(a) Separate schedules of premium rates based on plan coverage under the pool, age, sex and geographical location may apply for individual risks.
(b) The board shall determine the standard risk rate by calculating the average individual standard rate charged by the five (5) largest insurers offering coverages in the state comparable to each plan coverage under the pool. If five (5) insurers do not offer comparable coverage, the standard risk rate shall be established using reasonable actuarial techniques and shall reflect anticipated experience and expenses for the applicable coverage.
(c) Initial rates for pool coverage in the first year coverage is provided pursuant to this act shall not be less than one hundred fifty percent (150%) of rates established as applicable for individual standard risks. Subsequent rates may provide for the expected costs of claims including recovery of prior losses, expenses of operation, investment income of claim reserves, and any other costs factors subject to the limitations provided by this subsection. Beginning July 1, 2007, except as provided in subsection (e) of this section, there shall be two (2) levels of eligibility. Level one (1) eligibility applies to persons with income equal to or greater than two hundred fifty percent (250%) of the federal poverty guideline. Level two (2) eligibility applies to persons with income below two hundred fifty percent (250%) of the federal poverty guideline. Premium rates for level one (1) eligibility shall be set at one hundred fifty percent (150%) to two hundred five percent (205%) of rates applicable to individual standard risks. Premium rates for level two (2) eligibility shall be set at one hundred percent (100%) to one hundred forty percent (140%) of rates applicable to individual standard risks. All rates and rate schedules shall be submitted to the commissioner for approval. The rates shall be set as close as practical to the lower end of the range provided.
(d) Premiums collected pursuant to this section shall be paid to the state treasurer and credited to the account.
(e) Repealed by Laws 2019, ch. 16, § 2.
(a) Pool coverage shall not exclude charges or expenses incurred for longer than the first twelve (12) months following the effective date of coverage as to any condition for which during the six (6) month period immediately preceding the effective date of coverage medical advice, care or treatment was recommended or received. The preexisting coverage limitation set forth in this section shall not apply to a federally defined eligible individual.
(b) Preexisting condition exclusions shall be waived to the extent to which similar exclusions, if any, have been satisfied under any prior health insurance coverage which was terminated and coverage in the pool is effective from the date on which the prior coverage was terminated if application for pool coverage is made not later than ninety (90) days following the termination.
(a) Benefits otherwise payable under pool coverage are reduced by:
(i) All amounts paid or payable through any other health insurance or insurance arrangement;
(ii) All hospital and medical expense benefits paid or payable under any workers' compensation coverage or automobile medical payment or liability insurance whether provided on the basis of fault or nonfault; and
(iii) Any hospital or medical benefits paid or payable under or provided pursuant to any state or federal law or program except Medicaid.
(b) The administrator or the board has a cause of action against an eligible person for the recovery of the amount of benefits paid which are not for covered expenses. Benefits due from the pool may be reduced or refused as a setoff against any amount recoverable under this section.
The participation in the pool as members, the establishment of rates, forms or procedures or any other joint or collective action required by this act shall not be the basis of any legal action, criminal or civil liability or penalty against the board, the pool or pool members.
There is created an account within the trust and agency fund in which all money received, earned or collected pursuant to this act shall be credited and continuously appropriated for the purposes of this act. All claims, costs of administration and other necessary expenses incurred pursuant to this act shall be paid from the account. All money in the account not immediately necessary for the purposes of this act, which amount is certified by the board to the state treasurer, shall be invested and any interest earned shall be credited to the account.
The board shall annually estimate the funds available to the plan through premiums, assessments and legislative appropriations for the subsequent fiscal year and shall determine the maximum number of individuals who may be enrolled for that year without incurring total costs of operation in excess of estimated available funds. The board shall take steps necessary to assure that plan enrollment does not exceed the maximum enrollment capacity determined for that year. In determining enrollment capacity for purposes of this section, the board shall provide for the enrollment in the pool of all federally eligible individuals.
(a) As used in this article, "air ambulance membership organization" means an entity that, in exchange for fees, dues, charges or other consideration, provides:
(i) Discounts to members for the cost of services the organization provides as an air ambulance service company; or
(ii) Access for members to providers of air ambulance services and the right to receive air ambulance services from those providers. For purposes of this paragraph, "air ambulance membership organization" means the entity that contracts with health care providers, individuals, employees, groups, provider networks or other air ambulance membership organizations to offer access to air ambulance services and that determines the fees, dues, or charges to air ambulance membership organization members.
(b) The registration requirements of this article shall not apply to:
(i) An air ambulance membership organization that is otherwise subject to the provisions of this title and is required to be licensed under this title;
(ii) A health care provider who provides discounts to patients without any cost or fee of any kind to the patient.
26-43-302. Air ambulance membership organizations; certificate of registration; application.
(a) An air ambulance membership organization shall obtain a certificate of registration from the commissioner before operating as an air ambulance membership organization in Wyoming.
(b) An air ambulance membership organization seeking a certificate of registration from the commissioner shall apply on a form created and prescribed by the commissioner. The application shall include:
(i) An application fee not to exceed five hundred dollars ($500.00);
(ii) Information regarding whether a previous application for a certificate of registration under this article or for a substantially similar certificate under the laws of another state has been denied, revoked, suspended or terminated;
(iii) Information regarding whether the applicant is currently under investigation or the subject of any pending action and whether the applicant has been found in violation of any statute or regulation in any jurisdiction in the last five (5) years;
(iv) Information sufficient for the commissioner to determine whether the applicant has adequate expertise and experience to operate an air ambulance membership organization and is of good character;
(v) Certification that the applicant has established a dedicated toll-free telephone number for its customers and an internet website that makes available the names and addresses of all current air ambulance providers with which the applicant has contracted directly or through a provider network;
(vi) Proof that the applicant has posted a surety bond and has established a reserve fund as required by W.S. 26-43-305(f).
(c) Upon receipt of an application, the commissioner shall review the application and shall notify the applicant of any deficiencies in the application not later than twenty-one (21) days after receiving the application. Not more than ninety (90) days after receipt of an application containing all required information, the commissioner shall issue a certificate of registration to an applicant that has satisfied all requirements imposed by this article.
(d) A certificate of registration issued under this section shall be effective for one (1) year after the date of issuance unless renewed as provided by W.S. 26-43-303(a).
26-43-303. Certificate of registration; renewal; suspension; revocation.
(a) Not less than ninety (90) days before a certificate of registration expires, an air ambulance membership organization seeking to maintain its registration shall submit a renewal application on a form prescribed by the commissioner, the annual report required under W.S. 26-43-307(a) and a renewal fee not to exceed three hundred dollars ($300.00). The commissioner shall renew the certificate of registration for any air ambulance membership organization that is in compliance with the provisions of this article and any rules promulgated pursuant to this article. An air ambulance membership organization may renew its registration for up to one (1) year after expiration of its certificate of registration by paying the renewal fee and a late fee equal to the renewal fee. An air ambulance membership organization shall not enroll new members until their registration is renewed in accordance with this section or a new certificate of registration is approved.
(b) The commissioner may suspend or revoke a certificate of registration after notice and an opportunity for a hearing held in accordance with this article and the Wyoming Administrative Procedure Act if the commissioner has reasonable cause to believe that the air ambulance membership organization:
(i) Is not operating in compliance with the provisions of this article;
(ii) Has advertised, merchandized or attempted to merchandise its services in a manner that misrepresents its services or capacity for service;
(iii) Has engaged in deceptive, misleading or unfair practices prohibited by the Wyoming Consumer Protection Act;
(iv) Is not fulfilling its obligations as an air ambulance membership organization; or
(v) Would be hazardous to the members of the air ambulance membership organization if continued operation were permitted.
(c) If the commissioner has reasonable cause under subsection (b) of this section, the commissioner shall notify the air ambulance membership organization in writing specifically stating the grounds for suspending or revoking a certificate of registration. The certificate holder may demand a hearing not later than thirty (30) days after receipt of the notice. Any hearing held under this subsection shall be conducted pursuant to the Wyoming Administrative Procedure Act.
