26-2-102. Insurance commissioner; appointment; vacancy; removal fromoffice; other requirements.
(a) The chief officer of the department is the "insurancecommissioner".
(b) The commissioner shall be appointed by the governor.
(c) If for any cause a vacancy occurs in the office ofcommissioner, the governor shall fill the vacancy in accordance with W.S.28-12-101.
(d) The governor may remove a commissioner as provided in W.S.9-1-202.
(e) Effective July 1, 1979, appointments and terms shall be inaccordance with W.S. 28-12-101 through 28-12-103.
26-2-103. Insurance commissioner; eligibility for appointment.
Noindividual is eligible for appointment to or shall hold the office ofcommissioner unless he is a qualified elector of this state and free ofconflicting interests as specified in W.S. 26-2-107.
26-2-104. Insurance commissioner; official seal.
(a) The commissioner shall have an official seal in the formand design in use and on file in the office of secretary of state.
(b) The commissioner shall issue under his official seal allhis certificates, other than licenses of agents, brokers, adjusters and otherinsurance representatives.
26-2-105. Insurance commissioner; salary.
Thecommissioner shall receive a salary as provided under W.S. 9-2-1022.
(a) The commissioner, with the governor's approval, may appointa deputy commissioner and may revoke the appointment at his pleasure.
(b) The commissioner may appoint examiners, clerks and othernecessary assistants as the proper conduct of his office requires, and mayrevoke the appointments at his pleasure. In the appointment of examiners thecommissioner shall consider standards of qualification the National Associationof Insurance Commissioners recommends.
(c) Salary for personnel in subsections (a) and (b) of thissection shall be as provided under W.S. 9-2-1022.
(d) The commissioner may contract for independent or consultingactuarial, rating or other technical services, on a fee basis, without givingthe individual status as a state employee.
26-2-107. Conflict of interest prohibited; additional compensationprohibited.
(a) The commissioner or his deputy, or any examiner, assistantor employee of the department shall not:
(i) Be connected with the management of or be financiallyinterested in any insurer, insurance agency or insurance transaction except asa policyholder or claimant under a policy;
(ii) Engage in any other business or occupation interfering orinconsistent with department duties, except that as to those matters in which aconflict of interest does not exist on the part of any individual, thecommissioner may employ or retain insurance actuaries, accountants or othertechnicians who are independently practicing their professions even thoughsimilarly employed or retained by insurers or others; or
(iii) Be given or receive any fee, compensation, loan, gift orother thing of value in addition to the compensation and expense allowanceprovided by law.
26-2-108. Commissioner; delegation of authority.
(a) The commissioner may delegate to his deputy or anydepartment employee the exercise or discharge in the commissioner's name of anypower, duty, or function vested in or imposed upon the commissioner under thiscode, other than the supervision of department operations.
(b) The official act of any individual acting in thecommissioner's name and by his authority is an official act of thecommissioner. The commissioner is responsible for all such acts.
26-2-109. Commissioner; powers and duties generally.
(a) The commissioner shall:
(i) Personally supervise the department operations;
(ii) Examine and inquire into violations of this code;
(iii) Enforce this code with impartiality;
(iv) Execute the duties imposed upon him by this code;
(v) Have the powers and authority expressly conferred upon himby or reasonably implied from this code;
(vi) Immediately pay to the state treasurer for deposit in thegeneral fund, unless otherwise specifically provided, any monies paid to himunder this code;
(vii) Have any additional powers and duties as may be provided byother laws of this state.
(b) The commissioner may conduct examinations andinvestigations of insurance matters, in addition to examinations andinvestigations expressly authorized, as he deems proper, upon reasonable andprobable cause, to determine whether any person has violated any provisions ofthis code or to secure information useful in the lawful administration of anyprovision of this code. The cost of any additional examinations andinvestigations shall be borne by the state.
(c) The commissioner, with the governor's approval, may enterinto interstate compacts with other states in the region to provide for auniform climate for insurance coverage in the compacting states. The compactsmay include:
(i) Interstate compacts to negotiate uniform rating structuresin the compacting states;
(ii) Interstate compacts to negotiate the use of regionalratings or trendings rather than national ratings or trendings; or
(iii) Interstate compacts to provide for the operation of mutualcompanies to provide insurance for risks that are critical to the health,safety or welfare of the compacting states.
(d) Notwithstanding any other provision of this chapter, thecommissioner does not have any powers, duties or responsibilities with respectto the state board of insurance agent's examiners, except as expressly providedin chapter 10 of this code.
26-2-110. Rules and regulations.
(a) Subject to the requirements of the Wyoming AdministrativeProcedure Act , the commissioner may make reasonable rules and regulationsnecessary to carry out any provision of this code. No rule or regulation shallextend, modify or conflict with any law of this state or the reasonableimplications thereof.
(b) Any interested person may petition the commissionerrequesting the promulgation, amendment or repeal of any rule or regulation,under the applicable procedures of the Wyoming Administrative Procedure Act.
(c) In addition to any other penalty under this code, willfulviolation of any provision of this code or any rule or regulation promulgatedpursuant thereto subjects the violator to suspension or revocation of acertificate of authority or license as may be applicable. No penalty applies toany act done or omitted in good faith in conformity with the rule orregulation, notwithstanding that after the act or omission the rule orregulation may be amended or rescinded or determined by judicial or otherauthority to be invalid.
26-2-111. Orders and notices of commissioner; contents; delivery.
(a) Orders and notices of the commissioner are effective onlywhen in writing signed by him or by his authority.
(b) Except as otherwise expressly provided by law as toparticular orders, any order of the commissioner shall concisely state:
(i) Its effective date;
(ii) Its intent or purpose;
(iii) The grounds on which based;
(iv) The provisions of this code pursuant to which action is sotaken or proposed to be taken, but failure to designate a particular provisiondoes not deprive the commissioner of the right to rely on that provision.
(c) Except as may be provided as to particular procedures, anorder or notice may be given by delivery to the person to be ordered ornotified or by mailing it, postage prepaid, addressed to him at his principalplace of business or residence as last of record in the department. The orderor notice is deemed to have been given when so mailed.
26-2-112. Enforcement of code and orders; injunctions; penalty forviolation of orders.
(a) The commissioner, upon the advice of and through theattorney general, may invoke the aid of the courts through injunction or otherproper process to enforce any proper order he makes or action he takes.
(b) If the commissioner has reason to believe that any personhas violated any provision of this code, or any provision of other lawapplicable to insurance operations, for which criminal prosecution is providedand would be in order, he shall give the information relative thereto to theattorney general or to the district attorney for the county having jurisdictionof the violation. The attorney general or district attorney shall promptlyinstitute any action or proceedings against the person as in his opinion theinformation requires or justifies.
(c) In addition to any other applicable penalty, any person whoviolates a lawful order of the commissioner, upon proof thereof to the court'ssatisfaction, shall pay to this state a sum not to exceed one thousand dollars($1,000.00), or if the violation is found to be willful, a sum not to exceedtwo thousand dollars ($2,000.00). Any penalty may be recovered in a civilaction against the violator.
26-2-113. Records and other papers; generally.
(a) The commissioner shall:
(i) File in the department and safely keep all statements,reports, filings and papers required by law;
(ii) Preserve in the department in permanent form records of hisproceedings, hearings, investigations and examinations;
(iii) Keep a suitable record of all insurer certificates ofauthority and of all licenses issued under this code together with allapplicable suspensions and revocations and of the causes thereof.
(b) The records and filings in the department are open topublic inspection, except as otherwise provided by this code.
(c) The commissioner may destroy unneeded or obsolete recordsand filings in the department in accordance with general provisions andprocedures applicable to administrative agencies of this state.
(d) In order to assist in the performance of his duties underthis code, the commissioner may:
(i) Share documents, materials or other information, includingconfidential and privileged documents, materials or information, with otherstate, federal and international regulatory agencies, with the NationalAssociation of Insurance Commissioners, its affiliates or subsidiaries, andwith state, federal and international law enforcement authorities, provided therecipient agrees to maintain the confidentiality and privileged status of anydocument, material or other information;
(ii) Receive documents, materials or information, includingotherwise confidential and privileged documents, materials or information, fromthe National Association of Insurance Commissioners, its affiliates orsubsidiaries and from regulatory and law enforcement officials of other foreignor domestic jurisdictions, and shall maintain as confidential or privileged anydocument, material or information received with notice or the understandingthat it is confidential or privileged under the laws of the jurisdiction thatis the source of the document, material or information; and
(iii) Enter into agreements governing sharing and use ofinformation consistent with this subsection.
26-2-114. Records and other papers; reproductions and certifiedcopies.
(a) Reproductions of records or documents on file in thedepartment, when certified by the commissioner, shall be received in evidencein all proceedings and courts and have the same effect and force as theoriginals.
(b) Upon request of any person and payment of the applicablefee, the commissioner shall furnish a certified copy of any record or documentin the department which is then subject to public inspection.
26-2-115. Report to governor.
(a) The commissioner, as required by W.S. 9-2-1014, shallreport to the governor showing:
(i) A list of authorized insurers transacting insurance in thisstate, with any tabular summary of their financial statements as he deemsappropriate;
(ii) Names of all insurers whose business was closed during thepreceding reporting period, the cause thereof and the amount of assets andliabilities as ascertainable;
(iii) Names of insurers against which delinquency or similarproceedings were instituted, and a concise statement of the facts with respectto each proceeding and the status thereof;
(iv) The department receipts and expenses for the precedingreporting period;
(v) His recommendations as to amendments or supplementation oflaws affecting insurance or the department; and
(vi) Any other matters he deems proper or of benefit to thepublic in regard to the insurance business in this state.
26-2-116. Examination of insurers.
(a) For the purpose of determining financial condition, abilityto fulfill and manner of fulfillment of its obligations, the nature of itsoperations and compliance with law, the commissioner or any of his examinersmay examine any insurer as often as he, in his sole discretion, deemsadvisable. He shall examine each insurer licensed in this state not lessfrequently than every five (5) years. Examination of a reciprocal insurer mayinclude examination of its attorney-in-fact as to its transactions relating tothe insurer. Examination of an alien insurer may be limited to its insurancetransactions and affairs in the United States, except as the commissionerotherwise requires. In scheduling and determining the nature, scope andfrequency of the examinations the commissioner shall consider such matters asthe results of financial statement analyses and ratios, changes in managementor ownership, actuarial opinions, reports of independent certified publicaccountants and other criteria as set forth in the Examiners' Handbook adoptedby the National Association of Insurance Commissioners and in effect when thecommissioner exercises discretion under this section.
(b) The commissioner shall in like manner examine each insurerapplying for an initial certificate of authority to transact insurance in thisstate.
(c) Repealed by Laws 1992, ch. 59, 3.
(d) In lieu of making his own examination of any foreign oralien insurer licensed in this state, the commissioner may accept anexamination report on the company as prepared by the insurance department forthe company's state of domicile or port of entry state until January 1, 1994. Thereafter, such reports may only be accepted if:
(i) The insurance department preparing the report was, at thetime of the examination, accredited under the National Association of InsuranceCommissioners' financial regulation standards and accreditation program; or
(ii) The examination is performed under the supervision of anaccredited insurance department or with the participation of one (1) or moreexaminers who are employed by an accredited insurance department and who, afterthe review of the examination work papers and report, state under oath that theexamination was performed in a manner consistent with the standards andprocedures required by their insurance department.
26-2-117. Examination of other than insurers.
(a) For the purpose of ascertaining compliance with law, orrelationships and transactions between any person and any insurer or proposedinsurer, the commissioner, as often as he deems advisable, may examine theaccounts, records, documents and transactions pertaining to or affectinginsurance affairs or proposed insurance affairs of any person:
(i) Who is or holds himself out to be an insurance agent,broker, general agent, adjuster or insurer representative;
(ii) Having a contract under which he enjoys in fact theexclusive or dominant right to manage or control an insurer;
(iii) Holding the shares of voting stock or the policyholderproxies of a domestic insurer, for the purpose of controlling the managementthereof, as voting trustee or otherwise;
(iv) Engaged in or in any way involved or proposing to beinvolved in this state in the promotion, formation or financing of an insureror insurance holding corporation, or corporation or other group to finance aninsurer or the production of its business.
26-2-118. Examinations; generally.
(a) Each examination shall be expeditious, fair and impartial. Upon determining that an examination should be conducted the commissioner orhis designee shall issue an examination warrant appointing one (1) or moreexaminers to perform the examination and instructing them as to the scope ofthe examination. In conducting the examination the examiner shall observe thoseguidelines and procedures set forth in the Examiners' Handbook adopted by theNational Association of Insurance Commissioners. The commissioner may alsoemploy other guidelines or procedures as the commissioner deems appropriate. No examiner may be appointed by the commissioner if the examiner, eitherdirectly or indirectly, has a conflict of interest or is affiliated with themanagement of or owns a pecuniary interest in any person subject to examinationunder this act. This subsection shall not be construed to automaticallypreclude an examiner from being:
(i) A policyholder or claimant under an insurance policy;
(ii) A grantor of a mortgage or similar instrument on theexaminer's residence to a regulated entity if done under customary terms and inthe ordinary course of business;
(iii) An investment owner in shares of regulated diversifiedinvestment companies; or
(iv) A settlor or beneficiary of a "blind trust" intowhich any otherwise impermissible holdings have been placed.
(b) For purposes of completing an examination of any insurerunder this act, the commissioner may examine or investigate any person, or thebusiness of any person, if in the sole discretion of the commissioner, the examination or investigation is necessary or material to the examination of theinsurer.
(c) Any insurer or other person being examined and anyofficers, directors, employees, agents or other representatives thereof shallmake freely available to the commissioner or his examiners all accounts,computer and other records, documents, files, information, assets and mattersin his possession or control relating to the subject of the examination andshall facilitate the examination. The officers, directors, employees, agentsand other representatives of the insurer or person shall facilitate theexamination and aid in the examination so far as it is in their power to do so.The refusal of any insurer, by its officers, directors, employees, agents orother representatives to submit to examination or to comply with any reasonablewritten request of the examiners shall be grounds for suspension or refusal of,or nonrenewal of any license or authority held by the insurer to engage in aninsurance or other business subject to the commissioner's jurisdiction. Anysuch proceedings for suspension, revocation or refusal of any license or authorityshall be conducted pursuant to W.S. 26-2-125 through 26-2-130.
(d) Repealed by Laws 1993, ch. 134, 2.
(e) Neither the commissioner nor any examiner shall remove anyrecord, account, document, file or other property of the person being examinedfrom the offices or place of that person except with that person's writtenconsent in advance of the removal or pursuant to a court order. This provisiondoes not affect the making and removal of copies or abstracts of any record,account, document or file.
(f) When making an examination under W.S. 26-2-116 through26-2-124, the commissioner may retain attorneys, appraisers, independentactuaries, independent certified public accountants or other professionals andspecialists as examiners, the reasonable and appropriate cost shall be borne bythe insurer which is the subject of the examination. Notwithstanding theconflict of interest provisions of subsection (a) of this section, thecommissioner may retain from time to time, on an individual basis, qualifiedactuaries, certified public accountants or other similar individuals who areindependently practicing their professions, even though the persons may fromtime to time be similarly employed or retained by persons subject toexamination under this act.
(g) Nothing contained in W.S. 26-2-116 through 26-2-124 shallbe construed to limit the commissioner's authority to terminate or suspend anyexamination in order to pursue other legal or regulatory action pursuant to theinsurance laws of this state. Findings of fact and conclusions made pursuantto any examination shall be prima facie evidence in any legal or regulatoryaction.
