HB1052.DOC

SECTION 1. The purpose of this act is to amend chapter 431, Hawaii Revised Statutes, to comply with the federal Nonadmitted and Reinsurance Reform Act of 2010 relating to surplus lines insurance and to participate in a multi-state cooperative to collect surplus lines premium taxes and fees and distribute to the individual states their taxes and fees.

SECTION 2. Section 431:8-101, Hawaii Revised Statutes, is amended to read as follows:

"§431:8-101 Scope. This article shall apply to the placement of insurance [~~on any subject resident, located, or to be performed in this State,~~] in insurers not authorized to transact insurance in [~~this State.~~] the state in which the subject resident is located or in which the insurance contract will be performed."

SECTION 3. Section 431:8-102, Hawaii Revised Statutes, is amended as follows:

(1) By amending the definitions of "authorized insurer", "surplus lines insurance", and "unauthorized insurer" to read as follows:

""Authorized insurer" means an insurer holding a valid certificate of authority to transact an insurance business in [~~this State.~~] the state in which the subject resident is located or in which the insurance contract will be performed.

"Surplus lines insurance" means any property and casualty insurance on risks [~~resident, located or to be performed in this State,~~] procured from or placed with an unauthorized insurer under the laws of the insured's home state. Surplus lines insurance when this State is the home state of the insured shall be in accordance with part III of this article.

"Unauthorized insurer" means an insurer not holding a valid certificate of authority to transact an insurance business in [~~this State.~~] the state in which the subject resident is located or in which the insurance contract will be performed."

(2) By adding definitions for "exempt commercial purchaser", "home state", "home state of affiliated group", "home state of group insurance", "independently procured insurance", "multi-state risk", "principal place of business", "principal residence", and "single state risk" to read as follows:

""Exempt commercial purchaser" means any person purchasing commercial insurance which, at the time of placement, employs or retains a qualified risk manager to negotiate insurance coverage; and has paid aggregate nationwide commercial property and casualty insurance premiums in excess of $100,000 in the immediately preceding twelve months. The person shall possess a net worth in excess of $20,000,000, or the person shall generate annual revenues in excess of $50,000,000, or the person shall employ more than five hundred full time or full time equivalent employees per individual insured or is a member of an affiliated group employing more than 1,000 employees in the aggregate, or the person is a not-for-profit organization or public entity generating annual budgeted expenditures of at least $30,000,000, or the person is a municipality with a population in excess of 50,000 persons. Effective on January 1, 2015 and every five years thereafter, the amount of net worth, annual revenues, and budgeted expenditures shall be adjusted to reflect the percentage change for that five-year period in the Consumer Price Index for All Urban Consumers published by the Bureau of Labor Statistics of the federal Department of Labor.

"Home State", with respect to an insured, means the state in which an insured maintains the insured's principal place of business or, in the case of an individual, the state in which the individual maintains the individual's principal residence; except that if one hundred per cent of the insured risk is located out of the state where the insured maintains the insured's principal place of business or the state where the individual maintains the principal residence, the home state shall be the state where the greatest percentage of the insured's taxable premium for that insurance contract is allocated.

"Home state of affiliated group" means the home state of the member of the affiliated group that has the largest percentage of premium attributed to it under an insurance contract, which has more than one insured from the affiliated group listed as named insureds on a single nonadmitted insurance contract.

"Home state of group insurance" means the home state of the group policyholder who pays one hundred per cent of the premium from the policyholder's own funds. When the group policyholder does not pay one hundred per cent of the premium from the policyholder's own funds, the term "home state" means the home state of the group member.

"Independently procured insurance" means insurance obtained by an insured directly from an unauthorized insurer as permitted by the laws of the insured's home state.

"Multi-state risk" means a risk covered by an unauthorized insurer with insured exposures in more than one state.

"Principal place of business" means, with respect to determining the home state of the insured, means (1) the state where the insured maintains the insured's headquarters and where the insured's high-level officers direct, control, and coordinate the business activities; or (2) if the insured's high-level officers direct, control, and coordinate the business activities in more than one state, the state in which the greatest percentage of the insured's taxable premium for that insurance contract is allocated; or (3) if the insured maintains the insured's headquarters or the insured's high-level officers direct, control, and coordinate the business activities outside any state, the state in which the greatest percentage of the insured's taxable premium for that insurance contract is allocated.

