Utah Code 31A-27a-512.1. Indemnitor liability
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Terms Used In Utah Code 31A-27a-512.1
- Affected guaranty association: means a guaranty association that is or may become liable for payment of a covered claim. See Utah Code 31A-27a-102
- Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
- Commissioner: is a s defined in Section 31A-1-301. See Utah Code 31A-27a-102
- Contract: A legal written agreement that becomes binding when signed.
- creditor: means a person having a claim against an insurer whether the claim is:(5)(a) matured or not matured;(5)(b) liquidated or unliquidated;(5)(c) secured or unsecured;(5)(d) absolute; or(5)(e) fixed or contingent. See Utah Code 31A-27a-102
- Equitable: Pertaining to civil suits in "equity" rather than in "law." In English legal history, the courts of "law" could order the payment of damages and could afford no other remedy. See damages. A separate court of "equity" could order someone to do something or to cease to do something. See, e.g., injunction. In American jurisprudence, the federal courts have both legal and equitable power, but the distinction is still an important one. For example, a trial by jury is normally available in "law" cases but not in "equity" cases. Source: U.S. Courts
- Filing: when used as a noun, means an item required to be filed with the department including:
(70)(a) a policy;(70)(b) a rate;(70)(c) a form;(70)(d) a document;(70)(e) a plan;(70)(f) a manual;(70)(g) an application;(70)(h) a report;(70)(i) a certificate;(70)(j) an endorsement;(70)(k) an actuarial certification;(70)(l) a licensee annual statement;(70)(m) a licensee renewal application;(70)(n) an advertisement;(70)(o) a binder; or(70)(p) an outline of coverage. See Utah Code 31A-1-301- Guaranty association: means :
(20)(a) a mechanism mandated by Chapter 28, Guaranty Associations; or(20)(b) a similar mechanism in another state that is created for the payment of claims or continuation of policy obligations of a financially impaired or insolvent insurer. See Utah Code 31A-27a-102- Indemnity: means the payment of an amount to offset all or part of an insured loss. See Utah Code 31A-1-301
- insolvent: means that an insurer:
(22)(a) is unable to pay its obligations when they are due;(22)(b) does not have admitted assets at least equal to all of its liabilities; or(22)(c) has a total adjusted capital that is less than its mandatory control level RBC, as defined in Section 31A-17-601. See Utah Code 31A-27a-102- Insured: means a person to whom or for whose benefit an insurer makes a promise in an insurance policy and includes:
(103)(a)(i) a policyholder;(103)(a)(ii) a subscriber;(103)(a)(iii) a member; and(103)(a)(iv) a beneficiary. See Utah Code 31A-1-301- insurer: means a person who:
(23)(a) is doing, has done, purports to do, or is licensed to do the business of insurance;(23)(b) is or has been subject to the authority of, or to rehabilitation, liquidation, reorganization, supervision, or conservation by an insurance commissioner; or(23)(c) is included under Section 31A-27a-104. See Utah Code 31A-27a-102- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- Order: means an order of the commissioner. See Utah Code 31A-1-301
- Person: includes :
(146)(a) an individual;(146)(b) a partnership;(146)(c) a corporation;(146)(d) an incorporated or unincorporated association;(146)(e) a joint stock company;(146)(f) a trust;(146)(g) a limited liability company;(146)(h) a reciprocal;(146)(i) a syndicate; or(146)(j) another similar entity or combination of entities acting in concert. See Utah Code 31A-1-301- Proceeding: includes an action or special statutory proceeding. See Utah Code 31A-1-301
- Rate: means :
(163)(a)(i) the cost of a given unit of insurance; or(163)(a)(ii) for property or casualty insurance, that cost of insurance per exposure unit either expressed as:(163)(a)(ii)(A) a single number; or(163)(a)(ii)(B) a pure premium rate, adjusted before the application of individual risk variations based on loss or expense considerations to account for the treatment of:(163)(a)(ii)(B)(I) expenses;(163)(a)(ii)(B)(II) profit; and(163)(a)(ii)(B)(III) individual insurer variation in loss experience. See Utah Code 31A-1-301- receiver: means the commissioner or the commissioner's designee, including a rehabilitator, liquidator, or ancillary receiver. See Utah Code 31A-27a-102