(h) Nothing contained in W.S. 26-2-116 through 26-2-124 shallbe construed to limit the commissioner's authority to use and, if appropriate,to make public any final or preliminary examination report, any examiner orcompany work papers or other documents, or any other information discovered ordeveloped during the course of any examination in the furtherance of any legalor regulatory action which the commissioner may, in his sole discretion, deemappropriate.
26-2-119. Repealed by Laws 1993, ch. 134, 2.
26-2-120. Examinations; deceit and obstruction during examinationprohibited.
Noperson shall make or authorize any false certificate, entry, memorandum orwriting in or relative to the books, records, files, documents and affairs ofthe person being examined with the intent to deceive the commissioner orexaminer, or otherwise willfully obstruct the examination.
26-2-121. Examinations; report; contents.
(a) No later than sixty (60) days following completion of theexamination the examiner in charge shall make a verified, full and true writtenreport of any examination he makes and shall therein certify under oath thereport and his findings. Investigations initiated by the commissioner or hisexaminers and assistants for the purpose of ascertaining whether an insurer,agent or adjuster has violated any provision of the insurance code are notexaminations within the provisions of this section.
(b) The report shall contain only information appearing uponthe books, records, documents and papers of or relating to the insurer, itsagents or other person or affairs being examined, or ascertained from testimonyof its officers, agents or other individuals under oath concerning the affairsof that insurer or person, together with any conclusions and recommendations asmay reasonably be warranted by the information.
(c) Upon receipt of the verified report the commissioner shalltransmit the report to the insurer examined, together with a notice which shallafford the insurer examined a reasonable opportunity of not more than thirty(30) days to make a written submission or rebuttal with respect to any matterscontained in the examination report. Upon written request by the insurer filedwithin the thirty (30) day period, the commissioner shall grant a hearing onthe report and shall not file the report until after the hearing and after anyappropriate modifications to the report.
(i) Repealed by Laws 1993, ch. 134, 2.
(ii) Repealed by Laws 1993, ch. 134, 2.
(d) Repealed by Laws 1993, ch. 134, 2.
(e) Repealed by Laws 1993, ch. 134, 2.
(f) Within thirty (30) days of the end of the period allowedfor the receipt of written submissions or rebuttals or within thirty (30) daysafter conclusion of a hearing held pursuant to subsection (c) of this section,the commissioner shall fully consider and review the report, together with anywritten submissions or rebuttals and any relevant portions of the examiner'swork papers and enter an order:
(i) Adopting the examination report as filed or withmodification or corrections. If the examination report reveals that theinsurer is operating in violation of any law, regulation or prior order of thecommissioner, the commissioner may order the company to take any action thecommissioner considers necessary and appropriate to cure the violation;
(ii) Rejecting the examination report with directions to theexaminers to reopen the examination for purposes of obtaining additional data,documentation or information, and refiling pursuant to this section; or
(iii) Calling for an investigatory hearing with no less thantwenty (20) days notice to the company for purposes of obtaining additionaldocumentation, data, information and testimony.
(g) All orders entered pursuant to paragraph (f)(i) of thissection shall be accompanied by findings and conclusions resulting from thecommissioner's consideration and review of the examination report, relevantexaminer work papers and any written submissions or rebuttals. Any such ordershall be considered a final administrative decision and may be appealedpursuant to the Wyoming Administrative Procedure Act and shall be served uponthe insurer by certified mail, together with a copy of the adopted examinationreport. Within thirty (30) days of the issuance of the adopted report, thecompany shall file affidavits executed by each of its directors stating underoath that they have received a copy of the adopted report and related orders.
(h) Notwithstanding any other provision of this code anyhearing conducted under paragraph (f)(iii) of this section by the commissioneror authorized representative, shall be conducted as a nonadversarialconfidential investigatory proceeding as necessary for the resolution of anyinconsistencies, discrepancies or disputed issues apparent upon the face of thefiled examination report or raised by or as a result of the commissioner'sreview of relevant work papers or by the written submission or rebuttal of theinsurer. The hearing shall proceed expeditiously with discovery by the insurerlimited to the examiner's work papers which tend to substantiate any assertionsset forth in any written submission or rebuttal. The hearing shall proceedwith the commissioner or his representative posing questions to the personssubpoenaed. Thereafter the insurer and the department may present testimonyrelevant to the investigation. Cross examination shall be conducted only bythe commissioner or his representative. The insurer and the department shallbe permitted to make closing statements and may be represented by counsel oftheir choice. The commissioner shall not appoint an examiner as an authorizedrepresentative to conduct the hearing but may exercise all other powers grantedto him in the conduct of hearings under this code. Within twenty (20) days ofthe conclusion of any such hearing, the commissioner shall enter an orderpursuant to paragraph (f)(i) of this section.
(j) Upon the adoption of the examination report under paragraph(f)(i) of this section, the commissioner shall continue to hold the content ofthe examination report as private and confidential information for a period ofthirty (30) days except to the extent provided in subsection (c) of thissection. Thereafter, the commissioner may open the report for publicinspection so long as no court of competent jurisdiction has stayed itspublication.
(k) Nothing contained in W.S. 26-2-116 through 26-2-124 shallrequire the department to disclose any information or records which wouldindicate or show the existence or content of any investigation or activity of acriminal justice agency. Nothing contained in this code shall prevent or beconstrued as prohibiting the commissioner from disclosing the content of anexamination report, preliminary examination report or results, or any matterrelating thereto, as authorized by and in accordance with the provisions ofW.S. 26-2-113(d). In the event the commissioner determines that regulatoryaction is appropriate as a result of any examination, he may initiate anyproceedings or actions as provided by law. The provisions of W.S. 26-2-116through 26-2-124 with regard to release of information shall prevail should anyconflict arise between this act and W.S. 16-4-201 through 16-4-205.
(m) All working papers, recorded information, documents andcopies thereof produced by, obtained by or disclosed to the commissioner or anyother person in the course of an examination made under W.S. 26-2-116 through26-2-124 shall be given confidential treatment and are not subject to subpoenaand shall not be made public by the commissioner or any other person, except tothe extent provided in subsections (j) and (k) of this section.
26-2-122. Examinations; expense.
(a) The reasonable and proper expense of examination of aninsurer or of any person referred to in W.S. 26-2-117(a)(ii) or (iv) shall beborne by the person examined, unless the expense has been otherwise providedfor by the insurer having paid the assessment established by W.S. 26-2-204.The expense shall include the reasonable and proper expenses of thecommissioner and his examiners, and a reasonable per diem as to such examiners,as necessarily incurred in the examination.
(b) The person examined shall promptly pay the examinationexpense upon the commissioner's presentation of a reasonably detailed writtenaccount thereof. The commissioner shall file a copy of the account in thedepartment as a public record.
26-2-123. Witnesses; evidence; subpoenas.
(a) In any examination or investigation the departmentconducts, the commissioner or any representative he appoints may:
(i) Administer oaths and affirmations;
(ii) Examine and cross-examine witnesses;
(iii) Receive oral and documentary evidence;
(iv) Subpoena witnesses and compel their attendance andtestimony; and
(v) Require by subpoena the production of any books, papers,records, files, correspondence, documents and other evidence deemed relevant tothe inquiry whether under control of the department, the insurer or otherpersons.
(b) If any individual refuses to comply with any subpoena or totestify as to any matter concerning which he is lawfully interrogated, thedistrict court of the county in which the examination or investigation is beingconducted or in which the individual resides or may be found, on thecommissioner's application, may issue an order requiring the individual tocomply with the subpoena and testify or produce the evidence subpoenaed.Failure to obey a court order may be punished by the court as contempt.
(c) Subpoenas shall be served and proof of service made in thesame manner as if issued by a district court. Witness fees and mileage, if claimed,shall be allowed the same as for testimony in court.
26-2-124. Immunity from prosecution when testimony is compelled;exception for perjury; waiver of immunity.
(a) If any person asks to be excused from attending ortestifying or from producing any books, papers, records, correspondence,documents or other evidence in connection with any examination, investigationor hearing the commissioner or his representative conducts, or in anyproceeding or action before any court or magistrate upon a charge of violationof this code, on the ground that the testimony or evidence required of him maytend to incriminate him or subject him to a penalty or forfeiture, and,notwithstanding, is directed by the commissioner and the attorney general togive the testimony or produce the evidence, he shall comply with thatdirection. The person shall not thereafter be prosecuted or subjected to anypenalty or forfeiture for or because of any transaction, matter or thingconcerning which he may have testified or produced evidence, and no testimonygiven or evidence produced shall be received against him upon any criminalaction, investigation or proceeding, except that no person so testifying isexempt from prosecution or punishment for perjury.
(b) Any person may execute, acknowledge and file in thedepartment a statement expressly waiving the immunity or privilege in respectto any transaction, matter or thing specified in the statement. The testimonyof that person or the evidence in relation to the transaction, matter or thingmay then be received or produced before any judge or justice, court, tribunal,magistrate, grand jury or otherwise, and if so received or produced the personis not entitled to any immunity or privileges because of any testimony he givesor evidence he produces.
26-2-125. Commissioner's hearings; generally; when required; requestfor hearing; stay.
(a) The commissioner may hold a hearing without request byothers for any purpose within the scope of this code.
(b) The commissioner shall hold a hearing:
(i) If required by this code or the Wyoming AdministrativeProcedure Act; or
(ii) Upon written request therefor by a person aggrieved by anyact, threatened act or failure of the commissioner to act, or by any report,rule, regulation or order of the commissioner, other than an order for theholding of a hearing, or an order on a hearing or pursuant to the order, ofwhich the person had notice.
(c) Any request for hearing shall be filed in the departmentwithin ninety (90) days after the person knows or reasonably should know of theact, threatened act, failure, report or order, unless a different period isprovided for by other laws applicable to a particular matter, in which case theother law governs. A hearing as to the legality of a rule or regulation may berequested within ninety (90) days after the person knows or reasonably shouldknow of the application or proposed application of the rule or regulation as tothe person in a particular instance.
(d) Any request for hearing shall summarize the information andgrounds to be relied upon as a basis for the relief to be sought at thehearing.
(e) If the commissioner finds that the request is made in goodfaith, that the person would be aggrieved if his grounds are established andthat the grounds otherwise justify the hearing, he shall hold the hearingwithin thirty (30) days from the date the request is filed, unless postponed bymutual consent. Failure to hold the hearing upon request of a person entitledthereto as provided in this section constitutes a denial of the relief soughtand is the equivalent of a final order of the commissioner for the purpose ofan appeal under W.S. 26-2-129.
(f) Any request for hearing the commissioner receives prior tothe effective date of action he takes or proposes to take stays the actionpending the hearing, except as to action taken or proposed under an order:
(i) On hearing;
(ii) Pursuant to an order on hearing;
(iii) To make good an impairment of the capital funds of an insurer;or
(iv) Made pursuant to chapter 14 of this code.
(g) If an automatic stay is not provided for, and if thecommissioner after written request therefor fails to grant a stay, the personaggrieved may apply to the district court of Laramie county for a stay of thecommissioner's action.
26-2-126. Commissioner's hearings; notice of hearing; contents;delivery.
(a) Unless a longer period is expressly provided in this code,the commissioner shall give written notice of the hearing not less than ten(10) days in advance. If the persons to be given notice are not specified inthe provision pursuant to which the hearing is held, the commissioner shallgive notice to all persons whose financial interests the hearing directly andimmediately affects.
(b) If any person is entitled to a hearing by any provision oflaw before any proposed action is taken, the notice of the hearing may be inthe form of a notice to show cause stating:
(i) That the proposed action may be taken unless the personshows cause at a hearing to be held as specified in the notice why the proposedaction should not be taken; and
(ii) The basis of the proposed action.
(c) Notice of hearing shall otherwise be in accordance withW.S. 16-3-107, except that mailed notice is deemed to have been served whenaddressed to the person to be notified at his address last of record with thedepartment and deposited, postage paid, in a mail depository of the UnitedStates post office.
26-2-127. Commissioner's hearings; procedure.
(a) The commissioner shall allow any party to the hearing to:
(i) Appear in person and by counsel;
(ii) Be present during the giving of all evidence;
(iii) Have a reasonable opportunity to inspect all documentaryand other evidence;
(iv) Examine and cross-examine witnesses;
(v) Present evidence in support of his interest; and
(vi) Have subpoenas issued by the commissioner to compelattendance of witnesses and production of evidence in his behalf.
(b) Upon good cause shown the commissioner shall permit tobecome a party to the hearing by intervention, if timely, only those personswho were not original parties thereto and whose pecuniary interests are to bedirectly and immediately affected by the commissioner's order made upon thehearing.
(c) Hearings in other respects are subject to the WyomingAdministrative Procedure Act as to contested cases.
(a) Within thirty (30) days after termination of a hearing, or withinsixty (60) days after termination if a transcript of the proceedings is to bemade, or of any rehearing or reargument thereof, or within any other period asmay be specified in this code as to particular matters, or within any furtherperiod to which the parties consent in writing, the commissioner shall make andenter his order on hearing. Failure of the commissioner to make and enter hisorder within the period allowed is deemed a denial of the petition, relief orapplication as to which the hearing was held.
(b) The commissioner shall promptly give a copy of the order toeach party to the hearing in the same manner as notice of the hearing wasgiven, except that as to hearings held concerning merger, consolidation, bulkreinsurance or conversion of a domestic insurer as provided for in chapter 24or in chapter 27 of this code, if notice of the hearing was mailed or given toall stockholders or policyholders, or both, of the insurer or insurersinvolved, the commissioner is required to give a copy of the order to thecorporate or insurer parties, to intervening parties, to a reasonable number ofthe stockholders or policyholders as representative of the class and to otherparties only upon written request of those parties.
(c) The orders are otherwise subject to the WyomingAdministrative Procedure Act as in contested cases.
(ii) As to a matter on which the commissioner fails to:
(A) Hold a hearing after application therefor under W.S.26-2-125; or
(B) Make and enter his order on hearing as required by W.S.26-2-128.
(b) All such appeals shall be taken as provided by the WyomingAdministrative Procedure Act for contested cases.
(c) This section does not prohibit recourse to injunction orother appropriate emergency proceedings in proper circumstances.
26-2-130. Cease and desist authority.
(a) The commissioner may issue a cease and desist order if:
(i) It appears from specific facts shown by affidavit that aperson, as defined by W.S. 26-1-102(a)(xx), is engaging in any act or practiceprohibited under this code which is causing or can be reasonably expected tocause significant, imminent and irreparable injury to the insuring public; and
(ii) That the department has either discussed the matter withthe person or has made a good-faith attempt to do so.
(b) Upon issuance of a cease and desist order, the commissionershall serve upon the person affected by the order, by personal service asdefined in rule 4 of the Wyoming Rules of Civil Procedure, or by registered orcertified mail, return receipt requested, to the person's last known address,an order specifically stating the acts complained of and requiring the personto immediately cease and desist from the act, methods or practices stated. Thecease and desist order shall have full force and effect as soon as it isreceived unless stayed by the commissioner pursuant to subsection (d) of thissection. The cease and desist order shall be of no effect at the end of thesecond business day following its issuance unless the commissioner shall haveobtained a temporary restraining order, pursuant to rule 65 of the Wyoming Rulesof Civil Procedure or the person receiving the order shall have stipulated thatit remain in effect pursuant to terms and conditions agreed upon by thecommissioner and that person. Thereafter, the commissioner may seek suchfurther orders of the court to enforce the cease and desist order as he deemsappropriate or necessary. If a temporary restraining order is sought inaccordance with this subsection, the cease and desist order shall remain ineffect until the temporary restraining order or any extension thereof isdenied, or until the cease and desist order is modified or stayed by an orderof the court. The action seeking the temporary restraining order shall befiled in the district court for Laramie county or in the district court for thecounty in which person affected by the order resides or has his principal placeof business.
