BILL REQ. #: H-1193.1
State of Washington | 62nd Legislature | 2011 Regular Session |
READ FIRST TIME 01/27/11.
AN ACT Relating to adopting the investments of insurers model act; amending RCW 48.13.350; reenacting and amending RCW 42.56.400; adding new sections to chapter 48.13 RCW; repealing RCW 48.13.010, 48.13.020, 48.13.030, 48.13.040, 48.13.050, 48.13.060, 48.13.070, 48.13.080, 48.13.090, 48.13.100, 48.13.110, 48.13.120, 48.13.125, 48.13.130, 48.13.140, 48.13.150, 48.13.160, 48.13.170, 48.13.180, 48.13.190, 48.13.200, 48.13.210, 48.13.218, 48.13.220, 48.13.230, 48.13.240, 48.13.250, 48.13.260, 48.13.265, 48.13.270, 48.13.273, 48.13.275, 48.13.280, 48.13.285, 48.13.290, and 48.13.340; and providing an effective date.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1 (1) The purpose of this act is to protect
and to further the interests of insureds, creditors, and the general
public by providing, with minimum interference with management
initiative and judgment, prudent standards for the development and
administration of insurer investment programs.
(2) This act and the rules adopted to interpret and implement it
apply to domestic insurers, United States branches of alien insurers
entered through this state, alien insurers admitted and using this
state as their port of entry, domestic fraternal benefit societies
formed pursuant to chapter 48.36A RCW, domestic health care service
contractors formed pursuant to chapter 48.44 RCW, domestic health
maintenance organizations formed pursuant to chapter 48.46 RCW, and
domestic self-funded multiple employer welfare arrangements formed
pursuant to chapter 48.125 RCW.
(3) Separate accounts established in accordance with RCW 48.18A.020
shall be evaluated separately pursuant to that section.
NEW SECTION. Sec. 2 The definitions in this section apply
throughout this chapter unless the context clearly requires otherwise.
(1) "Derivative instrument" means an item appropriately reported in
schedule DB (derivative instruments) or schedule DC (insurance futures
and insurance futures options) of an insurer's statutory financial
statement or successor schedules, pursuant to applicable annual
statement instructions or statutory accounting guidelines.
(2) "Derivative transaction" means a transaction involving the use
of one or more derivative instruments.
(3) "Income generation" means a derivative transaction involving
the writing of covered options, caps, or floors that is intended to
generate income or enhance return.
(4) "Leverage" means the relationship of insurance and investment
risks to capital and surplus as defined by the national association of
insurance commissioners insurance regulatory information system and its
other financial analysis solvency tools and reports.
(5) "Lower grade investment" means a rated credit instrument or
debt-like preferred stock rated 4, 5, or 6 by the securities valuation
office of the national association of insurance commissioners or any
successor office.
(6) "Medium grade investment" means a rated credit instrument or
debt-like preferred stock rated 3 by the securities valuation office of
the national association of insurance commissioners or any successor
office.
(7) "Minimum asset requirement" is the sum of an insurer's
liabilities and its minimum financial security benchmark.
(8) "Minimum financial security benchmark" is the amount an insurer
is required to have under section 3 of this act.
(9) "Mutual fund" means a mutual fund or exchange traded fund
registered with the securities and exchange commission of the United
States under the investment company act of 1940.
(10) "Rated by the securities valuation office" means any security
that is directly rated by the securities valuation office or that is
given an equivalent filing exempt rating as prescribed in the purposes
and procedures manual of the national association of insurance
commissioners securities valuation office.
(11) "Replication" means a derivative transaction involving one or
more derivative instruments being used to modify the cash flow
characteristics of one or more investments held by an insurer in a
manner so that the aggregate cash flows of the derivative instruments
and investments reproduce the cash flows of another investment having
a higher risk-based capital charge than the risk-based capital charge
of the original instruments or investments.
(12) "Securities valuation office listed mutual fund" means a money
market mutual fund or short-term bond fund that is registered with the
United States securities and exchange commission under the investment
company act of 1940, and that has been determined by the national
association of insurance commissioners securities valuation office to
be eligible for special reserve and reporting treatment, other than as
common stock.
(13) "Surplus" means the excess of admitted assets over all
liabilities.
(14) "United States government securities" means any security
defined in the purposes and procedures manual of the national
association of insurance commissioners securities valuation office as
a United States government security.
NEW SECTION. Sec. 3 (1) Minimum financial security benchmark.
(a) Unless otherwise established in accordance with (b) and (c) of
this subsection, the amount of the minimum financial security benchmark
for an insurer shall be the greater of:
(i) The authorized control level risk-based capital applicable to
the insurer as set forth by RCW 48.05.450 or 48.43.320; or
(ii) The minimum capital or minimum surplus required by statute or
rule for maintenance of an insurer's certificate of authority,
certificate of registration, or other form of authorization to transact
business pursuant to Title 48 RCW.
