26-28-114. Claims of nonresidents against domestic insurers.
(a) In a delinquency proceeding begun in this state against a domestic insurer, claimants residing in reciprocal states may file claims either with the ancillary receivers, if any, in their states or with the domiciliary receiver. The claims shall be filed on or before the last date fixed for the filing of claims in the domiciliary delinquency proceedings.
(b) Controverted claims belonging to claimants residing in reciprocal states may either:
(i) Be proved in this state; or
(ii) If ancillary proceedings have been commenced in the reciprocal states, be proved in those proceedings.
(c) If a claimant elects to prove his claim in ancillary proceedings and if notice of the claim and opportunity to appear and be heard is afforded the domiciliary receiver of this state, as provided in W.S. 26-28-115 with respect to ancillary proceedings in this state, the final allowance of the claim by the courts in the ancillary state shall be accepted in this state as conclusive as to its amount and shall also be accepted as conclusive as to its priority, if any, against special deposits or other security located within the ancillary state.
(a) In a delinquency proceeding in a reciprocal state against an insurer domiciled in that state, claimants against the insurer who reside within this state may file claims either with the ancillary receiver, if any, appointed in this state, or with the domiciliary receiver. The claims shall be filed on or before the last date fixed for the filing of claims in the domiciliary delinquency proceedings.
(b) Controverted claims belonging to claimants residing in this state may either:
(i) Be proved in the domiciliary state as provided by the laws of that state; or
(ii) If ancillary proceedings have been commenced in this state, be proved in those proceedings.
(c) If any claimant elects to prove his claim in this state, he shall file his claim with the ancillary receiver and shall give notice in writing to the receiver in the domiciliary state, either by registered mail or by personal service at least forty (40) days prior to the date set for hearing. The notice shall contain a concise statement of the amount of the claim, the facts on which the claim is based and the priorities asserted, if any. If the domiciliary receiver within thirty (30) days after the giving of the notice gives notice in writing to the ancillary receiver and to the claimant, either by registered mail or by personal service, of his intention to contest the claim, he is entitled to appear or to be represented in any proceeding in this state involving the claim adjudication. The final allowance of the claim by the courts of this state shall be accepted as conclusive as to its amount and shall also be accepted as conclusive as to its priority, if any, against special deposits or other security located within this state.
(a) All claims against an insurer against which delinquency proceedings are in progress shall set forth in reasonable detail the amount of the claim, or the basis upon which the amount can be ascertained, the facts upon which the claim is based and the priorities asserted, if any. All such claims shall be verified by the affidavit of the claimant, or someone authorized to act on his behalf and having knowledge of the facts, and shall be supported by documents material thereto.
(b) All claims filed in this state shall be filed with the receiver, whether domiciliary or ancillary, in this state, on or before the last date for filing as specified in this chapter.
(c) Within ten (10) days from the date of receipt of any claim, or within any further period as the court, for good cause shown, determines, the receiver shall report the claim to the court, specifying in the report his recommendation with respect to the action to be taken thereon. Upon receipt of the report, the court shall fix a time for hearing the claim and shall direct that the claimant or the receiver, as the court specifies, shall give notice as the court determines to those persons as appear to the court to be interested therein. The notices shall specify the time and place of the hearing and shall concisely state the amount and nature of the claim, the priorities asserted, if any, and the recommendation of the receiver with reference thereto.
(d) All interested persons may appear at the hearing, and the court shall enter an order allowing, allowing in part or disallowing the claim. The order is appealable.
(a) In a delinquency proceeding against an insurer domiciled in this state, claims owing to residents of ancillary states are preferred claims if like claims are preferred under the laws of this state. All claims owing to residents or nonresidents shall be given equal priority of payment from general assets regardless of where the assets are located.
(b) In a delinquency proceeding against an insurer domiciled in a reciprocal state, claims owing to residents of this state shall be preferred if like claims are preferred by the laws of that state.