(c) If the person affected by the cease and desist order seeksto contest the order, the person shall request a hearing before thecommissioner not later than ten (10) days after the date on which the personreceived the order. A request to contest an order shall be in writing, servedupon the commissioner by personal service as defined in rule 4 of the WyomingRules of Civil Procedure, or by registered or certified mail, and shall statethe grounds for the request to set aside or modify the order.
(d) On receiving the request for a hearing, the commissionershall serve notice of the time and place of the hearing at which the personrequesting the hearing shall have the opportunity to show cause why the ordershould not be affirmed. The hearing shall be held within ten (10) days fromthe date the request for hearing is received unless mutually waived by theparties or continuance granted by the commissioner for good cause. The ceaseand desist order shall continue in full force and effect while the hearing ispending unless the order is stayed by the commissioner.
(e) The hearing on the order shall be conducted according tothe procedures for contested cases under the Wyoming Administrative ProcedureAct.
(f) Within two (2) working days after the hearing, thecommissioner shall affirm, modify or set aside, in whole or in part, the ceaseand desist order.
(g) A cease and desist order shall be final eleven (11) daysafter the date the order is received by the person if a hearing as provided bysubsection (c) of this section is not requested by the person affected by theorder.
(h) Any person violating a cease and desist order issued underthis section shall be assessed a civil penalty as provided by W.S. 26-1-107(b).If the commissioner reasonably believes that a person has violated a cease anddesist order issued under this section, the commissioner may initiate judicialproceedings to enjoin further violation of the order in the district court forLaramie county or in the district court for the county in which the personresides or has his principal place of business.
(j) The commissioner may promulgate reasonable rules andregulations to carry out the purpose of this section.
(k) Any final order, ruling, finding, decision or other act ofthe commissioner made pursuant to this chapter or this section shall be subjectto judicial review in accordance with the Wyoming Administrative Procedure Act.
26-2-131. Immunity from liability.
(a) No cause of action shall arise nor shall any liability beimposed against the commissioner, the commissioner's authorized representativesor any examiner appointed by the commissioner for any statements made or conductperformed in good faith while carrying out an examination or related activityunder the provisions of this chapter.
(b) No cause of action shall arise nor shall any liability beimposed against any person for the act of communicating or delivering informationor data to the commissioner, the commissioner's authorized representative orexaminer pursuant to an examination made under this chapter, if the act ofcommunication or delivery was performed in good faith and without fraudulentintent.
(c) Any person identified in subsection (a) of this sectionshall be entitled to an award of attorney's fees and costs if he is aprevailing party in a civil cause of action for libel, slander or any otherrelevant tort arising out of activities in carrying out an examination orrelated activity under the provisions of this chapter and the party bringingthe action was not substantially justified in doing so. For purposes of thissection, a proceeding is "substantially justified" if it had areasonable basis in law or fact at the time it was initiated.
26-2-132. Health benefits plan committee.
(a) The commissioner shall appoint a health benefits plancommittee no later than September 30, 1995. The committee shall be composed ofseven (7) members, which shall include:
(i) The commissioner or his representative;
(ii) Two (2) representatives of authorized disability insurerswriting business in Wyoming;
(iii) One (1) representative each of:
(A) A small employer as defined by W.S. 26-19-302(a)(xxii);
(B) A consumer;
(C) An insurance agent licensed to sell disability insurance;and
(D) A health care provider as defined by W.S. 26-40-102(a)(i).
(b) The committee shall review on at least a biennial basis theform and level of coverages to be made available under the Small EmployerHealth Insurance Availability Act and the Wyoming Health Insurance Pool Act.
(c) For the Small Employer Health Insurance Availability Act,the committee shall recommend benefit levels, cost sharing factors, exclusionsand limitations for the basic health benefit plan and the standard healthbenefit plan. One (1) basic health benefit plan and one (1) standard healthbenefit plan shall contain benefit and cost sharing levels that are consistentwith the basic method of operation and the benefit plans of all health benefitplans, including any restrictions imposed by state or federal law. The plansrecommended by the committee may include cost containment features such as, butnot limited to:
(i) Utilization review of health care services, includingreview of medical necessity of hospital and physician services;
(ii) Case management benefit alternatives;
(iii) Reasonable benefit differentials applicable toparticipating and nonparticipating providers; and
(iv) Other managed care provisions.
(d) The committee shall submit its review of the plans and anyrecommendation for modification of the plans to the commissioner for approvalwithin one hundred eighty (180) days after the appointment of the committee pursuantto this section and at least biennially thereafter. If the commissionerdisapproves of the plans or modifications thereto in whole or in part he shallsubmit alternative interim plans to the committee for its approval.
(e) For the Wyoming health insurance pool, the committee shallrecommend the pool coverage, its schedule of benefits, exclusions, preexistingcondition limitations and other limitations consistent with the Wyoming HealthInsurance Pool Act.
(f) Members of the committee shall be reimbursed from theassets of the programs for expenses incurred by them as members of thecommittee but shall not otherwise be compensated by the programs for theirservices. The programs shall each pay one-half (1/2) of the expenses of thecommittee.
(g) Committee meetings shall be open to the public.
26-2-133. Disclosure of nonpublic personal information; rulemaking;rulemaking authority limited.
(a) The commissioner is authorized to adopt rules necessary togovern the practices of all persons licensed under this code with respect tothe disclosure of nonpublic personal financial and health information ofinsurance consumers and customers. The rules shall prohibit the disclosure ofany nonpublic personal information contrary to the provisions of title V of theGramm-Leach-Bliley Act of 1999, P.L. 106-102.
(b) Repealed By Laws 2007, Ch. 43, 1.
26-2-134. Limiting the use of credit scoring; rulemaking.
(a) The commissioner is authorized to adopt rules as necessaryto govern the practices of all persons licensed under this code with respect tothe use of credit scoring in the underwriting of personal lines, motor vehiclesand homeowner policies. The rules shall provide:
(i) That a person's credit history or scoring shall not be thesole basis to cancel, deny or nonrenew an insurance policy. An insurer may usecredit history only in combination with other valid underwriting factorsindependent of credit history or score;
(ii) That an insurer shall provide notice to the person whencredit scoring is being used to underwrite a policy and when use of creditscoring is adverse to the person;
(iii) That the consumer is adequately protected against unfairdiscrimination in the use of credit scoring to underwrite policies.
ARTICLE 2 - FUNDING
26-2-201. Deposit of fees.
Thestate treasurer shall place all fees received by the commissioner as providedin W.S. 26-2-205(c) in the state general fund.
26-2-202. Expenditures of the department.
Thestate treasurer shall make payments on warrants drawn by the state auditor,upon vouchers issued and signed by the commissioner or his designee, forexpenditures required to carry out the functions of the department pursuant tothe appropriations authorized the department by law.
26-2-203. Agents' licensing program exempt.
Thisarticle does not apply to the expenditure authorized by W.S. 26-10-107.
26-2-204. Insurers assessed for department expenditures.
(a) In addition to any other tax, license or fee imposed bylaw, each authorized insurer shall pay to the commissioner on or before June 1of each year a fee for the privilege of transacting the business of insurancein this state, computed as follows:
(i) On or before April 1 of each year, the commissioner, withthe governor's approval, shall estimate the expenditures of the department forthe fiscal year commencing July 1, including the expense of any regularlyscheduled association, zone, triannual or similar periodic statutorilyscheduled financial examination of any authorized insurer, provided thatneither the actual expenditures nor estimated expenditures of a fiscal yearwithin the same biennial budget for the department shall not exceed the amountappropriated to the department by law; and
(ii) The commissioner shall then divide the estimated amount ofexpenditures, after deducting therefrom any expected unexpended funds in theaccount of the insurance department, by the total number of insurers thenauthorized to transact insurance in this state as of December 31 of theimmediately preceding year. The result of this computation is the amount ofthe fee the commissioner shall assess each insurer.
(b) Upon receiving a statement of assessment from thecommissioner, each authorized insurer shall promptly pay the fee to thecommissioner.
26-2-205. Time for payment; penalties.
(a) If any insurer does not pay the assessment on or beforeJune 1 of the year in which assessed or as otherwise ordered pursuant to W.S.26-2-208, the assessment is delinquent. If the assessment is delinquent, thecommissioner may suspend or revoke the insurer's certificate of authority.
(b) The suspension shall continue until the assessment is paidtogether with an additional fee of ten dollars ($10.00) for each day the feeremains delinquent after June 1. The penalty for late payment is in additionto any other penalties provided by this code.
(c) The commissioner shall deposit all sums collected underthis section with the state treasurer for credit to the general fund.
26-2-206. Newly authorized insurers.
(a) Any insurer becoming first authorized after December 31shall pay to the commissioner the amount determined pursuant to W.S. 26-2-204prior to the commissioner issuing it a certificate of authority. Thecommissioner shall deposit the fee as provided by W.S. 26-2-204.
(b) This section does not apply to any insurer first authorizedafter December 31, 1987, but before March 31, 1988.
26-2-207. Other powers unaffected.
Nothingin this article alters or amends the commissioner's authority, obligations orduties under W.S. 26-2-116 through 26-2-125, nor does this article exempt aninsurer examined by the department pursuant to W.S. 26-2-116(b) from thepayments required under W.S. 26-2-122(b).
26-2-208. Additional assessment authorized.
Ifit appears to the commissioner that the total amount of assessments actuallycollected will not equal the authorized expenditures of the department for anybiennial appropriation period, with the governor's approval, he shall make anyadditional assessments upon authorized insurers which will eliminate thedeficiency. Any additional assessments are subject to all provisions of thisarticle as if they were original assessments under W.S. 26-2-204.
26-2-209. Deduction allowed for retaliation.
Notwithstandingany other law, if any domestic insurer is required to pay additional taxes orfees to some other jurisdiction because of this article under the color of aretaliatory statute or other similar law, the insurer may deduct the additionaltaxes or fees from the premium taxes otherwise payable under W.S. 26-4-103.
26-2-102. Insurance commissioner; appointment; vacancy; removal fromoffice; other requirements.
(a) The chief officer of the department is the "insurancecommissioner".
(b) The commissioner shall be appointed by the governor.
(c) If for any cause a vacancy occurs in the office ofcommissioner, the governor shall fill the vacancy in accordance with W.S.28-12-101.
(d) The governor may remove a commissioner as provided in W.S.9-1-202.
(e) Effective July 1, 1979, appointments and terms shall be inaccordance with W.S. 28-12-101 through 28-12-103.
26-2-103. Insurance commissioner; eligibility for appointment.
Noindividual is eligible for appointment to or shall hold the office ofcommissioner unless he is a qualified elector of this state and free ofconflicting interests as specified in W.S. 26-2-107.
26-2-104. Insurance commissioner; official seal.
(a) The commissioner shall have an official seal in the formand design in use and on file in the office of secretary of state.
(b) The commissioner shall issue under his official seal allhis certificates, other than licenses of agents, brokers, adjusters and otherinsurance representatives.
26-2-105. Insurance commissioner; salary.
Thecommissioner shall receive a salary as provided under W.S. 9-2-1022.
(a) The commissioner, with the governor's approval, may appointa deputy commissioner and may revoke the appointment at his pleasure.
(b) The commissioner may appoint examiners, clerks and othernecessary assistants as the proper conduct of his office requires, and mayrevoke the appointments at his pleasure. In the appointment of examiners thecommissioner shall consider standards of qualification the National Associationof Insurance Commissioners recommends.
(c) Salary for personnel in subsections (a) and (b) of thissection shall be as provided under W.S. 9-2-1022.
(d) The commissioner may contract for independent or consultingactuarial, rating or other technical services, on a fee basis, without givingthe individual status as a state employee.
26-2-107. Conflict of interest prohibited; additional compensationprohibited.
(a) The commissioner or his deputy, or any examiner, assistantor employee of the department shall not:
(i) Be connected with the management of or be financiallyinterested in any insurer, insurance agency or insurance transaction except asa policyholder or claimant under a policy;
(ii) Engage in any other business or occupation interfering orinconsistent with department duties, except that as to those matters in which aconflict of interest does not exist on the part of any individual, thecommissioner may employ or retain insurance actuaries, accountants or othertechnicians who are independently practicing their professions even thoughsimilarly employed or retained by insurers or others; or
(iii) Be given or receive any fee, compensation, loan, gift orother thing of value in addition to the compensation and expense allowanceprovided by law.
26-2-108. Commissioner; delegation of authority.
(a) The commissioner may delegate to his deputy or anydepartment employee the exercise or discharge in the commissioner's name of anypower, duty, or function vested in or imposed upon the commissioner under thiscode, other than the supervision of department operations.
(b) The official act of any individual acting in thecommissioner's name and by his authority is an official act of thecommissioner. The commissioner is responsible for all such acts.
26-2-109. Commissioner; powers and duties generally.
(a) The commissioner shall:
(i) Personally supervise the department operations;
(ii) Examine and inquire into violations of this code;
(iii) Enforce this code with impartiality;
(iv) Execute the duties imposed upon him by this code;
(v) Have the powers and authority expressly conferred upon himby or reasonably implied from this code;
(vi) Immediately pay to the state treasurer for deposit in thegeneral fund, unless otherwise specifically provided, any monies paid to himunder this code;
(vii) Have any additional powers and duties as may be provided byother laws of this state.
(b) The commissioner may conduct examinations andinvestigations of insurance matters, in addition to examinations andinvestigations expressly authorized, as he deems proper, upon reasonable andprobable cause, to determine whether any person has violated any provisions ofthis code or to secure information useful in the lawful administration of anyprovision of this code. The cost of any additional examinations andinvestigations shall be borne by the state.
(c) The commissioner, with the governor's approval, may enterinto interstate compacts with other states in the region to provide for auniform climate for insurance coverage in the compacting states. The compactsmay include:
(i) Interstate compacts to negotiate uniform rating structuresin the compacting states;
(ii) Interstate compacts to negotiate the use of regionalratings or trendings rather than national ratings or trendings; or
(iii) Interstate compacts to provide for the operation of mutualcompanies to provide insurance for risks that are critical to the health,safety or welfare of the compacting states.
(d) Notwithstanding any other provision of this chapter, thecommissioner does not have any powers, duties or responsibilities with respectto the state board of insurance agent's examiners, except as expressly providedin chapter 10 of this code.
26-2-110. Rules and regulations.
(a) Subject to the requirements of the Wyoming AdministrativeProcedure Act , the commissioner may make reasonable rules and regulationsnecessary to carry out any provision of this code. No rule or regulation shallextend, modify or conflict with any law of this state or the reasonableimplications thereof.
(b) Any interested person may petition the commissionerrequesting the promulgation, amendment or repeal of any rule or regulation,under the applicable procedures of the Wyoming Administrative Procedure Act.
(c) In addition to any other penalty under this code, willfulviolation of any provision of this code or any rule or regulation promulgatedpursuant thereto subjects the violator to suspension or revocation of acertificate of authority or license as may be applicable. No penalty applies toany act done or omitted in good faith in conformity with the rule orregulation, notwithstanding that after the act or omission the rule orregulation may be amended or rescinded or determined by judicial or otherauthority to be invalid.
