§431:3-408  Confidentiality and prohibitionon announcements; prohibition on use in ratemaking.  (a)  Allrisk-based capital reports (to the extent the information therein is notrequired to be set forth in a publicly available annual statement schedule) andrisk-based capital plans (including the results or report of any examination oranalysis of an insurer performed pursuant to this part and any corrective orderissued by the commissioner pursuant to examination or analysis) with respect toany domestic insurer or foreign insurer which are filed with the commissioner,constitute information that might be damaging to the insurer if made availableto its competitors, and therefore shall be kept confidential by thecommissioner.  This information shall not be made public or be subject tosubpoena, other than by the commissioner and then only to enforce actions takenby the commissioner pursuant to this part or any other provision of theinsurance laws of this State.

(b)  The comparison of an insurer's totaladjusted capital to any of its risk-based capital levels is a regulatory toolwhich may indicate the need for possible corrective action with respect to theinsurer and is not intended as a means to rank insurers generally.  Therefore,except as otherwise required under this part, the making, publishing,disseminating, circulating, or placing before the public, or causing, directlyor indirectly, to be made, published, disseminated, circulated, or placedbefore the public, in a newspaper, magazine, or other publication, or in theform of a notice, circular, pamphlet, letter, or poster, or over any radio ortelevision station, or in any other way, an advertisement, announcement, orstatement containing an assertion, representation, or statement with regard tothe risk-based capital levels of any insurer, or of any component derived inthe calculation, by any insurer, producer, or other person engaged in anymanner in the insurance business would be misleading and is thereforeprohibited; provided that if any materially false statement with respect to thecomparison regarding an insurer's total adjusted capital to its risk-basedcapital levels (or any of them) or an inappropriate comparison of any otheramount to the insurer's risk-based capital levels is published in any writtenpublication and the insurer is able to demonstrate to the commissioner withsubstantial proof the falsity of the statement, or the inappropriateness, asthe case may be, then the insurer may publish an announcement in a writtenpublication if the sole purpose of the announcement is to rebut the materiallyfalse statement.

(c)  The risk-based capital instructions,risk-based capital reports, adjusted risk-based capital reports, risk-basedcapital plans, and revised risk-based capital plans are intended solely for useby the commissioner in monitoring the solvency of insurers and the need forpossible corrective action with respect to insurers and shall not be used bythe commissioner for ratemaking, nor considered or introduced as evidence inany rate proceeding, nor used by the commissioner to calculate or derive anyelements of an appropriate premium level or rate of return for any line ofinsurance which an insurer or any affiliate is authorized to write. [L 1994, c190, pt of §1; am L 1995, c 61, §2 as superseded by c 232, §4; am L 1997, c 75,§11; am L 1999, c 128, §2; am L 2003, c 212, §29]