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



(b)  The comparison of an insurer's total
adjusted capital to any of its risk-based capital levels is a regulatory tool
which may indicate the need for possible corrective action with respect to the
insurer 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, directly
or indirectly, to be made, published, disseminated, circulated, or placed
before the public, in a newspaper, magazine, or other publication, or in the
form of a notice, circular, pamphlet, letter, or poster, or over any radio or
television station, or in any other way, an advertisement, announcement, or
statement containing an assertion, representation, or statement with regard to
the risk-based capital levels of any insurer, or of any component derived in
the calculation, by any insurer, producer, or other person engaged in any
manner in the insurance business would be misleading and is therefore
prohibited; provided that if any materially false statement with respect to the
comparison regarding an insurer's total adjusted capital to its risk-based
capital levels (or any of them) or an inappropriate comparison of any other
amount to the insurer's risk-based capital levels is published in any written
publication and the insurer is able to demonstrate to the commissioner with
substantial proof the falsity of the statement, or the inappropriateness, as
the case may be, then the insurer may publish an announcement in a written
publication if the sole purpose of the announcement is to rebut the materially
false statement.



(c)  The risk-based capital instructions,
risk-based capital reports, adjusted risk-based capital reports, risk-based
capital plans, and revised risk-based capital plans are intended solely for use
by the commissioner in monitoring the solvency of insurers and the need for
possible corrective action with respect to insurers and shall not be used by
the commissioner for ratemaking, nor considered or introduced as evidence in
any rate proceeding, nor used by the commissioner to calculate or derive any
elements of an appropriate premium level or rate of return for any line of
insurance which an insurer or any affiliate is authorized to write. [L 1994, c
190, 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]