(b) The commissioner may, in accordance with the factors in
subsection (2)(b) of this section, establish by order a minimum
financial security benchmark to apply to a specific insurer provided it
is not less than the amount determined by (a) of this subsection, in
the event the insurer falls below three and one-half times the
authorized control level risk-based capital applicable to the insurer
as set forth by RCW 48.05.450 or 48.43.320.
(c) The commissioner may establish by rule a minimum financial
security benchmark that is a multiple of authorized control level risk-based capital to apply to any class of insurers provided the amount
established by the rule is not less than the amount determined in (a)
of this subsection.
(2) The commissioner shall determine the amount of surplus that
shall constitute an insurer's minimum financial security benchmark, as
an amount that will provide reasonable security against contingencies
affecting the insurer's financial position that are not fully covered
by reserves or by reinsurance.
(a) Types of contingencies. The commissioner shall consider the
risks of:
(i) Increases in the frequency or severity of losses beyond the
levels contemplated by the rates charged;
(ii) Increases in expenses beyond those contemplated by the rates
charged;
(iii) Decreases in the value of or the return on invested assets
below those planned on;
(iv) Changes in economic conditions that would make liquidity more
important than contemplated and would force untimely sale of assets or
prevent timely investments;
(v) Currency devaluation to which the insurer may be subject;
(vi) Diminished prospects for performance of reinsurers' or other
counter parties' obligations; and
(vii) Any other contingencies the commissioner can identify that
may affect the insurer's operations.
(b) Controlling factors. In making the determination under this
subsection, the commissioner shall take into account the following
factors:
(i) The most reliable information available as to the magnitude of
the various risks under (a) of this subsection;
(ii) The extent to which the risks in (a) of this subsection are
independent of each other or are related, and whether any dependency is
direct or inverse;
(iii) The insurer's recent history of profits or losses;
(iv) The extent to which the insurer has provided protection
against the contingencies in other ways than the establishment of
surplus; including redundancy of premiums, adjustability of contracts
under their terms, investment valuation reserves whether voluntary or
mandatory, appropriate reinsurance, the use of conservative actuarial
assumptions to provide a margin of security, reserve adjustments in
recognition of previous rate inadequacies, contingency or catastrophe
reserves, diversification of assets, and underwriting risks;
(v) Independent judgments of the soundness of the insurer's
operations, as evidenced by the ratings of reliable professional
financial reporting services; and
(vi) Any other relevant factors.
NEW SECTION. Sec. 4 (1) Subject to the provisions of this
chapter, an insurer may loan or invest its funds, and may buy, sell,
hold title to, possess, occupy, pledge, convey, manage, protect,
insure, and deal with its investments, property, and other assets to
the same extent as any other person or corporation under the laws of
this state and of the United States.
(2) With respect to all of the insurer's investments, the board of
directors of an insurer shall exercise the judgment and care, under the
circumstances then prevailing, that persons of reasonable prudence,
discretion, and intelligence exercise in the management of a like
enterprise, not in regard to speculating but in regard to the permanent
disposition of their funds, considering the probable income as well as
the probable safety of their capital. Investments shall be of
sufficient value, liquidity, and diversity to assure the insurer's
ability to meet its outstanding obligations based on reasonable
assumptions as to new business production for current lines of
business. As part of its exercise of judgment and care, the board of
directors shall take into account the prudence evaluation criteria of
section 5 of this act.
(3) The insurer shall establish and implement internal controls and
procedures to assure compliance with investment policies and procedures
to assure that:
(a) The insurer's investment staff and any consultants used are
reputable and capable;
(b) A periodic evaluation and monitoring process occurs for
assessing the effectiveness of investment policy and strategies;
(c) Management's performance is assessed in meeting the stated
objectives within the investment policy; and
(d) Appropriate analyses are undertaken of the degree to which
asset cash flows are adequate to meet liability cash flows under
different economic environments. These analyses shall be conducted at
least annually and make specific reference to economic conditions.
NEW SECTION. Sec. 5 The following factors shall be evaluated by
the insurer and considered along with its business in determining
whether an investment portfolio or investment policy is prudent; the
commissioner shall consider the following factors prior to making a
determination that an insurer's investment portfolio or investment
policy is not prudent:
(1) General economic conditions;
(2) The possible effect of inflation or deflation;
(3) The expected tax consequences of investment decisions or
strategies;
(4) The fairness and reasonableness of the terms of an investment
considering its probable risk and reward characteristics and
relationship to the investment portfolio as a whole;
(5) The extent of the diversification of the insurer's investments
among:
(a) Individual investments;
(b) Classes of investments;
(c) Industry concentrations;
(d) Dates of maturity; and
(e) Geographic areas;
(6) The quality and liquidity of investments in affiliates;
(7) The investment exposure to the following risks, quantified in
a manner consistent with the insurer's acceptable risk level identified
in section 6(8) of this act:
(a) Liquidity;
(b) Credit and default;
(c) Systemic (market);
(d) Interest rate;
(e) Call, prepayment, and extension;
(f) Currency;
(g) Foreign sovereign; and
(h) Leverage;
(8) The amount of the insurer's assets, capital, and surplus,
premium writings, insurance in force, and other appropriate
characteristics;
(9) The amount and adequacy of the insurer's reported liabilities;
(10) The relationship of the expected cash flows of the insurer's
assets and liabilities, and the risk of adverse changes in the
insurer's assets and liabilities;
(11) The adequacy of the insurer's capital and surplus to secure
the risks and liabilities of the insurer; and
(12) Any other factors relevant to whether an investment is
prudent.
