IC 27-1-3.1-1 Commissioner
Sec. 1. As used in this chapter, "commissioner" refers to the
insurance commissioner appointed under IC 27-1-1-2. As added by P.L.26-1991, SEC.5.
IC 27-1-3.1-2 Company
Sec. 2. As used in this chapter, "company" means any person
engaging in or proposing or attempting to engage in any transaction
or kind of insurance or surety business and any person or group of
persons who may otherwise be subject to the administrative,
regulatory, or taxing authority of the commissioner. As added by P.L.26-1991, SEC.5.
IC 27-1-3.1-3 Department
Sec. 3. As used in this chapter, "department" refers to the
department of insurance of Indiana. As added by P.L.26-1991, SEC.5.
IC 27-1-3.1-4 Examiner
Sec. 4. As used in this chapter, "examiner" means any individual
or firm authorized by the commissioner to conduct an examination
under this chapter. As added by P.L.26-1991, SEC.5.
IC 27-1-3.1-5 Insurer
Sec. 5. As used in this chapter, "insurer" has the meaning set forth
in IC 27-1-2-3. As added by P.L.26-1991, SEC.5.
IC 27-1-3.1-6 NAIC examiner's handbook
Sec. 6. As used in this chapter, "NAIC examiner's handbook"
means the Examiners' Handbook adopted by the National
Association of Insurance Commissioners. As added by P.L.26-1991, SEC.5.
IC 27-1-3.1-7 Person
Sec. 7. As used in this chapter, "person" means any individual,
aggregation of individuals, trust, association, partnership, limited
liability company, or corporation, or any affiliate of these entities. As added by P.L.26-1991, SEC.5. Amended by P.L.8-1993, SEC.410. IC 27-1-3.1-8 Procedure
Sec. 8. (a) The commissioner or any of the commissioner's
examiners:
(1) may conduct an examination under this chapter of any
company as often as the commissioner, in the commissioner's
sole discretion, considers appropriate; and
(2) shall, at a minimum, conduct an examination of every
insurer licensed in Indiana at least once every five (5) years.
(b) In scheduling and determining the nature, scope, and
frequency of the examinations, the commissioner shall consider such
matters as the results of financial statement analyses and ratios,
changes in management or ownership, actuarial opinions, reports of
independent certified public accountants, and other criteria as set
forth in the NAIC examiner's handbook.
(c) For purposes of completing an examination of any company
under this chapter, the commissioner may examine or investigate any
person, or the business of any person, in so far as such examination
or investigation is, in the sole discretion of the commissioner,
necessary or material to the examination of the company.
(d) In lieu of an examination under this chapter of any foreign or
alien insurer licensed in Indiana, the commissioner may accept an
examination report on such company as prepared by the insurance
department of the company's state of domicile or port-of-entry state
until January 1, 1994. After January 1, 1994, those reports may only
be accepted if:
(1) the insurance department that prepared the report was at the
time of the examination accredited under the National
Association of Insurance Commissioners' Financial Regulation
Standards and Accreditation Program; or
(2) the examination is performed with the participation of one
(1) or more examiners who are employed by an accredited State
Insurance Department and who after a review of the
examination work papers and report state under oath that the
examination was performed in a manner consistent with the
standards and procedures required by their insurance
department. As added by P.L.26-1991, SEC.5. Amended by P.L.1-1992, SEC.144.
IC 27-1-3.1-9 Warrant; access to information; refusal; penalties; subpoenas;
oaths; order to appear; evidence
Sec. 9. (a) Upon determining that an examination should be
conducted, the commissioner or the commissioner's designee shall
issue an examination warrant appointing one (1) or more examiners
to perform the examination and instructing them as to the scope of
the examination. In conducting the examination, the examiner shall
observe those guidelines and procedures set forth in the NAIC
examiner's handbook. The commissioner may also employ such other
guidelines or procedures as the commissioner considers appropriate.
The commissioner is not required to issue an examination warrant for
a data call.
(b) Every company or person from whom information is sought,
and the officers, directors, and agents of the company or person,
must provide to the examiners appointed under subsection (a) timely,
convenient, and free access at all reasonable hours at its offices to all
books, records, accounts, papers, documents, and any or all computer
or other recordings relating to the property, assets, business, and
affairs of the company being examined. The officers, directors,
employees, and agents of the company or person must facilitate the
examination and aid in the examination so far as it is in their power
to do so. The refusal of any company, by its officers, directors,
employees, or agents within the company's control, to submit to
examination or to comply with any reasonable written request of the
examiners, or the failure of any company to make a good faith effort
to require compliance with such a request, is grounds for:
(1) suspension;
(2) refusal; or
(3) nonrenewal;
of any license or authority held by the company to engage in an
insurance or other business subject to the commissioner's
jurisdiction. The commissioner may proceed to suspend or revoke a
license or authority upon the grounds set forth in this subsection
under IC 27-1-3-10 or IC 27-1-3-19.
(c) The commissioner and the commissioner's examiners may
issue subpoenas, administer oaths, and examine under oath any
person as to any matter pertinent to an examination conducted under
this chapter. 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 any order
compelling the witness to appear and testify or produce documentary
evidence. Failure to obey the court order is punishable as contempt
of court.
(d) When making an examination under this chapter, the
commissioner may retain attorneys, appraisers, independent
actuaries, independent certified public accountants, or other
professionals and specialists as examiners. The cost of retaining
these examiners shall be borne by the company that is the subject of
the examination.
