Title 27
Insurance

Chapter 14.5
Voluntary Restructuring of Solvent Insurers

§ 27-14.5-4. Commutation plans.

(a) Application. Any commercial run-off insurer may apply to the court for an order implementing a commutation plan.

(b) Procedure.

(1) The applicant shall give notice of the application and proposed commutation plan.

(2) All creditors shall be given the opportunity to vote on the plan.

(3) All creditors, assumption policyholders, reinsurers, and guaranty associations shall be provided with access to the same information relating to the proposed plan and shall be given the opportunity to file comments or objections with the court.

(4) Approval of a commutation plan requires consent of: (i) Fifty percent (50%) of each class of creditors; and (ii) The holders of seventy-five percent (75%) in value of the liabilities owed to each class of creditors.

(c) Implementation order.

(1) The court shall enter an implementation order if: (i) The plan is approved under subsection (b)(4); and (ii) The court determines that implementation of the commutation plan would not materially adversely affect either the interests of objecting creditors or the interests of assumption policyholders.

(2) The implementation order shall:

(i) Order implementation of the commutation plan;

(ii) Subject to any limitations in the commutation plan, enjoin all litigation in all jurisdictions between the applicant and creditors other than with the leave of the court;

(iii) Require all creditors to submit information requested by the bar date specified in the plan;

(iv) Require that upon a noticed application, the applicant obtain court approval before making any payments to creditors other than, to the extent permitted under the commutation plan, payments in the ordinary course of business, this approval to be based upon a showing that the applicant’s assets exceed the payments required under the terms of the commutation plan as determined based upon the information submitted by creditors under subsection (c)(2)(iii);

(v) Release the applicant of all obligations to its creditors upon payment of the amounts specified in the commutation plan;

(vi) Require quarterly reports from the applicant to the court and commissioner regarding progress in implementing the plan; and

(vii) Be binding upon the applicant and upon all creditors and owners of the applicant, whether or not a particular creditor or owner is affected by the commutation plan or has accepted it or has filed any information on or before the bar date, and whether or not a creditor or owner ultimately receives any payments under the plan.

(3) The applicant shall give notice of entry of the order.

(d) Applicable law and procedure with respect to dispute resolution procedures.

(1) Any dispute resolution procedure in any commutation plan brought by a ceding insurance creditor to challenge the value of its claim assessed in any commutation plan will be consistent with the provisions of title 9, United States code;

(2) The adjudicator and the court, if applicable, hearing any appeal from an adjudication proceeding where the ceding insurance creditor challenges the value of its claim assessed by the applicant in its commutation plan, shall:

(i) Not attempt to enforce a reinsurance contract on terms different than those set forth in the reinsurance contract;

(ii) Not apply the laws of Rhode Island to reinsurance agreements of ceding insurers not domiciled in Rhode Island unless the reinsurance contract provides that Rhode Island law shall apply;

(iii) Apply the law applicable to the underlying contract between the ceding insurer and the applicant or, if the underlying reinsurance contract has no choice of law provision, the law of the state of domicile of the ceding insurer shall apply.

(e) Order of dissolution or discharge.

(1) Upon completion of the commutation plan, the applicant shall advise the court.

(2) The court shall then enter an order that:

(i) Is effective upon filing with the court proof that the applicant has provided notice of entry of the order;

(ii) Transfers those liabilities subject to an assumption reinsurance agreement to the assumption reinsurer, thereby novating the original policy by substituting the assumption reinsurer for the applicant and releasing the applicant of any liability relating to the transferred liabilities;

(iii) Assigns each assumption reinsurer the benefit of reinsurance on transferred liabilities, except that the assignment shall only be effective upon the consent of the reinsurer if either:

(A) The reinsurance contract requires that consent; or

(B) The consent would otherwise be required under applicable law; and

(iv) Either:

(A) The applicant be discharged from the proceeding without any liabilities; or

(B) The applicant be dissolved.

(3) The applicant shall provide notice of entry of the order.

(f) Reinsurance. Nothing in this chapter shall be construed as authorizing the applicant, or any other entity, to compel payment from a reinsurer on the basis of estimated incurred but not reported losses or loss expenses, or case reserves for unpaid losses and loss expenses.

(g) Modifications to plan. After provision of notice and an opportunity to object, and upon a showing that some material factor in approving the plan has changed, the court may modify or change a commutation plan, except that upon entry of an order under subsection (e)(2) of this section, there shall be no recourse against the applicant’s owners absent a showing of fraud.

(h) Role of commissioner and guaranty funds; relationship to rehabilitation/liquidation statutes.

(1) The commissioner and guaranty funds shall have the right to intervene in any and all proceedings under this section; provided, that notwithstanding any provision of this title, any action taken by a commercial run-off insurer to restructure pursuant to this chapter, including the formation or re-activation of an insurance company for the sole purpose of entering into a voluntary restructuring shall not affect the guaranty fund coverage existing on the business of such commercial run-off insurer prior to the taking of such action.

(2) If, at any time, the conditions for placing an insurer in rehabilitation or liquidation specified in chapter 14.3 of this title exist, the commissioner may request and, upon a proper showing, the court shall order that the commissioner be named statutory receiver of the applicant.

(3) If no implementation order has been entered, then upon being named receiver, the commissioner may request, and if requested, the court shall order, that the proceeding under this chapter be converted to a rehabilitation or liquidation pursuant to chapter 14.3 of this title. If an implementation order has already been entered, then the court may order a conversion upon a showing that some material factor in approving the original order has changed.

(4) The commissioner, any creditor, or the court on its own motion may move to have the commissioner named as receiver. The court may enter such an order only upon finding either that one or more grounds for rehabilitation or liquidation specified in chapter 14.3 of this title exist or that the applicant has materially failed to follow the commutation plan or any other court instructions.

(5) Unless and until the commissioner is named receiver, the board of directors or other controlling body of the applicant shall remain in control of the applicant.