"Guaranty association" means an insurance guaranty fund or association or any similar entity now or hereafter created by statute in a compacting state, other than a receivership, to pay or assume, in whole or in part, the contractual claim obligations of insolvent insurers.
"Insurer" means any person or entity that has done, purports to do, is doing or is licensed to do any insurance or reinsurance business, or that is or has been subject to the authority of, or to liquidation, rehabilitation, supervision, conservation or ancillary receivership by, any commissioner.
"Member" means the commissioner of a compacting state or his or her designee, who shall be a person officially connected with the commissioner and who is wholly or principally employed by the commissioner.
"Noncompacting state" means any state which has not enacted enabling legislation for this compact.
"Operating procedures" means those procedures promulgated by the commission implementing a rule, an existing law in a compacting state or a provision of this compact.
"Publication" means the act of publishing in the official state publication in a compacting state or in such other publication as may be established by the commission.
"Receiver" means receiver, liquidator, rehabilitator, conservator or ancillary receiver as the context requires.
"Receivership" means any liquidation, rehabilitation, conservation or ancillary receivership proceeding as the context requires.
"Rules" means acts of the commission, duly promulgated pursuant to sub. (7)
"State" means any state, district or territory of the United States of America.
(3) Article III — Establishment of the Commission and Venue.
The compacting states hereby create the interstate insurance receivership commission. The commission is a body corporate of each compacting state. The commission is a not-for-profit entity, separate and distinct from the compacting states. The commission is solely responsible for its liabilities. Except as otherwise specifically provided in state or federal law in the jurisdiction where the commission's principal office is located or where the commission is acting as receiver, venue is proper, and judicial proceedings by or against the commission shall be brought, in a court of competent jurisdiction where the commission's principal office is located.
(4) Article IV — Powers of the Commission.
The commission shall have all of the following powers:
To promulgate operating procedures which shall be binding in the compacting states to the extent and in the manner provided in this compact.
To oversee, supervise and coordinate the activities of receivers in compacting states.
To act as receiver of insurers organized under the laws of, engaged in or doing the business of insurance in, a compacting state upon the request of the commissioner of such state or when grounds for receivership by the commission exist under sub. (9)
To act as deputy receiver of insurers organized under the laws of, engaged in or dong the business of insurance in, a noncompacting state in accordance with sub. (9)
To act as ancillary receiver in a compacting state of an insurer domiciled in a noncompacting state.
To monitor the activities and functions of guaranty associations in the compacting states.
To delegate its operating authority or functions; provided, that its rule-making authority under sub. (7)
shall not be delegated.
To bring or prosecute legal proceedings or actions in its name as the commission, or in the name of the commission acting as receiver.
To bring or prosecute legal proceedings or actions as receiver on behalf of an estate or its policyholders and creditors; provided, that any guaranty association's standing to sue or be sued under applicable law shall not be affected.
To issue subpoenas requiring the attendance and testimony of witnesses and the production of evidence.
To purchase and maintain insurance and bonds.
To borrow, accept or contract for services of personnel, including, but not limited to, members and their staff.
To elect or appoint such officers, attorneys, employees or agents, and to fix their compensation, define their duties and determine their qualifications; and to establish the commission's personnel policies and programs relating to, among other things, conflicts of interest, rates of compensation and qualifications of personnel.
To accept any and all donations and grants of money, equipment, supplies, materials and services, and to receive, utilize and dispose of the same.
To lease, purchase, accept gifts or donations of, or otherwise to own, hold, improve or use, any property, real, personal or mixed.
To sell, convey, mortgage, pledge, lease, exchange, abandon or otherwise dispose of any property, real, personal or mixed.
To enforce compliance with commission rules, operating procedures and bylaws.
To provide for dispute resolution among compacting states and receivers.
To represent and advise compacting states on issues relating to insurers domiciled or doing business in noncompacting jurisdictions, consistent with the purposes of this compact.
To provide advice and training to receivership personnel of compacting states, and to be a resource for compacting states by maintaining a reference library of relevant materials.
To appoint committees including, but not limited to, an industry advisory committee and an executive committee of members.
To provide and receive information relating to receiverships and guaranty associations, and to cooperate with law enforcement agencies.
To perform such other functions as may be necessary or appropriate to achieve the purposes of this compact as may be consistent with the state regulation of the business of insurance pursuant to the McCarran-Ferguson act.
(5) Article V — Organization of the Commission. 601.59(5)(a)(a)
Each compacting state shall have one member. Each member shall be qualified to serve in such capacity under the applicable law of the compacting state. Each compacting state retains the discretionary right to determine the due election or appointment and qualification of its own commissioner, and to fill all vacancies of its member. Each member shall be entitled to one vote.