(c) The owners of special deposit claims against an insurer for which a receiver is appointed in this or any other state shall be given priority against their special deposits in accordance with the provisions of the statutes governing the creation and maintenance of the deposits. If there is a deficiency in any deposit so that the claims secured thereby are not fully discharged, the claimants may share in the general assets, but that sharing shall be deferred until general creditors, and also claimants against other special deposits who have received smaller percentages from their special deposits, have been paid percentages of their claims equal to the percentage paid from the special deposit.
(d) The owner of a secured claim against an insurer for which a receiver has been appointed in this or any other state may surrender his security and file his claim as a general creditor, or the claim may be discharged by resort to the security, in which case the deficiency, if any, shall be treated as a claim against the insurer's general assets on the same basis as claims of unsecured creditors. If the amount of the deficiency is adjudicated in ancillary proceedings as provided in this chapter, or if it is adjudicated by a court of competent jurisdiction in proceedings in which the domiciliary receiver has had notice and opportunity to be heard, the amounts are conclusive. Otherwise the amount shall be determined in the delinquency proceeding in a domiciliary state.
26-28-118. Attachment, garnishment or execution during pendency of delinquency proceedings.
During the pendency of delinquency proceedings in this or any reciprocal state, no action or proceeding in the nature of an attachment, garnishment or execution shall be commenced or maintained in the courts of this state against the delinquent insurer or its assets. Any lien obtained by any such action or proceeding within four (4) months prior to the commencement of any delinquency proceeding or at any time thereafter is void as against any rights arising in the delinquency proceeding.
26-28-119. Sections constituting Uniform Insurers Liquidation Act; interpretation and construction.
(a) W.S. 26-28-101(a)(i) through (v) and (vii) through (xiii), 26-28-103, 26-28-104 and 26-28-112 through 26-28-119 constitute and may be referred to as the Uniform Insurers Liquidation Act.
(b) The Uniform Insurers Liquidation Act shall be so interpreted and construed as to carry out its general purpose to make uniform the law of those states that enact it. To the extent that its provisions when applicable conflict with other provisions of this chapter, the provisions of that act control.
The monies the commissioner collects in a proceeding under this chapter shall be deposited in one (1) or more state or national banks, savings banks or trust companies. In case of insolvency or voluntary or involuntary liquidation of any such depository which is an institution organized and supervised under the laws of this state, the deposits are entitled to priority of payment on an equality with any other priority given by the banking laws of this state. The commissioner may deposit the monies or any part thereof in a national bank or trust company as a trust fund.
26-28-121. Commissioner exempt from payment of fees.
(a) The commissioner is not required to pay any fee to any public officer in this state for filing, recording, issuing a transcript or certificate or authenticating any paper or instrument pertaining to the commissioner's exercise of any of the powers or duties conferred upon him under this chapter, whether or not:
(i) The paper or instrument is executed by the commissioner or his deputies, employees or attorneys of record; and
(ii) It is connected with the commencement of any action or proceeding by or against the commissioner or with subsequent conduct of that action or proceeding.
26-28-122. Power of commissioner to borrow on pledge of assets.
(a) For the purpose of facilitating the rehabilitation, liquidation, conservation or dissolution of an insurer pursuant to this chapter, the commissioner, subject to court approval, may:
(i) Borrow money and execute, acknowledge and deliver notes or other evidences of indebtedness therefor and secure the repayment of the notes or other evidences of indebtedness by the mortgage, pledge, assignment, transfer in trust or hypothecation of any of the insurer's property; and
(ii) Take any other action necessary and proper to consummate any such loan and to provide for the repayment of that loan.
(b) The commissioner has no obligation personally or in his official capacity to repay any loan made pursuant to this section.
The rights and liabilities of the insurer and of its creditors, policyholders, stockholders, members, subscribers and any other persons interested in its estate, unless the court otherwise directs, shall be fixed as of the date on which the order directing the insurer's liquidation is filed in the office of the clerk of the court which made the order, subject to the provisions of this chapter with respect to the rights of claimants holding contingent claims.