(e) This chapter does not limit the commissioner's authority to
terminate or suspend any examination in order to pursue other legal
or regulatory action pursuant to this title. Findings of fact and
conclusions made pursuant to any examination shall be prima facie
evidence in any legal or regulatory action. As added by P.L.26-1991, SEC.5. Amended by P.L.130-1994, SEC.8;
P.L.116-1994, SEC.12; P.L.111-2008, SEC.1.
IC 27-1-3.1-10 Reports
Sec. 10. (a) All examination reports shall be comprised of only:
(1) facts:
(A) appearing upon the books, records, or other documents
of the company; and
(B) ascertained from the agents or other persons examined,
or as ascertained from the testimony of its officers or agents
or other persons examined concerning the affairs of the
company; and
(2) conclusions and recommendations that the examiners find
reasonably warranted from those facts.
(b) No more than sixty (60) days after the completion of the
examination, the examiner in charge shall file with the department a
verified written report of examination under oath. Upon receipt of
the verified report, the department shall transmit the report to the
company examined, together with a notice that affords such company
examined a reasonable opportunity of not more than thirty (30) days
to make a written submission or rebuttal with respect to any matters
contained in the examination report. The thirty (30) day period may
be extended if the commissioner, in the commissioner's sole
discretion, determines that an extension is appropriate or necessary. As added by P.L.26-1991, SEC.5. Amended by P.L.130-1994, SEC.9;
P.L.116-1994, SEC.13.
IC 27-1-3.1-11 Review of report; order
Sec. 11. (a) Within thirty (30) days after the end of the period
allowed for the receipt of written submissions or rebuttals, the
commissioner shall fully consider and review the report, together
with any written submissions or rebuttals and any relevant portions
of the examiner's workpapers, and enter an order:
(1) adopting the examination report as filed or with
modification or corrections;
(2) rejecting the examination report with directions to the
examiners to reopen the examination for purposes of obtaining
additional data, documentation or information, and refiling the
report under this chapter; or
(3) calling for an investigatory hearing with no less than twenty
(20) days notice to the company for purposes of obtaining
additional documentation, data, information and testimony.
(b) If the examination report reveals that the company is operating
in violation of any law, regulation, or prior order of the
commissioner, the commissioner may order the company to take any
action the commissioner considers necessary and appropriate to cure
that violation. As added by P.L.26-1991, SEC.5.
IC 27-1-3.1-12 Orders; findings and conclusions; appeal; hearing
Sec. 12. (a) All orders entered under section 11(a) of this chapter
shall be accompanied by findings and conclusions resulting from the
commissioner's consideration and review of the examination report,
relevant examiner workpapers, and any written submissions or
rebuttals.
(b) Any order entered under section 11(a) of this chapter shall be
considered a final administrative decision that may be appealed
under IC 4-21.5-5, and shall be served upon the company by certified
mail, together with a copy of the adopted examination report. Within
thirty (30) days of the issuance of the adopted report, the company
shall file an affidavit stating that each director has received a copy of
the adopted report and related orders.
(c) Any hearing conducted under section 11(a)(3) of this chapter
by the commissioner or an authorized representative shall be
conducted as a nonadversarial confidential investigatory proceeding
as necessary for the resolution of any inconsistencies, discrepancies,
or disputed issues apparent upon the face of the filed examination
report or raised by or as a result of the commissioner's review of
relevant workpapers or by the written submission or rebuttal of the
company. Within twenty (20) days of the conclusion of the hearing,
the commissioner shall enter an order under section 11 of this
chapter. As added by P.L.26-1991, SEC.5. Amended by P.L.130-1994,
SEC.10; P.L.116-1994, SEC.14.
IC 27-1-3.1-13 Hearing
Sec. 13. (a) The commissioner may not appoint an examiner as
authorized representative to conduct a hearing. The hearing shall
proceed expeditiously with discovery by the company limited to the
examiner's workpapers which tend to substantiate any assertions set
forth in any written submission or rebuttal. The commissioner or the
commissioner's representative may issue subpoenas for the
attendance of any witnesses or the production of any documents
deemed relevant to the investigation whether under the control of the
department, the company, or other persons. The documents produced
shall be included in the record and testimony taken by the
commissioner or the commissioner's representative shall be under
oath and preserved for the record.
(b) This section does not require the department to disclose any
information or records which would indicate or show the existence
or content of any investigation or activity of a criminal justice
agency.
(c) The hearing shall proceed with the commissioner or the
commissioner's representative posing questions to the persons
subpoenaed. Thereafter, the company and the department may
present testimony relevant to the investigation. The commissioner,
the department, and the company may cross-examine witnesses. The
company and the department shall be permitted to make closing
statements and may be represented by counsel of their choice. As added by P.L.26-1991, SEC.5. Amended by P.L.130-1994,
SEC.11; P.L.116-1994, SEC.15. IC 27-1-3.1-14 Confidentiality of report; public inspection; disclosures
Sec. 14. (a) Upon the adoption of an examination report under
section 11(a)(1) of this chapter, the commissioner shall continue to
hold the content of the examination report as confidential
information for a period of thirty (30) days except to the extent
provided in section 10(b) of this chapter. Thereafter, the report shall
be open for public inspection.
(b) This chapter does not prevent or prohibit the commissioner
from disclosing the content of an examination report, preliminary
examination report, or results, or any matter relating thereto, to the
insurance department of any other state or country, or to law
enforcement officials of Indiana or any other state or agency of the
federal government at any time, if the agency or office receiving the
report or matters relating thereto agrees in writing to hold it
confidential and in a manner consistent with this chapter.
(c) If the commissioner determines that regulatory action is
appropriate as a result of any examination, the commissioner may
initiate any proceedings or actions authorized by law.