- receivership: means a rehabilitation, liquidation, or ancillary receivership. See Utah Code 31A-27a-102
- receivership court: refers to the court in which a delinquency proceeding is pending. See Utah Code 31A-27a-102
- Writing: includes :
(48)(a) printing;(48)(b) handwriting; and(48)(c) information stored in an electronic or other medium if the information is retrievable in a perceivable format. See Utah Code 68-3-12.5(1)(a) Except as otherwise provided in this chapter, the amount recoverable by the receiver from an indemnitor may not be reduced as a result of a delinquency proceeding with a finding of insolvency, regardless of any provision in the indemnity contract or other agreement.(1)(b) To the extent an agreement, written or oral, conflicts with or is not in strict compliance with this section, the agreement is unenforceable.(1)(c) Except as expressly provided in this section, a person who is not the receiver, including a creditor or third-party beneficiary, does not have a right to indemnity proceeds from any indemnitor of the insolvent insurer:(1)(c)(i) on the basis of any agreement, written or oral; or(1)(c)(ii) pursuant to an action or cause of action seeking any equitable or legal remedy.(1)(d) This section applies to all the insurer’s indemnity contracts.(2) The amount recoverable by the liquidator from an indemnitor is payable under one or more contract of indemnity on the basis of:(2)(a) proof of payment of the insured claim by an affected guaranty association, the insurer, or the receiver, to the extent of payment; or(2)(b) the allowance of the claim pursuant to:(2)(b)(i) Section 31A-27a-608;(2)(b)(ii) an order of the receivership court; or(2)(b)(iii) a plan of rehabilitation.(3) If an insurer takes credit for an indemnity contract in a filing or submission made to the commissioner and the indemnity contract does not contain the provisions required with respect to the obligations of indemnitor in the event of insolvency of the principal, the indemnity contract is considered to contain the provisions required with respect to:(3)(a) the obligations of indemnitors in the event of insolvency of the principal in order to obtain indemnity; or(3)(b) other applicable statutes.(4) An indemnity contract that under Subsection (3) is considered to contain certain provisions, is considered to contain a provision that:(4)(a) in the event of insolvency and the appointment of a receiver, the indemnity obligation is payable to the indemnified insurer or to its receiver without diminution because of the insolvency or because the receiver fails to pay all or a portion of the claim;(4)(b) payment shall be made upon:(4)(b)(i) to the extent of the payment, proof of payment of the insured claim by an affected guaranty association, the insurer, or the receiver; or(4)(b)(ii) the allowance of the claim pursuant to:(4)(b)(ii)(A) Section 31A-27a-608;(4)(b)(ii)(B) an order of the receivership court; or(4)(b)(ii)(C) a plan of rehabilitation; and(4)(c) if an indemnitor does not pay the amount billed by the receiver within 60 days after the mailing by the receiver, interest on the unpaid billed amount will begin to accrue at the statutory legal rate described in Section 15-1-1, except that all or a portion of the interest may be waived.(5)(5)(a) The receiver shall notify in writing, in accordance with the terms of the indemnity contract, each indemnitor obligated in relation to an indemnified claim or the pendency of an indemnified claim against the indemnified company.(5)(b)(5)(b)(i) The receiver’s failure to give notice of a pending claim does not excuse the obligation of the indemnitor, unless the indemnitor is prejudiced by the receiver’s failure.(5)(b)(ii) If the indemnitor is prejudiced by the receiver’s failure, the indemnitor’s obligation is reduced only to the extent of the prejudice.(5)(c) In a proceeding in which an indemnified claim is to be adjudicated, an indemnitor may interpose, at its own expense, any one or more defenses that the indemnitor considers available to the indemnified company or its receiver.(6) The entry of an order of rehabilitation or liquidation is not:(6)(a) a breach or an anticipatory breach of an indemnity contract; or(6)(b) grounds for retroactive revocation or retroactive cancellation of an indemnity contract by the indemnifier.