The commission shall, by a majority of the members, prescribe bylaws to govern its conduct as may be necessary or appropriate to carry out the purposes of the compact, including, but not limited to, all of the following:
Providing reasonable standards and procedures for the establishment of committees and governing any general or specific delegation of any authority or function of the commission.
Providing reasonable procedures for calling and conducting meetings of the commission, and ensuring reasonable notice of each such meeting.
Establishing the titles and responsibilities of the officers of the commission.
Providing reasonable standards and procedures for the establishment of the personnel policies and programs of the commission. Notwithstanding any civil service or other similar laws of any compacting state, the bylaws shall exclusively govern the personnel policies and programs of the commission.
Providing a mechanism for winding up the operations of the commission and the equitable return of any surplus funds that may exist after the dissolution of the compact after the payment or reserving of all of its debts and obligations.
The commission shall, by a majority of the members, elect annually from among its members a chairperson and a vice chairperson, each of whom shall have such authorities and duties as may be specified in the bylaws. The chairperson or, in his or her absence or disability, a member designated in accordance with the bylaws, shall preside at all meetings of the commission. The officers so elected shall serve without compensation or remuneration from the commission; provided that, subject to the availability of budgeted funds, the officers shall be reimbursed for any actual and necessary costs and expenses incurred by them in the performance of their duties and responsibilities as officers of the commission.
The commission may, by a majority of the members, appoint or retain an executive director for such period, upon such terms and conditions and for such compensation as the commission determines appropriate. The executive director shall serve as secretary to the commission, but shall not be a member of the commission. The executive director shall hire and supervise such other staff as may be authorized by the commission.
The commission shall maintain its corporate books and records in accordance with the bylaws.
The members, officers, executive director and employees of the commission shall be immune from suit and liability, either personally or in their official capacity, for any claim for damage to or loss of property or personal injury or other civil liability caused or arising out of or relating to any actual or alleged act, error or omission that occurred, or that such person had a reasonable basis for believing occurred within the scope of commission employment, duties or responsibilities; provided, that nothing in this paragraph shall be construed to protect any such person from suit or liability for any damage, loss, injury or liability caused by the intentional or willful and wanton misconduct of any such person, or to protect the commission acting as receiver under sub. (9)
The commission shall defend any commissioner of a compacting state, or his or her representatives or employees, or the commission's representatives or employees, in any civil action seeking to impose liability, arising out of or relating to any actual or alleged act, error or omission that occurred within the scope of commission employment, duties or responsibilities, or that such person had a reasonable basis for believing occurred within the scope of commission employment, duties or responsibilities; provided, that the actual or alleged act, error or omission did not result from gross negligence or intentional wrongdoing on the part of such person.
The commission shall indemnify and hold the commissioner of a compacting state, or his or her representatives or employees, or the commission's representatives or employees, harmless in the amount of any settlement or judgment obtained against such person arising out of or relating to any actual or alleged act, error or omission that occurred within the scope of commission employment, duties or responsibilities, or that such person had a reasonable basis for believing occurred within the scope of commission employment, duties or responsibilities; provided, that the actual or alleged act, error or omission did not result from gross negligence or intentional wrongdoing on the part of such person.
The costs and expenses of defense and indemnification of the commission acting as receiver of an estate shall be paid as administrative expenses from the assets of that estate unless such costs and expenses are covered by insurance maintained by the commission.
(6) Article VI — Meetings and Acts of the Commission. 601.59(6)(a)(a)
The commission shall meet and take such actions as are consistent with the provisions of this compact.
Except as otherwise provided in this compact and unless a greater percentage is required by the bylaws, in order to constitute an act of the commission, such act shall have been taken at a meeting of the commission and shall have received an affirmative vote of a majority of the members.
Each member of the commission shall have the right and power to cast a vote to which that compacting state is entitled and to participate in the business and affairs of the commission. A member shall vote in person and may not delegate his or her vote to another member. The bylaws may provide for members' participation in meetings by telephone or other means of telecommunication.
The commission shall meet at least once during each calendar year. The chairperson of the commission may call additional meetings at any time and, upon the request of a majority of the members, shall call additional meetings.
The commission's rules shall establish conditions and procedures under which the commission shall make its information and official records available to the public for inspection or copying. The commission may exempt from disclosure any information or official records to the extent disclosure would adversely affect personal privacy rights or proprietary interests. In promulgating such rules, the commission may consider any special circumstances pertaining to insurer insolvencies, but shall be guided by the principles embodied in state and federal freedom of information laws. The commission may promulgate additional rules under which it may make available to law enforcement agencies records and information otherwise exempt from disclosure, and may enter into agreements with law enforcement agencies to receive or exchange information or records subject to nondisclosure and confidentiality provisions.