"Principal residence", with respect to determining the home state of the individual insured, means (1) the state where the individual insured resides for the greatest number of days during a calendar year; or (2) if the insured's principal residence is

located outside any state, the state in which the greatest percentage of the insured's taxable premium for that insurance contract is allocated.

"Single state risk" means a risk with insured exposures in only one state. "

SECTION 4. Section 431:8-201, Hawaii Revised Statutes, is amended to read as follows:

"§431:8-201 Transacting insurance business without certificate of authority prohibited. It shall be unlawful for any insurer to transact an insurance business in this State, as defined in section 431:1-215, without a certificate of authority, except that this section shall not apply to:

(1) The lawful transaction of surplus lines insurance;

(2) The lawful transaction of reinsurance by insurers;

(3) Transactions in this State involving a policy lawfully solicited, written, and delivered outside of this State covering only subjects of insurance not resident, located, or expressly to be performed in this State at the time of issuance, and which transactions are subsequent to the issuance of such policy;

(4) Attorneys acting in the ordinary relation of attorney and client in the adjustment of claims or losses;

(5) Transactions in this State involving group life and group accident and health or sickness or blanket accident and health or sickness insurance or group annuities where the master policy of such groups was lawfully issued and delivered in and pursuant to the laws of a state in which the insurer was authorized to do an insurance business;

(6) Transactions in this State involving any policy of insurance or annuity contract issued prior to July 1, 1988; [~~and~~]

(7) Transactions in this State involving ocean marine insurance[.]; and

(8) Transactions of contracts of insurance for property and casualty multi-state risks; provided that the producer is licensed to sell, solicit, or negotiate that insurance in the home state of the insured."

SECTION 5. Section 431:8-205, Hawaii Revised Statutes, is amended to read as follows:

"§431:8-205 Insurance independently procured; duty to report and pay tax. (a) Nothing in this part shall prohibit a person from independently procuring, continuing, or renewing insurance from an insurer which is not authorized to transact insurance in this State.

(b) Each insured who in this State procures [or] , continues, or renews insurance with an unauthorized insurer on a risk located or to be performed in whole [~~or in part~~] in this State, and unauthorized insurance for which this State is the home state of the insured, other than insurance procured through a surplus lines broker pursuant to part III of this article shall, within [~~sixty~~] forty-five days after the [~~date~~] end of the calendar quarter in which the insurance was [so] procured, continued, or renewed, file a written report [~~of the same~~] with the commissioner, upon forms prescribed by the commissioner, showing:

(1) The name and address of the insured or insureds;

(2) The name and address of the insurer;

(3) The subject of the insurance;

(4) A general description of the coverage;

(5) The amount of premium currently charged [therefor;] for each state that assesses taxes or fees; and

(6) [~~Such~~] Other additional, pertinent information [~~as is reasonably~~] requested by the commissioner.

(c) Gross premiums charged for the unauthorized insurance[,] allocable to this State, less any return premiums, are subject to a tax at the rate of 4.68 per cent. Gross premiums, less any return premiums, charged for the insurance allocable to other states, are subject to the taxes and fees of those other states. At the time of filing the report required in subsection (b), the insured shall pay the tax and fees of this State and all other states to the director of finance, through the commissioner[.], for insurance for which this State is the home state of the insured. The insured shall pay the tax and fees of this State to the home state of the insured when this State is not the home state of the insured.

As used in this subsection, "gross premiums" mean the amount of the policy or coverage premium charged by the insurer in consideration for the insurance contract. Any charges for policy, survey, inspection, service, or similar fees or other charges added by the broker shall not be considered part of gross premiums.

[(d) If an independently procured policy covers risks or exposures only partially located or to be performed in this State, the tax payable to this State shall be computed on the portion of the premium properly attributable to the risks or exposures located or to be performed in this State.

~~(e)~~] (d) Delinquent taxes shall bear interest at the rate of ten per cent per annum.

[~~(f)~~] (e) This section does not abrogate or modify, and shall not be construed or deemed to abrogate or modify, any provision of section 431:8-202 or any other provision of this code.