(a) Any transfer of, or lien upon, an insurer's property is voidable if it is:
(i) Made or created within four (4) months prior to the granting of an order to show cause under this chapter, with the intent of giving to any creditor a preference or of enabling him to obtain a greater percentage of his debt than any other creditor of the same class; and
(ii) Accepted by the creditor having reasonable cause to believe that the preference will occur.
(b) Any director, officer, employee, stockholder, member, subscriber and any other person acting on the insurer's behalf who is involved in any such act or deed and any person receiving thereby any of the insurer's property or the benefit of that property is personally liable therefor and is accountable to the commissioner.
(c) The commissioner as a receiver in any proceeding under this chapter may avoid any transfer of or lien upon an insurer's property which any creditor, stockholder, subscriber or member of the insurer might have avoided and may recover the property so transferred unless the person is a bona fide holder for value prior to the date of the entering of an order to show cause under this chapter. The property or its value may be recovered from anyone who receives it except a bona fide holder for value as specified in this subsection.
26-28-125. Priority of distribution of an insolvent insurer's assets.
(a) The priorities of distribution of general assets from the company's estate is as follows:
(i) The costs and expenses of the administration, insolvency, liquidation and rehabilitation, including the claims handling expenses of the Wyoming Insurance Guaranty Association and of any similar organization in any other state as prescribed in W.S. 26-31-101 through 26-31-117;
(ii) Wages actually owing to employees, other than officers of insurers, for services rendered within three (3) months prior to the date of commencement of a proceeding against the insurer under this chapter, but not exceeding one thousand dollars ($1,000.00) to each employee and secured claims, including claims for taxes and debts due the federal or any state or local government which are secured by liens perfected prior to the commencement of delinquency proceedings;
(iii) Claims by policyholders, beneficiaries, insureds and liability claims against insureds covered under insurance policies and insurance contracts issued by the company, as set forth in W.S. 26-28-114 through 26-28-117 and claims of the Wyoming Insurance Guaranty Association and any similar organization in another state as prescribed in W.S. 26-31-110;
(iv) All other claims of general creditors not falling within any other priority under this section, including claims for taxes and debts due the federal government or any state or local government which are not secured claims;
(v) Claims of guarantee association certificate holders, guarantee capital shareholders and surplus note holders;
(vi) Proprietary claims of shareholders, members or other owners.
(b) Upon the issuance of an order of liquidation with a finding of insolvency against a domestic company, the commissioner shall apply to the court requesting authority to disburse funds to the Wyoming Insurance Guaranty Association out of the company's marshaled assets as funds become available in amounts equal to disbursements made by the association for claims handling expense and covered claims obligations on the presentation of evidence that the association made disbursements. The commissioner shall:
(i) In the application request authority to make disbursements to similar organizations in other states provided the Wyoming Insurance Guaranty Association is entitled to like payment under the laws of the similar organization's state of domicile with respect to insolvent companies domiciled in that state;
(ii) In determining the amounts available for disbursements to the Wyoming Insurance Guaranty Association and similar organizations in other states, reserve sufficient assets for the payment of the expenses of administration;
(iii) Establish procedures for the ratable allocation of disbursements to the Wyoming Insurance Guaranty Association and similar organizations in other states; and
(iv) Secure from the Wyoming Insurance Guaranty Association and each eligible similar organization in other states as a condition to advances in reimbursement of covered claims obligations an agreement to return to the commissioner on demand funds previously advanced as may be required to pay claims of secured creditors and claims falling within the priorities established in paragraphs (a)(ii) and (iii) of this section in accordance with such priorities.
(a) In all cases of mutual debts or mutual credits between the insurer and another person in connection with any action or proceeding under this chapter, the credits and debts shall be set off and the balance only shall be allowed or paid, except as provided in subsection (b) of this section.
(b) No offset shall be allowed in favor of any person specified in subsection (a) of this section if:
(i) The insurer's obligation to that person, at the date of the entry of any liquidation order or otherwise, as provided in W.S. 26-28-123, does not entitle him to share as a claimant in the insurer's assets;
(ii) The insurer's obligation to that person is purchased by or transferred to that person with a view of its being used as an offset; or
(iii) The obligation of that person is to pay an assessment levied against the members of a mutual insurer, or against the subscribers of a reciprocal insurer, or is to pay a balance upon the subscription to the insurer's capital stock.