Public notice shall be given of all meetings and all meetings shall be open to the public, except as set forth in the rules or as otherwise provided in this compact. The commission shall promulgate rules consistent with the principles contained in the government in sunshine act, 5 USC 552b
. The commission and any of its committees may close a meeting to the public if it determines by two-thirds vote that an open meeting would likely do any of the following:
Relate solely to the commission's internal personnel practices and procedures.
Disclose matters specifically exempted from disclosure by statute.
Disclose trade secrets or commercial or financial information which is privileged or confidential.
Involve accusing any person of a crime or formally censuring any person.
Disclose information of a personal nature where disclosure would constitute a clearly unwarranted invasion of personal privacy.
Disclose investigatory records compiled for law enforcement purposes.
Disclose information contained in or related to examination, operating or condition reports prepared by, or on behalf or for the use of, the commission with respect to a regulated entity for the purpose of regulation or supervision of such entity.
Disclose information, the premature disclosure of which would significantly endanger the stability of a regulated entity.
Specifically relate to the commission's issuance of a subpoena or its participation in a civil action or proceeding.
For every meeting closed under par. (f)
, the commission's chief legal officer shall publicly certify that, in his or her opinion, the meeting may be closed to the public, and shall reference each relevant exemptive provision. The commission shall keep minutes which shall fully and clearly describe all matters discussed in any meeting and shall provide a full and accurate summary of any actions taken, and the reasons therefor, including a description of each of the views expressed on any item and the record of any rollcall vote, reflected in the vote of each member on the question. All documents considered in connection with any action shall be identified in the minutes.
(7) Article VII — Rule-making Functions of the Commission. 601.59(7)(a)(a)
The commission shall promulgate rules and operating procedures in order to effectively and efficiently achieve the purposes of this compact; provided, that the commission shall not promulgate any rules that do any of the following:
Alter the statutory priorities for distributing assets out of an estate, except pursuant to rules promulgated under par. (c)
Directly relate to guaranty associations, including but not limited to rules governing coverage, funding or assessment mechanisms. It is the intent of this compact that the commission not promulgate any rules that regulate, restrict or otherwise affect the operations of guaranty associations.
Rule making shall occur according to the criteria set forth in this subsection and the rules and operating procedures promulgated pursuant thereto. Such rule making shall substantially conform to the principles of the federal administrative procedure act, 5 USCS 551, et seq., and the federal advisory committee act, 5 USCS app. 2, section 1, et seq.
Other than the promulgation of such rules as are necessary for the orderly operation of the commission, the first rule to be considered by the commission shall be uniform provisions governing insurer receiverships including, but not limited to, provisions requiring compacting states to implement, execute and administer in a fair, just, effective and efficient manner rules and operating procedures relating to receiverships. The commission shall, within 3 years after the adoption of this compact by 2 or more states, promulgate such uniform provisions through the rule-making process. Such uniform provisions shall become law in all of the compacting states upon legislative enactment in a majority of the compacting states.
All rules and amendments shall become binding as of the date specified in the rule or amendment; provided, that if a compacting state expressly rejects a rule or amendment through legislative enactment as of the expiration of the 2nd full calendar year after the rule is promulgated, the rule or amendment shall have no further force or effect in the rejecting compacting state. If a majority of compacting states reject a rule, then the rule shall have no further force or effect in any compacting state.
When promulgating a rule or operating procedure, the commission shall do all of the following:
Publish the proposed rule or operating procedure, stating with particularity the text of the rule or operating procedure which is proposed and the reason for the proposed rule or operating procedure.
Allow persons to submit written data, facts, opinions and arguments, which information the commission shall make publicly available.
Promulgate a final rule or operating procedure and its effective date, if appropriate, based on the rule-making record.
Not later than 60 days after a rule or operating procedure is promulgated, any interested person may file a petition in a court of competent jurisdiction where the commission's principal office is located for judicial review of the rule or operating procedure. If the court finds that the commission's action is not supported by substantial evidence in the rule-making record, the court shall hold the rule unlawful and set it aside.
(8) Article VIII — Oversight and Dispute Resolution by the Commission. 601.59(8)(a)(a)
The commission shall oversee the administration and operations of receiverships in compacting states, and shall monitor receiverships being administered in noncompacting states which may significantly affect compacting states.
To aid its monitoring, oversight and coordination responsibilities, the commission shall establish operating procedures requiring each member to submit to the commission the following written reports:
An initial report upon a finding or other official action by the compacting state that grounds exist for receivership of an insurer doing business in more than one state. Thereafter, reports shall be submitted periodically and as otherwise required pursuant to the commission's operating procedures. The commission shall be entitled to receive notice of, and shall have standing to appear in, compacting states' receiverships.
An initial report of the status of an insurer within a reasonable time after the initiation of a receivership.