AB735: Bill Text

LRB-4194/1

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2013 - 2014 LEGISLATURE

2013 Assembly BILL 735

February 7, 2014 - Introduced by Representative Petersen, cosponsored by Senator Lasee. Referred to Committee on Insurance.

AB735,1,9 An Act to renumber 611.72 (3) and 611.73 (3); to amend 611.42 (1), 611.42 (2) (a), 611.73 (4), 611.76 (1) (c), 644.10 (1) (a) and 644.10 (1) (b); and to create 601.415 (11), 601.465 (1m) (c) 7., 601.465 (1n), 601.465 (3), 611.425, 611.72 (3) (bm), 611.73 (3) (b), 617.12, 617.21 (1) (cm), 617.215 and chapter 622 of the statutes; relating to: own risk and solvency assessments, supervisory colleges, consolidated hearings for mergers of insurance companies, proxy voting by mutual policyholders, a presumption and exceptions with respect to the disclosure of insurance-related information, granting rule-making authority, and providing a penalty.

Analysis by the Legislative Reference Bureau

This bill makes various miscellaneous changes to the insurance laws, including the following:

1. The bill requires every insurer, or insurance holding company system of which the insurer is a member, to: a) maintain a risk management framework to assist the insurer or insurance holding company system in identifying and managing its material and relevant risks; and b) whenever there are significant changes to the insurer's or insurance holding company system's risk profile, but at least annually, conduct an "own risk and solvency assessment" (ORSA) consistent with the ORSA Guidance Manual (guidance manual) developed and adopted by the National Association of Insurance Commissioners. The bill defines an insurance holding company system as two or more persons that are affiliates, at least one of which is an insurer, and an ORSA as a confidential internal assessment of the insurer's or insurance holding company system's material and relevant risks associated with the insurer's or insurance holding company system's current business plan and of the sufficiency of the capital resources to support those risks. Under the bill, the insurer must file with the commissioner of insurance (commissioner) a report that is prepared consistently with the guidance manual summarizing the insurer's ORSA (summary report). In general, the report must be filed with the commissioner within 45 days after the insurer submits the summary report to its board of directors but no more than once per year or within 45 days after the insurer submits the summary report to the commissioner of the insurer's lead state.

An insurer is exempt from the requirements of maintaining a risk management framework, conducting an ORSA, and filing a summary report if the insurer's annual direct written premium and assumed premium from unaffiliated insurers is less than $500,000,000 and, if the insurer is a member of an insurance holding company system, the insurance holding company system of which the insurer is a member has annual direct written premium and assumed premium from unaffiliated insurers of less than $1,000,000,000. If the insurer's premium qualifies the insurer for exemption but the premium of the insurance holding company system of which the insurer is a member does not qualify the insurance holding company system for exemption, the summary report must include every insurer in the insurance holding company system. If the insurer does not qualify for exemption but the insurance holding company system of which it is a member qualifies for exemption, only the summary report applicable to the insurer is required.

The bill sets out detailed confidentiality requirements with respect to documents, materials, and other information, including summary reports, that are obtained or created by, or disclosed to, the commissioner as a result of the new risk assessment requirements. Generally, the documents, materials, and other information, including summary reports, are confidential and privileged and are not subject to inspection, copying, subpoena, or discovery and are not admissible in evidence in any private civil action. The bill sets out the circumstances under which and to whom the documents, materials, and other information, including summary reports, may be disclosed, as well as procedures that must be used for the disclosure.

2. Under current law, the Office of the Commissioner of Insurance (OCI) may refuse to disclose testimony, reports, records, and information obtained, produced, or created in the course of examinations, investigations, and other inquiries with respect to persons regulated under the insurance statutes. The statutes specify how this privilege of nondisclosure may be waived. The bill creates a rebuttable presumption that documents and information provided to OCI by an insurer in response to an OCI request or in the course of an examination of the affairs or condition of the insurer are proprietary and confidential and that the potential for harm and competitive disadvantage to the insurer outweighs the public interest in the disclosure of the documents and information. The presumption may be rebutted by presenting clear and convincing evidence to a court that the public interest in the disclosure substantially outweighs the potential for harm or competitive disadvantage to the insurer. The bill also excludes from the statute related to nondisclosure of insurance information certain types of information or reports, including ORSA reports and information, enterprise risk filing and related information, and reports of internal control over financial reporting and related information, and provides that the information or reports are subject to confidentiality provisions that are specific to that information or those reports.

3. The bill authorizes the commissioner to participate in a supervisory college for any domestic insurer that is part of an insurance holding company system with international operations. A supervisory college is defined in the bill as a forum for communication and cooperation between regulators charged with the supervision of an insurer that is part of an insurance holding company system with international operations. The purpose for the commissioner's participation is to assess the business strategy, financial position, legal and regulatory position, risk exposure, risk management, and governance processes of the domestic insurer. The commissioner's participation may include initiating the establishment of a supervisory college, coordinating the ongoing activities of the supervisory college, establishing a crisis management plan, and entering into agreements for keeping information confidential. The commissioner may impose a regular assessment on affected insurers to pay the reasonable expenses of the commissioner's participation.

