S1809

An Act concerning the "New Jersey Surplus Lines Insurance Guaranty Fund Act" and amending P.L.2002, c.30 and P.L.1984, c.101.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. Section 1 of P.L.2002, c.30 (C.17:22-6.70a) is amended to read as follows:

1. The Legislature finds and declares:

a. The "New Jersey Surplus Lines Insurance Guaranty Fund Act," P.L.1984, c.101 (C.17:22-6.70 et seq.), enacted 18 years ago in the face of an imminent threat of declaration of insolvency of Ambassador Insurance Company of Vermont, has provided valuable benefits by covering claims of certain claimants against insolvent property and casualty insurers selling insurance in New Jersey as surplus lines.

b. That act was amended 15 years ago to include, as covered claims, those claims arising from the declared insolvency of Northeastern Fire Insurance Company of Pennsylvania.

c. Claims covered by the New Jersey Surplus Lines Insurance Guaranty Fund included claims by New Jersey residents or claims arising from property permanently located in New Jersey, in an amount up to the lesser of the policy limit or $300,000, subject to policy deductibles, thereby redistributing some of the economic burden of surplus lines insurer failures.

d. The New Jersey Surplus Lines Insurance Guaranty Fund currently contains a balance of approximately $80,000,000 and $40,000,000 is sufficient to satisfy existing covered claims.

e. The Legislature believes that, beyond the payment of existing covered claims, it is good public policy to maintain surplus lines insurance guaranty benefits for certain lines of insurance in the future.

f. The Legislature believes further that it is also good public policy to maintain surplus lines insurance guarantee benefits for certain additional lines of insurance, retroactive to June 25, 2002.

(cf: P.L.2002, c.30, s.1)

2. Section 2 of P.L.1984, c.101 (C.17:22-6.71) is amended to read as follows:

2. The purpose of this act is to provide a mechanism for the payment of covered claims under certain insurance policies issued by eligible surplus lines insurers; to minimize excessive delays in the payment of the covered claims against insolvent, eligible, nonadmitted insurers; and to avoid financial loss to claimants or
policyholders because of the insolvency of an eligible, nonadmitted insurer.

On and after July 27, 1984 and before June 25, 2002, P.L.1984, c.101 (C.17:22-6.70 et seq.) shall apply to all property and casualty lines of direct insurance authorized under R.S.17:17-1, except workers' compensation insurance, title insurance, surety bonds, credit insurance, mortgage guaranty insurance, municipal bond coverage, fidelity insurance, investment return assurance, and ocean marine insurance. This act shall also not apply to reinsurance of any kind.

On or after June 25, 2002, P.L.1984, c.101 (C.17:22-6.70 et seq.) shall apply only to medical malpractice liability insurance as defined in subsection d. of section 3 of P.L.1975, c.301 (C.17:30D-3) [and] , property insurance covering owner occupied dwellings of less than four dwelling units and liquor law liability insurance coverage. On or after June 25, 2002, P.L.1984, c.101 (C.17:22-6.70 et seq.) shall not apply to reinsurance of any kind.

(cf: P.L.2004, c.165, s.1)

3. Section 3 of P.L.1984, c.101 (C.17:22-6.72) is amended to read as follows:

3. "Affiliate" means a person who directly, or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with an insolvent insurer on December 31 of the year immediately preceding the date the insurer becomes an insolvent insurer.

"Association" means the New Jersey Property-Liability Insurance Guaranty Association created pursuant to P.L.1974, c.17 (C.17:30A-1 et seq.).

"Commissioner" means the Commissioner of Banking and Insurance.