(d) This chapter does not limit the commissioner's authority to use
and, if appropriate, to make public any final or preliminary
examination report, any examiner or company workpapers or other
documents, or any other information discovered or developed during
the course of any examination in the furtherance of any legal or
regulatory action that the commissioner may, in the commissioner's
sole discretion, consider appropriate. As added by P.L.26-1991, SEC.5. Amended by P.L.130-1994,
SEC.12; P.L.116-1994, SEC.16.
IC 27-1-3.1-15 Working papers, recorded information, and documents;
confidentiality
Sec. 15. All working papers, recorded information, documents,
and copies thereof produced by, obtained by, or disclosed to the
commissioner or any other person in the course of an examination
under this chapter are confidential for the purposes of IC 5-14-3-4,
are not subject to subpoena, and may not be made public by the
commissioner or any other person, except to the extent provided in
section 14 of this chapter. However, access may also be granted to
the National Association of Insurance Commissioners. Those parties
must agree in writing prior to receiving the information to provide to
it the same confidential treatment as required by this section, unless
the prior written consent of the company to which it pertains has
been obtained. As added by P.L.26-1991, SEC.5.
IC 27-1-3.1-16 Appointment of examiner; conflict of interest; support staff
Sec. 16. (a) No examiner may be appointed by the commissioner
if that examiner, either directly or indirectly, has a conflict of interest
or is affiliated with the management of or owns a pecuniary interest
in any person subject to examination under this chapter. However,
this section does not automatically preclude an examiner from being:
(1) a policyholder or claimant under an insurance policy;
(2) a grantor of a mortgage or similar instrument on the
examiner's residence to a regulated entity if done under
customary terms and in the ordinary course of business;
(3) an investment owner in shares of regulated diversified
investment companies; or
(4) a settlor or beneficiary of a "blind trust" into which any
otherwise impermissible holdings have been placed.
(b) Notwithstanding the requirements of this section, the
commissioner may periodically retain on an individual basis
qualified actuaries, certified public accountants, and other similar
individuals who are independently practicing their professions, even
though those persons may from time to time be similarly employed
or retained by persons subject to examination under this chapter. As added by P.L.26-1991, SEC.5.
IC 27-1-3.1-17 Liability of commissioner, authorized representative, or examiner;
attorney's fees
Sec. 17. (a) No cause of action shall arise nor shall any liability be
imposed against the commissioner, the commissioner's authorized
representatives or any examiner appointed by the commissioner for
any statements made or conduct performed in good faith while
carrying out the provisions of this chapter.
(b) No cause of action may arise, and no liability be imposed
against any person for the act of communicating or delivering
information or data to the commissioner or the commissioner's
authorized representative or examiner pursuant to an examination
made under this chapter, if that act of communication or delivery is
performed in good faith and without fraudulent intent or the intent to
deceive.
(c) This section does not abrogate or modify in any way any
common law or statutory privilege or immunity enjoyed by any
person identified in subsection (a).
(d) A person identified in subsection (a) is entitled to an award of
attorney's fees and costs if that person is the prevailing party in a
civil cause of action for libel, slander or any other relevant tort
arising out of that person's activities in carrying out the provisions of
this chapter and if the court finds the action was frivolous,
unreasonable, groundless, or litigated in bad faith. As added by P.L.26-1991, SEC.5.
IC 27-1-3.1-18 Financial analysis ratios; written requests; examination synopses;
confidentiality
Sec. 18. (a) The commissioner shall provide any financial analysis
ratios computed by the Insurance Regulatory Information System of
the National Association of Insurance Commissioners within five (5)
business days after receiving a written request for those ratios.
(b) All examination synopses concerning insurance companies
that are submitted to the department by the Insurance Regulatory
Information System of the National Association of Insurance
Commissioners are confidential and may not be disclosed by the
department. As added by P.L.26-1991, SEC.5.
IC 27-1-3.1-1 Commissioner
Sec. 1. As used in this chapter, "commissioner" refers to the
insurance commissioner appointed under IC 27-1-1-2. As added by P.L.26-1991, SEC.5.
IC 27-1-3.1-2 Company
Sec. 2. As used in this chapter, "company" means any person
engaging in or proposing or attempting to engage in any transaction
or kind of insurance or surety business and any person or group of
persons who may otherwise be subject to the administrative,
regulatory, or taxing authority of the commissioner. As added by P.L.26-1991, SEC.5.
IC 27-1-3.1-3 Department
Sec. 3. As used in this chapter, "department" refers to the
department of insurance of Indiana. As added by P.L.26-1991, SEC.5.
IC 27-1-3.1-4 Examiner
Sec. 4. As used in this chapter, "examiner" means any individual
or firm authorized by the commissioner to conduct an examination
under this chapter. As added by P.L.26-1991, SEC.5.
IC 27-1-3.1-5 Insurer
Sec. 5. As used in this chapter, "insurer" has the meaning set forth
in IC 27-1-2-3. As added by P.L.26-1991, SEC.5.
IC 27-1-3.1-6 NAIC examiner's handbook
Sec. 6. As used in this chapter, "NAIC examiner's handbook"
means the Examiners' Handbook adopted by the National
Association of Insurance Commissioners. As added by P.L.26-1991, SEC.5.
IC 27-1-3.1-7 Person
Sec. 7. As used in this chapter, "person" means any individual,
aggregation of individuals, trust, association, partnership, limited
liability company, or corporation, or any affiliate of these entities. As added by P.L.26-1991, SEC.5. Amended by P.L.8-1993, SEC.410. IC 27-1-3.1-8 Procedure
Sec. 8. (a) The commissioner or any of the commissioner's
examiners:
(1) may conduct an examination under this chapter of any
company as often as the commissioner, in the commissioner's
sole discretion, considers appropriate; and
(2) shall, at a minimum, conduct an examination of every
insurer licensed in Indiana at least once every five (5) years.