26-2-111. Orders and notices of commissioner; contents; delivery.
(a) Orders and notices of the commissioner are effective onlywhen in writing signed by him or by his authority.
(b) Except as otherwise expressly provided by law as toparticular orders, any order of the commissioner shall concisely state:
(i) Its effective date;
(ii) Its intent or purpose;
(iii) The grounds on which based;
(iv) The provisions of this code pursuant to which action is sotaken or proposed to be taken, but failure to designate a particular provisiondoes not deprive the commissioner of the right to rely on that provision.
(c) Except as may be provided as to particular procedures, anorder or notice may be given by delivery to the person to be ordered ornotified or by mailing it, postage prepaid, addressed to him at his principalplace of business or residence as last of record in the department. The orderor notice is deemed to have been given when so mailed.
26-2-112. Enforcement of code and orders; injunctions; penalty forviolation of orders.
(a) The commissioner, upon the advice of and through theattorney general, may invoke the aid of the courts through injunction or otherproper process to enforce any proper order he makes or action he takes.
(b) If the commissioner has reason to believe that any personhas violated any provision of this code, or any provision of other lawapplicable to insurance operations, for which criminal prosecution is providedand would be in order, he shall give the information relative thereto to theattorney general or to the district attorney for the county having jurisdictionof the violation. The attorney general or district attorney shall promptlyinstitute any action or proceedings against the person as in his opinion theinformation requires or justifies.
(c) In addition to any other applicable penalty, any person whoviolates a lawful order of the commissioner, upon proof thereof to the court'ssatisfaction, shall pay to this state a sum not to exceed one thousand dollars($1,000.00), or if the violation is found to be willful, a sum not to exceedtwo thousand dollars ($2,000.00). Any penalty may be recovered in a civilaction against the violator.
26-2-113. Records and other papers; generally.
(a) The commissioner shall:
(i) File in the department and safely keep all statements,reports, filings and papers required by law;
(ii) Preserve in the department in permanent form records of hisproceedings, hearings, investigations and examinations;
(iii) Keep a suitable record of all insurer certificates ofauthority and of all licenses issued under this code together with allapplicable suspensions and revocations and of the causes thereof.
(b) The records and filings in the department are open topublic inspection, except as otherwise provided by this code.
(c) The commissioner may destroy unneeded or obsolete recordsand filings in the department in accordance with general provisions andprocedures applicable to administrative agencies of this state.
(d) In order to assist in the performance of his duties underthis code, the commissioner may:
(i) Share documents, materials or other information, includingconfidential and privileged documents, materials or information, with otherstate, federal and international regulatory agencies, with the NationalAssociation of Insurance Commissioners, its affiliates or subsidiaries, andwith state, federal and international law enforcement authorities, provided therecipient agrees to maintain the confidentiality and privileged status of anydocument, material or other information;
(ii) Receive documents, materials or information, includingotherwise confidential and privileged documents, materials or information, fromthe National Association of Insurance Commissioners, its affiliates orsubsidiaries and from regulatory and law enforcement officials of other foreignor domestic jurisdictions, and shall maintain as confidential or privileged anydocument, material or information received with notice or the understandingthat it is confidential or privileged under the laws of the jurisdiction thatis the source of the document, material or information; and
(iii) Enter into agreements governing sharing and use ofinformation consistent with this subsection.
26-2-114. Records and other papers; reproductions and certifiedcopies.
(a) Reproductions of records or documents on file in thedepartment, when certified by the commissioner, shall be received in evidencein all proceedings and courts and have the same effect and force as theoriginals.
(b) Upon request of any person and payment of the applicablefee, the commissioner shall furnish a certified copy of any record or documentin the department which is then subject to public inspection.
26-2-115. Report to governor.
(a) The commissioner, as required by W.S. 9-2-1014, shallreport to the governor showing:
(i) A list of authorized insurers transacting insurance in thisstate, with any tabular summary of their financial statements as he deemsappropriate;
(ii) Names of all insurers whose business was closed during thepreceding reporting period, the cause thereof and the amount of assets andliabilities as ascertainable;
(iii) Names of insurers against which delinquency or similarproceedings were instituted, and a concise statement of the facts with respectto each proceeding and the status thereof;
(iv) The department receipts and expenses for the precedingreporting period;
(v) His recommendations as to amendments or supplementation oflaws affecting insurance or the department; and
(vi) Any other matters he deems proper or of benefit to thepublic in regard to the insurance business in this state.
26-2-116. Examination of insurers.
(a) For the purpose of determining financial condition, abilityto fulfill and manner of fulfillment of its obligations, the nature of itsoperations and compliance with law, the commissioner or any of his examinersmay examine any insurer as often as he, in his sole discretion, deemsadvisable. He shall examine each insurer licensed in this state not lessfrequently than every five (5) years. Examination of a reciprocal insurer mayinclude examination of its attorney-in-fact as to its transactions relating tothe insurer. Examination of an alien insurer may be limited to its insurancetransactions and affairs in the United States, except as the commissionerotherwise requires. In scheduling and determining the nature, scope andfrequency of the examinations the commissioner shall consider such matters asthe results of financial statement analyses and ratios, changes in managementor ownership, actuarial opinions, reports of independent certified publicaccountants and other criteria as set forth in the Examiners' Handbook adoptedby the National Association of Insurance Commissioners and in effect when thecommissioner exercises discretion under this section.
(b) The commissioner shall in like manner examine each insurerapplying for an initial certificate of authority to transact insurance in thisstate.
(c) Repealed by Laws 1992, ch. 59, 3.
(d) In lieu of making his own examination of any foreign oralien insurer licensed in this state, the commissioner may accept anexamination report on the company as prepared by the insurance department forthe company's state of domicile or port of entry state until January 1, 1994. Thereafter, such reports may only be accepted if:
(i) The insurance department preparing the report was, at thetime of the examination, accredited under the National Association of InsuranceCommissioners' financial regulation standards and accreditation program; or
(ii) The examination is performed under the supervision of anaccredited insurance department or with the participation of one (1) or moreexaminers who are employed by an accredited insurance department and who, afterthe review of the examination work papers and report, state under oath that theexamination was performed in a manner consistent with the standards andprocedures required by their insurance department.
26-2-117. Examination of other than insurers.
(a) For the purpose of ascertaining compliance with law, orrelationships and transactions between any person and any insurer or proposedinsurer, the commissioner, as often as he deems advisable, may examine theaccounts, records, documents and transactions pertaining to or affectinginsurance affairs or proposed insurance affairs of any person:
(i) Who is or holds himself out to be an insurance agent,broker, general agent, adjuster or insurer representative;
(ii) Having a contract under which he enjoys in fact theexclusive or dominant right to manage or control an insurer;
(iii) Holding the shares of voting stock or the policyholderproxies of a domestic insurer, for the purpose of controlling the managementthereof, as voting trustee or otherwise;
(iv) Engaged in or in any way involved or proposing to beinvolved in this state in the promotion, formation or financing of an insureror insurance holding corporation, or corporation or other group to finance aninsurer or the production of its business.
26-2-118. Examinations; generally.
(a) Each examination shall be expeditious, fair and impartial. Upon determining that an examination should be conducted the commissioner orhis designee shall issue an examination warrant appointing one (1) or moreexaminers to perform the examination and instructing them as to the scope ofthe examination. In conducting the examination the examiner shall observe thoseguidelines and procedures set forth in the Examiners' Handbook adopted by theNational Association of Insurance Commissioners. The commissioner may alsoemploy other guidelines or procedures as the commissioner deems appropriate. No examiner may be appointed by the commissioner if the examiner, eitherdirectly or indirectly, has a conflict of interest or is affiliated with themanagement of or owns a pecuniary interest in any person subject to examinationunder this act. This subsection shall not be construed to automaticallypreclude an examiner from being:
(i) A policyholder or claimant under an insurance policy;
(ii) A grantor of a mortgage or similar instrument on theexaminer's residence to a regulated entity if done under customary terms and inthe ordinary course of business;
(iii) An investment owner in shares of regulated diversifiedinvestment companies; or
(iv) A settlor or beneficiary of a "blind trust" intowhich any otherwise impermissible holdings have been placed.
(b) For purposes of completing an examination of any insurerunder this act, the commissioner may examine or investigate any person, or thebusiness of any person, if in the sole discretion of the commissioner, the examination or investigation is necessary or material to the examination of theinsurer.
(c) Any insurer or other person being examined and anyofficers, directors, employees, agents or other representatives thereof shallmake freely available to the commissioner or his examiners all accounts,computer and other records, documents, files, information, assets and mattersin his possession or control relating to the subject of the examination andshall facilitate the examination. The officers, directors, employees, agentsand other representatives of the insurer or person shall facilitate theexamination and aid in the examination so far as it is in their power to do so.The refusal of any insurer, by its officers, directors, employees, agents orother representatives to submit to examination or to comply with any reasonablewritten request of the examiners shall be grounds for suspension or refusal of,or nonrenewal of any license or authority held by the insurer to engage in aninsurance or other business subject to the commissioner's jurisdiction. Anysuch proceedings for suspension, revocation or refusal of any license or authorityshall be conducted pursuant to W.S. 26-2-125 through 26-2-130.
(d) Repealed by Laws 1993, ch. 134, 2.
(e) Neither the commissioner nor any examiner shall remove anyrecord, account, document, file or other property of the person being examinedfrom the offices or place of that person except with that person's writtenconsent in advance of the removal or pursuant to a court order. This provisiondoes not affect the making and removal of copies or abstracts of any record,account, document or file.
(f) When making an examination under W.S. 26-2-116 through26-2-124, the commissioner may retain attorneys, appraisers, independentactuaries, independent certified public accountants or other professionals andspecialists as examiners, the reasonable and appropriate cost shall be borne bythe insurer which is the subject of the examination. Notwithstanding theconflict of interest provisions of subsection (a) of this section, thecommissioner may retain from time to time, on an individual basis, qualifiedactuaries, certified public accountants or other similar individuals who areindependently practicing their professions, even though the persons may fromtime to time be similarly employed or retained by persons subject toexamination under this act.
(g) Nothing contained in W.S. 26-2-116 through 26-2-124 shallbe construed to limit the commissioner's authority to terminate or suspend anyexamination in order to pursue other legal or regulatory action pursuant to theinsurance laws of this state. Findings of fact and conclusions made pursuantto any examination shall be prima facie evidence in any legal or regulatoryaction.
(h) Nothing contained in W.S. 26-2-116 through 26-2-124 shallbe construed to limit the commissioner's authority to use and, if appropriate,to make public any final or preliminary examination report, any examiner orcompany work papers or other documents, or any other information discovered ordeveloped during the course of any examination in the furtherance of any legalor regulatory action which the commissioner may, in his sole discretion, deemappropriate.
26-2-119. Repealed by Laws 1993, ch. 134, 2.
26-2-120. Examinations; deceit and obstruction during examinationprohibited.
Noperson shall make or authorize any false certificate, entry, memorandum orwriting in or relative to the books, records, files, documents and affairs ofthe person being examined with the intent to deceive the commissioner orexaminer, or otherwise willfully obstruct the examination.
26-2-121. Examinations; report; contents.
(a) No later than sixty (60) days following completion of theexamination the examiner in charge shall make a verified, full and true writtenreport of any examination he makes and shall therein certify under oath thereport and his findings. Investigations initiated by the commissioner or hisexaminers and assistants for the purpose of ascertaining whether an insurer,agent or adjuster has violated any provision of the insurance code are notexaminations within the provisions of this section.
(b) The report shall contain only information appearing uponthe books, records, documents and papers of or relating to the insurer, itsagents or other person or affairs being examined, or ascertained from testimonyof its officers, agents or other individuals under oath concerning the affairsof that insurer or person, together with any conclusions and recommendations asmay reasonably be warranted by the information.
(c) Upon receipt of the verified report the commissioner shalltransmit the report to the insurer examined, together with a notice which shallafford the insurer examined a reasonable opportunity of not more than thirty(30) days to make a written submission or rebuttal with respect to any matterscontained in the examination report. Upon written request by the insurer filedwithin the thirty (30) day period, the commissioner shall grant a hearing onthe report and shall not file the report until after the hearing and after anyappropriate modifications to the report.
(i) Repealed by Laws 1993, ch. 134, 2.
(ii) Repealed by Laws 1993, ch. 134, 2.
(d) Repealed by Laws 1993, ch. 134, 2.
(e) Repealed by Laws 1993, ch. 134, 2.
(f) Within thirty (30) days of the end of the period allowedfor the receipt of written submissions or rebuttals or within thirty (30) daysafter conclusion of a hearing held pursuant to subsection (c) of this section,the commissioner shall fully consider and review the report, together with anywritten submissions or rebuttals and any relevant portions of the examiner'swork papers and enter an order:
(i) Adopting the examination report as filed or withmodification or corrections. If the examination report reveals that theinsurer is operating in violation of any law, regulation or prior order of thecommissioner, the commissioner may order the company to take any action thecommissioner considers necessary and appropriate to cure the violation;
(ii) Rejecting the examination report with directions to theexaminers to reopen the examination for purposes of obtaining additional data,documentation or information, and refiling pursuant to this section; or
(iii) Calling for an investigatory hearing with no less thantwenty (20) days notice to the company for purposes of obtaining additionaldocumentation, data, information and testimony.
(g) All orders entered pursuant to paragraph (f)(i) of thissection shall be accompanied by findings and conclusions resulting from thecommissioner's consideration and review of the examination report, relevantexaminer work papers and any written submissions or rebuttals. Any such ordershall be considered a final administrative decision and may be appealedpursuant to the Wyoming Administrative Procedure Act and shall be served uponthe insurer by certified mail, together with a copy of the adopted examinationreport. Within thirty (30) days of the issuance of the adopted report, thecompany shall file affidavits executed by each of its directors stating underoath that they have received a copy of the adopted report and related orders.
(h) Notwithstanding any other provision of this code anyhearing conducted under paragraph (f)(iii) of this section by the commissioneror authorized representative, shall be conducted as a nonadversarialconfidential investigatory proceeding as necessary for the resolution of anyinconsistencies, discrepancies or disputed issues apparent upon the face of thefiled examination report or raised by or as a result of the commissioner'sreview of relevant work papers or by the written submission or rebuttal of theinsurer. The hearing shall proceed expeditiously with discovery by the insurerlimited to the examiner's work papers which tend to substantiate any assertionsset forth in any written submission or rebuttal. The hearing shall proceedwith the commissioner or his representative posing questions to the personssubpoenaed. Thereafter the insurer and the department may present testimonyrelevant to the investigation. Cross examination shall be conducted only bythe commissioner or his representative. The insurer and the department shallbe permitted to make closing statements and may be represented by counsel oftheir choice. The commissioner shall not appoint an examiner as an authorizedrepresentative to conduct the hearing but may exercise all other powers grantedto him in the conduct of hearings under this code. Within twenty (20) days ofthe conclusion of any such hearing, the commissioner shall enter an orderpursuant to paragraph (f)(i) of this section.
(j) Upon the adoption of the examination report under paragraph(f)(i) of this section, the commissioner shall continue to hold the content ofthe examination report as private and confidential information for a period ofthirty (30) days except to the extent provided in subsection (c) of thissection. Thereafter, the commissioner may open the report for publicinspection so long as no court of competent jurisdiction has stayed itspublication.