NEW SECTION. Sec. 6 In acquiring, investing, exchanging,
holding, selling, and managing investments, an insurer shall establish
and follow a written investment policy that shall be reviewed and
approved by the insurer's board of directors at least annually. The
content and format of an insurer's investment policy are at the
insurer's discretion, but shall include written guidelines appropriate
to the insurer's business as to the following:
(1) The delegation and monitoring of policies, procedures, and
controls covering all aspects of the investing function;
(2) Quantified goals and objectives regarding the composition of
classes of investments, including maximum internal limits;
(3) Periodic evaluation of the investment portfolio as to its risk
and reward characteristics. This subsection shall not preclude an
insurer from the use of modern portfolio theory to manage its
investments;
(4) Professional standards for the individuals making day to day
investment decisions to assure that investments are managed in an
ethical and capable manner;
(5) The types of investments to be made and those to be avoided,
based on their risk and reward characteristics and the insurer's level
of experience with the investments;
(6) The relationship of classes of investments to the insurer's
insurance products and liabilities;
(7) The manner in which the insurer intends to implement section 5
of this act; and
(8) The level of risk, based on quantitative measures, appropriate
for the insurer given the level of capitalization and expertise
available to the insurer.
NEW SECTION. Sec. 7 The following classes of investments may be
counted for the purposes specified in section 11 of this act, whether
they are made directly or as a participant in a partnership, joint
venture, or limited liability company. Investments in partnerships,
joint ventures, and limited liability companies are authorized
investments only pursuant to subsection (12) of this section:
(1) Cash in the direct possession of the insurer or on deposit with
a financial institution regulated by any federal or state agency of the
United States;
(2) Bonds, debt-like preferred stock, and other evidences of
indebtedness of governmental units in the United States or Canada, or
the instrumentalities of the governmental units, or private business
entities domiciled in the United States or Canada, including asset-backed securities and securities valuation office listed mutual funds;
(3) Loans secured by first mortgages, first trust deeds, or other
first security interests in real property located in the United States
or Canada or secured by insurance against default issued by a
government insurance corporation of the United States or Canada or by
an insurer authorized to do business in this state;
(4) Common stock or equity-like preferred stock or equity interests
in any United States or Canadian business entity, or shares of mutual
funds registered with the securities and exchange commission of the
United States under the investment company act of 1940, other than
securities valuation office listed mutual funds, and, subsidiaries, as
defined in RCW 48.31B.005 or 48.31C.010, engaged exclusively in the
following businesses:
(a) Acting as an insurance producer, surplus line broker, or title
insurance agent for its parent or for any of its parent's insurer
subsidiaries or affiliates;
(b) Investing, reinvesting, or trading in securities or acting as
a securities broker or dealer for its own account, that of its parent,
any subsidiary of its parent, or any affiliate or subsidiary;
(c) Rendering management, sales, or other related services to any
investment company subject to the federal investment company act of
1940, as amended;
(d) Rendering investment advice;
(e) Rendering services related to the functions involved in the
operation of an insurance business including, but not limited to,
actuarial, loss prevention, safety engineering, data processing,
accounting, claims appraisal, and collection services;
(f) Acting as administrator of employee welfare benefit and pension
plans for governments, government agencies, corporations, or other
organizations or groups;
(g) Ownership and management of assets which the parent could
itself own and manage: PROVIDED, that the aggregate investment by the
insurer and its subsidiaries acquired pursuant to this subsection
(4)(g) shall not exceed the limitations otherwise applicable to such
investments by the parent;
(h) Acting as administrative agent for a government instrumentality
which is performing an insurance function or is responsible for a
health or welfare program;
(i) Financing of insurance premiums;
(j) Any other business activity reasonably ancillary to an
insurance business;
(k) Owning one or more subsidiary;
(i) Insurers, health care service contractors, or health
maintenance organizations to the extent permitted by this chapter;
(ii) Businesses specified in (a) through (k) of this subsection
inclusive; or
(iii) Any combination of such insurers and businesses.