(d) Upon reasonable cause shown, the commissioner may suspend the authority of the air ambulance membership organization to enroll new members for a specified period of time not to exceed ninety (90) days. Any suspension under this subsection shall specify in writing any conditions the air ambulance membership organization shall meet before reinstatement of its authority to enroll new members.
(e) The commissioner may rescind or modify any suspension ordered under this section. Any modification that results in a suspension being extended or additional conditions imposed on an air ambulance membership organization shall not take effect until after notice is given to the air ambulance membership organization with an opportunity for a hearing held in accordance with this article and the Wyoming Administrative Procedure Act.
(f) No certificate of registration of an air ambulance membership organization that has been suspended or revoked shall be reinstated unless requested by the air ambulance membership organization. The commissioner shall not grant the request for reinstatement if the commissioner finds by a preponderance of the evidence that the circumstances for which the suspension or revocation occurred still exist or are likely to recur.
(g) In lieu of a suspension or revocation of a certificate of registration, the commissioner may:
(i) Issue and serve upon an air ambulance membership organization a violation notice that includes the basis for the violation and an order requiring the air ambulance membership organization to cease and desist from engaging in the acts or practices that caused the issuance of the violation notice;
(ii) Impose a civil penalty of not more than one thousand dollars ($1,000.00) for each violation.
(h) An air ambulance membership organization shall immediately notify the commissioner if a certificate of registration or other substantially similar authorization issued in another jurisdiction has been suspended, revoked or not renewed.
26-43-304. Air ambulance membership organizations; powers and duties of the commissioner; rulemaking; costs.
(a) The commissioner is authorized to:
(i) Examine or investigate the affairs of an air ambulance membership organization to ensure compliance with the provisions of this article;
(ii) Order any air ambulance membership organization or applicant to produce materials pertaining to air ambulance membership affairs, including any records, books, files, advertising and solicitation materials and any other information necessary to ensure compliance with this article;
(iii) Take statements under oath to determine whether the air ambulance membership organization or an applicant is in violation of the provisions of this article.
(b) An air ambulance membership organization found to have violated any provision of this article after an examination or investigation under this section shall pay all costs and fees associated with the examination or investigation.
(c) The commissioner shall promulgate any rules necessary to carry out the provisions of this article.
26-43-305. Charges authorized; written agreements required; cancellation of memberships; duties.
(a) An air ambulance membership organization may assess a periodic charge and a reasonable one-time application processing fee to its members.
(b) All terms and conditions for memberships of an air ambulance membership organization shall be provided in writing to each member. An air ambulance membership organization meeting the definition specified in W.S. 26-43-301(a)(ii) shall have an agreement in writing with each air ambulance provider offering air ambulance services to its members. The written provider agreement may be entered into directly with the provider or with an entity that hires or represents the provider.
(c) A member of an air ambulance membership organization's plan shall have the right to cancel his membership in the plan at any time. If the member cancels his membership not later than thirty (30) days after purchasing a plan, the air ambulance membership organization shall refund to the member any one-time charges that exceed thirty dollars ($30.00) and all periodic charges. For purposes of this subsection, cancellation occurs when notice of cancellation is mailed or otherwise delivered to the air ambulance membership organization.
(d) If an air ambulance membership organization cancels a membership for any reason other than nonpayment of charges by a member, the air ambulance membership organization shall issue a pro rata refund of all periodic charges to the member.
(e) An air ambulance membership organization or an agent, broker or marketer who sells memberships for an air ambulance membership organization shall disclose all charges for each air ambulance membership organization membership to all prospective members.
(f) An air ambulance membership organization shall:
(i) Post a surety bond with one (1) or more surety companies approved by the commissioner in the amount of five thousand dollars ($5,000.00) for every one thousand (1,000) members of the organization who are residents of the state of Wyoming or portion thereof;
(ii) Establish a reserve fund at any financial institution approved by the commissioner in the amount of three dollars ($3.00) for each member currently part of a plan that the air ambulance membership organization offers. The reserve fund shall be for the benefit of the members and to guarantee that any plan the air ambulance membership organization offers continues until all memberships or plans are terminated. No amount shall be required to be deposited for any family members of the plan member's household unless the family members are separately participating or subscribed to the organization's plan. No further deposits shall be required under this paragraph after the total amount of the reserve fund and surety bond required under paragraph (i) of this subsection exceeds two hundred thousand dollars ($200,000.00).
(g) An air ambulance membership organization shall pay any costs of collection upon a judgment in favor of a plan member and attorney fees in any successful action brought by a plan member.
In addition to any penalties and other enforcement of this article, any person who willfully violates any provision of this article may be subject to a civil penalty not to exceed one thousand dollars ($1,000.00) for each willful violation.
26-43-307. Reporting requirements; notice to commissioner; penalties.
(a) Not less than ninety (90) days before expiration of a certificate of registration, an air ambulance membership organization seeking renewal of its certificate of registration shall submit an annual report to the commissioner in a form prescribed by the commissioner. The report shall include:
(i) An updated list of the names and addresses of all air ambulance providers or air ambulance service providers responsible for the conduct of the air ambulance membership organization's affairs along with disclosure of the extent and nature of any contracts or arrangements with those persons, including any possible conflicts of interest;
(ii) The number of members in Wyoming who are enrolled in any membership offered by the air ambulance membership organization;
(iii) A list of any membership agreements currently active or entered into with a governmental entity in Wyoming that provides membership of the air ambulance membership organization to all residents of that governmental entity. As used in this paragraph, "governmental entity" means the governing body of a county or municipality in Wyoming;
(iv) Any other information related to the air ambulance membership organization as required by the commissioner to ensure compliance with the provisions of this article.
(b) An air ambulance membership organization seeking renewal that fails to file an annual report in the form or before the deadline specified in subsection (a) of this section shall be ineligible for renewal until any deficiency is remedied.
(c) Upon notice by the commissioner, an air ambulance membership organization failing to comply with subsection (a) of this section shall lose its authority to enroll new members or to do business in Wyoming if the violation continues beyond a time specified by the commissioner.
(d) An air ambulance membership organization shall provide the commissioner notice of any change in the organization's name, address, telephone number, address for the principal place of business, mailing address or internet website address not less than thirty (30) days before making the change.
(a) All advertisements, marketing materials, brochures, air ambulance membership cards, presentations and any other communications of an air ambulance membership organization shall be truthful and not misleading in fact or in implication.
(b) An air ambulance membership organization advertising or marketing its memberships to Wyoming residents shall:
(i) Submit all written advertisements and marketing materials to the commissioner for review for compliance with this article;
(ii) Not use language in its advertisements or marketing that could reasonably mislead a person into believing that the air ambulance membership plan is insurance;
(iii) Not use language in its advertisements, marketing materials, brochures or presentations with respect to being licensed or registered by a state insurance department or with respect to being provided by a governmental entity in a manner that could reasonably mislead an individual into believing that the air ambulance membership plan is insurance or has been endorsed by the state or any Wyoming governmental entity;
(iv) Not have restrictions on access to air ambulance membership organizations, including waiting periods and notification periods.
(c) An air ambulance membership organization shall make the following general disclosures in writing in bold and not less than twelve (12) point font on the first content page of any advertisement, marketing material or brochure made available to prospective members or the public:
(i) The plan is a membership plan and is not insurance coverage;
(ii) For air ambulance membership organizations as defined by W.S. 26-43-301(a)(ii), that the range of discounts for air ambulance services provided under the membership will vary depending on the provider and the services offered;
(iii) The toll-free number and internet website address for the air ambulance membership organization where prospective members can obtain additional information about the services offered by the air ambulance membership organization.
(d) An air ambulance membership organization shall provide the disclosures required by subsection (c) of this section orally to any person who makes initial contact with an air ambulance membership organization by telephone.