(k) Nothing contained in W.S. 26-2-116 through 26-2-124 shallrequire the department to disclose any information or records which wouldindicate or show the existence or content of any investigation or activity of acriminal justice agency. Nothing contained in this code shall prevent or beconstrued as prohibiting the commissioner from disclosing the content of anexamination report, preliminary examination report or results, or any matterrelating thereto, as authorized by and in accordance with the provisions ofW.S. 26-2-113(d). In the event the commissioner determines that regulatoryaction is appropriate as a result of any examination, he may initiate anyproceedings or actions as provided by law. The provisions of W.S. 26-2-116through 26-2-124 with regard to release of information shall prevail should anyconflict arise between this act and W.S. 16-4-201 through 16-4-205.
(m) All working papers, recorded information, documents andcopies thereof produced by, obtained by or disclosed to the commissioner or anyother person in the course of an examination made under W.S. 26-2-116 through26-2-124 shall be given confidential treatment and are not subject to subpoenaand shall not be made public by the commissioner or any other person, except tothe extent provided in subsections (j) and (k) of this section.
26-2-122. Examinations; expense.
(a) The reasonable and proper expense of examination of aninsurer or of any person referred to in W.S. 26-2-117(a)(ii) or (iv) shall beborne by the person examined, unless the expense has been otherwise providedfor by the insurer having paid the assessment established by W.S. 26-2-204.The expense shall include the reasonable and proper expenses of thecommissioner and his examiners, and a reasonable per diem as to such examiners,as necessarily incurred in the examination.
(b) The person examined shall promptly pay the examinationexpense upon the commissioner's presentation of a reasonably detailed writtenaccount thereof. The commissioner shall file a copy of the account in thedepartment as a public record.
26-2-123. Witnesses; evidence; subpoenas.
(a) In any examination or investigation the departmentconducts, the commissioner or any representative he appoints may:
(i) Administer oaths and affirmations;
(ii) Examine and cross-examine witnesses;
(iii) Receive oral and documentary evidence;
(iv) Subpoena witnesses and compel their attendance andtestimony; and
(v) Require by subpoena the production of any books, papers,records, files, correspondence, documents and other evidence deemed relevant tothe inquiry whether under control of the department, the insurer or otherpersons.
(b) If any individual refuses to comply with any subpoena or totestify as to any matter concerning which he is lawfully interrogated, thedistrict court of the county in which the examination or investigation is beingconducted or in which the individual resides or may be found, on thecommissioner's application, may issue an order requiring the individual tocomply with the subpoena and testify or produce the evidence subpoenaed.Failure to obey a court order may be punished by the court as contempt.
(c) Subpoenas shall be served and proof of service made in thesame manner as if issued by a district court. Witness fees and mileage, if claimed,shall be allowed the same as for testimony in court.
26-2-124. Immunity from prosecution when testimony is compelled;exception for perjury; waiver of immunity.
(a) If any person asks to be excused from attending ortestifying or from producing any books, papers, records, correspondence,documents or other evidence in connection with any examination, investigationor hearing the commissioner or his representative conducts, or in anyproceeding or action before any court or magistrate upon a charge of violationof this code, on the ground that the testimony or evidence required of him maytend to incriminate him or subject him to a penalty or forfeiture, and,notwithstanding, is directed by the commissioner and the attorney general togive the testimony or produce the evidence, he shall comply with thatdirection. The person shall not thereafter be prosecuted or subjected to anypenalty or forfeiture for or because of any transaction, matter or thingconcerning which he may have testified or produced evidence, and no testimonygiven or evidence produced shall be received against him upon any criminalaction, investigation or proceeding, except that no person so testifying isexempt from prosecution or punishment for perjury.
(b) Any person may execute, acknowledge and file in thedepartment a statement expressly waiving the immunity or privilege in respectto any transaction, matter or thing specified in the statement. The testimonyof that person or the evidence in relation to the transaction, matter or thingmay then be received or produced before any judge or justice, court, tribunal,magistrate, grand jury or otherwise, and if so received or produced the personis not entitled to any immunity or privileges because of any testimony he givesor evidence he produces.
26-2-125. Commissioner's hearings; generally; when required; requestfor hearing; stay.
(a) The commissioner may hold a hearing without request byothers for any purpose within the scope of this code.
(b) The commissioner shall hold a hearing:
(i) If required by this code or the Wyoming AdministrativeProcedure Act; or
(ii) Upon written request therefor by a person aggrieved by anyact, threatened act or failure of the commissioner to act, or by any report,rule, regulation or order of the commissioner, other than an order for theholding of a hearing, or an order on a hearing or pursuant to the order, ofwhich the person had notice.
(c) Any request for hearing shall be filed in the departmentwithin ninety (90) days after the person knows or reasonably should know of theact, threatened act, failure, report or order, unless a different period isprovided for by other laws applicable to a particular matter, in which case theother law governs. A hearing as to the legality of a rule or regulation may berequested within ninety (90) days after the person knows or reasonably shouldknow of the application or proposed application of the rule or regulation as tothe person in a particular instance.
(d) Any request for hearing shall summarize the information andgrounds to be relied upon as a basis for the relief to be sought at thehearing.
(e) If the commissioner finds that the request is made in goodfaith, that the person would be aggrieved if his grounds are established andthat the grounds otherwise justify the hearing, he shall hold the hearingwithin thirty (30) days from the date the request is filed, unless postponed bymutual consent. Failure to hold the hearing upon request of a person entitledthereto as provided in this section constitutes a denial of the relief soughtand is the equivalent of a final order of the commissioner for the purpose ofan appeal under W.S. 26-2-129.
(f) Any request for hearing the commissioner receives prior tothe effective date of action he takes or proposes to take stays the actionpending the hearing, except as to action taken or proposed under an order:
(i) On hearing;
(ii) Pursuant to an order on hearing;
(iii) To make good an impairment of the capital funds of an insurer;or
(iv) Made pursuant to chapter 14 of this code.
(g) If an automatic stay is not provided for, and if thecommissioner after written request therefor fails to grant a stay, the personaggrieved may apply to the district court of Laramie county for a stay of thecommissioner's action.
26-2-126. Commissioner's hearings; notice of hearing; contents;delivery.
(a) Unless a longer period is expressly provided in this code,the commissioner shall give written notice of the hearing not less than ten(10) days in advance. If the persons to be given notice are not specified inthe provision pursuant to which the hearing is held, the commissioner shallgive notice to all persons whose financial interests the hearing directly andimmediately affects.
(b) If any person is entitled to a hearing by any provision oflaw before any proposed action is taken, the notice of the hearing may be inthe form of a notice to show cause stating:
(i) That the proposed action may be taken unless the personshows cause at a hearing to be held as specified in the notice why the proposedaction should not be taken; and
(ii) The basis of the proposed action.
(c) Notice of hearing shall otherwise be in accordance withW.S. 16-3-107, except that mailed notice is deemed to have been served whenaddressed to the person to be notified at his address last of record with thedepartment and deposited, postage paid, in a mail depository of the UnitedStates post office.
26-2-127. Commissioner's hearings; procedure.
(a) The commissioner shall allow any party to the hearing to:
(i) Appear in person and by counsel;
(ii) Be present during the giving of all evidence;
(iii) Have a reasonable opportunity to inspect all documentaryand other evidence;
(iv) Examine and cross-examine witnesses;
(v) Present evidence in support of his interest; and
(vi) Have subpoenas issued by the commissioner to compelattendance of witnesses and production of evidence in his behalf.
(b) Upon good cause shown the commissioner shall permit tobecome a party to the hearing by intervention, if timely, only those personswho were not original parties thereto and whose pecuniary interests are to bedirectly and immediately affected by the commissioner's order made upon thehearing.
(c) Hearings in other respects are subject to the WyomingAdministrative Procedure Act as to contested cases.
(a) Within thirty (30) days after termination of a hearing, or withinsixty (60) days after termination if a transcript of the proceedings is to bemade, or of any rehearing or reargument thereof, or within any other period asmay be specified in this code as to particular matters, or within any furtherperiod to which the parties consent in writing, the commissioner shall make andenter his order on hearing. Failure of the commissioner to make and enter hisorder within the period allowed is deemed a denial of the petition, relief orapplication as to which the hearing was held.
(b) The commissioner shall promptly give a copy of the order toeach party to the hearing in the same manner as notice of the hearing wasgiven, except that as to hearings held concerning merger, consolidation, bulkreinsurance or conversion of a domestic insurer as provided for in chapter 24or in chapter 27 of this code, if notice of the hearing was mailed or given toall stockholders or policyholders, or both, of the insurer or insurersinvolved, the commissioner is required to give a copy of the order to thecorporate or insurer parties, to intervening parties, to a reasonable number ofthe stockholders or policyholders as representative of the class and to otherparties only upon written request of those parties.
(c) The orders are otherwise subject to the WyomingAdministrative Procedure Act as in contested cases.
(ii) As to a matter on which the commissioner fails to:
(A) Hold a hearing after application therefor under W.S.26-2-125; or
(B) Make and enter his order on hearing as required by W.S.26-2-128.
(b) All such appeals shall be taken as provided by the WyomingAdministrative Procedure Act for contested cases.
(c) This section does not prohibit recourse to injunction orother appropriate emergency proceedings in proper circumstances.
26-2-130. Cease and desist authority.
(a) The commissioner may issue a cease and desist order if:
(i) It appears from specific facts shown by affidavit that aperson, as defined by W.S. 26-1-102(a)(xx), is engaging in any act or practiceprohibited under this code which is causing or can be reasonably expected tocause significant, imminent and irreparable injury to the insuring public; and
(ii) That the department has either discussed the matter withthe person or has made a good-faith attempt to do so.
(b) Upon issuance of a cease and desist order, the commissionershall serve upon the person affected by the order, by personal service asdefined in rule 4 of the Wyoming Rules of Civil Procedure, or by registered orcertified mail, return receipt requested, to the person's last known address,an order specifically stating the acts complained of and requiring the personto immediately cease and desist from the act, methods or practices stated. Thecease and desist order shall have full force and effect as soon as it isreceived unless stayed by the commissioner pursuant to subsection (d) of thissection. The cease and desist order shall be of no effect at the end of thesecond business day following its issuance unless the commissioner shall haveobtained a temporary restraining order, pursuant to rule 65 of the Wyoming Rulesof Civil Procedure or the person receiving the order shall have stipulated thatit remain in effect pursuant to terms and conditions agreed upon by thecommissioner and that person. Thereafter, the commissioner may seek suchfurther orders of the court to enforce the cease and desist order as he deemsappropriate or necessary. If a temporary restraining order is sought inaccordance with this subsection, the cease and desist order shall remain ineffect until the temporary restraining order or any extension thereof isdenied, or until the cease and desist order is modified or stayed by an orderof the court. The action seeking the temporary restraining order shall befiled in the district court for Laramie county or in the district court for thecounty in which person affected by the order resides or has his principal placeof business.
(c) If the person affected by the cease and desist order seeksto contest the order, the person shall request a hearing before thecommissioner not later than ten (10) days after the date on which the personreceived the order. A request to contest an order shall be in writing, servedupon the commissioner by personal service as defined in rule 4 of the WyomingRules of Civil Procedure, or by registered or certified mail, and shall statethe grounds for the request to set aside or modify the order.
(d) On receiving the request for a hearing, the commissionershall serve notice of the time and place of the hearing at which the personrequesting the hearing shall have the opportunity to show cause why the ordershould not be affirmed. The hearing shall be held within ten (10) days fromthe date the request for hearing is received unless mutually waived by theparties or continuance granted by the commissioner for good cause. The ceaseand desist order shall continue in full force and effect while the hearing ispending unless the order is stayed by the commissioner.
(e) The hearing on the order shall be conducted according tothe procedures for contested cases under the Wyoming Administrative ProcedureAct.
(f) Within two (2) working days after the hearing, thecommissioner shall affirm, modify or set aside, in whole or in part, the ceaseand desist order.
(g) A cease and desist order shall be final eleven (11) daysafter the date the order is received by the person if a hearing as provided bysubsection (c) of this section is not requested by the person affected by theorder.
(h) Any person violating a cease and desist order issued underthis section shall be assessed a civil penalty as provided by W.S. 26-1-107(b).If the commissioner reasonably believes that a person has violated a cease anddesist order issued under this section, the commissioner may initiate judicialproceedings to enjoin further violation of the order in the district court forLaramie county or in the district court for the county in which the personresides or has his principal place of business.
(j) The commissioner may promulgate reasonable rules andregulations to carry out the purpose of this section.
(k) Any final order, ruling, finding, decision or other act ofthe commissioner made pursuant to this chapter or this section shall be subjectto judicial review in accordance with the Wyoming Administrative Procedure Act.
26-2-131. Immunity from liability.
(a) No cause of action shall arise nor shall any liability beimposed against the commissioner, the commissioner's authorized representativesor any examiner appointed by the commissioner for any statements made or conductperformed in good faith while carrying out an examination or related activityunder the provisions of this chapter.
(b) No cause of action shall arise nor shall any liability beimposed against any person for the act of communicating or delivering informationor data to the commissioner, the commissioner's authorized representative orexaminer pursuant to an examination made under this chapter, if the act ofcommunication or delivery was performed in good faith and without fraudulentintent.
(c) Any person identified in subsection (a) of this sectionshall be entitled to an award of attorney's fees and costs if he is aprevailing party in a civil cause of action for libel, slander or any otherrelevant tort arising out of activities in carrying out an examination orrelated activity under the provisions of this chapter and the party bringingthe action was not substantially justified in doing so. For purposes of thissection, a proceeding is "substantially justified" if it had areasonable basis in law or fact at the time it was initiated.
26-2-132. Health benefits plan committee.
(a) The commissioner shall appoint a health benefits plancommittee no later than September 30, 1995. The committee shall be composed ofseven (7) members, which shall include:
(i) The commissioner or his representative;
(ii) Two (2) representatives of authorized disability insurerswriting business in Wyoming;
(iii) One (1) representative each of:
(A) A small employer as defined by W.S. 26-19-302(a)(xxii);
(B) A consumer;
(C) An insurance agent licensed to sell disability insurance;and
(D) A health care provider as defined by W.S. 26-40-102(a)(i).
(b) The committee shall review on at least a biennial basis theform and level of coverages to be made available under the Small EmployerHealth Insurance Availability Act and the Wyoming Health Insurance Pool Act.
(c) For the Small Employer Health Insurance Availability Act,the committee shall recommend benefit levels, cost sharing factors, exclusionsand limitations for the basic health benefit plan and the standard healthbenefit plan. One (1) basic health benefit plan and one (1) standard healthbenefit plan shall contain benefit and cost sharing levels that are consistentwith the basic method of operation and the benefit plans of all health benefitplans, including any restrictions imposed by state or federal law. The plansrecommended by the committee may include cost containment features such as, butnot limited to:
(i) Utilization review of health care services, includingreview of medical necessity of hospital and physician services;
(ii) Case management benefit alternatives;
(iii) Reasonable benefit differentials applicable toparticipating and nonparticipating providers; and
(iv) Other managed care provisions.
(d) The committee shall submit its review of the plans and anyrecommendation for modification of the plans to the commissioner for approvalwithin one hundred eighty (180) days after the appointment of the committee pursuantto this section and at least biennially thereafter. If the commissionerdisapproves of the plans or modifications thereto in whole or in part he shallsubmit alternative interim plans to the committee for its approval.
(e) For the Wyoming health insurance pool, the committee shallrecommend the pool coverage, its schedule of benefits, exclusions, preexistingcondition limitations and other limitations consistent with the Wyoming HealthInsurance Pool Act.
