South Carolina § 38-90-60 - Incorporation options and requirements.

§ 38-90-60. Incorporation options and requirements.

(A) A captive insurance company may be:

(1) incorporated as a stock insurer;

(2) incorporated as a nonprofit corporation;

(3) organized as a limited liability company;

(4) incorporated as a mutual insurer without capital stock, the governing body of which is elected by the members of the insurer; or

(5) organized as a reciprocal insurer pursuant to Chapter 17.

(B) No captive insurance company shall do any business in this State unless it first obtains from the director a certificate of authority authorizing it to do business in this State. In determining whether to issue a certificate of authority to a captive insurance company, the director may consider:

(1) the character, reputation, financial responsibility, insurance experience, and business qualifications of the incorporators, officers, and directors or managers;

(2) the nature, scale, and complexity of the risks to be insured; and

(3) other aspects the director considers advisable.

(C) In the case of a captive insurance company licensed as a branch captive insurance company, the alien or foreign captive insurance company must register to do business in this State after the certificate of authority has been issued.

(D) The articles of incorporation, articles of organization, or the application of a branch captive insurance company to qualify to do business in South Carolina, and the organization fees required by Section 33-1-220, 33-31-122, or 33-44-1204, as applicable, must be transmitted to the Secretary of State, who shall record the articles of incorporation, articles of organization, or application to qualify to do business in South Carolina.

(E) A captive insurance company formed as a corporation, a nonprofit corporation, or a limited liability company, pursuant to the provisions of this chapter has the privileges and is subject to the provisions of the general corporation law, including the South Carolina Nonprofit Corporation Act of 1994 for nonprofit corporations and the South Carolina Uniform Limited Liability Company Act of 1996 for limited liability companies, as applicable, as well as the applicable provisions contained in this chapter. If a conflict occurs between a provision of the general corporation law, including the South Carolina Nonprofit Corporation Act of 1994 for nonprofit corporations and the South Carolina Uniform Limited Liability Company Act of 1996 for limited liability companies, as applicable, and a provision of this chapter, the latter controls.

(F) A captive insurance company formed as a reciprocal insurer pursuant to the provisions of this chapter has the privileges and is subject to Chapter 17 in addition to the applicable provisions of this chapter. If a conflict occurs between the provisions of Chapter 17 and the provisions of this chapter, the latter controls. To the extent a reciprocal insurer is made subject to other provisions of this title pursuant to Chapter 17, the provisions are not applicable unless they are expressly made applicable to a captive insurance company pursuant to the provisions of this chapter.

(G) A captive insurance company formed as a mutual insurer pursuant to the provisions of this chapter has the privileges and is subject to the provisions of Chapter 19 in addition to the applicable provisions of this chapter. If a conflict occurs between the provisions of Chapter 19 and this chapter, the latter controls. To the extent a mutual insurer is made subject to other provisions of this title, those provisions are not applicable unless they are expressly made applicable to a captive insurance company pursuant to this chapter.

(H) In the case of a captive insurance company formed as a corporation, a mutual insurer, or a nonprofit corporation, at least one of the members of the board of directors of a captive insurance company incorporated in this State must be a resident of this State.

(I) In the case of a captive insurance company formed as a limited liability company, at least one of the managers of the captive insurance company must be a resident of this State.

(J) In the case of a captive insurance company formed as a reciprocal insurer, at least one of the members of the subscribers' advisory committee must be a resident of this State.

(K) The articles of incorporation or bylaws of a captive insurance company may authorize a quorum of a board of directors to consist of no fewer than one-third of the fixed or prescribed number of directors as provided for in Section 33-8-240(b). In the case of a limited liability company, the articles of organization or operating agreement of a captive insurance company may authorize a quorum to consist of no fewer than one-third of the managers required by the articles of organization or the operating agreement.

HISTORY: 2000 Act No. 331, SECTION 1; 2001 Act No. 82, SECTION 31, eff July 20, 2001; 2003 Act No. 73, SECTION 24.E, eff June 25, 2003; 2004 Act No. 221, SECTION 39, eff April 29, 2004; 2004 Act No. 291, SECTION 22, eff July 29, 2004; 2009 Act No. 28, SECTION 5, eff June 2, 2009; 2014 Act No. 282 (S.909), SECTION 10, eff June 10, 2014; 2018 Act No. 251 (H.4675), SECTION 1, eff May 18, 2018; 2025 Act No. 62 (S.210), SECTION 5, eff May 22, 2025.

Effect of Amendment

2014 Act No. 282, SECTION 10, rewrote the section.

2018 Act No. 251, SECTION 2, in (B), inserted (2), redesignated (2) as (3), and made a nonsubstantive change; in (E), deleted the third and fourth sentences, which related to the application of certain provisions of this title to determining the procedures to be followed by a captive insurance company in carrying out any of the transactions described in those provisions, with exceptions; in (F), in the third sentence, substituted "unless they are expressly made applicable" for "to a reciprocal insurer formed pursuant to the provisions of this chapter unless the provisions are expressly made applicable" following "the provisions are not applicable"; and inserted (G) and redesignated (G) to (J) as (H) to (K).

2025 Act No. 62, SECTION 5, in (C), inserted "or foreign" following "alien".