(e) Before a person purchases a membership from an air ambulance membership organization, the air ambulance membership organization shall mail, give or, with the consent of the person, email to the person a separate document printed in bold and not less than twelve (12) point font that contains the following disclosures:
(i) That the air ambulance membership is not insurance coverage;
(ii) That, if eligible and covered under Medicare, the prospective member may consult with a representative of the Medicare program to determine the extent of applicable Medicare coverage and what the member's payment obligations will be if transported by air ambulance;
(iii) That the prospective member may be covered by an air ambulance membership organization under a membership provided by a governmental entity;
(iv) A detailed list of all one-time and periodic fees that are and will be charged to the prospective member to join the air ambulance membership organization;
(v) The Wyoming counties served by the air ambulance membership organization;
(vi) That, in an emergency and if the prospective member is outside of the air ambulance membership organization's service area, air ambulance services may be provided by another air ambulance provider or air ambulance membership organization, and the benefits of the air ambulance membership organization that the prospective member is joining may not apply to the services provided by another air ambulance provider, and in such case the prospective member may be responsible for the entire bill;
(vii) That if the member cancels the membership not later than thirty (30) days after purchasing a plan, the air ambulance membership organization will refund to the member any one-time charges paid by the member that exceed thirty dollars ($30.00) and all periodic charges paid by the member;
(viii) That the air ambulance membership organization may not be the company called in the event of an emergency and that the member may be responsible for the entire bill if a different air ambulance service company provides the service.
(a) As used in this act:
(i) "Affiliate" or "affiliated" means a person that directly, or indirectly through one (1) or more intermediaries, controls, or is controlled by, or is under common control with a specified person;
(ii) "Commissioner" means the insurance commissioner as defined by W.S. 26-1-102(a)(viii);
(iii) "Control" means the power, direct or indirect, to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract other than a commercial contract for goods or nonmanagement services or otherwise, unless the power is the result of an official position or corporate office held by the person. Control shall be presumed to exist if any person, directly or indirectly, owns, controls, holds with the power to vote, or holds proxies representing ten percent (10%) or more of the voting securities of any other person. This presumption may be rebutted as provided by W.S. 26-44-104 that control does not exist in fact. The commissioner may determine, after furnishing all interested persons notice and opportunity to be heard and making specific findings of fact to support the determination, that control exists in fact, notwithstanding the absence of a presumption to that effect;
(iv) "Insurance holding company system" means two (2) or more affiliated persons, one (1) or more of which is an insurer;
(v) "Insurance subsidiary" means any subsidiary which transacts insurance as defined in W.S. 26-1-102(a)(xxx);
(vi) "Insurer" means as set forth in W.S. 26-1-102(a)(xvi), (xix) and (xxviii) except that it does not include:
(A) Agencies, authorities or instrumentalities of the United States, its possessions and territories, the Commonwealth of Puerto Rico, the District of Columbia, or a state or political subdivision of a state; or
(B) Fraternal benefit societies.
(vii) "Person" means as defined in W.S. 26-1-102(a)(xx);
(viii) "Security holder" means a person who owns any security of a specified person, including common stock, preferred stock, debt obligations and any other security convertible into or evidencing the right to acquire any of the foregoing;
(ix) "Subsidiary" means an affiliate controlled by a specified person directly or indirectly through one (1) or more intermediaries;
(x) "Voting security" means any security convertible into or evidencing a right to acquire a voting security;
(xi) "Enterprise risk" means any activity, circumstance, event or series of events involving one (1) or more affiliates of an insurer that, if not remedied promptly, is likely to have a material adverse effect upon the financial condition or liquidity of the insurer or its insurance holding company system as a whole, including, but not limited to, anything that would cause the insurer's risk-based capital to fall into company action level as set forth in W.S. 26-48-103 and 26-48-203 or would cause the insurer to be in hazardous financial condition pursuant to W.S. 26-3-116;
(xii) "Group wide supervisor" means the regulatory official authorized to conduct and coordinate group wide supervision activities who is determined or acknowledged by the commissioner to have sufficient significant contacts with the internationally active insurance group under W.S. 26-44-119;
(xiii) "Internationally active insurance group" means an insurance holding company system that:
(A) Includes an insurer registered under W.S. 26-44-104; and
(B) Meets all of the following criteria:
(I) Writes premiums in at least three (3) countries;
(II) The percentage of its gross premiums written outside of the United States is at least ten percent (10%) of its total gross written premiums;
(III) Based on a three (3) year rolling average, its total assets are at least fifty billion dollars ($50,000,000,000.00) or its total gross written premiums are at least ten billion dollars ($10,000,000,000.00).
(xiv) "Group capital calculation instructions" means the group capital calculation instructions as adopted by the NAIC and as amended by the NAIC from time to time in accordance with the procedures adopted by the NAIC;
(xv) "NAIC liquidity stress test framework" means a separate NAIC publication which includes a history of the NAIC's development of regulatory liquidity stress testing, the scope criteria applicable for a specific data year, and the liquidity stress test instructions and reporting templates for a specific data year, such scope criteria, instructions and reporting template being as adopted by the NAIC and as amended by the NAIC from time to time in accordance with the procedures adopted by the NAIC;
(xvi) "Scope criteria," as detailed in the NAIC liquidity stress test framework, means the designated exposure bases along with minimum magnitudes thereof for the specified data year, used to establish a preliminary list of insurers considered scoped into the NAIC liquidity stress test framework for that data year;
(xvii) "Third-party consultant designated by the commissioner" means any independent or consulting actuarial, rating or other technical service provider with whom the commissioner contracts pursuant to W.S. 26-2-106(d);
(xviii) "This act" means W.S. 26-44-101 through 26-44-120.
(a) Any domestic insurer, either by itself or in cooperation with one (1) or more persons, may organize or acquire one (1) or more subsidiaries provided the stock of the insurer's subsidiaries are valued in accordance with the provisions of W.S. 26-6-302. Subsidiaries may conduct any kind of business or businesses and their authority to do so shall not be limited by reason of the fact that they are subsidiaries of a domestic insurer.
(b) In addition to investments in common stock, debt obligations and other securities permitted under all other sections of this chapter, a domestic insurer may also:
(i) Invest in common stock, preferred stock, debt obligations and other securities of one (1) or more subsidiaries, amounts which do not exceed the lesser of ten percent (10%) of the insurer's assets or fifty percent (50%) of the insurer's surplus as regards policyholders, provided that after the investments, the insurer's surplus as regards policyholders will be reasonable in relation to the insurer's outstanding liabilities and adequate to its financial needs. In calculating the amount of the investments, investments in domestic or foreign insurance subsidiaries and health maintenance organizations shall be excluded, and there shall be included:
(A) Total net monies or other consideration expended and obligations assumed in the acquisition or formation of a subsidiary, including all organizational expenses and contributions to capital and surplus of the subsidiary whether or not represented by the purchase of capital stock or issuance of other securities; and
(B) All amounts expended in acquiring additional common stock, preferred stock, debt obligations and other securities and all contributions to the capital or surplus, of a subsidiary subsequent to its acquisition or formation.
(ii) Invest any amount in common stock, preferred stock, debt obligations and other securities of one (1) or more subsidiaries engaged or organized to engage exclusively in the ownership and management of assets authorized as investments for the insurer, provided that each subsidiary agrees to limit its investments in any asset so that the investments will not cause the amount of the total investment of the insurer to exceed any of the investment limitations specified in paragraph (i) of this subsection or in W.S. 26-7-102 through 26-7-116 applicable to the insurer. For the purposes of this paragraph, "the total investment of the insurer" shall include:
(A) Any direct investment by the insurer in an asset; and
(B) The insurer's proportionate share of any investment in an asset by any subsidiary of the insurer, which shall be calculated by multiplying the amount of the subsidiary's investment by the percentage of the ownership of the subsidiary.
(iii) With the approval of the commissioner, invest any greater amount in common stock, preferred stock, debt obligations or other securities of one (1) or more subsidiaries, provided that after the investment the insurer's surplus as regards policyholders will be reasonable in relation to the insurer's outstanding liabilities and adequate to its financial needs.
(c) Whether any investment pursuant to subsection (b) of this section meets the applicable requirements is to be determined before the investment is made by calculating the applicable investment limitations as though the investment had already been made, taking into account the then outstanding principal balance on all previous investments in debt obligations and the value of all previous investments in equity securities as of the day they were made, net of any return of capital invested, not including dividends.
(d) If an insurer ceases to control a subsidiary, it shall dispose of any investment in the subsidiary made pursuant to this section within three (3) years from the time of the cessation of control or within any further time the commissioner may prescribe, unless the investment meets the requirements for investment under any other section of this title and the insurer so notifies the commissioner.