[~~(g)~~] (f) This section shall not apply to life insurance, accident and health or sickness insurance, or annuities."

SECTION 6. Section 431:8-300, Hawaii Revised Statutes, is amended to read as follows:

"§431:8-300 Exemptions from surplus lines law. This part shall not apply to reinsurance or to the following insurance when placed by a licensed producer of this State:

(1) Ocean marine insurance; or

[~~(2)~~ ~~Insurance on subjects located, resident, or to be performed wholly outside this State, or on vehicles or aircraft owned and principally garaged outside this State; or~~

~~(3)~~] (2) Insurance of aircraft or cargo of such aircraft, or against liability, other than workers' compensation and employer's liability, arising out of the ownership, maintenance, or use of such aircraft."

SECTION 7. Section 431:8-301, Hawaii Revised Statutes, is amended to read as follows:

"§431:8-301 Insurance placed with unauthorized insurer permitted. (a) In addition to section 431:8-205, insurance may be procured from an unauthorized insurer provided:

(1) [~~The~~] That the insurance is procured through a [~~licensed~~] surplus lines broker licensed in the insured's home state;

(2) The full amount or kind of insurance cannot be obtained from insurers who are authorized to do business in this State; provided that a diligent search is made among the insurers who are authorized to transact and are actually writing the particular kind and class of insurance in this State each time such insurance is placed or renewed;

(3) The surplus lines insurance procured is in addition to or in excess of the amount and coverage which can be procured from the authorized insurers; and

(4) The insurance is not procured at a rate lower than the lowest rate which is generally acceptable to authorized insurers transacting that kind of business and providing insurance affording substantially the same protection.

(b) A surplus lines broker is not required to make a due diligence search to determine whether the full amount or type of insurance can be obtained from admitted insurers when the broker is seeking to procure or place nonadmitted insurance for an exempt commercial purchaser provided:

(1) The broker procuring or placing the surplus lines insurance has disclosed to the exempt commercial purchaser that such insurance may or may not be available from the admitted market that may provide greater protection with more regulatory oversight; and

(2) The exempt commercial purchaser has subsequently requested in writing for the broker to procure or place the insurance from a nonadmitted insurer. "

SECTION 8. Section 431:8-302, Hawaii Revised Statutes, is amended to read as follows:

"§431:8-302 Surplus lines [~~in solvent~~] insurers. (a) No surplus lines broker shall, either knowingly or without reasonable investigation of the financial condition and general reputation of the insurer, place insurance with a financially unsound [~~insurers~~] insurer or with [~~insurers~~] an insurer engaging in an unfair [~~practices~~] practice.

[~~(b) Before placing insurance with any unauthorized insurer, the broker shall ascertain the financial condition of the insurer and:~~

~~(1)~~ In the case of a foreign insurer, shall maintain in the broker's office a current certificate, in proper form, from the regulatory authority in the domicile of the unauthorized insurer, to the effect that the insurer has capital and surplus, or its equivalent under the laws of its domiciliary jurisdiction, which equals the minimum capital and surplus requirements of this State for that kind of insurer as set out in article 3; or

~~(2)~~ In the case of an alien insurer, shall maintain in the broker's office evidence of the financial responsibility of the insurer. Evidence satisfactory to the commissioner that the insurer maintains in the United States an irrevocable trust fund in either a national bank or a member of the Federal Reserve System in an amount not less than $5,400,000 for the protection of all its policyholders in the United States consisting of cash, securities, letters of credit, or of investments of substantially the same character and quality as those which are eligible investments for the capital and statutory reserves of authorized insurers writing like kinds of insurance in this State, shall constitute prima facie evidence of responsibility.

~~Upon request by the commissioner, the broker shall immediately submit to the commissioner the items described in this subsection.~~

(c) The requirements of this section may be satisfied by an insurer possessing less than the capital and surplus set forth in subsection (b) upon an affirmative finding of acceptability by the commissioner. The finding shall be based upon such factors as quality of management, capital and surplus of parent company, company underwriting profit and investment income trends, and company record and reputation within the industry. In no event shall the commissioner make an affirmative finding of acceptability when the surplus lines insurer's capital and surplus is less than $500,000.]