4. Under current law, the proxy voting provisions that apply to members of general nonstock corporations apply to policyholders of mutual insurance corporations (mutuals). The bill removes that applicability and sets out proxy voting rights that are specific to the policyholders of mutuals. Under the bill, a policyholder or the policyholder's authorized officer, director, employee, agent, or attorney-in-fact may appoint a proxy to vote or otherwise act for the policyholder at a meeting of policyholders or to consent or dissent in writing to any corporate action without a meeting. The appointment may be accomplished by affixing the policyholder's signature to an appointment form by any reasonable means or by transmitting an electric transmission, including by Internet, telephone, electronic mail, telegram, cablegram, or datagram, of the appointment to the person who will be appointed as proxy. An appointment of a proxy is effective when a signed appointment form or electronic transmission of the appointment is received by the officer or agent of the mutual authorized to tabulate votes and lasts 11 months unless a different period is expressly provided in the appointment. Unless the appointment form or electronic transmission states otherwise, appointment of a proxy may be revoked, which occurs if the policyholder appointing the proxy: a) attends a meeting and votes; or b) signs and delivers to the officer or agent of the mutual authorized to tabulate votes either a written statement that the proxy appointment is revoked or a subsequent proxy appointment form. The death or incapacity of the policyholder appointing the proxy does not affect the right of the mutual to accept the proxy's authority unless the officer or agent of the mutual authorized to tabulate votes receives notice of the death or incapacity before the proxy exercises his or her authority under the appointment.

5. Under current law, a plan of merger or for acquisition of control of a domestic stock insurance corporation, or a plan of merger between two or more mutuals, may not be executed unless it is approved by the commissioner after a hearing. Such plans are approved unless the commissioner finds that they would violate the law or be contrary to the interests of the insureds of a participating insurance corporation or mutual. The bill provides that, if a plan requires the approval of more than one commissioner because the insurance corporations involved are domiciled in different states, the hearing for approval may be held on a consolidated basis, if so requested by the person filing the plan, although the commissioner may opt out of a consolidated hearing. Any consolidated hearing must be public and held within the United States before the commissioners of the states in which the insurers involved in the merger or other acquisition of control are domiciled. The commissioners may hear and receive evidence and may attend the consolidated hearing in person or by telecommunication.

6. The bill requires the commissioner to promulgate rules requiring insurers to report their enterprise risk, including the form of the report and the manner and process for filing. Enterprise risk is defined in the bill as any activity, circumstance, or event involving one or more affiliates of the insurer that, if not remedied, is likely to have a material adverse effect on the financial condition or liquidity of the insurer or its insurance holding company system.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB735,1 Section 1. 601.415 (11) of the statutes is created to read:

AB735,5,5 601.415 (11) Amendments to Own Risk and Solvency Assessment Guidance Manual. The commissioner shall, in his or her discretion, adopt amendments made after the effective date of this subsection .... [LRB inserts date], by the National Association of Insurance Commissioners to the guidance manual, as defined in s. 622.03 (1). Any such amendments made by the National Association of Insurance Commissioners become effective in this state if adopted by the commissioner by order after giving 30 days' notice to insurers of the changes proposed by the National Association of Insurance Commissioners. If one or more insurers request a hearing on the proposed changes during the 30-day period, the commissioner shall hold a hearing to determine whether the commissioner will, in his or her discretion, adopt one or more of the changes made by the National Association of Insurance Commissioners.

AB735,2 Section 2. 601.465 (1m) (c) 7. of the statutes is created to read:

AB735,5,7 601.465 (1m) (c) 7. Members of a supervisory college described in s. 617.215.

AB735,3 Section 3. 601.465 (1n) of the statutes is created to read:

AB735,5,14 601.465 (1n) Presumption of confidentiality. (a) Notwithstanding sub. (1m) and subch. II of ch. 19, it is presumed that nonpublic documents and information provided by an insurer to the office under s. 601.42 or 601.43 are proprietary and confidential and that the potential for harm and competitive disadvantage to the insurer if the documents and information are made public by the office outweighs the public interest in the disclosure of the documents and information.

AB735,5,23 (b) With notice to the insurer, the presumption under par. (a) may be rebutted by the requesting party presenting clear and convincing evidence to a court of competent jurisdiction that the public interest in the disclosure of the documents and information substantially outweighs the potential for harm or competitive disadvantage to the insurer if the documents and information are disclosed and that the public interest concerns cannot be addressed without the disclosure of the documents and information. If the presumption under par. (a) is successfully rebutted, disclosure of the documents and information shall be made only to the extent necessary to protect the public interest.

AB735,6,2 (c) Paragraph (a) does not apply to the commissioner's discretion to disclose documents and information provided by an insurer to the office under s. 601.42 or 601.43 as a part of an enforcement proceeding the commissioner brings under s. 601.64.