26-44-103. Acquisition of control of or merger with domestic insurer.
(a) No person other than the issuer shall make a tender offer for or a request or invitation for tenders of, or agreement to exchange securities for or otherwise acquire, any voting security or any security convertible into a voting security of a domestic insurer or of any other person controlling a domestic insurer if, after consummation, the person would, directly or indirectly, be in control of the insurer and no person shall enter into an agreement to merge with or otherwise acquire control of a domestic insurer unless:
(i) Thirty (30) days prior to the above transactions the person has filed with the commissioner and has sent to the insurer a statement containing the information required by this section;
(ii) The offer, request, invitation, agreement or acquisition has been approved by the commissioner. For purposes of this section a domestic insurer includes any person controlling a domestic insurer unless the person, as determined by the commissioner, is either directly or through its affiliates primarily engaged in business other than the business of insurance. For the purposes of this section, "person" does not include any securities broker holding, in the usual and customary broker's function, less than twenty percent (20%) of the voting securities of an insurance company or of any person which controls an insurance company; and
(iii) If any controlling person of a domestic insurer is seeking to divest its controlling interest in the domestic insurer in any manner, the controlling person has filed with the commissioner, with a copy to the insurer, confidential notice of its proposed divestiture at least thirty (30) days prior to the cessation of control. The commissioner shall determine those instances in which the party seeking to divest or to acquire a controlling interest in an insurer will be required to file for and obtain approval of the transaction. The information shall remain confidential until the conclusion of the transaction unless the commissioner, in his discretion determines that confidential treatment will interfere with enforcement of this section. If the statement referred to in paragraph (i) of this subsection is otherwise filed by the acquiring person or as otherwise required, this paragraph shall not apply.
(b) The preacquisition statement required by subsection
(a) of this section shall be made under oath or affirmation and shall contain the following:
(i) The name and address of each person by whom or on whose behalf the merger or other acquisition of control referred to in subsection (a) of this section is to be made and the following:
(A) If the person is an individual, his principal occupation and all offices and positions held during the past five (5) years, and any conviction of crimes other than minor traffic violations during the past ten (10) years;
(B) If the person is not an individual, a report of the nature of its business operations during the past five (5) years or for such lesser period as the person and any predecessors of the person have been in existence, an informative description of the business intended to be done by the person and the person's subsidiaries, and a list of all individuals who are or who have been selected to become directors or executive officers of the person, or who perform or will perform functions appropriate to these positions. The list shall include for each individual the information required by subparagraph (A) of this paragraph.
(ii) The source, nature and amount of the consideration used or to be used in effecting the merger or other acquisition of control, a description of any transaction where funds were or are to be obtained for that purpose including any pledge of the insurer's stock or the stock of any of its subsidiaries or controlling affiliates, and the identity of persons furnishing the funds where a source of the funds is a loan made in the lender's ordinary course of business, the identity of the lender shall remain confidential if the person filing the statement so requests;
(iii) Fully audited financial information as to the earnings and financial condition of each acquiring party for the preceding five (5) fiscal years or for any lesser period the acquiring party and any of its predecessors have been in existence, and similar unaudited information as of a date not earlier than ninety (90) days before the filing of the statement;
(iv) Any plans or proposals which each acquiring party may have to liquidate the insurer, to sell its assets or merge or consolidate it with any person, or to make any other material change in its business or corporate structure or management;
(v) The number of shares of any security referred to in subsection (a) of this section which each acquiring party proposes to acquire, and the terms of the offer, request, invitation, agreement or acquisition referred to in subsection
(a) of this section, and a statement as to the method by which the fairness of the proposal was determined;
(vi) The amount of each class of any security referred to in subsection (a) which is beneficially owned or concerning which there is a right to acquire beneficial ownership by each acquiring party;
(vii) A full description of any contracts, arrangements or understandings with respect to any security referred to in subsection (a) of this section in which any acquiring party is involved, including but not limited to transfer of any of the securities, joint ventures, loan or option arrangements, puts or calls, guarantees of loans, guarantees against loss or guarantees of profits, division of losses or profits, or the giving or withholding of proxies. The description shall identify the persons with whom the contracts, arrangements or understandings have been entered;
(viii) A description of the purchase of any security referred to in subsection (a) of this section during the twelve (12) calendar months preceding the filing of the statement, by any acquiring party, including the dates of purchase, names of the purchasers and consideration paid or agreed to be paid;
(ix) A description of any recommendations to purchase any security referred to in subsection (a) of this section made during the twelve (12) calendar months preceding the filing of the statement by any acquiring party or by anyone based upon interviews or at the suggestion of the acquiring party;
(x) Copies of all tender offers for, requests, or invitations for tenders of, exchange offers for, and agreements to acquire or exchange any securities referred to in subsection
(a) of this section, and of additional related soliciting material;
(xi) The term of any agreement, contract or understanding made with or proposed to be made with any broker-dealer as to solicitation of securities referred to in subsection (a) of this section for tender, and the amount of any fees, commissions or other compensation to be paid to broker-dealers;
(xii) An agreement by the person required to file the statement referred to in subsection (a) of this section that it will provide the annual report, specified in W.S. 26-44-104(n), for so long as control exists;
(xiii) An acknowledgement by the person required to file the statement referred to in subsection (a) of this section that the person and all subsidiaries within its control in the insurance holding company system will provide information to the commissioner upon request as necessary to evaluate enterprise risk to the insurer; and
(xiv) Any additional information as the commissioner may by rule or regulation prescribe as necessary or appropriate for the protection of policyholders of the insurer or in the public interest.
(c) If the person required to file the statement referred to in subsection (a) of this section is a partnership, limited partnership, syndicate or other group, the commissioner may require that the information called for by subsection (b) of this section shall be given with respect to each partner of the partnership or limited partnership, each member of the syndicate or group, and each person who controls the partner or member. If any partner, member or person is a corporation, or the person required to file the statement referred to in subsection (a) of this section is a corporation, the commissioner may require that the information called for by subsection (b) of this section shall be given with respect to the corporation, each officer and director of the corporation, and each person who is directly or indirectly the beneficial owner of more than ten percent (10%) of the outstanding voting securities of the corporation.
(d) If any material change occurs in the facts set forth in the statement filed with the commissioner and sent to the insurer pursuant to this section, an amendment setting forth the change, together with copies of all documents and other material relevant to the change, shall be filed with the commissioner and sent to the insurer within two (2) business days after the person learns of the change.
(e) If any offer, request, invitation, agreement or acquisition referred to in subsection (a) of this section is proposed to be made by means of a registration statement under the Securities Act of 1933 or in circumstances requiring the disclosure of similar information under the Securities Exchange Act of 1934, or under a state law requiring similar registration or disclosure, the person required to file the statement referred to in subsection (a) of this section may utilize documents prepared for those laws in furnishing the information called for by this section.
(f) The commissioner shall approve any merger or other acquisition of control referred to in subsection (a) of this section unless after a public hearing he finds that:
(i) After the change of control, the domestic insurer referred to in subsection (a) of this section would not be able to satisfy the requirements for the issuance of a license to write the line or lines of insurance for which it is presently licensed;
(ii) The effect of the merger or other acquisition of control would substantially lessen competition in insurance in Wyoming or tend to create a monopoly in Wyoming. The commissioner may condition the approval of the merger or other acquisition on the removal of the basis of disapproval within a specified period of time;
(iii) The financial condition of any acquiring party might jeopardize the financial stability of the insurer, or prejudice the interest of its policyholders;
(iv) The plans or proposals which the acquiring party has to liquidate the insurer, sell its assets or consolidate or merge it with any person, or to make any other material change in its business or corporate structure or management, are unfair and unreasonable to policyholders of the insurer and not in the public interest;
(v) The competence, experience and integrity of those persons who would control the operation of the insurer are such that it would not be in the interest of policyholders of the insurer and of the public to permit the merger or other acquisition of control; or
(vi) The acquisition is likely to be hazardous or prejudicial to the insurance buying public.