26-28-127. Allowance of certain claims after insolvency; entry of liquidation order.
(a) No contingent and unliquidated claim shall share in a distribution of an insurer's assets if that insurer is adjudicated to be insolvent by an order made pursuant to this chapter, except that the claim shall be considered, if properly presented, and may be allowed to share if:
(i) The claim is absolute against the insurer on or before the last day for filing claims against the insurer's assets; or
(ii) There is a surplus and the liquidation is thereafter conducted upon the basis that the insurer is solvent.
(b) If an insurer is adjudicated to be insolvent, any person who has a cause of action against an insured of that insurer, under a liability insurance policy issued by the insurer, may file a claim in the liquidation proceeding, regardless of the fact that the claim is contingent, and the claim may be allowed if:
(i) It may be reasonably inferred from the proof presented upon the claim that the person would be able to obtain a judgment upon the cause of action against the insured;
(ii) The person furnishes suitable proof, unless the court for good cause shown otherwise directs, that no further valid claim against the insurer arising out of his cause of action other than those already presented can be made; and
(iii) The insurer's total liability to all claimants arising out of the same act of its insured is no greater than its maximum liability would be were it not in liquidation.
(c) No judgment against an insured taken after the date of entry of the liquidation order shall be considered in the liquidation proceedings as evidence of liability, or of the amount of damages. No judgment against an insured taken by default or by collusion prior to the entry of the liquidation order shall be considered as conclusive evidence in the liquidation proceedings, either of the liability of the insured to the person upon the cause of action or of the amount of damages to which the person is entitled.
(d) No claim of any secured claimant shall be allowed at a sum greater than the difference between the value of the claim without security and the value of the security itself as of the date of the entry of the order of liquidation or any other date the court sets for determining rights and liabilities as provided in W.S. 26-28-123 unless the claimant surrenders his security to the commissioner, in which case the claim shall be allowed in the full amount for which it is valued.
26-28-128. Order of insolvency; time to file claims after insolvency order; payment of claims; procedure.
(a) If upon the entry of a liquidation order under this chapter or at any time thereafter during liquidation proceedings the insurer is not clearly solvent, the court, upon hearing after notice it deems proper, shall enter an order adjudging the insurer to be insolvent.
(b) After the entry of the order of insolvency, regardless of any prior notice given to creditors, the commissioner shall notify all persons who may have claims against the insurer to file the claims with him, at a place and within the time specified in the notice, or that the claims are forever barred. The time specified in the notice shall be as fixed by the court for filing of claims but not less than six (6) months after the entry of the insolvency order. The notice shall be given in a manner and for a reasonable period of time as the court orders.
(c) Any time after the last day fixed for the filing of proofs of claims in the liquidation of a domestic company, the court, upon the commissioner's application, may authorize him to declare out of the funds remaining in his hands, one (1) or more dividends upon all claims allowed in accordance with the priorities established in W.S. 26-28-125.
(d) If there has been no adjudication of insolvency, the commissioner shall pay all allowed claims in full in accordance with the priorities set forth in W.S. 26-28-125. The commissioner is not chargeable for any assets distributed to any claimant who fails to file a proper proof of claim before the distribution is made.
(e) If after an insolvency adjudication, a surplus is found to exist after the payment in full of all allowed claims falling within the priorities set forth in W.S. 26-28-125(a)(i) through (iv) and which were filed prior to the last date fixed for the filing thereof, and after the setting aside of a reserve for all additional costs and expenses of the proceeding, the court shall set a new date for the filing of claims. After the expiration of the new date, all allowed claims filed on or before the new date together with all previously allowed claims falling within the priorities set forth in W.S. 26-28-125(a)(v) and (vi) shall be paid in accordance with the priorities set forth in W.S. 26-28-125.