(5) Real property necessary for the convenient transaction of the
insurer's business;
(6) Real property, together with the fixtures, furniture,
furnishings, and equipment pertaining thereto in the United States or
Canada, which produces or after suitable improvement can reasonably be
expected to produce income;
(7) Loans, securities, or other investments of the types described
in subsections (1) through (6) of this section in national association
of insurance commissioners securities valuation office 1 debt rated
countries other than the United States and Canada;
(8) Bonds or other evidences of indebtedness of international
development organizations of which the United States is a member;
(9) Loans upon the security of the insurer's own policies in
amounts that are adequately secured by the policies and that in no case
exceed the surrender values of the policies;
(10) Tangible personal property under contract of sale or lease
under which contractual payments may reasonably be expected to return
the principal of and provide earnings on the investment within its
anticipated useful life;
(11) Other investments the commissioner authorizes by rule; and
(12) Investments not otherwise permitted by this section, and not
specifically prohibited by statute, to the extent of not more than five
percent of the first five hundred million dollars of the insurer's
admitted assets plus ten percent of the insurer's admitted assets
exceeding five hundred million dollars.
NEW SECTION. Sec. 8 (1) Class limitations. For the purposes of
section 11 of this act, the following limitations on classes of
investments apply:
(a) Investments authorized by section 7(2) of this act, and
investments authorized by section 7(7) of this act that are of the
types described in section 7(2) of this act;
(i) The aggregate amount of medium and lower grade investments,
twenty percent of its admitted assets;
(ii) The aggregate amount of lower grade investments, ten percent
of its admitted assets;
(iii) The aggregate amount of investments rated 5 or 6 by the
securities valuation office, five percent of its admitted assets;
(iv) The aggregate amount of investments rated 6 by the securities
valuation office, one percent of its admitted assets; or
(v) The aggregate amount of medium and lower grade investments that
receive as cash income less than the equivalent yield for treasury
issues with a comparative average life, one percent of its admitted
assets;
(b) Investments authorized by section 7(3) of this act, forty-five
percent of admitted assets in the case of life insurers and twenty-five
percent of admitted assets in the case of nonlife insurers;
(c) Investments authorized by section 7(4) of this act, other than
subsidiaries of the types authorized under section 7(4) (a) through (k)
of this act, twenty percent of admitted assets in the case of life
insurers and twenty-five percent of admitted assets in the case of
nonlife insurers;
(i) Individual investments authorized by section 7(4) of this act,
except for subsidiaries, shall be limited to ten percent of the voting
interest in any one entity;
(ii) Investments authorized in section 7(4) of this act in one or
more subsidiaries shall be limited to the lesser of ten percent of
admitted assets or fifty percent of surplus;
(d) Investments authorized by section 7(5) of this act, ten percent
of admitted assets;
(e) Investments authorized by section 7(6) of this act, twenty
percent of admitted assets in the case of life insurers, and ten
percent of admitted assets in the case of nonlife insurers;
(f) Investments authorized by section 7(7) of this act, twenty
percent of admitted assets;
(g) Investments authorized by section 7(8) of this act, two percent
of admitted assets; and
(h) Investments authorized by section 7(10) of this act, two
percent of admitted assets.
(2) Individual limitations. For purposes of determining compliance
with section 11 of this act, securities of a single issuer and its
affiliates, other than United States government securities and
subsidiaries authorized by section 7(4) of this act, shall not exceed
three percent of admitted assets in the case of life insurers, and five
percent in the case of non-life insurers. Investments in the voting
securities of a depository institution, or any company that controls a
depository institution, shall not exceed five percent of the insurer's
admitted assets.
(3) Investment subsidiaries. For purposes of determining
compliance with the limitations of this section, the admitted portion
of assets of subsidiaries authorized by section 7(4) of this act shall
be deemed to be owned directly by the insurer and any other investors
in proportion to the market value or if there is no market, the
reasonable value, of their interest in the subsidiaries.
(4) Effect of quantity limitations. To the extent that investments
exceed the limitations specified in subsections (1) and (2) of this
section, the excess may be assigned to the investment class authorized
in section 7(12) of this act, until that limit is exhausted.
(5) Special rule for mutual funds, pooled investment vehicles, and
other investment companies, excluding mutual funds listed on the
securities valuation office's United States direct obligations/full
faith and credit exempt list, class 1 list, and/or bond fund list
(securities valuation office listed mutual funds). At the discretion
of the commissioner, as may be deemed necessary in order to determine
compliance with this chapter in relation to limitations of particular
classes of investments, the commissioner may require that investments
in mutual funds, pooled investment vehicles, or other investment
companies be treated for purposes of this chapter as if the investor
owned directly its proportional share of the assets owned by the mutual
fund, pooled investment vehicle, or investment company to the extent
such individual non-securities valuation office listed mutual funds,
pooled investment vehicles, and other investment companies exceed two
percent of admitted assets or, in aggregate, ten percent of admitted
assets.
(6) Unless otherwise specified, an investment limitation computed
on the basis of an insurer's admitted assets or capital and surplus
shall relate to the amount required to be shown on the statutory
balance sheet of the insurer most recently required to be filed with
the commissioner.
(7) Investments authorized by section 7(3) of this act shall not
exceed eighty percent of the fair value of the particular property at
the time of the investment, unless guaranteed or insured.