(b) In scheduling and determining the nature, scope, and
frequency of the examinations, the commissioner shall consider such
matters as the results of financial statement analyses and ratios,
changes in management or ownership, actuarial opinions, reports of
independent certified public accountants, and other criteria as set
forth in the NAIC examiner's handbook.
(c) For purposes of completing an examination of any company
under this chapter, the commissioner may examine or investigate any
person, or the business of any person, in so far as such examination
or investigation is, in the sole discretion of the commissioner,
necessary or material to the examination of the company.
(d) In lieu of an examination under this chapter of any foreign or
alien insurer licensed in Indiana, the commissioner may accept an
examination report on such company as prepared by the insurance
department of the company's state of domicile or port-of-entry state
until January 1, 1994. After January 1, 1994, those reports may only
be accepted if:
(1) the insurance department that prepared the report was at the
time of the examination accredited under the National
Association of Insurance Commissioners' Financial Regulation
Standards and Accreditation Program; or
(2) the examination is performed with the participation of one
(1) or more examiners who are employed by an accredited State
Insurance Department and who after a review of the
examination work papers and report state under oath that the
examination was performed in a manner consistent with the
standards and procedures required by their insurance
department. As added by P.L.26-1991, SEC.5. Amended by P.L.1-1992, SEC.144.
IC 27-1-3.1-9 Warrant; access to information; refusal; penalties; subpoenas;
oaths; order to appear; evidence
Sec. 9. (a) Upon determining that an examination should be
conducted, the commissioner or the commissioner's designee shall
issue an examination warrant appointing one (1) or more examiners
to perform the examination and instructing them as to the scope of
the examination. In conducting the examination, the examiner shall
observe those guidelines and procedures set forth in the NAIC
examiner's handbook. The commissioner may also employ such other
guidelines or procedures as the commissioner considers appropriate.
The commissioner is not required to issue an examination warrant for
a data call.
(b) Every company or person from whom information is sought,
and the officers, directors, and agents of the company or person,
must provide to the examiners appointed under subsection (a) timely,
convenient, and free access at all reasonable hours at its offices to all
books, records, accounts, papers, documents, and any or all computer
or other recordings relating to the property, assets, business, and
affairs of the company being examined. The officers, directors,
employees, and agents of the company or person must facilitate the
examination and aid in the examination so far as it is in their power
to do so. The refusal of any company, by its officers, directors,
employees, or agents within the company's control, to submit to
examination or to comply with any reasonable written request of the
examiners, or the failure of any company to make a good faith effort
to require compliance with such a request, is grounds for:
(1) suspension;
(2) refusal; or
(3) nonrenewal;
of any license or authority held by the company to engage in an
insurance or other business subject to the commissioner's
jurisdiction. The commissioner may proceed to suspend or revoke a
license or authority upon the grounds set forth in this subsection
under IC 27-1-3-10 or IC 27-1-3-19.
(c) The commissioner and the commissioner's examiners may
issue subpoenas, administer oaths, and examine under oath any
person as to any matter pertinent to an examination conducted under
this chapter. 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 any order
compelling the witness to appear and testify or produce documentary
evidence. Failure to obey the court order is punishable as contempt
of court.
(d) When making an examination under this chapter, the
commissioner may retain attorneys, appraisers, independent
actuaries, independent certified public accountants, or other
professionals and specialists as examiners. The cost of retaining
these examiners shall be borne by the company that is the subject of
the examination.
(e) This chapter does not limit the commissioner's authority to
terminate or suspend any examination in order to pursue other legal
or regulatory action pursuant to this title. Findings of fact and
conclusions made pursuant to any examination shall be prima facie
evidence in any legal or regulatory action. As added by P.L.26-1991, SEC.5. Amended by P.L.130-1994, SEC.8;
P.L.116-1994, SEC.12; P.L.111-2008, SEC.1.
IC 27-1-3.1-10 Reports
Sec. 10. (a) All examination reports shall be comprised of only:
(1) facts:
(A) appearing upon the books, records, or other documents
of the company; and
(B) ascertained from the agents or other persons examined,
or as ascertained from the testimony of its officers or agents
or other persons examined concerning the affairs of the
company; and
(2) conclusions and recommendations that the examiners find
reasonably warranted from those facts.
(b) No more than sixty (60) days after the completion of the
examination, the examiner in charge shall file with the department a
verified written report of examination under oath. Upon receipt of
the verified report, the department shall transmit the report to the
company examined, together with a notice that affords such company
examined a reasonable opportunity of not more than thirty (30) days
to make a written submission or rebuttal with respect to any matters
contained in the examination report. The thirty (30) day period may
be extended if the commissioner, in the commissioner's sole
discretion, determines that an extension is appropriate or necessary. As added by P.L.26-1991, SEC.5. Amended by P.L.130-1994, SEC.9;
P.L.116-1994, SEC.13.
IC 27-1-3.1-11 Review of report; order
Sec. 11. (a) Within thirty (30) days after the end of the period
allowed for the receipt of written submissions or rebuttals, the
commissioner shall fully consider and review the report, together
with any written submissions or rebuttals and any relevant portions
of the examiner's workpapers, and enter an order:
(1) adopting the examination report as filed or with
modification or corrections;
(2) rejecting the examination report with directions to the
examiners to reopen the examination for purposes of obtaining
additional data, documentation or information, and refiling the
report under this chapter; or
(3) calling for an investigatory hearing with no less than twenty
(20) days notice to the company for purposes of obtaining
additional documentation, data, information and testimony.