(b) A surplus lines broker may place surplus lines insurance only with insurers who are authorized to write that type of insurance in the insurer's domiciliary state.

(c) A surplus lines broker shall not place coverage with a nonadmitted insurer unless, at the time of placement, the surplus lines broker has determined that the nonadmitted insurer has capital and surplus or its equivalent under the laws of its domiciliary state that equal the greater of:

(1) The minimum capital requirement of this State or a minimum of $15,000,000. These requirements may be satisfied by the insurer's possessing less than the minimum capital and surplus upon an affirmative finding of acceptability by the commissioner. The finding shall be based upon such factors as quality of management, capital and surplus of any parent company, company underwriting profit and investment income trends, market availability, and company record and reputation within the industry. In no event shall the commissioner make an affirmative finding of acceptability when the nonadmitted insurer's capital and surplus is less than $4,500,000.

(2) For an insurer not domiciled in the United States or its territories, the insurer shall be listed on the Quarterly Listing of Alien Insurers maintained by the National Association of Insurance Commissioners International Insurers Department. In the case of an alien insurer that is not in the Quarterly Listing of Alien Insurers, the surplus lines broker shall maintain in the broker's office evidence of the financial responsibility of the insurer. Evidence satisfactory to the commissioner that the insurer maintains in the United States an irrevocable trust fund in either a national bank or a member of the Federal Reserve System in an amount of not less than $5,400,000 for the protection of all its policyholders in the United States, consisting of cash, securities, letters of credit, or of investments of substantially the same character and quality as those which are eligible investments for the capital and statutory reserves of authorized insurers writing like kinds of insurance in this State, shall constitute prima facie evidence of responsibility.

(d) The commissioner is authorized to enter into a cooperative agreement or interstate agreement or compact to establish additional and alternative nationwide uniform eligibility requirements that shall be applicable to nonadmitted insurers domiciled in another state."

SECTION 9. Section 431:8-313, Hawaii Revised Statutes, is amended to read as follows:

"§431:8-313 Surplus lines broker's [~~annual statement~~] quarterly reports to commissioner. (a) Each surplus lines broker shall file with the commissioner [~~on or before March 15 of each year a verified statement of all surplus lines insurance transacted during the preceding calendar year.~~] within forty-five days of the end of each calendar quarter a verified statement of all surplus lines insurance transacted during the calendar quarter.

(b) The statement shall be on forms as prescribed and furnished by the commissioner and shall show:

(1) Gross amount of premiums for each kind of insurance transacted;

(2) Aggregate gross premiums charged[;] and itemized by state;

(3) Aggregate of returned premiums paid to insureds[;] and itemized by state;

(4) Aggregate of net premiums[;] and fees and itemized by state;

(5) Amount of aggregate [~~tax~~] remitted[;] taxes and fees and itemized by state; and

(6) Additional information as required by the commissioner."

SECTION 10. Section 431:8-315, Hawaii Revised Statutes, is amended to read as follows:

"§431:8-315 Tax on surplus lines. (a) [~~On or before March 15 of each year,~~] On or before March 15, 2011, each surplus lines broker shall pay to the director of finance, through the commissioner, a premium tax on surplus lines insurance transacted by such broker during [~~the preceding calendar year.~~] 2010. Beginning on January 1, 2011, within sixty days after the end of each calendar quarter, each surplus lines broker shall pay to the director of finance, through the commissioner, a premium tax on surplus lines insurance transacted by the broker during the calendar quarter for insurance for which this State is the home state of the insured. The tax rate shall be in the amount of 4.68 per cent of gross premiums, less return premiums, on [~~taxable~~] surplus lines insurance[.] allocated to this State. The tax rate and fees of other states shall be applied to the gross premiums, less return premiums, allocated to those states.

(b) The commissioner shall collect the taxes and fees on independently procured surplus lines insurance and from surplus lines licensees and disburse to the other states the funds earned by each state, provided that the other state has a reciprocal allocation and disbursement procedure for the benefit of this State. To the extent that other states, where portions of the properties, risks, or exposures reside, have failed to establish a reciprocal allocation and disbursement procedure with this State, the net premium tax collected shall be retained by this State.