(g) The public hearing referred to in subsection (f) of this section shall be held within thirty (30) days after the statement required by subsection (a) of this section is filed, and at least twenty (20) days notice of the hearing shall be given by the commissioner to the person filing the statement. Not less than seven (7) days notice of the public hearing shall be given by the person filing the statement to the insurer and to any other persons designated by the commissioner. The commissioner shall make a determination within thirty (30) days after the conclusion of the hearing. At the hearing, the person filing the statement, the insurer, any person to whom notice of hearing was sent, and any other person whose interest may be affected shall have the right to present evidence, examine and cross-examine witnesses, and offer oral and written arguments and shall be entitled to conduct discovery proceedings in the same manner as is presently allowed in district court. All discovery proceedings shall be concluded not later than three (3) days prior to the commencement of the public hearing.
(h) If the proposed acquisition of control will require the approval of more than one (1) commissioner, the public hearing referred to in subsection (g) of this section may be held on a consolidated basis upon request of the person filing the statement referred to in subsection (a) of this section. The person shall file the statement referred to in subsection
(a) of this section with the National Association of Insurance Commissioners within five (5) days of making the request for a public hearing. A commissioner may opt out of a consolidated hearing, and shall provide notice to the applicant of the opt-out within ten (10) days of the receipt of the statement referred to in subsection (a) of this section. A hearing conducted on a consolidated basis shall be public and shall be held within the United States before the commissioners of the states in which the insurers are domiciled. The commissioners shall hear and receive evidence. A commissioner may attend the hearing in person or by telecommunication.
(j) In connection with a change of control of a domestic insurer, any determination by the commissioner that the person acquiring control of the insurer shall be required to maintain or restore the capital of the insurer to the level required by the laws and regulations of this state shall be made not later than sixty (60) days after the date of notification of the change in control submitted pursuant to subsection (a) of this section.
(k) The commissioner may retain at the acquiring person's expense any attorneys, actuaries, accountants and other experts not otherwise a part of the commissioner's staff reasonably necessary to assist the commissioner in reviewing the proposed acquisition of control.
(m) The provisions of this section do not apply to:
(i) Any transaction which is subject to the provisions of W.S. 26-24-146 through 26-24-149;
(ii) Any offer, request, invitation, agreement or acquisition which the commissioner by order shall exempt as not having been made or entered into for the purpose and not having the effect of changing or influencing the control of a domestic insurer.
(n) The following shall be violations of this section:
(i) The failure to file any statement, amendment or other material required to be filed pursuant to subsection (a) or (b) of this section; or
(ii) The effectuation or any attempt to effectuate an acquisition of control of, divestiture of, or merger with, a domestic insurer unless the commissioner has given approval.
(o) The Wyoming courts have jurisdiction over every person who files a statement with the commissioner under this section, and overall actions arising out of violations of this section. Any person filing a statement with the commissioner appoints the commissioner as his agent for service of process for actions arising under this section. The commissioner shall send copies of all legal services by certified mail to the appropriate person at his last known address.
26-44-104. Registration of insurers; group capital calculations; liquidity stress test results.
(a) Every insurer which is authorized to do business in this state and which is a member of an insurance holding company system shall register with the commissioner, except a foreign insurer subject to registration requirements and standards adopted by statute or regulation in the jurisdiction of its domicile which are substantially similar to those contained in this section, W.S. 26-44-105(a), 26-44-106 and 26-44-108 and a provision which substantially requires each registered insurer to keep current the information required to be disclosed in its registration statement by reporting all material changes or additions within fifteen (15) days after the end of the month in which it learns of each such change or addition.
(b) Any insurer which is subject to registration under this section shall register within fifteen (15) days after it becomes subject to registration, and annually thereafter by July 1 of each year for the previous calendar year, unless the commissioner for good cause shown extends the time for registration, and then within the extended time. The commissioner may require any insurer authorized to do business in the state which is a member of an insurance holding company system, and which is not subject to registration under this section, to furnish a copy of the registration statement, the summary specified in W.S. 26-44-104(d) or other information filed by the insurance company with the insurance regulatory authority of the domiciliary jurisdiction.
(c) Every insurer subject to registration shall file the registration statement containing any information required by regulation by the commissioner and in the form prescribed by regulation by the commissioner, which shall contain the following current information:
(i) The capital structure, general financial condition, ownership and management of the insurer and any person controlling the insurer;
(ii) The identity and relationship of every member of the insurance holding company system;
(iii) The following agreements in force, and transactions currently outstanding or which have occurred during the last calendar year between the insurer and its affiliates:
(A) Loans, other investments, or purchases, sales or exchanges of securities of the affiliates by the insurer or of the insurer by its affiliates;
(B) Purchases, sales or exchange of assets;
(C) Transactions not in the ordinary course of business;
(D) Guarantees or undertakings for the benefit of an affiliate which result in an actual contingent exposure of the insurer's assets to liability, other than insurance contracts entered into in the ordinary course of the insurer's business;
(E) All management agreements, service contracts and all cost-sharing arrangements;
(F) Reinsurance agreements;
(G) Dividends and other distributions to shareholders; and
(H) Consolidated tax allocation agreements.
(iv) Any pledge of the insurer's stock, including stock of any subsidiary or controlling affiliate, for a loan made to any member of the insurance holding company system;
(v) If requested by the commissioner, the insurer shall include financial statements of or within an insurance holding company system, including all affiliates. Financial statements may include but are not limited to annual audited financial statements filed with the United States Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended, or the Securities Exchange Act of 1934, as amended. An insurer required to file financial statements pursuant to this paragraph may satisfy the request by providing the commissioner with the most recently filed parent corporation financial statements that have been filed with the SEC;
(vi) Other matters concerning transactions between registered insurers and any affiliates as may be included from time to time in any registration forms adopted or approved by the commissioner;
(vii) Statements that the insurer's board of directors oversees corporate governance and internal controls and that the insurer's officers or senior management have approved, implemented, and continue to maintain and monitor corporate governance and internal control procedures;
(viii) Any other information required by the commissioner by rule or regulation.
(d) All registration statements shall contain a summary outlining all items in the current registration statement representing changes from the prior registration statement.
(e) Information need not be disclosed on the registration statement filed pursuant to subsection (b) of this section if the information is not material for the purposes of this section. Unless the commissioner by rule, regulation or order provides otherwise, sales, purchases, exchanges, loans or extensions of credit, investments or guarantees involving one-half of one percent (.5%) or less of an insurer's admitted assets as of December 31, of the year immediately preceding are not material for purposes of this section. As used in this subsection, "material" shall not apply for purposes of the group capital calculation or the NAIC liquidity stress test framework.
(f) Each registered insurer shall report to the commissioner all dividends and other distributions to shareholders within fifteen (15) business days following the declaration of the dividend or distribution.
(g) Any person within an insurance holding company system subject to registration is required to provide complete and accurate information to an insurer where the information is reasonably necessary to enable the insurer to comply with the provisions of this act.
(h) The commissioner shall terminate the registration of any insurer which demonstrates that it no longer is a member of an insurance holding company system.
(j) The commissioner may require or allow two (2) or more affiliated insurers subject to registration under this act to file a consolidated registration statement.
(k) The commissioner may allow an insurer which is authorized to do business in this state and which is part of an insurance holding company system to register on behalf of any affiliated insurer which is required to register under subsection (a) of this section and to file all information and material required to be filed under this section.
(m) Any person may file with the commissioner a disclaimer of affiliation with any authorized insurer or the disclaimer may be filed by the insurer or any member of an insurance holding company system. The disclaimer shall fully disclose all material relationships and bases for affiliation between the person and the insurer as well as the basis for disclaiming the affiliation. A disclaimer of affiliation shall be deemed to have been approved unless the commissioner, within thirty (30) days following receipt of a complete disclaimer, notifies the filing party the disclaimer is disallowed. In the event of disallowance, the disclaiming party may request an administrative hearing, which shall be granted. The disclaiming party shall be relieved of its duty to register under this section if approval of the disclaimer has been granted by the commissioner, or if the disclaimer is deemed to have been approved.