(a) The fair value shall be determined by a competent appraiser at
the time of the investment.
(b) Buildings and other improvements shall be kept insured for the
benefit of the mortgagee.
NEW SECTION. Sec. 9 An insurer doing business that requires it
to make payment in different currencies shall have investments in
securities in each of these currencies in an amount that independently
of all other investments meets the requirements of this chapter as
applied separately to the insurer's obligations in each currency. The
commissioner may by order exempt an insurer, or by rule a class of
insurers, from this requirement if the obligations in other currencies
are small enough that no significant problem for financial stability
would be created by substantial fluctuations in relative currency
values.
NEW SECTION. Sec. 10 (1)(a) An insurer shall not invest in
investments that are prohibited for an insurer by statutes or rules of
this state.
(b) The use of a derivative instrument for replication,
speculative, or for any purposes other than hedging or income
generation, is prohibited.
(c) Investment in real property for speculative, ranching, farming,
mining, gaming, amusement, oil, gas, or mineral exploration, or club
purposes, is prohibited.
(d) Investment in issued shares of its own capital stock, held
directly or indirectly, except for the purpose of mutualization in
accordance with RCW 48.08.080, is prohibited.
(e) Investment in securities issued by any corporation if a
majority of its stock having voting power is owned directly or
indirectly by or for the benefit of any one or more of the insurer's
officers and directors, is prohibited.
(f) Investment in securities issued by any insolvent corporation,
is prohibited.
(g) Investment in any instrument or security which is found by the
commissioner to be designed to evade any limitation or prohibition of
this code, is prohibited.
(2) A reasonable time, not in excess of five years, shall be
allowed for disposal of a prohibited investment in hardship cases if
the investment is demonstrated by the insurer to have been legal when
made, or the result of a mistake made in good faith, or if the
commissioner deems that the sale of the asset would be contrary to the
interests of insureds, creditors, or the general public.
NEW SECTION. Sec. 11 (1) Invested assets may be counted toward
satisfaction of the minimum asset requirement only so far as they are
invested in compliance with this chapter and applicable rules adopted
and orders issued by the commissioner pursuant to this chapter. Assets
other than invested assets may be counted toward satisfaction of the
minimum asset requirement at admitted annual statement value.
(2) An investment held as an admitted asset by an insurer on the
effective date of this act which qualified under this chapter shall
remain qualified as an admitted asset under this chapter.
(3) Assets acquired in the bona fide enforcement of creditors'
rights or in bona fide workouts or settlements of disputed claims may
be counted for the purposes of subsection (1) of this section for five
years after acquisition if real property and three years if not real
property, even if they could not otherwise be counted under this
chapter. The commissioner may allow reasonable extensions of these
periods if replacement of the assets within the periods would not be
possible without substantial loss.
(4) If an insurer does not own, or is unable to apply toward
compliance with this chapter, an amount of assets equal to its minimum
asset requirement, the commissioner may deem it to be financially
hazardous under chapter 48.31 RCW.
NEW SECTION. Sec. 12 (1) The commissioner may require any of the
following from a person subject to regulation under this chapter:
(a) Statements, reports, answers to questionnaires, and other
information, and evidence thereof, in whatever reasonable form the
commissioner designates, and at such reasonable intervals as the
commissioner chooses;
(b) Full explanation of the programming of any data storage or
communication system in use;
(c) That information from any books, records, electronic data
processing systems, computers, or any other information storage system
be made available to the commissioner at a reasonable time and in a
reasonable manner.
(2) The commissioner may prescribe forms for the reports under
subsection (1) of this section and specify who shall execute or certify
the reports. The forms for the reports required under subsection (1)
of this section shall be consistent, so far as practicable, with those
prescribed by other jurisdictions.
(3) The commissioner may prescribe reasonable minimum standards and
techniques of accounting and data handling to ensure that timely and
reliable information will exist and will be available to the
commissioner.
(4) Any officer, manager or general agent of an insurer subject to
this chapter, any person controlling or having a contract under which
the person has a right to control the insurer, whether exclusively or
otherwise, or a person with executive authority over or in charge of
any segment of the insurer's affairs, shall reply promptly in writing
or in other reasonably designated form, to a written inquiry from the
commissioner requesting a reply. A timely response is one that is
received by the commissioner within fifteen business days from receipt
of the inquiry. Failure to make a timely response constitutes a
violation of this section.
(5) The commissioner may require that any communication made to the
commissioner under this section be verified.
(6) A communication to the commissioner, or to an expert or
consultant retained by the commissioner, required by the provisions of
this chapter shall not subject the person making it to an action for
damages for the communication in the absence of actual malice.
(7) Notwithstanding the provisions of subsection (6) of this
section, the commissioner may bring suit against any person providing
information required under this chapter that is not truthful and
accurate.
