurer to the Fund.
175D:13. - Recovery by Insurers of Amounts Paid Into Fund Through Rates and Premiums Charged For Policies
The rates and premiums charged for insurance policies to which this chapter applies shall include amounts sufficient to recoup over a reasonable length of time a sum equal to the amounts paid to the Fund by the insurer less any amounts returned to the insurer by the Fund.
175D:14. - Immunity
There shall be no liability on the part of and no cause of action against insurers, the Fund or the agents of the Fund for any statement made by them in any reports or recommendations issued by the Fund.
175D:15. - Stay of Proceedings Against Insolvent Insurers
All proceedings in which the insolvent insurer is a party in any court in this commonwealth shall be stayed for up to six months and such additional time thereafter as may be determined by the court from the date the insolvency is declared or an ancillary proceeding is instituted in the commonwealth whichever is later to permit proper defense by the Fund of all pending causes of action.
175D:16. - Termination of Fund`s Operations
The commissioner may by order terminate the operation of the Fund as to any kind of insurance with respect to which he has found, after notice and hearing, that there is in effect a statutory plan of the United States government to avoid excessive delay or financial loss to claimants or policyholders because of insurer insolvency.  Such order for termination shall continue the operation of this chapter with respect to prior insurer insolvencies not covered by such plan. The order shall also provide for a proportionate distribution of the assets of the Fund to insurers which will cease to be members of the Fund on the effective date of the order.
175D:17. - High Net Worth Insured
1) For purposes of this section "high net worth insured" shall mean any insured whose net worth exceeds $25 million on December 31 of the year before the year in which the insurer becomes an insolvent insurer; but, an insured's net worth on that date shall be considered to include the aggregate net worth of the insured and all of its subsidiaries and affiliates as calculated on a consolidated basis. "High net worth insured" shall not include a federal, state or local government entity.

2) The fund shall not be obligated to pay a first party claim by a high net worth insured.

3) The fund shall have the right to recover from a high net worth insured amounts paid by the fund to or on behalf of the insured, whether for indemnity, defense or otherwise.

4) The fund shall not be obligated to pay a claim that would otherwise be a covered claim that is an obligation to or on behalf of a person who has a net worth greater than that allowed by the insurance guaranty association law of the state of residence of the claimant at the time specified by that state's applicable law, and which fund has denied coverage to that claimant on that basis.

5) The fund shall establish reasonable procedures subject to the approval of the commissioner for requesting financial information from insureds on a confidential basis for purposes of applying this section; but, the financial information may be shared with any other state guaranty association or fund similar to the fund and the liquidator for the insolvent insurer on the same confidential basis. A request to an insured seeking financial information shall advise the insured of the consequences of failing to provide the financial information. If an insured refuses to provide the requested financial information where it is requested and available, the fund may, until such time as the information is provided, provisionally consider the insured to be a high net worth insured for the purposes of subsections (2) and (3).

6) In a lawsuit contesting the applicability of this section where the insured has refused to provide financial information under the procedure established pursuant to subsection (5), the insured shall bear the burden of proof concerning its net worth at the relevant time. If the insured fails to prove that its net worth at the relevant time was less than the applicable amount, the court shall award the fund its full costs, expenses and reasonable attorneys' fees in contesting the claim.