(n) Beginning July 1, 2014, the ultimate controlling person of every insurer subject to registration shall also file an annual enterprise risk report. The report shall, to the best of the ultimate controlling person's knowledge and belief, identify the material risks within the insurance holding company system that could pose enterprise risk to the insurer. The report shall be filed with the lead state commissioner of the insurance holding company system as determined by the procedures within the Financial Analysis Handbook adopted by the National Association of Insurance Commissioners.
(o) The failure to file a registration statement or any summary of the registration statement or enterprise risk filing required by this section within the time specified for filing shall be a violation of this section.
(p) Except as otherwise provided in this subsection, the ultimate controlling person of every insurer subject to registration under this section shall concurrently file with the registration an annual group capital calculation, including the group capital ratio produced within the calculation, as directed by the lead state commissioner. The report shall be completed in accordance with the NAIC group capital calculation instructions, which may permit the lead state commissioner to allow a controlling person that is not the ultimate controlling person to file the group capital calculation. The report shall be filed with the lead state commissioner of the insurance holding company system as determined by the commissioner in accordance with the procedures within the financial analysis handbook adopted by the NAIC. The following shall apply to this subsection:
(i) The following insurance holding company systems are exempt from filing the group capital calculation:
(A) An insurance holding company system that has only one (1) insurer within its holding company structure, that only writes business and is only licensed in its domestic state, and that assumes no business from any other insurer;
(B) An insurance holding company system that is required to perform a group capital calculation specified by the United States federal reserve board. The lead state commissioner shall request the calculation from the United States federal reserve board under the terms of information sharing agreements in effect. If the United States federal reserve board cannot share the calculation with the lead state commissioner, the insurance holding company system is not exempt from the group capital calculation filing;
(C) An insurance holding company system whose non-United States group wide supervisor is located within a reciprocal jurisdiction as described in W.S. 26-5-112(j)(ii) that recognizes the United States state regulatory approach to group supervision and group capital;
(D) An insurance holding company system:
(I) That provides information to the lead state that meets the requirements for accreditation under the NAIC financial standards and accreditation program, either directly or indirectly through the group wide supervisor, who has determined such information is satisfactory to allow the lead state to comply with the NAIC group supervision approach, as detailed in the NAIC financial analysis handbook; and
(II) Whose non-United States group wide supervisor who is not in a reciprocal jurisdiction recognizes and accepts, as specified by the commissioner in regulation, the group capital calculation as the world wide group capital assessment for United States insurance groups who operate in that jurisdiction.
(ii) Notwithstanding subparagraphs (i)(C) and (D) of this subsection, a lead state commissioner shall require the group capital calculation for United States operations of any non-United States based insurance holding company system where, after any necessary consultation with other supervisors or officials, it is deemed appropriate by the lead state commissioner for prudential oversight and solvency monitoring purposes or for ensuring the competitiveness of the insurance marketplace;
(iii) Notwithstanding the exemptions from filing the group capital calculation stated in subparagraphs (i)(A) through
(D) of this subsection, the lead state commissioner has the discretion to exempt the ultimate controlling person from filing the annual group capital calculation or to accept a limited group capital filing or report in accordance with criteria as specified by the commissioner in regulation;
(iv) If the commissioner determines that an insurance holding company system no longer meets one (1) or more of the requirements for an exemption from filing the group capital calculation under this subsection, the insurance holding company system shall file the group capital calculation at the next annual filing date unless given an extension by the lead state commissioner based on reasonable grounds shown.
(q) The ultimate controlling person of every insurer subject to registration and also scoped into the NAIC liquidity stress test framework shall file the results of a specific year's liquidity stress test. The filing shall be made to the lead state insurance commissioner of the insurance holding company system as determined by the procedures within the financial analysis handbook adopted by the NAIC, subject to the following:
(i) The NAIC liquidity stress test framework shall include scope criteria applicable to a specific data year. These scope criteria shall be reviewed at least annually by the financial stability task force or its successor. Any change to the NAIC liquidity stress test framework or to the data year for which the scope criteria are to be measured shall be effective on January 1 of the year following the calendar year when the changes are adopted. Insurers meeting at least one (1) threshold of the scope criteria are considered scoped into the NAIC liquidity stress test framework for the specified data year unless the lead state insurance commissioner, in consultation with the NAIC financial stability task force or its successor, determines the insurer should not be scoped into the framework for that data year. Similarly, insurers that do not trigger at least one (1) threshold of the scope criteria shall be considered scoped out of the NAIC liquidity stress test framework for the specified data year, unless the lead state insurance commissioner, in consultation with the NAIC financial stability task force or its successor, determines the insurer should be scoped into the framework for that data year;
(ii) The performance of, and filing of the results from, a specific year's liquidity stress test shall comply with the NAIC liquidity stress test framework's instructions and reporting templates for that year and any lead state insurance commissioner determinations, in conjunction with the financial stability task force or its successor, provided within the framework.
26-44-105. Transactions within a holding company system.
(a) Transactions within an insurance holding company system to which an insurer subject to registration is a party shall be subject to the following standards:
(i) The terms shall be fair and reasonable;
(ii) Charges or fees for services performed shall be reasonable;
(iii) Expenses incurred and payment received shall be allocated to the insurer in conformity with customary insurance accounting practices consistently applied;
(iv) The books, accounts and records of each party to all the transactions shall be so maintained as to clearly and accurately disclose the nature and details of the transactions including any accounting information necessary to support the reasonableness of the charges or fees to the respective parties;
(v) The insurer's surplus as regards policy holders following any dividends or distributions to shareholder affiliates shall be reasonable in relation to the insurer's outstanding liabilities and adequate to its financial needs as set forth in W.S. 26-44-108; and
(vi) Agreements for cost sharing services and management shall include provisions as required by regulation issued by the commissioner.
(b) The following transactions involving a domestic insurer and any person in its insurance holding company system, including amendments or modifications of affiliate agreements previously filed pursuant to this section, which are subject to any materiality standards contained in subsection (b) of this section, shall not be entered into unless the insurer has notified the commissioner in writing of its intention to enter into the transaction at least thirty (30) days prior to the transaction or a shorter period as the commissioner may permit and the commissioner has not disapproved it within that period. The notice for amendments or modifications shall include the reasons for the change and the financial impact on the domestic insurer. Informal notice shall be reported, within thirty (30) days after a termination of a previously filed agreement, to the commissioner for determination of the type of filing required, if any. In assessing transactions under this subsection, the commissioner shall consider whether the transactions comply with subsection (a) of this section and whether they may adversely affect the interests of policyholders. The transactions to be considered are:
(i) Sales, purchases, exchanges, loans or extensions of credit, guarantees or investments if on December 31 of the year immediately preceding the transactions are equal to or exceed:
(A) With respect to nonlife insurers, the lesser of three percent (3%) of the insurer's admitted assets or twenty-five percent (25%) of surplus as regards policyholders;
(B) With respect to life insurers, three percent (3%) of the insurer's admitted assets.
(ii) Loans or extensions of credit to any person who is not an affiliate, where the insurer makes the loans or extensions of credit with the agreement or understanding that the proceeds of the transactions, in whole or in substantial part, are to be used to make loans or extensions of credit to purchase assets of, or to make investments in, any affiliate of the insurer making the loans or extensions of credit if on December 31 of the year immediately preceding the transactions are equal to or exceed:
(A) With respect to nonlife insurers, the lesser of three percent (3%) of the insurer's admitted assets or twenty-five percent (25%) of surplus as regards policyholders;
(B) With respect to life insurers, three percent (3%) of the insurer's admitted assets.
(iii) Reinsurance agreements or modifications thereto, including all reinsurance pooling agreements, agreements in which the reinsurance premium or a change in the insurer's liabilities, or the projected reinsurance premium or a change in the insurer's liabilities in any of the next three (3) years, equals or exceeds five percent (5%) of the insurer's surplus as regards policyholders, as of December 31 of the year immediately preceding, including those agreements which may require as consideration the transfer of assets from an insurer to a nonaffiliate, if an agreement or understanding exists between the insurer and nonaffiliate that any portion of the assets will be transferred to one (1) or more affiliates of the insurer;
(iv) All management agreements, service contracts, tax allocation agreements and all cost-sharing arrangements; and
(v) Any material transactions, specified by regulation, which the commissioner determines may adversely affect the interests of the insurer's policyholders.