AB735,4 Section 4. 601.465 (3) of the statutes is created to read:

AB735,6,4 601.465 (3) Exceptions. This section does not apply to any of the following:

AB735,6,7 (a) Own risk and solvency assessment reports and related information provided by an insurer under ch. 622, which are subject only to the confidentiality provisions in ch. 622.

AB735,6,11 (b) Enterprise risk filing and any related information provided by an insurer under rules promulgated under s. 617.12, which are not subject to subch. II of ch. 19 and are subject only to any confidentiality provisions of rules promulgated under s. 617.12.

AB735,6,15 (c) Reports of internal control over financial reporting and any related information provided by an insurer under s. Ins 50.17, Wis. Adm. Code, which are not subject to subch. II of ch. 19 and are subject only to the confidentiality provisions of s. Ins 50.17 (6) (b), Wis. Adm. Code.

AB735,5 Section 5. 611.42 (1) of the statutes is amended to read:

AB735,6,19 611.42 (1) General. Subject to this section and s. 611.53, ss. 181.0701, 181.0702, 181.0705 (1) to (4), 181.0722 (1) to (3), 181.0723, 181.0724 and 181.0727 apply to mutuals.

AB735,6 Section 6. 611.42 (2) (a) of the statutes is amended to read:

AB735,7,2 611.42 (2) (a) Mandatory voting rights. Policyholders in all mutuals have the right to vote on conversion, voluntary dissolution, amendment of the articles, and the election of all directors except public directors appointed under s. 611.53 (1). Voting may be conducted by mail, by electronic means, or by any other method or combination of methods prescribed by the articles or bylaws. Directors may be divided into classes, and in that case one class shall be elected at least every 4 years for terms not exceeding 6 years.

AB735,7 Section 7. 611.425 of the statutes is created to read:

AB735,7,8 611.425 Mutual policyholders' proxy voting. (1) Definition. In this section, "electronic transmission" means transmission by the Internet, telephone, electronic mail, telegram, cablegram, datagram, or any other form or process of communication that does not directly involve the physical transfer of paper and that is capable of retention, retrieval, and reproduction of information by the recipient.

AB735,7,12 (2) Generally. (a) Unless the articles of incorporation or bylaws prohibit or limit proxy voting, a policyholder may appoint another person as proxy to vote or otherwise act for the policyholder at a meeting of policyholders or to express consent or dissent in writing to any corporate action without a meeting of policyholders.

AB735,7,16 (b) A policyholder or the policyholder's authorized officer, director, employee, agent, or attorney-in-fact may validly appoint a proxy by signing or causing the policyholder's signature to be affixed to an appointment form by any reasonable means, including by facsimile signature.

AB735,8,3 (c) To the extent authorized by the mutual's bylaws, a policyholder or the policyholder's authorized officer, director, employee, agent, or attorney-in-fact may validly appoint a proxy by transmitting or authorizing the transmission of an electronic transmission of the appointment to the person who will be appointed as proxy or to a proxy solicitation firm, proxy support service organization, or like agent authorized to receive the transmission by the person who will be appointed as proxy. Every electronic transmission shall contain, or be accompanied by, information that can be used to reasonably determine that the policyholder transmitted or authorized the transmission of the electronic transmission. Any person charged with determining whether a policyholder transmitted or authorized the transmission of the electronic transmission shall specify the information upon which the determination is made.

AB735,8,10 (d) Any copy, facsimile telecommunication, or other reliable reproduction of the information in the appointment form under par. (b) or the electronic transmission under par. (c) may be substituted or used in lieu of the original appointment form or electronic transmission for any purpose for which the original appointment form or electronic transmission may be used, but only if the copy, facsimile telecommunication, or other reliable reproduction is a complete reproduction of the information in the original appointment form or electronic transmission.

AB735,8,15 (3) When effective. An appointment of a proxy is effective when a signed appointment form or, if authorized, an electronic transmission of the appointment is received by the inspector of election or the officer or agent of the mutual authorized to tabulate votes. An appointment is valid for 11 months unless a different period is expressly provided in the appointment.

AB735,8,18 (4) Revocability. (a) An appointment of a proxy is revocable unless the appointment form or, if authorized, electronic transmission states that it is irrevocable.

AB735,8,20 (b) The appointment of a proxy is revoked if the policyholder appointing the proxy does any of the following:

AB735,8,21 1. Attends any meeting and votes in person.

AB735,8,24 2.   Signs and delivers to the secretary or other officer or agent authorized to tabulate proxy votes either a written statement that the appointment of the proxy is revoked or a subsequent appointment form.

AB735,9,5 (5) Effect of death or incapacity. The death or incapacity of the policyholder appointing a proxy does not affect the right of the mutual to accept the proxy's authority unless the secretary or other officer or agent of the mutual authorized to tabulate votes receives notice of the death or incapacity before the proxy exercises his or her authority under the appointment.