(f) Members of the committee shall be reimbursed from theassets of the programs for expenses incurred by them as members of thecommittee but shall not otherwise be compensated by the programs for theirservices. The programs shall each pay one-half (1/2) of the expenses of thecommittee.
(g) Committee meetings shall be open to the public.
26-2-133. Disclosure of nonpublic personal information; rulemaking;rulemaking authority limited.
(a) The commissioner is authorized to adopt rules necessary togovern the practices of all persons licensed under this code with respect tothe disclosure of nonpublic personal financial and health information ofinsurance consumers and customers. The rules shall prohibit the disclosure ofany nonpublic personal information contrary to the provisions of title V of theGramm-Leach-Bliley Act of 1999, P.L. 106-102.
(b) Repealed By Laws 2007, Ch. 43, 1.
26-2-134. Limiting the use of credit scoring; rulemaking.
(a) The commissioner is authorized to adopt rules as necessaryto govern the practices of all persons licensed under this code with respect tothe use of credit scoring in the underwriting of personal lines, motor vehiclesand homeowner policies. The rules shall provide:
(i) That a person's credit history or scoring shall not be thesole basis to cancel, deny or nonrenew an insurance policy. An insurer may usecredit history only in combination with other valid underwriting factorsindependent of credit history or score;
(ii) That an insurer shall provide notice to the person whencredit scoring is being used to underwrite a policy and when use of creditscoring is adverse to the person;
(iii) That the consumer is adequately protected against unfairdiscrimination in the use of credit scoring to underwrite policies.
ARTICLE 2 - FUNDING
26-2-201. Deposit of fees.
Thestate treasurer shall place all fees received by the commissioner as providedin W.S. 26-2-205(c) in the state general fund.
26-2-202. Expenditures of the department.
Thestate treasurer shall make payments on warrants drawn by the state auditor,upon vouchers issued and signed by the commissioner or his designee, forexpenditures required to carry out the functions of the department pursuant tothe appropriations authorized the department by law.
26-2-203. Agents' licensing program exempt.
Thisarticle does not apply to the expenditure authorized by W.S. 26-10-107.
26-2-204. Insurers assessed for department expenditures.
(a) In addition to any other tax, license or fee imposed bylaw, each authorized insurer shall pay to the commissioner on or before June 1of each year a fee for the privilege of transacting the business of insurancein this state, computed as follows:
(i) On or before April 1 of each year, the commissioner, withthe governor's approval, shall estimate the expenditures of the department forthe fiscal year commencing July 1, including the expense of any regularlyscheduled association, zone, triannual or similar periodic statutorilyscheduled financial examination of any authorized insurer, provided thatneither the actual expenditures nor estimated expenditures of a fiscal yearwithin the same biennial budget for the department shall not exceed the amountappropriated to the department by law; and
(ii) The commissioner shall then divide the estimated amount ofexpenditures, after deducting therefrom any expected unexpended funds in theaccount of the insurance department, by the total number of insurers thenauthorized to transact insurance in this state as of December 31 of theimmediately preceding year. The result of this computation is the amount ofthe fee the commissioner shall assess each insurer.
(b) Upon receiving a statement of assessment from thecommissioner, each authorized insurer shall promptly pay the fee to thecommissioner.
26-2-205. Time for payment; penalties.
(a) If any insurer does not pay the assessment on or beforeJune 1 of the year in which assessed or as otherwise ordered pursuant to W.S.26-2-208, the assessment is delinquent. If the assessment is delinquent, thecommissioner may suspend or revoke the insurer's certificate of authority.
(b) The suspension shall continue until the assessment is paidtogether with an additional fee of ten dollars ($10.00) for each day the feeremains delinquent after June 1. The penalty for late payment is in additionto any other penalties provided by this code.
(c) The commissioner shall deposit all sums collected underthis section with the state treasurer for credit to the general fund.
26-2-206. Newly authorized insurers.
(a) Any insurer becoming first authorized after December 31shall pay to the commissioner the amount determined pursuant to W.S. 26-2-204prior to the commissioner issuing it a certificate of authority. Thecommissioner shall deposit the fee as provided by W.S. 26-2-204.
(b) This section does not apply to any insurer first authorizedafter December 31, 1987, but before March 31, 1988.
26-2-207. Other powers unaffected.
Nothingin this article alters or amends the commissioner's authority, obligations orduties under W.S. 26-2-116 through 26-2-125, nor does this article exempt aninsurer examined by the department pursuant to W.S. 26-2-116(b) from thepayments required under W.S. 26-2-122(b).
26-2-208. Additional assessment authorized.
Ifit appears to the commissioner that the total amount of assessments actuallycollected will not equal the authorized expenditures of the department for anybiennial appropriation period, with the governor's approval, he shall make anyadditional assessments upon authorized insurers which will eliminate thedeficiency. Any additional assessments are subject to all provisions of thisarticle as if they were original assessments under W.S. 26-2-204.
26-2-209. Deduction allowed for retaliation.
Notwithstandingany other law, if any domestic insurer is required to pay additional taxes orfees to some other jurisdiction because of this article under the color of aretaliatory statute or other similar law, the insurer may deduct the additionaltaxes or fees from the premium taxes otherwise payable under W.S. 26-4-103.
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26-2-102. Insurance commissioner; appointment; vacancy; removal fromoffice; other requirements.
(a) The chief officer of the department is the "insurancecommissioner".
(b) The commissioner shall be appointed by the governor.
(c) If for any cause a vacancy occurs in the office ofcommissioner, the governor shall fill the vacancy in accordance with W.S.28-12-101.
(d) The governor may remove a commissioner as provided in W.S.9-1-202.
(e) Effective July 1, 1979, appointments and terms shall be inaccordance with W.S. 28-12-101 through 28-12-103.
26-2-103. Insurance commissioner; eligibility for appointment.
Noindividual is eligible for appointment to or shall hold the office ofcommissioner unless he is a qualified elector of this state and free ofconflicting interests as specified in W.S. 26-2-107.
26-2-104. Insurance commissioner; official seal.
(a) The commissioner shall have an official seal in the formand design in use and on file in the office of secretary of state.
(b) The commissioner shall issue under his official seal allhis certificates, other than licenses of agents, brokers, adjusters and otherinsurance representatives.
26-2-105. Insurance commissioner; salary.
Thecommissioner shall receive a salary as provided under W.S. 9-2-1022.
(a) The commissioner, with the governor's approval, may appointa deputy commissioner and may revoke the appointment at his pleasure.
(b) The commissioner may appoint examiners, clerks and othernecessary assistants as the proper conduct of his office requires, and mayrevoke the appointments at his pleasure. In the appointment of examiners thecommissioner shall consider standards of qualification the National Associationof Insurance Commissioners recommends.
(c) Salary for personnel in subsections (a) and (b) of thissection shall be as provided under W.S. 9-2-1022.
(d) The commissioner may contract for independent or consultingactuarial, rating or other technical services, on a fee basis, without givingthe individual status as a state employee.
26-2-107. Conflict of interest prohibited; additional compensationprohibited.
(a) The commissioner or his deputy, or any examiner, assistantor employee of the department shall not:
(i) Be connected with the management of or be financiallyinterested in any insurer, insurance agency or insurance transaction except asa policyholder or claimant under a policy;
(ii) Engage in any other business or occupation interfering orinconsistent with department duties, except that as to those matters in which aconflict of interest does not exist on the part of any individual, thecommissioner may employ or retain insurance actuaries, accountants or othertechnicians who are independently practicing their professions even thoughsimilarly employed or retained by insurers or others; or
(iii) Be given or receive any fee, compensation, loan, gift orother thing of value in addition to the compensation and expense allowanceprovided by law.
26-2-108. Commissioner; delegation of authority.
(a) The commissioner may delegate to his deputy or anydepartment employee the exercise or discharge in the commissioner's name of anypower, duty, or function vested in or imposed upon the commissioner under thiscode, other than the supervision of department operations.
(b) The official act of any individual acting in thecommissioner's name and by his authority is an official act of thecommissioner. The commissioner is responsible for all such acts.
26-2-109. Commissioner; powers and duties generally.
(a) The commissioner shall:
(i) Personally supervise the department operations;
(ii) Examine and inquire into violations of this code;
(iii) Enforce this code with impartiality;
(iv) Execute the duties imposed upon him by this code;
(v) Have the powers and authority expressly conferred upon himby or reasonably implied from this code;
(vi) Immediately pay to the state treasurer for deposit in thegeneral fund, unless otherwise specifically provided, any monies paid to himunder this code;
(vii) Have any additional powers and duties as may be provided byother laws of this state.
(b) The commissioner may conduct examinations andinvestigations of insurance matters, in addition to examinations andinvestigations expressly authorized, as he deems proper, upon reasonable andprobable cause, to determine whether any person has violated any provisions ofthis code or to secure information useful in the lawful administration of anyprovision of this code. The cost of any additional examinations andinvestigations shall be borne by the state.
(c) The commissioner, with the governor's approval, may enterinto interstate compacts with other states in the region to provide for auniform climate for insurance coverage in the compacting states. The compactsmay include:
(i) Interstate compacts to negotiate uniform rating structuresin the compacting states;
(ii) Interstate compacts to negotiate the use of regionalratings or trendings rather than national ratings or trendings; or
(iii) Interstate compacts to provide for the operation of mutualcompanies to provide insurance for risks that are critical to the health,safety or welfare of the compacting states.
(d) Notwithstanding any other provision of this chapter, thecommissioner does not have any powers, duties or responsibilities with respectto the state board of insurance agent's examiners, except as expressly providedin chapter 10 of this code.
26-2-110. Rules and regulations.
(a) Subject to the requirements of the Wyoming AdministrativeProcedure Act , the commissioner may make reasonable rules and regulationsnecessary to carry out any provision of this code. No rule or regulation shallextend, modify or conflict with any law of this state or the reasonableimplications thereof.
(b) Any interested person may petition the commissionerrequesting the promulgation, amendment or repeal of any rule or regulation,under the applicable procedures of the Wyoming Administrative Procedure Act.
(c) In addition to any other penalty under this code, willfulviolation of any provision of this code or any rule or regulation promulgatedpursuant thereto subjects the violator to suspension or revocation of acertificate of authority or license as may be applicable. No penalty applies toany act done or omitted in good faith in conformity with the rule orregulation, notwithstanding that after the act or omission the rule orregulation may be amended or rescinded or determined by judicial or otherauthority to be invalid.
26-2-111. Orders and notices of commissioner; contents; delivery.
(a) Orders and notices of the commissioner are effective onlywhen in writing signed by him or by his authority.
(b) Except as otherwise expressly provided by law as toparticular orders, any order of the commissioner shall concisely state:
(i) Its effective date;
(ii) Its intent or purpose;
(iii) The grounds on which based;
(iv) The provisions of this code pursuant to which action is sotaken or proposed to be taken, but failure to designate a particular provisiondoes not deprive the commissioner of the right to rely on that provision.
(c) Except as may be provided as to particular procedures, anorder or notice may be given by delivery to the person to be ordered ornotified or by mailing it, postage prepaid, addressed to him at his principalplace of business or residence as last of record in the department. The orderor notice is deemed to have been given when so mailed.
26-2-112. Enforcement of code and orders; injunctions; penalty forviolation of orders.
(a) The commissioner, upon the advice of and through theattorney general, may invoke the aid of the courts through injunction or otherproper process to enforce any proper order he makes or action he takes.
(b) If the commissioner has reason to believe that any personhas violated any provision of this code, or any provision of other lawapplicable to insurance operations, for which criminal prosecution is providedand would be in order, he shall give the information relative thereto to theattorney general or to the district attorney for the county having jurisdictionof the violation. The attorney general or district attorney shall promptlyinstitute any action or proceedings against the person as in his opinion theinformation requires or justifies.
(c) In addition to any other applicable penalty, any person whoviolates a lawful order of the commissioner, upon proof thereof to the court'ssatisfaction, shall pay to this state a sum not to exceed one thousand dollars($1,000.00), or if the violation is found to be willful, a sum not to exceedtwo thousand dollars ($2,000.00). Any penalty may be recovered in a civilaction against the violator.
26-2-113. Records and other papers; generally.
(a) The commissioner shall:
(i) File in the department and safely keep all statements,reports, filings and papers required by law;
(ii) Preserve in the department in permanent form records of hisproceedings, hearings, investigations and examinations;
(iii) Keep a suitable record of all insurer certificates ofauthority and of all licenses issued under this code together with allapplicable suspensions and revocations and of the causes thereof.
(b) The records and filings in the department are open topublic inspection, except as otherwise provided by this code.
(c) The commissioner may destroy unneeded or obsolete recordsand filings in the department in accordance with general provisions andprocedures applicable to administrative agencies of this state.
(d) In order to assist in the performance of his duties underthis code, the commissioner may:
(i) Share documents, materials or other information, includingconfidential and privileged documents, materials or information, with otherstate, federal and international regulatory agencies, with the NationalAssociation of Insurance Commissioners, its affiliates or subsidiaries, andwith state, federal and international law enforcement authorities, provided therecipient agrees to maintain the confidentiality and privileged status of anydocument, material or other information;
(ii) Receive documents, materials or information, includingotherwise confidential and privileged documents, materials or information, fromthe National Association of Insurance Commissioners, its affiliates orsubsidiaries and from regulatory and law enforcement officials of other foreignor domestic jurisdictions, and shall maintain as confidential or privileged anydocument, material or information received with notice or the understandingthat it is confidential or privileged under the laws of the jurisdiction thatis the source of the document, material or information; and
(iii) Enter into agreements governing sharing and use ofinformation consistent with this subsection.
26-2-114. Records and other papers; reproductions and certifiedcopies.
(a) Reproductions of records or documents on file in thedepartment, when certified by the commissioner, shall be received in evidencein all proceedings and courts and have the same effect and force as theoriginals.
(b) Upon request of any person and payment of the applicablefee, the commissioner shall furnish a certified copy of any record or documentin the department which is then subject to public inspection.
26-2-115. Report to governor.
(a) The commissioner, as required by W.S. 9-2-1014, shallreport to the governor showing:
(i) A list of authorized insurers transacting insurance in thisstate, with any tabular summary of their financial statements as he deemsappropriate;
(ii) Names of all insurers whose business was closed during thepreceding reporting period, the cause thereof and the amount of assets andliabilities as ascertainable;
(iii) Names of insurers against which delinquency or similarproceedings were instituted, and a concise statement of the facts with respectto each proceeding and the status thereof;
(iv) The department receipts and expenses for the precedingreporting period;
(v) His recommendations as to amendments or supplementation oflaws affecting insurance or the department; and
(vi) Any other matters he deems proper or of benefit to thepublic in regard to the insurance business in this state.
26-2-116. Examination of insurers.
(a) For the purpose of determining financial condition, abilityto fulfill and manner of fulfillment of its obligations, the nature of itsoperations and compliance with law, the commissioner or any of his examinersmay examine any insurer as often as he, in his sole discretion, deemsadvisable. He shall examine each insurer licensed in this state not lessfrequently than every five (5) years. Examination of a reciprocal insurer mayinclude examination of its attorney-in-fact as to its transactions relating tothe insurer. Examination of an alien insurer may be limited to its insurancetransactions and affairs in the United States, except as the commissionerotherwise requires. In scheduling and determining the nature, scope andfrequency of the examinations the commissioner shall consider such matters asthe results of financial statement analyses and ratios, changes in managementor ownership, actuarial opinions, reports of independent certified publicaccountants and other criteria as set forth in the Examiners' Handbook adoptedby the National Association of Insurance Commissioners and in effect when thecommissioner exercises discretion under this section.