(b) If the examination report reveals that the company is operating
in violation of any law, regulation, or prior order of the
commissioner, the commissioner may order the company to take any
action the commissioner considers necessary and appropriate to cure
that violation. As added by P.L.26-1991, SEC.5.
IC 27-1-3.1-12 Orders; findings and conclusions; appeal; hearing
Sec. 12. (a) All orders entered under section 11(a) of this chapter
shall be accompanied by findings and conclusions resulting from the
commissioner's consideration and review of the examination report,
relevant examiner workpapers, and any written submissions or
rebuttals.
(b) Any order entered under section 11(a) of this chapter shall be
considered a final administrative decision that may be appealed
under IC 4-21.5-5, and shall be served upon the company by certified
mail, together with a copy of the adopted examination report. Within
thirty (30) days of the issuance of the adopted report, the company
shall file an affidavit stating that each director has received a copy of
the adopted report and related orders.
(c) Any hearing conducted under section 11(a)(3) of this chapter
by the commissioner or an authorized representative shall be
conducted as a nonadversarial confidential investigatory proceeding
as necessary for the resolution of any inconsistencies, discrepancies,
or disputed issues apparent upon the face of the filed examination
report or raised by or as a result of the commissioner's review of
relevant workpapers or by the written submission or rebuttal of the
company. Within twenty (20) days of the conclusion of the hearing,
the commissioner shall enter an order under section 11 of this
chapter. As added by P.L.26-1991, SEC.5. Amended by P.L.130-1994,
SEC.10; P.L.116-1994, SEC.14.
IC 27-1-3.1-13 Hearing
Sec. 13. (a) The commissioner may not appoint an examiner as
authorized representative to conduct a hearing. The hearing shall
proceed expeditiously with discovery by the company limited to the
examiner's workpapers which tend to substantiate any assertions set
forth in any written submission or rebuttal. The commissioner or the
commissioner's representative may issue subpoenas for the
attendance of any witnesses or the production of any documents
deemed relevant to the investigation whether under the control of the
department, the company, or other persons. The documents produced
shall be included in the record and testimony taken by the
commissioner or the commissioner's representative shall be under
oath and preserved for the record.
(b) This section does not require the department to disclose any
information or records which would indicate or show the existence
or content of any investigation or activity of a criminal justice
agency.
(c) The hearing shall proceed with the commissioner or the
commissioner's representative posing questions to the persons
subpoenaed. Thereafter, the company and the department may
present testimony relevant to the investigation. The commissioner,
the department, and the company may cross-examine witnesses. The
company and the department shall be permitted to make closing
statements and may be represented by counsel of their choice. As added by P.L.26-1991, SEC.5. Amended by P.L.130-1994,
SEC.11; P.L.116-1994, SEC.15. IC 27-1-3.1-14 Confidentiality of report; public inspection; disclosures
Sec. 14. (a) Upon the adoption of an examination report under
section 11(a)(1) of this chapter, the commissioner shall continue to
hold the content of the examination report as confidential
information for a period of thirty (30) days except to the extent
provided in section 10(b) of this chapter. Thereafter, the report shall
be open for public inspection.
(b) This chapter does not prevent or prohibit the commissioner
from disclosing the content of an examination report, preliminary
examination report, or results, or any matter relating thereto, to the
insurance department of any other state or country, or to law
enforcement officials of Indiana or any other state or agency of the
federal government at any time, if the agency or office receiving the
report or matters relating thereto agrees in writing to hold it
confidential and in a manner consistent with this chapter.
(c) If the commissioner determines that regulatory action is
appropriate as a result of any examination, the commissioner may
initiate any proceedings or actions authorized by law.
(d) This chapter does not limit the commissioner's authority to use
and, if appropriate, to make public any final or preliminary
examination report, any examiner or company workpapers or other
documents, or any other information discovered or developed during
the course of any examination in the furtherance of any legal or
regulatory action that the commissioner may, in the commissioner's
sole discretion, consider appropriate. As added by P.L.26-1991, SEC.5. Amended by P.L.130-1994,
SEC.12; P.L.116-1994, SEC.16.
IC 27-1-3.1-15 Working papers, recorded information, and documents;
confidentiality
Sec. 15. All working papers, recorded information, documents,
and copies thereof produced by, obtained by, or disclosed to the
commissioner or any other person in the course of an examination
under this chapter are confidential for the purposes of IC 5-14-3-4,
are not subject to subpoena, and may not be made public by the
commissioner or any other person, except to the extent provided in
section 14 of this chapter. However, access may also be granted to
the National Association of Insurance Commissioners. Those parties
must agree in writing prior to receiving the information to provide to
it the same confidential treatment as required by this section, unless
the prior written consent of the company to which it pertains has
been obtained. As added by P.L.26-1991, SEC.5.
IC 27-1-3.1-16 Appointment of examiner; conflict of interest; support staff
Sec. 16. (a) No examiner may be appointed by the commissioner
if that examiner, either directly or indirectly, has a conflict of interest
or is affiliated with the management of or owns a pecuniary interest
in any person subject to examination under this chapter. However,
this section does not automatically preclude an examiner from being:
(1) a policyholder or claimant under an insurance policy;
(2) a grantor of a mortgage or similar instrument on the
examiner's residence to a regulated entity if done under
customary terms and in the ordinary course of business;
(3) an investment owner in shares of regulated diversified
investment companies; or
(4) a settlor or beneficiary of a "blind trust" into which any
otherwise impermissible holdings have been placed.