"Covered claim" means an unpaid claim, including a claim for unearned premiums, which arises out of and is within the coverage, and not in excess of the applicable limits of an insurance policy to which this act applies, and which was issued by a surplus lines insurer which was eligible to transact insurance business in this State at the time the policy was issued and which has been determined to be an insolvent insurer on or after June 1, 1984, but prior to June 25, 2002, if (1) the claimant or policyholder is a resident of this State at the time of the occurrence of the insured event for which a claim has been made, provided that for an entity other than an individual, the residence of the claimant or insured is the state in which its principal place of business was located at the time of the insured event; or (2) the claim is a first party claim for damage to property with a permanent location in this State. A "covered claim" which arises because of an insolvency occurring on or after June 25, 2002 shall be limited to an unpaid claim, including a claim for unearned premiums, which arises out of [either] medical malpractice liability insurance coverage [or] , property insurance covering owner occupied dwellings of less than four dwelling units within the coverage or liquor law liability insurance coverage, and not in excess of the applicable limits, of an insurance policy to which P.L.1984, c.101 (C.17:22-6.70 et seq.) applies, and which was issued by a surplus lines insurer which was eligible to transact insurance business in this State at the time the policy was issued and which has been determined to be an insolvent insurer on or after June 25, 2002, if (1) the claimant or policyholder is a resident of this State at the time of the occurrence of the insured event for which a claim has been made, provided that for an entity other than an individual, the residence of the claimant or insured is the state in which its principal place of business was located at the time of the insured event; or (2) the claim is a first party claim for damage to property with a permanent location in this State.

"Covered claim" shall not include: (1) any amount due any reinsurer, insurance pool or underwriting association, as subrogation recoveries or otherwise, except that a claim for any such amount, asserted against a person insured under a policy issued by a surplus lines insurer which has become an insolvent insurer, which, if it were not a claim by or for the benefit of a reinsurer, insurer, insurance pool, or underwriting association, would be a "covered claim," may be filed directly with the receiver of the insolvent insurer, but in no event may any such claim be asserted in any legal action against the insured of that insolvent insurer; (2) amounts for interest on unliquidated claims; (3) punitive damages unless covered by the policy; (4) counsel fees for prosecuting suits for claims against the fund; (5) assessments or charges for failure by an insolvent insurer to have expeditiously settled claims; (6) counsel fees and other claim expenses incurred prior to the date of insolvency; (7) a claim filed with the fund, liquidator or receiver of an insolvent insurer after the final date set by the court for the filing of claims against the liquidator or receiver of an insolvent insurer or, if a final date is not set by the court for the filing of claims against the liquidator or receiver of an insolvent insurer, two years from the date of the order of liquidation, unless the claimant demonstrates unusual hardship and the commissioner approves of treatment of the claim as a "covered claim." "Unusual hardship" shall be defined in regulations promulgated by the commissioner. With respect to insurer insolvencies pending as of the effective date of P.L.2004, c.165 (C.17:22-6.84 et al.), a "covered claim" shall not include a claim filed with the fund, liquidator or receiver of an insolvent insurer: (a) more than one year after the effective date of P.L.1996, c. 156 or (b) the date set by the court for the filing of claims against the liquidator or receiver of the insolvent insurer, whichever date occurs later; and (8) any first party claim by an insured whose net worth exceeds $25 million on December 31 of the year prior to the year in which the insurer becomes an insolvent insurer provided that the insured's net worth on that date shall be deemed to include the aggregate net worth of the insured and all of its affiliates as calculated on a consolidated basis.

"Exhaust" means with respect to other insurance, the application of a credit for the maximum limit under the policy provided, however, in any case where continuous indivisible injury or property damage occurs over a period of years as a result of exposure to injurious conditions, exhaustion shall be deemed to have occurred only after a credit for the maximum limits under all other coverages, primary or excess, if applicable, issued in all other years has been applied. With respect to health insurance and workers' compensation insurance, "exhaust" means the application of a credit for the amount of recovery under the insurance policy. With respect to another insurance guaranty association or its equivalent, "exhaust" means the application of a credit for the maximum statutory limit of recovery from that other guaranty association or its equivalent. The amount of a covered claim payable by the fund shall be reduced by the amount of any applicable credits.

"Fund" means the New Jersey Surplus Lines Insurance Guaranty Fund created pursuant to section 4 of this act.

"Insolvent insurer" means an insurer which was an eligible surplus lines insurer at the time the insurance policy was issued or when the insured event occurred, and against whom an order of liquidation has been entered with a finding of insolvency by a court of competent jurisdiction in this State or the state or place in which the surplus lines insurer is domiciled. "Insolvent insurer" does not include an admitted insurer or any insurance exchange issuing insurance pursuant to section 10 of P.L.1960, c.32 (C.17:22-6.44).