NEW SECTION. Sec. 13 The commissioner may retain at the
insurer's expense attorneys, actuaries, accountants, and other experts
not otherwise a part of the commissioner's staff as may be reasonably
necessary to assist in reviewing the insurer's investments. Persons so
retained shall be under the direction and control of the commissioner
and shall act in a purely advisory capacity.
NEW SECTION. Sec. 14 (1) If the commissioner determines that an
insurer's investment practices do not meet the provisions of this
chapter, the commissioner may, after notification to the insurer of the
commissioner's findings, order the insurer to make changes necessary to
comply with the provisions of this chapter.
(2) If the commissioner determines that by reason of the financial
condition, current investment practice, or current investment plan of
an insurer, the interests of insureds, creditors, or the general public
are or may be endangered, the commissioner may impose reasonable
additional restrictions upon the admissibility or valuation of
investments or may impose restrictions on the investment practices of
an insurer, including prohibition or divestment.
(3) The commissioner may count toward satisfaction of the minimum
asset requirement any assets in which an insurer is required to invest
under the laws of a country other than the United States as a condition
for doing business in that country if the commissioner finds that
counting them does not endanger the interests of insureds, creditors,
or the general public.
(4) If the commissioner is satisfied by evidence of the financial
stability of an insurer and the competence of management and its
investment advisors, the commissioner, after a hearing, may by order
adjust the class limitations in section 8 of this act, for that
insurer, to the extent that the commissioner is satisfied that the
interests of insureds, creditors, and the public of this state are
sufficiently protected in other ways. Adjustments granted with respect
to section 8 of this act, in aggregate, are limited to an amount equal
to ten percent of the insurer's liabilities.
NEW SECTION. Sec. 15 An insurer aggrieved by an order or any
other act or failure to act of the commissioner regarding compliance
with this chapter or rules adopted under this chapter may request a
hearing by following the procedures of chapters 48.04 and 34.05 RCW.
NEW SECTION. Sec. 16 The investment policy, or information
related to the investment policy provided to the commissioner for
review under this chapter shall be considered confidential and shall
not be a public record or subject to subpoena.
NEW SECTION. Sec. 17 (1) This chapter prevails over any other
statute purporting to authorize an insurer to make a particular
investment if the other statute was enacted before January 1, 2012, and
prevails over any statute enacted after January 1, 2012, unless the
latter specifically includes amendments made to this chapter.
(2) An insurer shall value its assets in accordance with the
valuation standards of the national association of insurance
commissioners to the extent those standards are consistent with the
statutes of this state or rules or orders of the commissioner.
NEW SECTION. Sec. 18 (1) The commissioner may, in accordance
with chapter 34.05 RCW, adopt rules interpreting and implementing the
provisions of this chapter.
(2) The commissioner may, in accordance with chapter 34.05 RCW,
adopt special investment restrictions as follows:
(a) The commissioner may by rule prescribe for defined classes of
insurers special procedural requirements including special reports,
prior approval, or subsequent disapproval of investments.
(b) The commissioner may by rule prescribe substantive restrictions
on investments of defined classes of insurers, including:
(i) Specification of classes of assets that may not be counted
toward satisfaction of the minimum asset requirement even though they
may be counted for unrestricted insurers;
(ii) Specification of maximum amounts of assets that may be
invested in a single investment, or an issue, a class or a group of
classes of investments, expressed as percentages of total assets,
capital, surplus, legal reserves, or other variables;
(iii) Prescription of qualitative tests for investments and
conditions under which investments may be made, including requirements
of specified ratings from investment advisory services, listing on
specified stock exchanges, collateral, marketability, currency
matching, and the financial and legal status of the issuer and its
earnings capacity.
(3) If the commissioner is satisfied by evidence of the financial
stability of an insurer and the competence of management and its
investment advisors, the commissioner, after a hearing, may by order
grant an exemption to that insurer from any restriction under
subsection (2) of this section to the extent that the commissioner is
satisfied that the interests of insureds, creditors, and the general
public of this state are protected in other ways.
Sec. 19 RCW 48.13.350 and 2009 c 549 s 7055 are each amended to
read as follows:
(((1) As to each investment or loan of the funds of a domestic
insurer a written record in permanent form showing the authorization
thereof shall be made and signed by an officer of the insurer or by the
chair of such committee authorizing the investment or loan.)) A
written record of each investment or loan of the funds of a domestic
insurer shall contain:
(2) As to each such investment or loan the insurer's records
(((a))) (1) In the case of loans: The name of the borrower; the
location and legal description of the property; a physical description,
and the appraised value of the security; the amount of the loan, rate
of interest and terms of repayment.
(((b))) (2) In the case of securities: The name of the obligor; a
description of the security and the record of earnings; the amount
invested, the rate of interest or dividend, the maturity and yield
based upon the purchase price.
(((c))) (3) In the case of real estate: The location and legal
description of the property; a physical description and the appraised
value; the purchase price and terms.
(((d))) (4) In the case of all investments:
(((i))) (a) The amount of expenses and commissions if any incurred
on account of any investment or loan and by whom and to whom payable if
not covered by contracts with mortgage loan representatives or
correspondents which are part of the insurer's records.