(b) Notwithstanding the requirements of this section, the
commissioner may periodically retain on an individual basis
qualified actuaries, certified public accountants, and other similar
individuals who are independently practicing their professions, even
though those persons may from time to time be similarly employed
or retained by persons subject to examination under this chapter. As added by P.L.26-1991, SEC.5.
IC 27-1-3.1-17 Liability of commissioner, authorized representative, or examiner;
attorney's fees
Sec. 17. (a) No cause of action shall arise nor shall any liability be
imposed against the commissioner, the commissioner's authorized
representatives or any examiner appointed by the commissioner for
any statements made or conduct performed in good faith while
carrying out the provisions of this chapter.
(b) No cause of action may arise, and no liability be imposed
against any person for the act of communicating or delivering
information or data to the commissioner or the commissioner's
authorized representative or examiner pursuant to an examination
made under this chapter, if that act of communication or delivery is
performed in good faith and without fraudulent intent or the intent to
deceive.
(c) This section does not abrogate or modify in any way any
common law or statutory privilege or immunity enjoyed by any
person identified in subsection (a).
(d) A person identified in subsection (a) is entitled to an award of
attorney's fees and costs if that person is the prevailing party in a
civil cause of action for libel, slander or any other relevant tort
arising out of that person's activities in carrying out the provisions of
this chapter and if the court finds the action was frivolous,
unreasonable, groundless, or litigated in bad faith. As added by P.L.26-1991, SEC.5.
IC 27-1-3.1-18 Financial analysis ratios; written requests; examination synopses;
confidentiality
Sec. 18. (a) The commissioner shall provide any financial analysis
ratios computed by the Insurance Regulatory Information System of
the National Association of Insurance Commissioners within five (5)
business days after receiving a written request for those ratios.
(b) All examination synopses concerning insurance companies
that are submitted to the department by the Insurance Regulatory
Information System of the National Association of Insurance
Commissioners are confidential and may not be disclosed by the
department. As added by P.L.26-1991, SEC.5.
IC 27-1-3.1-1 Commissioner
Sec. 1. As used in this chapter, "commissioner" refers to the
insurance commissioner appointed under IC 27-1-1-2. As added by P.L.26-1991, SEC.5.
IC 27-1-3.1-2 Company
Sec. 2. As used in this chapter, "company" means any person
engaging in or proposing or attempting to engage in any transaction
or kind of insurance or surety business and any person or group of
persons who may otherwise be subject to the administrative,
regulatory, or taxing authority of the commissioner. As added by P.L.26-1991, SEC.5.
IC 27-1-3.1-3 Department
Sec. 3. As used in this chapter, "department" refers to the
department of insurance of Indiana. As added by P.L.26-1991, SEC.5.
IC 27-1-3.1-4 Examiner
Sec. 4. As used in this chapter, "examiner" means any individual
or firm authorized by the commissioner to conduct an examination
under this chapter. As added by P.L.26-1991, SEC.5.
IC 27-1-3.1-5 Insurer
Sec. 5. As used in this chapter, "insurer" has the meaning set forth
in IC 27-1-2-3. As added by P.L.26-1991, SEC.5.
IC 27-1-3.1-6 NAIC examiner's handbook
Sec. 6. As used in this chapter, "NAIC examiner's handbook"
means the Examiners' Handbook adopted by the National
Association of Insurance Commissioners. As added by P.L.26-1991, SEC.5.
IC 27-1-3.1-7 Person
Sec. 7. As used in this chapter, "person" means any individual,
aggregation of individuals, trust, association, partnership, limited
liability company, or corporation, or any affiliate of these entities. As added by P.L.26-1991, SEC.5. Amended by P.L.8-1993, SEC.410. IC 27-1-3.1-8 Procedure
Sec. 8. (a) The commissioner or any of the commissioner's
examiners:
(1) may conduct an examination under this chapter of any
company as often as the commissioner, in the commissioner's
sole discretion, considers appropriate; and
(2) shall, at a minimum, conduct an examination of every
insurer licensed in Indiana at least once every five (5) years.
(b) In scheduling and determining the nature, scope, and
frequency of the examinations, the commissioner shall consider such
matters as the results of financial statement analyses and ratios,
changes in management or ownership, actuarial opinions, reports of
independent certified public accountants, and other criteria as set
forth in the NAIC examiner's handbook.
(c) For purposes of completing an examination of any company
under this chapter, the commissioner may examine or investigate any
person, or the business of any person, in so far as such examination
or investigation is, in the sole discretion of the commissioner,
necessary or material to the examination of the company.
(d) In lieu of an examination under this chapter of any foreign or
alien insurer licensed in Indiana, the commissioner may accept an
examination report on such company as prepared by the insurance
department of the company's state of domicile or port-of-entry state
until January 1, 1994. After January 1, 1994, those reports may only
be accepted if:
(1) the insurance department that prepared the report was at the
time of the examination accredited under the National
Association of Insurance Commissioners' Financial Regulation
Standards and Accreditation Program; or
(2) the examination is performed with the participation of one
(1) or more examiners who are employed by an accredited State
Insurance Department and who after a review of the
examination work papers and report state under oath that the
examination was performed in a manner consistent with the
standards and procedures required by their insurance
department. As added by P.L.26-1991, SEC.5. Amended by P.L.1-1992, SEC.144.
IC 27-1-3.1-9 Warrant; access to information; refusal; penalties; subpoenas;
oaths; order to appear; evidence
Sec. 9. (a) Upon determining that an examination should be
conducted, the commissioner or the commissioner's designee shall
issue an examination warrant appointing one (1) or more examiners
to perform the examination and instructing them as to the scope of
the examination. In conducting the examination, the examiner shall
observe those guidelines and procedures set forth in the NAIC
examiner's handbook. The commissioner may also employ such other
guidelines or procedures as the commissioner considers appropriate.