(c) Nothing in this section shall be deemed to authorize or permit any transaction which, in the case of an insurer not a member of the same insurance holding company system, would be otherwise contrary to law.
(d) A domestic insurer shall not enter into transactions which are part of a plan or series of like transactions with persons within the insurance holding company system if the purpose of those separate transactions is to avoid the notification requirement set forth in subsection (b) of this section and thus the review that would otherwise occur. If the commissioner determines that separate transactions were entered into over any twelve (12) month period for that purpose, the commissioner may exercise his authority under W.S. 26-44-113.
(e) The commissioner shall be notified within thirty (30) days of any investment of the domestic insurer in any one (1) corporation if the total investment in the corporation by the insurance holding company system exceeds ten percent (10%) of the corporation's voting securities.
(a) A domestic insurer shall not pay any extraordinary dividend or make any other extraordinary distribution to its shareholders until thirty (30) days after the commissioner has received notice of the declaration of dividend and has not disapproved payment, or the commissioner has approved the payment whichever is shorter.
(b) For purposes of this section, an extraordinary dividend or distribution includes any dividend or distribution of cash or other property, whose fair market value together with that of other dividends or distributions made within the preceding twelve (12) months exceeds the lesser of:
(i) Ten percent (10%) of the insurer's surplus as regards policyholders as of December 31 of the year immediately preceding; or
(ii) The net gain from operations of the insurer, if the insurer is a life insurer, or the net income, if the insurer is not a life insurer, not including realized capital gains, for the twelve (12) month period ending December 31 of the year immediately preceding, nor pro rata distributions of the insurer's own securities.
(c) In determining whether a dividend or distribution is extraordinary, an insurer other than a life insurer may carry forward net income from the previous two (2) calendar years that has not already been paid out as dividends. This carry-forward shall be computed by taking the net income from the second and third preceding calendar years, not including realized capital gains, less dividends paid in the second and immediate preceding calendar years.
(d) Notwithstanding any other provision of law, an insurer may declare an extraordinary dividend or distribution which is conditional upon the commissioner's approval. This declaration shall confer no rights upon shareholders until the commissioner has approved the payment or the commissioner has not disapproved the payment within thirty (30) days, whichever is shorter.
26-44-107. Management of domestic insurers subject to registration.
(a) The officers and directors of the insurer are not relieved of any obligation or liability to which they would otherwise be subject by law because the control of the domestic insurer lies with any other person. The insurer shall be managed to assure its separate operating identity consistent with this title.
(b) Nothing in this act shall preclude a domestic insurer from having or sharing a common management or cooperative or joint use of personnel, property or services with one (1) or more other persons under arrangements meeting the standards of W.S. 26-44-105(a).
(a) For purposes of this act, in determining whether an insurer's surplus as regards policyholders is reasonable in relation to the insurer's outstanding liabilities and adequate to its financial needs, the following factors, among others, shall be considered:
(i) The size of the insurer as measured by its assets, capital and surplus, reserves, premium writings, insurance in force and other appropriate criteria;
(ii) The extent to which the insurer's business is diversified among the several lines of insurance;
(iii) The number and size of risks insured in each line of business;
(iv) The extent of the geographical dispersion of the insurer's insured risks;
(v) The nature and extent of the insurer's reinsurance program;
(vi) The quality, diversification and liquidity of the insurer's investment portfolio;
(vii) The recent past and projected future trend in the size of the insurer's investment portfolio;
(viii) The surplus as regards policyholders maintained by other comparable insurers;
(ix) The adequacy of the insurer's reserves; and
(x) The quality and liquidity of investments in affiliates.
(b) The commissioner may treat any investment as a disallowed asset for purposes of determining the adequacy of surplus as regards policyholders whenever he deems that treatment necessary.
(a) The commissioner may examine any insurer registered under W.S. 26-44-104 or any affiliate of the insurer in accordance with this section and the provisions of W.S. 26-2-116 through 26-2-124 to ascertain the financial condition of the insurer, including the enterprise risk to the insurer by the ultimate controlling party, or by any entity or combination of entities within the insurance holding company system, or by the insurance holding company system on a consolidated basis. The commissioner may retain at the insurer's expense any attorneys, actuaries, accountants and other experts not otherwise a part of the commissioner's staff reasonably necessary to conduct the examination. Any person so retained shall be under the direction and control of the commissioner and shall act in a purely advisory capacity.
(b) To determine compliance with this chapter, the commissioner may order any insurer registered under W.S. 26-44-104 to produce information not in the possession of the insurer if the insurer can obtain access to this information pursuant to contractual relationships, statutory obligations or other method. In the event the insurer cannot obtain the information requested by the commissioner, the insurer shall provide the commissioner a detailed explanation of the reason that the insurer cannot obtain the information and the identity of the holder of the information. Whenever it appears to the commissioner that the detailed explanation is without merit, the commissioner may, after notice and hearing, suspend or revoke the insurer's license or certificate.
(c) In the event the insurer fails to comply with an order, the commissioner shall have the power to examine the affiliates to obtain the information. The commissioner shall also have the power to issue subpoenas, to administer oaths and to examine under oath any person for purposes of determining compliance with this section. Upon the failure or refusal of any person to obey a subpoena, the commissioner may petition a court of competent jurisdiction, and upon proper showing, the court may enter an order compelling the witness to appear and testify or produce documentary evidence.
(a) All information, documents and copies of the documents and information obtained by or disclosed to the commissioner or any other person in the course of an examination made pursuant to W.S. 26-44-109 and all information reported pursuant to W.S. 26-44-103(b)(xii) and (xiii), 26-44-104 through 26-44-108 and 26-44-119 shall be confidential, shall not be subject to subpoena and shall not be disclosed by the commissioner, the National Association of Insurance Commissioners, or any person, except as authorized by and in accordance with the provisions of W.S. 26-2-113(d), without the prior written consent of the insurer to which the information pertains. The commissioner, after giving the insurer and its affiliates notice and opportunity to be heard, may determine that the interest of policyholders, shareholders or the public will be served by the publication of the information, in which event he may publish all or any part of the information as he deems appropriate, except as provided in this paragraph. The following shall apply to information reported and provided to the department of insurance pursuant to W.S. 26-44-104(p) and (q):
(i) For purposes of the information reported and provided to the department of insurance pursuant to W.S. 26-44-104(p), the commissioner shall maintain the confidentiality of the group capital calculation and group capital ratio produced within the calculation and any group capital information received from an insurance holding company supervised by the United States federal reserve board or any United States group wide supervisor;
(ii) For purposes of the information reported and provided to the department of insurance pursuant to W.S. 26-44-104(q), the commissioner shall maintain the confidentiality of the liquidity stress test results and supporting disclosures and any liquidity stress test information received from an insurance holding company supervised by the United States federal reserve board and non-United States group wide supervisors.
(b) Neither the commissioner nor any person who received documents, materials or other information while acting under the authority of the commissioner or with whom the documents, materials or other information are shared pursuant to this act shall be permitted or required to testify in any private civil action concerning any confidential documents, materials or information subject to subsection (a) of this section.
(c) Notwithstanding W.S. 26-2-113, the commissioner shall only share confidential and privileged documents, material or information reported pursuant to W.S. 26-44-104(n) with commissioners of states having statutes or regulations substantially similar to Wyoming insurance statutes and who have agreed in writing not to disclose the information.