(((ii))) (b) The name of any officer or director of the insurer
having any direct, indirect, or contingent interest in the securities
or loan representing the investment, or in the assets of the person in
whose behalf the investment or loan is made, and the nature of such
interest.
Sec. 20 RCW 42.56.400 and 2010 c 172 s 2 and 2010 c 97 s 3 are
each reenacted and amended to read as follows:
The following information relating to insurance and financial
institutions is exempt from disclosure under this chapter:
(1) Records maintained by the board of industrial insurance appeals
that are related to appeals of crime victims' compensation claims filed
with the board under RCW 7.68.110;
(2) Information obtained and exempted or withheld from public
inspection by the health care authority under RCW 41.05.026, whether
retained by the authority, transferred to another state purchased
health care program by the authority, or transferred by the authority
to a technical review committee created to facilitate the development,
acquisition, or implementation of state purchased health care under
chapter 41.05 RCW;
(3) The names and individual identification data of either all
owners or all insureds, or both, received by the insurance commissioner
under chapter 48.102 RCW;
(4) Information provided under RCW 48.30A.045 through 48.30A.060;
(5) Information provided under RCW 48.05.510 through 48.05.535,
48.43.200 through 48.43.225, 48.44.530 through 48.44.555, and 48.46.600
through 48.46.625;
(6) Examination reports and information obtained by the department
of financial institutions from banks under RCW 30.04.075, from savings
banks under RCW 32.04.220, from savings and loan associations under RCW
33.04.110, from credit unions under RCW 31.12.565, from check cashers
and sellers under RCW 31.45.030(3), and from securities brokers and
investment advisers under RCW 21.20.100, all of which is confidential
and privileged information;
(7) Information provided to the insurance commissioner under RCW
48.110.040(3);
(8) Documents, materials, or information obtained by the insurance
commissioner under RCW 48.02.065, all of which are confidential and
privileged;
(9) Confidential proprietary and trade secret information provided
to the commissioner under RCW 48.31C.020 through 48.31C.050 and
48.31C.070;
(10) Data filed under RCW 48.140.020, 48.140.030, 48.140.050, and
7.70.140 that, alone or in combination with any other data, may reveal
the identity of a claimant, health care provider, health care facility,
insuring entity, or self-insurer involved in a particular claim or a
collection of claims. For the purposes of this subsection:
(a) "Claimant" has the same meaning as in RCW 48.140.010(2).
(b) "Health care facility" has the same meaning as in RCW
48.140.010(6).
(c) "Health care provider" has the same meaning as in RCW
48.140.010(7).
(d) "Insuring entity" has the same meaning as in RCW 48.140.010(8).
(e) "Self-insurer" has the same meaning as in RCW 48.140.010(11);
(11) Documents, materials, or information obtained by the insurance
commissioner under RCW 48.135.060;
(12) Documents, materials, or information obtained by the insurance
commissioner under RCW 48.37.060;
(13) Confidential and privileged documents obtained or produced by
the insurance commissioner and identified in RCW 48.37.080;
(14) Documents, materials, or information obtained by the insurance
commissioner under RCW 48.37.140;
(15) Documents, materials, or information obtained by the insurance
commissioner under RCW 48.17.595;
(16) Documents, materials, or information obtained by the insurance
commissioner under RCW 48.102.051(1) and 48.102.140 (3) and (7)(a)(ii);
(17) Documents, materials, or information obtained by the insurance
commissioner in the commissioner's capacity as receiver under RCW
48.31.025 and 48.99.017, which are records under the jurisdiction and
control of the receivership court. The commissioner is not required to
search for, log, produce, or otherwise comply with the public records
act for any records that the commissioner obtains under chapters 48.31
and 48.99 RCW in the commissioner's capacity as a receiver, except as
directed by the receivership court; ((and))
(18) Documents, materials, or information obtained by the insurance
commissioner under section 16 of this act; and
(19) Data, information, and documents provided by a carrier
pursuant to section 1, chapter 172, Laws of 2010.