The commissioner is not required to issue an examination warrant for
a data call.
(b) Every company or person from whom information is sought,
and the officers, directors, and agents of the company or person,
must provide to the examiners appointed under subsection (a) timely,
convenient, and free access at all reasonable hours at its offices to all
books, records, accounts, papers, documents, and any or all computer
or other recordings relating to the property, assets, business, and
affairs of the company being examined. The officers, directors,
employees, and agents of the company or person must facilitate the
examination and aid in the examination so far as it is in their power
to do so. The refusal of any company, by its officers, directors,
employees, or agents within the company's control, to submit to
examination or to comply with any reasonable written request of the
examiners, or the failure of any company to make a good faith effort
to require compliance with such a request, is grounds for:
(1) suspension;
(2) refusal; or
(3) nonrenewal;
of any license or authority held by the company to engage in an
insurance or other business subject to the commissioner's
jurisdiction. The commissioner may proceed to suspend or revoke a
license or authority upon the grounds set forth in this subsection
under IC 27-1-3-10 or IC 27-1-3-19.
(c) The commissioner and the commissioner's examiners may
issue subpoenas, administer oaths, and examine under oath any
person as to any matter pertinent to an examination conducted under
this chapter. 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 any order
compelling the witness to appear and testify or produce documentary
evidence. Failure to obey the court order is punishable as contempt
of court.
(d) When making an examination under this chapter, the
commissioner may retain attorneys, appraisers, independent
actuaries, independent certified public accountants, or other
professionals and specialists as examiners. The cost of retaining
these examiners shall be borne by the company that is the subject of
the examination.
(e) This chapter does not limit the commissioner's authority to
terminate or suspend any examination in order to pursue other legal
or regulatory action pursuant to this title. Findings of fact and
conclusions made pursuant to any examination shall be prima facie
evidence in any legal or regulatory action. As added by P.L.26-1991, SEC.5. Amended by P.L.130-1994, SEC.8;
P.L.116-1994, SEC.12; P.L.111-2008, SEC.1.
IC 27-1-3.1-10 Reports
Sec. 10. (a) All examination reports shall be comprised of only:
(1) facts:
(A) appearing upon the books, records, or other documents
of the company; and
(B) ascertained from the agents or other persons examined,
or as ascertained from the testimony of its officers or agents
or other persons examined concerning the affairs of the
company; and
(2) conclusions and recommendations that the examiners find
reasonably warranted from those facts.
(b) No more than sixty (60) days after the completion of the
examination, the examiner in charge shall file with the department a
verified written report of examination under oath. Upon receipt of
the verified report, the department shall transmit the report to the
company examined, together with a notice that affords such company
examined a reasonable opportunity of not more than thirty (30) days
to make a written submission or rebuttal with respect to any matters
contained in the examination report. The thirty (30) day period may
be extended if the commissioner, in the commissioner's sole
discretion, determines that an extension is appropriate or necessary. As added by P.L.26-1991, SEC.5. Amended by P.L.130-1994, SEC.9;
P.L.116-1994, SEC.13.
IC 27-1-3.1-11 Review of report; order
Sec. 11. (a) Within thirty (30) days after the end of the period
allowed for the receipt of written submissions or rebuttals, the
commissioner shall fully consider and review the report, together
with any written submissions or rebuttals and any relevant portions
of the examiner's workpapers, and enter an order:
(1) adopting the examination report as filed or with
modification or corrections;
(2) rejecting the examination report with directions to the
examiners to reopen the examination for purposes of obtaining
additional data, documentation or information, and refiling the
report under this chapter; or
(3) calling for an investigatory hearing with no less than twenty
(20) days notice to the company for purposes of obtaining
additional documentation, data, information and testimony.
(b) If the examination report reveals that the company is operating
in violation of any law, regulation, or prior order of the
commissioner, the commissioner may order the company to take any
action the commissioner considers necessary and appropriate to cure
that violation. As added by P.L.26-1991, SEC.5.
IC 27-1-3.1-12 Orders; findings and conclusions; appeal; hearing
Sec. 12. (a) All orders entered under section 11(a) of this chapter
shall be accompanied by findings and conclusions resulting from the
commissioner's consideration and review of the examination report,
relevant examiner workpapers, and any written submissions or
rebuttals.
(b) Any order entered under section 11(a) of this chapter shall be
considered a final administrative decision that may be appealed
under IC 4-21.5-5, and shall be served upon the company by certified
mail, together with a copy of the adopted examination report. Within
thirty (30) days of the issuance of the adopted report, the company
shall file an affidavit stating that each director has received a copy of
the adopted report and related orders.
(c) Any hearing conducted under section 11(a)(3) of this chapter
by the commissioner or an authorized representative shall be
conducted as a nonadversarial confidential investigatory proceeding
as necessary for the resolution of any inconsistencies, discrepancies,
or disputed issues apparent upon the face of the filed examination
report or raised by or as a result of the commissioner's review of
relevant workpapers or by the written submission or rebuttal of the
company. Within twenty (20) days of the conclusion of the hearing,
the commissioner shall enter an order under section 11 of this
chapter. As added by P.L.26-1991, SEC.5. Amended by P.L.130-1994,
SEC.10; P.L.116-1994, SEC.14.