(d) In addition to any other authorities provided by law, the commissioner shall enter into written agreements with the NAIC governing sharing and use of information provided pursuant to this act consistent with this subsection which shall:
(i) Specify procedures and protocols regarding the confidentiality and security of information shared with the NAIC or a third-party consultant designated by the commissioner pursuant to this act, including procedures and protocols for sharing by the NAIC with other state, federal or international regulators. The agreement shall provide that the recipient agrees in writing to maintain the confidentiality and privileged status of the documents, materials or other information and has verified in writing the legal authority to maintain such confidentiality;
(ii) Specify that ownership of information shared with the NAIC or a third-party consultant designated by the commissioner pursuant to this act remains with the commissioner and the NAIC's or a third-party consultant as designated by the commissioner's use of the information is subject to the direction of the commissioner;
(iii) Require prompt notice to be given to an insurer whose confidential information in the possession of the NAIC or a third-party consultant designated by the commissioner pursuant to this act is subject to a request or subpoena to the NAIC or a third-party consultant designated by the commissioner for disclosure or production;
(iv) Require the NAIC or a third-party consultant designated by the commissioner to consent to intervention by an insurer in any judicial or administrative action in which the NAIC or a third-party consultant designated by the commissioner may be required to disclose confidential information about the insurer shared with the NAIC or a third-party consultant designated by the commissioner pursuant to this chapter;
(v) Excluding documents, material or information reported pursuant to W.S. 26-44-104(q), prohibit the NAIC or third-party consultant designated by the commissioner from storing the information shared pursuant to this act in a permanent database after the underlying analysis is completed;
(vi) For documents, material or information reported pursuant to W.S. 26-44-104(q), in the case of an agreement involving a third-party consultant designated by the commissioner, provide for notification of the identity of the third-party consultant designated by the commissioner to the applicable insurers.
(e) The sharing of information by the commissioner pursuant to this chapter shall not constitute a delegation of regulatory authority or rulemaking and the commissioner is solely responsible for the administration, execution and enforcement of the provisions of this chapter.
(f) No waiver of any applicable privilege or claim of confidentiality in the documents, materials or information shall occur as a result of disclosure to the commissioner under this chapter or as a result of sharing as authorized under this chapter.
(g) Documents, materials or other information in the possession or control of the NAIC or a third-party consultant designated by the commissioner pursuant to this chapter shall be confidential by law and privileged, shall not be a public record under W.S. 16-4-201 through 16-4-205, shall not be subject to subpoena and shall not be subject to discovery or admissible in evidence in any private civil action.
26-44-112. Injunctions; prohibitions against voting securities; sequestration of voting securities.
(a) Whenever it appears to the commissioner that any insurer or any director, officer, employee or agent of the insurer has committed or is about to commit a violation of this act or of any rule, regulation or order issued by the commissioner pursuant to this act, the commissioner may apply to the district court for the county in which the principal office of the insurer is located or, if the insurer has no office in this state, then to the district court for Laramie county for an injunction.
(b) No security which is the subject of any agreement or arrangement regarding acquisition, or which is acquired or to be acquired, in violation of this act or of any rule, regulation or order issued by the commissioner pursuant to this act may be voted at any shareholder's meeting, or may be counted for quorum purposes, and any action of shareholders requiring the affirmative vote of a percentage of shares may be taken as though the securities were not issued and outstanding. No action taken at any meeting shall be invalidated by the voting of the securities, unless the action would materially affect control of the insurer or unless the Wyoming courts have so ordered. If an insurer or the commissioner has reason to believe that any security of the insurer has been or is about to be acquired in violation of this act or of any rule, regulation or order issued by the commissioner pursuant to this act, the insurer or the commissioner may apply to the court for the county in which the insurer has its principle place of business to enjoin any action violating this act, to enjoin the voting of any security acquired in violation of this act, to void any vote of such a security already cast at any meeting of shareholders and for other equitable relief.
(c) In any case where a person has acquired or is proposing to acquire any voting securities in violation of this act or any rule, regulation or order issued by the commissioner, the commissioner or insurer may request the district court to seize or sequester any voting securities of the insurer owned directly or indirectly by the person, and issue an order appropriate to carry out the purposes of this act. Notwithstanding any other provisions of law, for the purposes of this act the sites of the ownership of the securities of domestic insurers shall be deemed to be in Wyoming.
(a) Any insurer failing, without just cause, to file any registration statement as required in this act shall be required, after notice and hearing, to pay a penalty of five hundred dollars ($500.00) for each day's delay, to be recovered by the commissioner. The penalty recovered shall be paid into the general fund. The commissioner may reduce the penalty if the insurer demonstrates to the commissioner that the imposition of the penalty would constitute a financial hardship to the insurer.
(b) Any director or officer of an insurance holding company system who knowingly violates, participates in, or assents to, or who knowingly permits any of the officers or agents of the insurer to engage in transactions or make investments which violate this act is guilty of a misdemeanor punishable by a fine of not more than one thousand dollars ($1,000.00), imprisonment for not more than one (1) year, or both.
(c) Whenever it appears to the commissioner that any insurer subject to this act or any director, officer, employee or agent of the insurer has engaged in any transaction or entered into a contract which is subject to this act and which would not have been approved had approval been requested, the commissioner may order the insurer to cease and desist immediately any further activity under that transaction or contract. After notice and hearing the commissioner may also order the insurer to void any contracts and restore the status quo if the action is in the best interest of the policyholders, creditors or the public.
(d) Any officer, director or employee of an insurance holding company system who willfully and knowingly subscribes to or makes or causes to be made any false statements or false reports or false filings with the intent to deceive the commissioner in the performance of his duties under this article is guilty of a felony and shall be fined not more than two hundred fifty thousand dollars ($250,000.00), imprisoned for not more than ten (10) years, or both.
(e) Whenever it appears to the commissioner that any person has committed a violation of W.S. 26-44-103 which prevents the full understanding of the enterprise risk to the insurer by affiliates or by the insurance holding company system, the violation may serve as an independent basis for disapproving dividends or distributions and for placing the insurer under an order in accordance with chapter 28 of this title.
Whenever it appears to the commissioner that any person has committed a violation of this act which so impairs the financial condition of a domestic insurer as to threaten insolvency or make the further transaction of business by the person not in the best interest of the policyholders, creditors, shareholders or the public, then the commissioner may proceed as provided in chapter 28 of this title.
(a) Subject to subsections (b), (c) and (d) of this section, if an order for liquidation or rehabilitation of a domestic insurer has been entered, the receiver appointed under the order shall have a right to recover on behalf of the insurer any distribution or payment made at any time during the one (1) year preceding the petition for liquidation, conservation or rehabilitation which is either:
(i) From any parent corporation or holding company or person or affiliate who otherwise controlled the insurer, the amount of distributions other than distributions of shares of the same class of stock paid by the insurer on its capital stock; or
(ii) Any payment in the form of a bonus, termination settlement or extraordinary lump sum salary adjustment made by the insurer or its subsidiary to a director, officer or employee.
(b) A distribution shall not be recoverable if the parent or affiliate shows that, when paid, the distribution was lawful and reasonable, and that the insurer did not know and could not reasonably have known that the distribution might adversely affect the ability of the insurer to fulfill its contractual obligations.
(c) Any person who was a parent corporation or holding company or a person who otherwise controlled the insurer or affiliate at the time the distributions were paid shall be liable up to the amount of distributions or payments the person received under subsection (a) of this section. Any person who otherwise controlled the insurer at the time the distributions were declared shall be liable up to the amount of distributions he would have received if they had been paid immediately.
(d) The maximum amount recoverable under this section shall be the amount needed in excess of all other available assets of the impaired or insolvent insurer to pay the contractual obligations of the impaired or insolvent insurer and to reimburse any guaranty funds.
(e) To the extent that any person liable under subsection
(c) of this section is insolvent or otherwise fails to pay claims due from it pursuant to subsection (c) of this section, its parent corporation or holding company or person who otherwise controlled it at the time the distribution was paid, shall be liable for any resulting deficiency in the amount recovered from the parent corporation or holding company or person who otherwise controlled it.
26-44-116. Revocation, suspension or nonrenewal of insurer's license.
Whenever it appears to the commissioner that any person has committed a violation of this act which makes the continued operation of an insurer contrary to the interests of policyholders or the public, the commissioner may, after giving notice and an opportunity for hearing, determine to suspend, revoke or refuse to renew the insurer's license or authority to do business in Wyoming for any period he finds is required for the protection of policyholders or the public. The determination shall be accompanied by specific findings of fact and conclusions of law.
Any person aggrieved or adversely affected in fact by any final decision, order, ruling, finding or other act of the insurance commissioner made pursuant to this chapter may obtain judicial review in accordance with the Wyoming Administrative Procedure Act.