(b) The commissioner shall in like manner examine each insurerapplying for an initial certificate of authority to transact insurance in thisstate.
(c) Repealed by Laws 1992, ch. 59, 3.
(d) In lieu of making his own examination of any foreign oralien insurer licensed in this state, the commissioner may accept anexamination report on the company as prepared by the insurance department forthe company's state of domicile or port of entry state until January 1, 1994. Thereafter, such reports may only be accepted if:
(i) The insurance department preparing the report was, at thetime of the examination, accredited under the National Association of InsuranceCommissioners' financial regulation standards and accreditation program; or
(ii) The examination is performed under the supervision of anaccredited insurance department or with the participation of one (1) or moreexaminers who are employed by an accredited insurance department and who, afterthe review of the examination work papers and report, state under oath that theexamination was performed in a manner consistent with the standards andprocedures required by their insurance department.
26-2-117. Examination of other than insurers.
(a) For the purpose of ascertaining compliance with law, orrelationships and transactions between any person and any insurer or proposedinsurer, the commissioner, as often as he deems advisable, may examine theaccounts, records, documents and transactions pertaining to or affectinginsurance affairs or proposed insurance affairs of any person:
(i) Who is or holds himself out to be an insurance agent,broker, general agent, adjuster or insurer representative;
(ii) Having a contract under which he enjoys in fact theexclusive or dominant right to manage or control an insurer;
(iii) Holding the shares of voting stock or the policyholderproxies of a domestic insurer, for the purpose of controlling the managementthereof, as voting trustee or otherwise;
(iv) Engaged in or in any way involved or proposing to beinvolved in this state in the promotion, formation or financing of an insureror insurance holding corporation, or corporation or other group to finance aninsurer or the production of its business.
26-2-118. Examinations; generally.
(a) Each examination shall be expeditious, fair and impartial. Upon determining that an examination should be conducted the commissioner orhis designee shall issue an examination warrant appointing one (1) or moreexaminers to perform the examination and instructing them as to the scope ofthe examination. In conducting the examination the examiner shall observe thoseguidelines and procedures set forth in the Examiners' Handbook adopted by theNational Association of Insurance Commissioners. The commissioner may alsoemploy other guidelines or procedures as the commissioner deems appropriate. No examiner may be appointed by the commissioner if the examiner, eitherdirectly or indirectly, has a conflict of interest or is affiliated with themanagement of or owns a pecuniary interest in any person subject to examinationunder this act. This subsection shall not be construed to automaticallypreclude an examiner from being:
(i) A policyholder or claimant under an insurance policy;
(ii) A grantor of a mortgage or similar instrument on theexaminer's residence to a regulated entity if done under customary terms and inthe ordinary course of business;
(iii) An investment owner in shares of regulated diversifiedinvestment companies; or
(iv) A settlor or beneficiary of a "blind trust" intowhich any otherwise impermissible holdings have been placed.
(b) For purposes of completing an examination of any insurerunder this act, the commissioner may examine or investigate any person, or thebusiness of any person, if in the sole discretion of the commissioner, the examination or investigation is necessary or material to the examination of theinsurer.
(c) Any insurer or other person being examined and anyofficers, directors, employees, agents or other representatives thereof shallmake freely available to the commissioner or his examiners all accounts,computer and other records, documents, files, information, assets and mattersin his possession or control relating to the subject of the examination andshall facilitate the examination. The officers, directors, employees, agentsand other representatives of the insurer or person shall facilitate theexamination and aid in the examination so far as it is in their power to do so.The refusal of any insurer, by its officers, directors, employees, agents orother representatives to submit to examination or to comply with any reasonablewritten request of the examiners shall be grounds for suspension or refusal of,or nonrenewal of any license or authority held by the insurer to engage in aninsurance or other business subject to the commissioner's jurisdiction. Anysuch proceedings for suspension, revocation or refusal of any license or authorityshall be conducted pursuant to W.S. 26-2-125 through 26-2-130.
(d) Repealed by Laws 1993, ch. 134, 2.
(e) Neither the commissioner nor any examiner shall remove anyrecord, account, document, file or other property of the person being examinedfrom the offices or place of that person except with that person's writtenconsent in advance of the removal or pursuant to a court order. This provisiondoes not affect the making and removal of copies or abstracts of any record,account, document or file.
(f) When making an examination under W.S. 26-2-116 through26-2-124, the commissioner may retain attorneys, appraisers, independentactuaries, independent certified public accountants or other professionals andspecialists as examiners, the reasonable and appropriate cost shall be borne bythe insurer which is the subject of the examination. Notwithstanding theconflict of interest provisions of subsection (a) of this section, thecommissioner may retain from time to time, on an individual basis, qualifiedactuaries, certified public accountants or other similar individuals who areindependently practicing their professions, even though the persons may fromtime to time be similarly employed or retained by persons subject toexamination under this act.
(g) Nothing contained in W.S. 26-2-116 through 26-2-124 shallbe construed to limit the commissioner's authority to terminate or suspend anyexamination in order to pursue other legal or regulatory action pursuant to theinsurance laws of this state. Findings of fact and conclusions made pursuantto any examination shall be prima facie evidence in any legal or regulatoryaction.
(h) Nothing contained in W.S. 26-2-116 through 26-2-124 shallbe construed to limit the commissioner's authority to use and, if appropriate,to make public any final or preliminary examination report, any examiner orcompany work papers or other documents, or any other information discovered ordeveloped during the course of any examination in the furtherance of any legalor regulatory action which the commissioner may, in his sole discretion, deemappropriate.
26-2-119. Repealed by Laws 1993, ch. 134, 2.
26-2-120. Examinations; deceit and obstruction during examinationprohibited.
Noperson shall make or authorize any false certificate, entry, memorandum orwriting in or relative to the books, records, files, documents and affairs ofthe person being examined with the intent to deceive the commissioner orexaminer, or otherwise willfully obstruct the examination.
26-2-121. Examinations; report; contents.
(a) No later than sixty (60) days following completion of theexamination the examiner in charge shall make a verified, full and true writtenreport of any examination he makes and shall therein certify under oath thereport and his findings. Investigations initiated by the commissioner or hisexaminers and assistants for the purpose of ascertaining whether an insurer,agent or adjuster has violated any provision of the insurance code are notexaminations within the provisions of this section.
(b) The report shall contain only information appearing uponthe books, records, documents and papers of or relating to the insurer, itsagents or other person or affairs being examined, or ascertained from testimonyof its officers, agents or other individuals under oath concerning the affairsof that insurer or person, together with any conclusions and recommendations asmay reasonably be warranted by the information.
(c) Upon receipt of the verified report the commissioner shalltransmit the report to the insurer examined, together with a notice which shallafford the insurer examined a reasonable opportunity of not more than thirty(30) days to make a written submission or rebuttal with respect to any matterscontained in the examination report. Upon written request by the insurer filedwithin the thirty (30) day period, the commissioner shall grant a hearing onthe report and shall not file the report until after the hearing and after anyappropriate modifications to the report.
(i) Repealed by Laws 1993, ch. 134, 2.
(ii) Repealed by Laws 1993, ch. 134, 2.
(d) Repealed by Laws 1993, ch. 134, 2.
(e) Repealed by Laws 1993, ch. 134, 2.
(f) Within thirty (30) days of the end of the period allowedfor the receipt of written submissions or rebuttals or within thirty (30) daysafter conclusion of a hearing held pursuant to subsection (c) of this section,the commissioner shall fully consider and review the report, together with anywritten submissions or rebuttals and any relevant portions of the examiner'swork papers and enter an order:
(i) Adopting the examination report as filed or withmodification or corrections. If the examination report reveals that theinsurer is operating in violation of any law, regulation or prior order of thecommissioner, the commissioner may order the company to take any action thecommissioner considers necessary and appropriate to cure the violation;
(ii) Rejecting the examination report with directions to theexaminers to reopen the examination for purposes of obtaining additional data,documentation or information, and refiling pursuant to this section; or
(iii) Calling for an investigatory hearing with no less thantwenty (20) days notice to the company for purposes of obtaining additionaldocumentation, data, information and testimony.
(g) All orders entered pursuant to paragraph (f)(i) of thissection shall be accompanied by findings and conclusions resulting from thecommissioner's consideration and review of the examination report, relevantexaminer work papers and any written submissions or rebuttals. Any such ordershall be considered a final administrative decision and may be appealedpursuant to the Wyoming Administrative Procedure Act and shall be served uponthe insurer by certified mail, together with a copy of the adopted examinationreport. Within thirty (30) days of the issuance of the adopted report, thecompany shall file affidavits executed by each of its directors stating underoath that they have received a copy of the adopted report and related orders.
(h) Notwithstanding any other provision of this code anyhearing conducted under paragraph (f)(iii) of this section by the commissioneror authorized representative, shall be conducted as a nonadversarialconfidential investigatory proceeding as necessary for the resolution of anyinconsistencies, discrepancies or disputed issues apparent upon the face of thefiled examination report or raised by or as a result of the commissioner'sreview of relevant work papers or by the written submission or rebuttal of theinsurer. The hearing shall proceed expeditiously with discovery by the insurerlimited to the examiner's work papers which tend to substantiate any assertionsset forth in any written submission or rebuttal. The hearing shall proceedwith the commissioner or his representative posing questions to the personssubpoenaed. Thereafter the insurer and the department may present testimonyrelevant to the investigation. Cross examination shall be conducted only bythe commissioner or his representative. The insurer and the department shallbe permitted to make closing statements and may be represented by counsel oftheir choice. The commissioner shall not appoint an examiner as an authorizedrepresentative to conduct the hearing but may exercise all other powers grantedto him in the conduct of hearings under this code. Within twenty (20) days ofthe conclusion of any such hearing, the commissioner shall enter an orderpursuant to paragraph (f)(i) of this section.
(j) Upon the adoption of the examination report under paragraph(f)(i) of this section, the commissioner shall continue to hold the content ofthe examination report as private and confidential information for a period ofthirty (30) days except to the extent provided in subsection (c) of thissection. Thereafter, the commissioner may open the report for publicinspection so long as no court of competent jurisdiction has stayed itspublication.
(k) Nothing contained in W.S. 26-2-116 through 26-2-124 shallrequire the department to disclose any information or records which wouldindicate or show the existence or content of any investigation or activity of acriminal justice agency. Nothing contained in this code shall prevent or beconstrued as prohibiting the commissioner from disclosing the content of anexamination report, preliminary examination report or results, or any matterrelating thereto, as authorized by and in accordance with the provisions ofW.S. 26-2-113(d). In the event the commissioner determines that regulatoryaction is appropriate as a result of any examination, he may initiate anyproceedings or actions as provided by law. The provisions of W.S. 26-2-116through 26-2-124 with regard to release of information shall prevail should anyconflict arise between this act and W.S. 16-4-201 through 16-4-205.
(m) All working papers, recorded information, documents andcopies thereof produced by, obtained by or disclosed to the commissioner or anyother person in the course of an examination made under W.S. 26-2-116 through26-2-124 shall be given confidential treatment and are not subject to subpoenaand shall not be made public by the commissioner or any other person, except tothe extent provided in subsections (j) and (k) of this section.
26-2-122. Examinations; expense.
(a) The reasonable and proper expense of examination of aninsurer or of any person referred to in W.S. 26-2-117(a)(ii) or (iv) shall beborne by the person examined, unless the expense has been otherwise providedfor by the insurer having paid the assessment established by W.S. 26-2-204.The expense shall include the reasonable and proper expenses of thecommissioner and his examiners, and a reasonable per diem as to such examiners,as necessarily incurred in the examination.
(b) The person examined shall promptly pay the examinationexpense upon the commissioner's presentation of a reasonably detailed writtenaccount thereof. The commissioner shall file a copy of the account in thedepartment as a public record.
26-2-123. Witnesses; evidence; subpoenas.
(a) In any examination or investigation the departmentconducts, the commissioner or any representative he appoints may:
(i) Administer oaths and affirmations;
(ii) Examine and cross-examine witnesses;
(iii) Receive oral and documentary evidence;
(iv) Subpoena witnesses and compel their attendance andtestimony; and
(v) Require by subpoena the production of any books, papers,records, files, correspondence, documents and other evidence deemed relevant tothe inquiry whether under control of the department, the insurer or otherpersons.
(b) If any individual refuses to comply with any subpoena or totestify as to any matter concerning which he is lawfully interrogated, thedistrict court of the county in which the examination or investigation is beingconducted or in which the individual resides or may be found, on thecommissioner's application, may issue an order requiring the individual tocomply with the subpoena and testify or produce the evidence subpoenaed.Failure to obey a court order may be punished by the court as contempt.
(c) Subpoenas shall be served and proof of service made in thesame manner as if issued by a district court. Witness fees and mileage, if claimed,shall be allowed the same as for testimony in court.
26-2-124. Immunity from prosecution when testimony is compelled;exception for perjury; waiver of immunity.
(a) If any person asks to be excused from attending ortestifying or from producing any books, papers, records, correspondence,documents or other evidence in connection with any examination, investigationor hearing the commissioner or his representative conducts, or in anyproceeding or action before any court or magistrate upon a charge of violationof this code, on the ground that the testimony or evidence required of him maytend to incriminate him or subject him to a penalty or forfeiture, and,notwithstanding, is directed by the commissioner and the attorney general togive the testimony or produce the evidence, he shall comply with thatdirection. The person shall not thereafter be prosecuted or subjected to anypenalty or forfeiture for or because of any transaction, matter or thingconcerning which he may have testified or produced evidence, and no testimonygiven or evidence produced shall be received against him upon any criminalaction, investigation or proceeding, except that no person so testifying isexempt from prosecution or punishment for perjury.
(b) Any person may execute, acknowledge and file in thedepartment a statement expressly waiving the immunity or privilege in respectto any transaction, matter or thing specified in the statement. The testimonyof that person or the evidence in relation to the transaction, matter or thingmay then be received or produced before any judge or justice, court, tribunal,magistrate, grand jury or otherwise, and if so received or produced the personis not entitled to any immunity or privileges because of any testimony he givesor evidence he produces.
26-2-125. Commissioner's hearings; generally; when required; requestfor hearing; stay.
(a) The commissioner may hold a hearing without request byothers for any purpose within the scope of this code.
(b) The commissioner shall hold a hearing:
(i) If required by this code or the Wyoming AdministrativeProcedure Act; or
(ii) Upon written request therefor by a person aggrieved by anyact, threatened act or failure of the commissioner to act, or by any report,rule, regulation or order of the commissioner, other than an order for theholding of a hearing, or an order on a hearing or pursuant to the order, ofwhich the person had notice.
(c) Any request for hearing shall be filed in the departmentwithin ninety (90) days after the person knows or reasonably should know of theact, threatened act, failure, report or order, unless a different period isprovided for by other laws applicable to a particular matter, in which case theother law governs. A hearing as to the legality of a rule or regulation may berequested within ninety (90) days after the person knows or reasonably shouldknow of the application or proposed application of the rule or regulation as tothe person in a particular instance.
(d) Any request for hearing shall summarize the information andgrounds to be relied upon as a basis for the relief to be sought at thehearing.