(f) The commissioner may deposit to his credit any dividends which he holds and remain unclaimed or unpaid for six (6) months after the final distribution order. The dividends shall be held in trust for the person entitled thereto, but that person is not entitled to any interest on the deposit. All such deposits are entitled to priority of payment in case of the depository's insolvency or voluntary or involuntary liquidation on an equal basis with any other priority given by the banking law. Those funds together with interest, if any, paid or credited thereon, remaining and unclaimed in the commissioner's hands in trust after two (2) years are presumed abandoned, shall be reported and delivered to the state treasurer and are subject to W.S. 9-5-203.
(a) Within three (3) years after the date of the entry of a rehabilitation or liquidation order of a domestic mutual insurer or a domestic reciprocal insurer, the commissioner may make and file his report and petition to the court setting forth:
(i) The reasonable value of the insurer's assets;
(ii) The insurer's liabilities to the extent thus far ascertained by the commissioner;
(iii) The aggregate amount of the assessment, if any, which the commissioner deems reasonably necessary to pay all claims, the costs and expenses of collecting the assessments and the costs and expense of the delinquency proceedings in full;
(iv) Any other information relative to the insurer's affairs or property the commissioner deems material.
(a) Upon the filing and reading of the report and petition provided for in W.S. 26-28-129, the court, ex parte, may order the commissioner to assess all the insurer's members or subscribers who are subject to assessment, in an aggregate amount as the court finds reasonably necessary to pay all valid claims as may be timely filed and proved in the delinquency proceedings, together with the costs and expenses of levying and collecting assessments and the costs and expenses of the delinquency proceedings in full. The order shall require that each member or subscriber be assessed for his proportion of the aggregate assessment, according to a reasonable classification of the members or subscribers and formula as the commissioner determines and the court approves.
(b) The court may order additional assessments upon the filings and reading of any amendment or supplement to the report and petition referred to in subsection (a) of this section, if the amendment or supplement is filed within three (3) years after the date of entry of the rehabilitation or liquidation order.
(c) The commissioner shall levy and assess members or subscribers in accordance with any order entered under this section.
(d) The total of all assessments against any member or subscriber with respect to any policy shall be for no greater amount than that specified in the member's or subscriber's policy and as limited under this code, except as to any policy which was issued at a rate of premium below the minimum rate lawfully permitted for the risk insured, in which case the assessment against any such policyholder shall be upon the basis of the minimum rate for that risk.
(e) No assessment shall be levied against any member or subscriber with respect to any nonassessable policy issued in accordance with this code.
26-28-131. Assessment prima facie correct; notice of amount of assessment; proceedings to enforce payment.
(a) Any assessment of a subscriber or member of an insurer which the commissioner makes pursuant to the court order fixing the aggregate amount of the assessment against all members or subscribers and approving the commissioner's classification and formula under W.S. 26-28-130(a) is prima facie correct.
(b) Each member or subscriber shall be notified of the amount of his assessment by written notice mailed to the member's or subscriber's address last of record with the insurer. Failure of the member or subscriber to receive the notice so mailed, within the time specified therein or at all, is not a defense in any proceeding to collect the assessment.
(c) If any member or subscriber fails to pay the assessment within the period specified in the notice, which period shall not be less than twenty (20) days from the date of mailing the notice, the commissioner may obtain an order in the delinquency proceedings requiring the member or subscriber to show cause at a time and place fixed by the court why judgment should not be entered against the member or subscriber for the amount of the assessment together with all costs. A copy of the order and a copy of the petition therefor shall be served upon the member or subscriber within the time and in the manner designated in the order.
(d) If the subscriber or member after service of a copy of the order and petition referred to in subsection (c) of this section is made upon him:
(i) Fails to appear at the time and place specified in the order, judgment shall be entered against him as prayed for in the petition; or
(ii) Appears in the manner and form required by law in response to the order, the court shall hear and determine the matter and enter a judgment in accordance with its decision.
(e) The commissioner may collect any assessment through any other lawful means.