IC 27-1-3.1-13 Hearing
Sec. 13. (a) The commissioner may not appoint an examiner as
authorized representative to conduct a hearing. The hearing shall
proceed expeditiously with discovery by the company limited to the
examiner's workpapers which tend to substantiate any assertions set
forth in any written submission or rebuttal. The commissioner or the
commissioner's representative may issue subpoenas for the
attendance of any witnesses or the production of any documents
deemed relevant to the investigation whether under the control of the
department, the company, or other persons. The documents produced
shall be included in the record and testimony taken by the
commissioner or the commissioner's representative shall be under
oath and preserved for the record.
(b) This section does not require the department to disclose any
information or records which would indicate or show the existence
or content of any investigation or activity of a criminal justice
agency.
(c) The hearing shall proceed with the commissioner or the
commissioner's representative posing questions to the persons
subpoenaed. Thereafter, the company and the department may
present testimony relevant to the investigation. The commissioner,
the department, and the company may cross-examine witnesses. The
company and the department shall be permitted to make closing
statements and may be represented by counsel of their choice. As added by P.L.26-1991, SEC.5. Amended by P.L.130-1994,
SEC.11; P.L.116-1994, SEC.15. IC 27-1-3.1-14 Confidentiality of report; public inspection; disclosures
Sec. 14. (a) Upon the adoption of an examination report under
section 11(a)(1) of this chapter, the commissioner shall continue to
hold the content of the examination report as confidential
information for a period of thirty (30) days except to the extent
provided in section 10(b) of this chapter. Thereafter, the report shall
be open for public inspection.
(b) This chapter does not prevent or prohibit the commissioner
from disclosing the content of an examination report, preliminary
examination report, or results, or any matter relating thereto, to the
insurance department of any other state or country, or to law
enforcement officials of Indiana or any other state or agency of the
federal government at any time, if the agency or office receiving the
report or matters relating thereto agrees in writing to hold it
confidential and in a manner consistent with this chapter.
(c) If the commissioner determines that regulatory action is
appropriate as a result of any examination, the commissioner may
initiate any proceedings or actions authorized by law.
(d) This chapter does not limit the commissioner's authority to use
and, if appropriate, to make public any final or preliminary
examination report, any examiner or company workpapers or other
documents, or any other information discovered or developed during
the course of any examination in the furtherance of any legal or
regulatory action that the commissioner may, in the commissioner's
sole discretion, consider appropriate. As added by P.L.26-1991, SEC.5. Amended by P.L.130-1994,
SEC.12; P.L.116-1994, SEC.16.
IC 27-1-3.1-15 Working papers, recorded information, and documents;
confidentiality
Sec. 15. All working papers, recorded information, documents,
and copies thereof produced by, obtained by, or disclosed to the
commissioner or any other person in the course of an examination
under this chapter are confidential for the purposes of IC 5-14-3-4,
are not subject to subpoena, and may not be made public by the
commissioner or any other person, except to the extent provided in
section 14 of this chapter. However, access may also be granted to
the National Association of Insurance Commissioners. Those parties
must agree in writing prior to receiving the information to provide to
it the same confidential treatment as required by this section, unless
the prior written consent of the company to which it pertains has
been obtained. As added by P.L.26-1991, SEC.5.
IC 27-1-3.1-16 Appointment of examiner; conflict of interest; support staff
Sec. 16. (a) No examiner may be appointed by the commissioner
if that examiner, either directly or indirectly, has a conflict of interest
or is affiliated with the management of or owns a pecuniary interest
in any person subject to examination under this chapter. However,
this section does not automatically preclude an examiner from being:
(1) a policyholder or claimant under an insurance policy;
(2) a grantor of a mortgage or similar instrument on the
examiner's residence to a regulated entity if done under
customary terms and in the ordinary course of business;
(3) an investment owner in shares of regulated diversified
investment companies; or
(4) a settlor or beneficiary of a "blind trust" into which any
otherwise impermissible holdings have been placed.
(b) Notwithstanding the requirements of this section, the
commissioner may periodically retain on an individual basis
qualified actuaries, certified public accountants, and other similar
individuals who are independently practicing their professions, even
though those persons may from time to time be similarly employed
or retained by persons subject to examination under this chapter. As added by P.L.26-1991, SEC.5.
IC 27-1-3.1-17 Liability of commissioner, authorized representative, or examiner;
attorney's fees
Sec. 17. (a) No cause of action shall arise nor shall any liability be
imposed against the commissioner, the commissioner's authorized
representatives or any examiner appointed by the commissioner for
any statements made or conduct performed in good faith while
carrying out the provisions of this chapter.
(b) No cause of action may arise, and no liability be imposed
against any person for the act of communicating or delivering
information or data to the commissioner or the commissioner's
authorized representative or examiner pursuant to an examination
made under this chapter, if that act of communication or delivery is
performed in good faith and without fraudulent intent or the intent to
deceive.
(c) This section does not abrogate or modify in any way any
common law or statutory privilege or immunity enjoyed by any
person identified in subsection (a).
(d) A person identified in subsection (a) is entitled to an award of
attorney's fees and costs if that person is the prevailing party in a
civil cause of action for libel, slander or any other relevant tort
arising out of that person's activities in carrying out the provisions of
this chapter and if the court finds the action was frivolous,
unreasonable, groundless, or litigated in bad faith. As added by P.L.26-1991, SEC.5.
IC 27-1-3.1-18 Financial analysis ratios; written requests; examination synopses;
confidentiality
Sec. 18. (a) The commissioner shall provide any financial analysis
ratios computed by the Insurance Regulatory Information System of
the National Association of Insurance Commissioners within five (5)
business days after receiving a written request for those ratios.
(b) All examination synopses concerning insurance companies
that are submitted to the department by the Insurance Regulatory
Information System of the National Association of Insurance
Commissioners are confidential and may not be disclosed by the
department. As added by P.L.26-1991, SEC.5.