(e) If the commissioner finds that the request is made in goodfaith, that the person would be aggrieved if his grounds are established andthat the grounds otherwise justify the hearing, he shall hold the hearingwithin thirty (30) days from the date the request is filed, unless postponed bymutual consent. Failure to hold the hearing upon request of a person entitledthereto as provided in this section constitutes a denial of the relief soughtand is the equivalent of a final order of the commissioner for the purpose ofan appeal under W.S. 26-2-129.
(f) Any request for hearing the commissioner receives prior tothe effective date of action he takes or proposes to take stays the actionpending the hearing, except as to action taken or proposed under an order:
(i) On hearing;
(ii) Pursuant to an order on hearing;
(iii) To make good an impairment of the capital funds of an insurer;or
(iv) Made pursuant to chapter 14 of this code.
(g) If an automatic stay is not provided for, and if thecommissioner after written request therefor fails to grant a stay, the personaggrieved may apply to the district court of Laramie county for a stay of thecommissioner's action.
26-2-126. Commissioner's hearings; notice of hearing; contents;delivery.
(a) Unless a longer period is expressly provided in this code,the commissioner shall give written notice of the hearing not less than ten(10) days in advance. If the persons to be given notice are not specified inthe provision pursuant to which the hearing is held, the commissioner shallgive notice to all persons whose financial interests the hearing directly andimmediately affects.
(b) If any person is entitled to a hearing by any provision oflaw before any proposed action is taken, the notice of the hearing may be inthe form of a notice to show cause stating:
(i) That the proposed action may be taken unless the personshows cause at a hearing to be held as specified in the notice why the proposedaction should not be taken; and
(ii) The basis of the proposed action.
(c) Notice of hearing shall otherwise be in accordance withW.S. 16-3-107, except that mailed notice is deemed to have been served whenaddressed to the person to be notified at his address last of record with thedepartment and deposited, postage paid, in a mail depository of the UnitedStates post office.
26-2-127. Commissioner's hearings; procedure.
(a) The commissioner shall allow any party to the hearing to:
(i) Appear in person and by counsel;
(ii) Be present during the giving of all evidence;
(iii) Have a reasonable opportunity to inspect all documentaryand other evidence;
(iv) Examine and cross-examine witnesses;
(v) Present evidence in support of his interest; and
(vi) Have subpoenas issued by the commissioner to compelattendance of witnesses and production of evidence in his behalf.
(b) Upon good cause shown the commissioner shall permit tobecome a party to the hearing by intervention, if timely, only those personswho were not original parties thereto and whose pecuniary interests are to bedirectly and immediately affected by the commissioner's order made upon thehearing.
(c) Hearings in other respects are subject to the WyomingAdministrative Procedure Act as to contested cases.
(a) Within thirty (30) days after termination of a hearing, or withinsixty (60) days after termination if a transcript of the proceedings is to bemade, or of any rehearing or reargument thereof, or within any other period asmay be specified in this code as to particular matters, or within any furtherperiod to which the parties consent in writing, the commissioner shall make andenter his order on hearing. Failure of the commissioner to make and enter hisorder within the period allowed is deemed a denial of the petition, relief orapplication as to which the hearing was held.
(b) The commissioner shall promptly give a copy of the order toeach party to the hearing in the same manner as notice of the hearing wasgiven, except that as to hearings held concerning merger, consolidation, bulkreinsurance or conversion of a domestic insurer as provided for in chapter 24or in chapter 27 of this code, if notice of the hearing was mailed or given toall stockholders or policyholders, or both, of the insurer or insurersinvolved, the commissioner is required to give a copy of the order to thecorporate or insurer parties, to intervening parties, to a reasonable number ofthe stockholders or policyholders as representative of the class and to otherparties only upon written request of those parties.
(c) The orders are otherwise subject to the WyomingAdministrative Procedure Act as in contested cases.
(ii) As to a matter on which the commissioner fails to:
(A) Hold a hearing after application therefor under W.S.26-2-125; or
(B) Make and enter his order on hearing as required by W.S.26-2-128.
(b) All such appeals shall be taken as provided by the WyomingAdministrative Procedure Act for contested cases.
(c) This section does not prohibit recourse to injunction orother appropriate emergency proceedings in proper circumstances.
26-2-130. Cease and desist authority.
(a) The commissioner may issue a cease and desist order if:
(i) It appears from specific facts shown by affidavit that aperson, as defined by W.S. 26-1-102(a)(xx), is engaging in any act or practiceprohibited under this code which is causing or can be reasonably expected tocause significant, imminent and irreparable injury to the insuring public; and
(ii) That the department has either discussed the matter withthe person or has made a good-faith attempt to do so.
(b) Upon issuance of a cease and desist order, the commissionershall serve upon the person affected by the order, by personal service asdefined in rule 4 of the Wyoming Rules of Civil Procedure, or by registered orcertified mail, return receipt requested, to the person's last known address,an order specifically stating the acts complained of and requiring the personto immediately cease and desist from the act, methods or practices stated. Thecease and desist order shall have full force and effect as soon as it isreceived unless stayed by the commissioner pursuant to subsection (d) of thissection. The cease and desist order shall be of no effect at the end of thesecond business day following its issuance unless the commissioner shall haveobtained a temporary restraining order, pursuant to rule 65 of the Wyoming Rulesof Civil Procedure or the person receiving the order shall have stipulated thatit remain in effect pursuant to terms and conditions agreed upon by thecommissioner and that person. Thereafter, the commissioner may seek suchfurther orders of the court to enforce the cease and desist order as he deemsappropriate or necessary. If a temporary restraining order is sought inaccordance with this subsection, the cease and desist order shall remain ineffect until the temporary restraining order or any extension thereof isdenied, or until the cease and desist order is modified or stayed by an orderof the court. The action seeking the temporary restraining order shall befiled in the district court for Laramie county or in the district court for thecounty in which person affected by the order resides or has his principal placeof business.
(c) If the person affected by the cease and desist order seeksto contest the order, the person shall request a hearing before thecommissioner not later than ten (10) days after the date on which the personreceived the order. A request to contest an order shall be in writing, servedupon the commissioner by personal service as defined in rule 4 of the WyomingRules of Civil Procedure, or by registered or certified mail, and shall statethe grounds for the request to set aside or modify the order.
(d) On receiving the request for a hearing, the commissionershall serve notice of the time and place of the hearing at which the personrequesting the hearing shall have the opportunity to show cause why the ordershould not be affirmed. The hearing shall be held within ten (10) days fromthe date the request for hearing is received unless mutually waived by theparties or continuance granted by the commissioner for good cause. The ceaseand desist order shall continue in full force and effect while the hearing ispending unless the order is stayed by the commissioner.
(e) The hearing on the order shall be conducted according tothe procedures for contested cases under the Wyoming Administrative ProcedureAct.
(f) Within two (2) working days after the hearing, thecommissioner shall affirm, modify or set aside, in whole or in part, the ceaseand desist order.
(g) A cease and desist order shall be final eleven (11) daysafter the date the order is received by the person if a hearing as provided bysubsection (c) of this section is not requested by the person affected by theorder.
(h) Any person violating a cease and desist order issued underthis section shall be assessed a civil penalty as provided by W.S. 26-1-107(b).If the commissioner reasonably believes that a person has violated a cease anddesist order issued under this section, the commissioner may initiate judicialproceedings to enjoin further violation of the order in the district court forLaramie county or in the district court for the county in which the personresides or has his principal place of business.
(j) The commissioner may promulgate reasonable rules andregulations to carry out the purpose of this section.
(k) Any final order, ruling, finding, decision or other act ofthe commissioner made pursuant to this chapter or this section shall be subjectto judicial review in accordance with the Wyoming Administrative Procedure Act.
26-2-131. Immunity from liability.
(a) No cause of action shall arise nor shall any liability beimposed against the commissioner, the commissioner's authorized representativesor any examiner appointed by the commissioner for any statements made or conductperformed in good faith while carrying out an examination or related activityunder the provisions of this chapter.
(b) No cause of action shall arise nor shall any liability beimposed against any person for the act of communicating or delivering informationor data to the commissioner, the commissioner's authorized representative orexaminer pursuant to an examination made under this chapter, if the act ofcommunication or delivery was performed in good faith and without fraudulentintent.
(c) Any person identified in subsection (a) of this sectionshall be entitled to an award of attorney's fees and costs if he is aprevailing party in a civil cause of action for libel, slander or any otherrelevant tort arising out of activities in carrying out an examination orrelated activity under the provisions of this chapter and the party bringingthe action was not substantially justified in doing so. For purposes of thissection, a proceeding is "substantially justified" if it had areasonable basis in law or fact at the time it was initiated.
26-2-132. Health benefits plan committee.
(a) The commissioner shall appoint a health benefits plancommittee no later than September 30, 1995. The committee shall be composed ofseven (7) members, which shall include:
(i) The commissioner or his representative;
(ii) Two (2) representatives of authorized disability insurerswriting business in Wyoming;
(iii) One (1) representative each of:
(A) A small employer as defined by W.S. 26-19-302(a)(xxii);
(B) A consumer;
(C) An insurance agent licensed to sell disability insurance;and
(D) A health care provider as defined by W.S. 26-40-102(a)(i).
(b) The committee shall review on at least a biennial basis theform and level of coverages to be made available under the Small EmployerHealth Insurance Availability Act and the Wyoming Health Insurance Pool Act.
(c) For the Small Employer Health Insurance Availability Act,the committee shall recommend benefit levels, cost sharing factors, exclusionsand limitations for the basic health benefit plan and the standard healthbenefit plan. One (1) basic health benefit plan and one (1) standard healthbenefit plan shall contain benefit and cost sharing levels that are consistentwith the basic method of operation and the benefit plans of all health benefitplans, including any restrictions imposed by state or federal law. The plansrecommended by the committee may include cost containment features such as, butnot limited to:
(i) Utilization review of health care services, includingreview of medical necessity of hospital and physician services;
(ii) Case management benefit alternatives;
(iii) Reasonable benefit differentials applicable toparticipating and nonparticipating providers; and
(iv) Other managed care provisions.
(d) The committee shall submit its review of the plans and anyrecommendation for modification of the plans to the commissioner for approvalwithin one hundred eighty (180) days after the appointment of the committee pursuantto this section and at least biennially thereafter. If the commissionerdisapproves of the plans or modifications thereto in whole or in part he shallsubmit alternative interim plans to the committee for its approval.
(e) For the Wyoming health insurance pool, the committee shallrecommend the pool coverage, its schedule of benefits, exclusions, preexistingcondition limitations and other limitations consistent with the Wyoming HealthInsurance Pool Act.
(f) Members of the committee shall be reimbursed from theassets of the programs for expenses incurred by them as members of thecommittee but shall not otherwise be compensated by the programs for theirservices. The programs shall each pay one-half (1/2) of the expenses of thecommittee.
(g) Committee meetings shall be open to the public.
26-2-133. Disclosure of nonpublic personal information; rulemaking;rulemaking authority limited.
(a) The commissioner is authorized to adopt rules necessary togovern the practices of all persons licensed under this code with respect tothe disclosure of nonpublic personal financial and health information ofinsurance consumers and customers. The rules shall prohibit the disclosure ofany nonpublic personal information contrary to the provisions of title V of theGramm-Leach-Bliley Act of 1999, P.L. 106-102.
(b) Repealed By Laws 2007, Ch. 43, 1.
26-2-134. Limiting the use of credit scoring; rulemaking.
(a) The commissioner is authorized to adopt rules as necessaryto govern the practices of all persons licensed under this code with respect tothe use of credit scoring in the underwriting of personal lines, motor vehiclesand homeowner policies. The rules shall provide:
(i) That a person's credit history or scoring shall not be thesole basis to cancel, deny or nonrenew an insurance policy. An insurer may usecredit history only in combination with other valid underwriting factorsindependent of credit history or score;
(ii) That an insurer shall provide notice to the person whencredit scoring is being used to underwrite a policy and when use of creditscoring is adverse to the person;
(iii) That the consumer is adequately protected against unfairdiscrimination in the use of credit scoring to underwrite policies.
ARTICLE 2 - FUNDING
26-2-201. Deposit of fees.
Thestate treasurer shall place all fees received by the commissioner as providedin W.S. 26-2-205(c) in the state general fund.
26-2-202. Expenditures of the department.
Thestate treasurer shall make payments on warrants drawn by the state auditor,upon vouchers issued and signed by the commissioner or his designee, forexpenditures required to carry out the functions of the department pursuant tothe appropriations authorized the department by law.
26-2-203. Agents' licensing program exempt.
Thisarticle does not apply to the expenditure authorized by W.S. 26-10-107.
26-2-204. Insurers assessed for department expenditures.
(a) In addition to any other tax, license or fee imposed bylaw, each authorized insurer shall pay to the commissioner on or before June 1of each year a fee for the privilege of transacting the business of insurancein this state, computed as follows:
(i) On or before April 1 of each year, the commissioner, withthe governor's approval, shall estimate the expenditures of the department forthe fiscal year commencing July 1, including the expense of any regularlyscheduled association, zone, triannual or similar periodic statutorilyscheduled financial examination of any authorized insurer, provided thatneither the actual expenditures nor estimated expenditures of a fiscal yearwithin the same biennial budget for the department shall not exceed the amountappropriated to the department by law; and
(ii) The commissioner shall then divide the estimated amount ofexpenditures, after deducting therefrom any expected unexpended funds in theaccount of the insurance department, by the total number of insurers thenauthorized to transact insurance in this state as of December 31 of theimmediately preceding year. The result of this computation is the amount ofthe fee the commissioner shall assess each insurer.
(b) Upon receiving a statement of assessment from thecommissioner, each authorized insurer shall promptly pay the fee to thecommissioner.
26-2-205. Time for payment; penalties.
(a) If any insurer does not pay the assessment on or beforeJune 1 of the year in which assessed or as otherwise ordered pursuant to W.S.26-2-208, the assessment is delinquent. If the assessment is delinquent, thecommissioner may suspend or revoke the insurer's certificate of authority.
(b) The suspension shall continue until the assessment is paidtogether with an additional fee of ten dollars ($10.00) for each day the feeremains delinquent after June 1. The penalty for late payment is in additionto any other penalties provided by this code.
(c) The commissioner shall deposit all sums collected underthis section with the state treasurer for credit to the general fund.
26-2-206. Newly authorized insurers.
(a) Any insurer becoming first authorized after December 31shall pay to the commissioner the amount determined pursuant to W.S. 26-2-204prior to the commissioner issuing it a certificate of authority. Thecommissioner shall deposit the fee as provided by W.S. 26-2-204.
(b) This section does not apply to any insurer first authorizedafter December 31, 1987, but before March 31, 1988.
26-2-207. Other powers unaffected.
Nothingin this article alters or amends the commissioner's authority, obligations orduties under W.S. 26-2-116 through 26-2-125, nor does this article exempt aninsurer examined by the department pursuant to W.S. 26-2-116(b) from thepayments required under W.S. 26-2-122(b).
26-2-208. Additional assessment authorized.
Ifit appears to the commissioner that the total amount of assessments actuallycollected will not equal the authorized expenditures of the department for anybiennial appropriation period, with the governor's approval, he shall make anyadditional assessments upon authorized insurers which will eliminate thedeficiency. Any additional assessments are subject to all provisions of thisarticle as if they were original assessments under W.S. 26-2-204.
26-2-209. Deduction allowed for retaliation.
Notwithstandingany other law, if any domestic insurer is required to pay additional taxes orfees to some other jurisdiction because of this article under the color of aretaliatory statute or other similar law, the insurer may deduct the additionaltaxes or fees from the premium taxes otherwise payable under W.S. 26-4-103.