NEW SECTION. Sec. 21 The following acts or parts of acts are
each repealed:
(1) RCW 48.13.010 (Scope of chapter -- Eligible investments) and 1973
c 151 s 2 & 1947 c 79 s .13.01;
(2) RCW 48.13.020 (General qualifications) and 1983 1st ex.s. c 32
s 2, 1982 c 218 s 2, 1967 ex.s. c 95 s 11, & 1947 c 79 s .13.02;
(3) RCW 48.13.030 (Limitation on securities of one entity or a
depository institution) and 2001 c 21 s 1, 1993 c 92 s 1, & 1947 c 79
s .13.03;
(4) RCW 48.13.040 (Public obligations) and 1947 c 79 s .13.04;
(5) RCW 48.13.050 (Corporate obligations) and 1993 c 92 s 2 & 1947
c 79 s .13.05;
(6) RCW 48.13.060 (Terms defined) and 1993 c 92 s 3 & 1947 c 79 s
.13.06;
(7) RCW 48.13.070 (Securities of merged or reorganized
institutions) and 1947 c 79 s .13.07;
(8) RCW 48.13.080 (Preferred or guaranteed stocks) and 1947 c 79 s
.13.08;
(9) RCW 48.13.090 (Trustees' or receivers' obligations) and 1947 c
79 s .13.09;
(10) RCW 48.13.100 (Equipment trust certificates) and 1947 c 79 s
.13.10;
(11) RCW 48.13.110 (Mortgages, deeds of trust, mortgage bonds,
notes, contracts) and 1975 1st ex.s. c 154 s 1, 1969 ex.s. c 241 s 4,
& 1947 c 79 s .13.11;
(12) RCW 48.13.120 (Investments limited by property value) and 2007
c 80 s 6, 1993 c 92 s 7, 1969 ex.s. c 241 s 5, 1967 c 150 s 11, 1955 c
303 s 1, 1949 c 190 s 16, & 1947 c 79 s .13.12;
(13) RCW 48.13.125 (Mortgage loans on one family dwellings--Limitation on amortization) and 1969 ex.s. c 241 s 6 & 1967 c 150 s 10;
(14) RCW 48.13.130 ("Encumbrance" defined) and 1955 c 303 s 2 &
1947 c 79 s .13.13;
(15) RCW 48.13.140 (Appraisal of property -- Insurance -- Limit of
loan) and 1967 ex.s. c 95 s 12, 1955 c 303 s 3, & 1947 c 79 s .13.14;
(16) RCW 48.13.150 (Auxiliary chattel mortgages) and 1947 c 79 s
.13.15;
(17) RCW 48.13.160 (Real property owned -- Home office building) and
1981 c 339 s 6, 1973 c 151 s 3, 1969 ex.s. c 241 s 7, 1967 ex.s. c 95
s 13, 1949 c 190 s 17, & 1947 c 79 s .13.16;
(18) RCW 48.13.170 (Disposal of real property -- Time limit) and 1967
ex.s. c 95 s 14 & 1947 c 79 s .13.17;
(19) RCW 48.13.180 (Foreign securities) and 2003 c 251 s 1 & 1947
c 79 s .13.18;
(20) RCW 48.13.190 (Policy loans) and 1947 c 79 s .13.19;
(21) RCW 48.13.200 (Savings and share accounts) and 1947 c 79 s
.13.20;
(22) RCW 48.13.210 (Insurance stocks) and 1979 ex.s. c 199 s 3,
1979 ex.s. c 130 s 4, & 1947 c 79 s .13.21;
(23) RCW 48.13.218 (Limitation on insurer loans or investments) and
2001 c 90 s 1;
(24) RCW 48.13.220 (Common stocks -- Investment -- Acquisition--Engaging in certain businesses) and 2008 c 217 s 5, 1982 c 218 s 3,
1973 c 151 s 4, 1949 c 190 s 18, & 1947 c 79 s .13.22;
(25) RCW 48.13.230 (Collateral loans) and 1947 c 79 s .13.23;
(26) RCW 48.13.240 (Miscellaneous investments) and 2004 c 88 s 1,
1982 c 218 s 4, & 1947 c 79 s .13.24;
(27) RCW 48.13.250 (Special consent investments) and 1947 c 79 s
.13.25;
(28) RCW 48.13.260 (Required investments for capital and reserves)
and 1971 ex.s. c 13 s 16 & 1947 c 79 s .13.26;
(29) RCW 48.13.265 (Investments secured by real estate -- Amount
restricted) and 2007 c 80 s 7 & 1957 c 193 s 8;
(30) RCW 48.13.270 (Prohibited investments) and 1995 c 84 s 1, 1993
c 92 s 4, 1982 c 218 s 5, & 1947 c 79 s .13.27;
(31) RCW 48.13.273 (Acquisition of medium and lower grade
obligations -- Definitions -- Limitations -- Rules) and 1993 c 92 s 5;
(32) RCW 48.13.275 (Obligations rated by the securities valuation
office) and 2007 c 80 s 8 & 1993 c 92 s 6;
(33) RCW 48.13.280 (Securities underwriting, agreements to withhold
or repurchase, prohibited) and 1947 c 79 s .13.28;
(34) RCW 48.13.285 (Derivative transactions -- Restrictions--Definitions -- Rules) and 1997 c 317 s 1;
(35) RCW 48.13.290 (Disposal of ineligible property or securities)
and 1982 c 218 s 6, 1973 c 151 s 5, & 1947 c 79 s .13.29; and
(36) RCW 48.13.340 (Authorization of investments) and 1949 c 190 s
19 & 1947 c 79 s .13.34.
NEW SECTION. Sec. 22 Sections 1 through 18 of this act are each
added to chapter
NEW SECTION. Sec. 23 This act takes effect January 1, 2012.