[~~(b)~~] (c) If a surplus lines policy covers risks or exposures only partially resident in this State, the tax so payable shall be computed upon the proportion of the premium which is properly allocable to the risks or exposures located in this State. The taxes and fees payable to this State on policies that cover risks and exposures only partially resident in this State shall be remitted, on the quarterly schedule, to the home state of the insured for disbursement to this State.

[~~(c)~~] (d) The tax on any portion of the premium unearned at the termination of the insurance contract shall be returned to the policyholder.

(e) The commissioner may enter into a cooperative agreement, reciprocal agreement, or compact with other states to facilitate and provide for the collection, allocation, and disbursement of premium taxes attributable to the placement of surplus lines insurance; provide for uniform methods of allocation and reporting among surplus lines insurance risk classifications; conform to the requirements of the federal Nonadmitted and Reinsurance Reform Act of 2010; and share information among states relating to surplus lines insurance premium taxes.

(1) The commissioner may establish a uniform statewide rate of taxation applicable to surplus lines insurance that shall be collected by other states. This rate shall encompass all existing rates of taxation, fees, and assessments imposed by this State and any of its political subdivisions. The commissioner shall document the method by which the statewide rate is calculated.

(2) The commissioner may utilize a method adopted in cooperation with other states to allocate risk and compute the tax due on the portion of premium attributable to each risk classification and to each state where properties, risks, or exposures are located.

(3) The commissioner shall assess the insured for the cost of the cooperative agreement, reciprocal agreement, or compact to collect and distribute the premium taxes.

(4) Upon application of the insured, the commissioner shall refund the insured for excess payments of taxes received by the State that are the result of the statewide tax rate."

SECTION 11. Section 431:8-316, Hawaii Revised Statutes, is amended to read as follows:

"§431:8-316 Penalty for failure to file statement or remit tax. (a) If any surplus lines broker fails to:

(1) File [~~an annual statement;~~] a quarterly statement; or

(2) Pay the premium tax required by section 431:8-315 when the tax is due,

the surplus lines broker may be liable for a fine of up to $25 for each day of delinquency.

(b) The commissioner may:

(1) Collect the premium tax required by section 431:8-315 by distraint;

(2) Recover the premium tax required by section 431:8-315 and fine for failure to pay the premium tax by instituting an action in any court of competent jurisdiction; or

(3) Recover the fine for failure to file the annual statement by instituting an action in any court of competent jurisdiction."

SECTION 12. Section 431:8-317, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:

"(a) The commissioner may suspend, revoke, or refuse to extend any surplus lines broker's license for any cause specified in any other provision of this chapter, or for any of the following causes:

(1) Failure to file the annual or quarterly statement required by section 431:8-313 or to pay the tax required by section 431:8-315;

(2) Failure to keep records or to allow the commissioner to examine the surplus lines broker's records as provided in this article;

(3) Removal of office accounts and records from this State during the period in which the accounts are required to be maintained under this article;

(4) Any of the causes for which a producer's license may be suspended or revoked under article 9A;

(5) Any cause for which issuance of the license could have been refused had it then existed and been known to the commissioner;

(6) If the licensee wilfully violates or knowingly participates in the violation of any provision of this code;

(7) If the licensee has obtained or attempted to obtain the license through wilful misrepresentation or fraud, or has failed to pass any examination required by section 431:9A-105;

(8) If the licensee has misappropriated, converted to the licensee's own use, or illegally withheld moneys required to be held in a fiduciary capacity;

(9) If the licensee, with intent to deceive, has materially misrepresented the terms or effect of any insurance contract, or has engaged or is about to engage in any fraudulent transaction;

(10) If the licensee has been guilty of any unfair practice or fraud as defined in article 13;

(11) If in the conduct of the licensee's affairs under the license, the licensee has been a source of injury and loss to the public;

(12) If the licensee issues or purports to issue any binder as to any insurer named therein as to which the licensee is not then authorized so to bind; or

(13) If the licensee has dealt with, or attempted to deal with, insurance or to exercise powers relative to insurance outside the scope of the licensee's licenses."

SECTION 13. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 15. This Act shall take effect upon its approval.

INTRODUCED BY:	_____________________________

HOUSE OF REPRESENTATIVES	H.B. NO.	1052
TWENTY-SIXTH LEGISLATURE, 2011
STATE OF HAWAII