"Member insurer" means an eligible, nonadmitted or surplus lines insurer required to be a member of, and that is subject to, assessments by the fund.

"Net direct written premiums" means direct gross premiums on insurance policies written by a surplus lines insurer to which this act applies, less return premiums thereon and dividends paid or credited to policyholders on that direct business. If a policy issued by a surplus lines insurer covers risks or exposures only partially in this State, the "net direct written premiums" shall be computed, for assessment purposes, on that portion of the premium subject to the premium receipts tax levied in accordance with section 25 of P.L.1960, c.32 (C.17:22-6.59). "Net direct written premiums" do not include premiums on contracts between insurers or reinsurers.

"Person" means any individual, corporation, partnership, association or voluntary organization.

"Surplus lines insurer" means a nonadmitted insurer approved as an eligible, nonadmitted or unauthorized insurer pursuant to section 11 of P.L.1960, c.32 (C.17:22-6.45) at the time the policies were issued against which a covered claim may be filed in accordance with this act.

(cf: P.L.2004, c.165, s.2)

4. Section 4 of P.L.1984, c.101 (C. 17:22-6.73) is amended to read as follows:

4. There is created a private, nonprofit, unincorporated, legal entity to be known as the New Jersey Surplus Lines Insurance Guaranty Fund. All surplus lines insurers shall be and remain member insurers of the fund as a condition of their continued eligibility pursuant to section 11 of P.L.1960, c.32 (C.17:22-6.45). The fund shall be managed and administered by the New Jersey Property-Liability Insurance Guaranty Association. The association shall exercise all of the powers vested in the fund under this act, and such other powers as may be necessary or appropriate to the fulfilling of its responsibilities under this act. The association shall administer the affairs of the fund in accordance with the "New Jersey Property-Liability Guaranty Association Act," P.L.1974, c.17 (C.17:30A-1 et seq.) and its plan of operation adopted pursuant to section 9 (C.17:30A-9), insofar as the provisions of that act and that plan are not thereof inconsistent with the provisions of this act, and subject to any amendments to the plan as may be necessary or appropriate to effectuate the purposes of this act. After the excess moneys in the fund are transferred to the General Fund pursuant to section 5 of P.L.1984, c.101 (C.17:22-6.74), the association shall be responsible for the run-off and wind-up of all covered claims existing before June 25, 2002. On or after June 25, 2002, the operations and obligations of the fund pursuant to P.L.1984, c.101 (C.17:22-6.70 et seq.), with respect to eligible surplus lines insurers determined to be insolvent after that date, other than eligible surplus lines insurers issuing policies for medical malpractice liability insurance [or], property insurance covering owner occupied dwellings of less than four dwelling units or liquor law liability insurance coverage, shall be terminated. On or after June 25, 2002, the fund shall only provide coverage for eligible surplus lines insurers issuing medical malpractice liability insurance [or], property insurance covering owner occupied dwellings of less than four dwelling units or liquor law liability insurance providers determined to be insolvent after that date.

In order to assist the association in implementing the provisions of this act, there is created an advisory body to the board of directors of the association to be comprised of two members representing eligible surplus lines insurers and two members representing surplus lines agents, to be appointed by and to serve at the pleasure of the commissioner. The association shall consult the advisory body on any matter relating to the provisions of P.L.1984, c.101 (C.17:22-6.70 et seq.).

(cf: P.L.2002, c.30, s.4)

5. This act shall take effect immediately and be retroactive to June 24, 2002.

STATEMENT

This bill expands the categories of claims eligible for coverage by the New Jersey Surplus Lines Insurance Guaranty Fund to claims under liquor law liability insurance policies when the insurer subsequently becomes insolvent. Under current law, claims eligible for coverage under the fund are limited to medical malpractice liability insurance claims and claims under policies for property insurance covering owner occupied dwellings of less than four dwelling units whose surplus lines insurer subsequently becomes insolvent.

The provisions of the bill are retroactive to June 24, 2002 and shall apply to covered claims which arise because an eligible liquor law liability insurance provider became insolvent on or after June 25, 2002.