Tennessee § 56-12-208 - Assessments.

§ 56-12-208. Assessments.

For the purpose of providing the funds necessary to carry out the powers and duties of the association, the board of directors shall assess the member insurers, separately for each account, at such time and for such amounts as the board finds necessary. Assessments are due not less than thirty (30) days after prior written notice to the member insurers and accrue interest at ten percent (10%) per annum on and after the due date. There are two (2) classes of assessments, as follows: Class A assessments are made for the purpose of meeting administrative and legal costs and other expenses and examinations conducted under the authority of § 56-12-211(e). Class A assessments may be made whether or not related to a particular impaired or insolvent insurer; and Class B assessments are made to the extent necessary to carry out the powers and duties of the association pursuant to § 56-12-207 with regard to an impaired or an insolvent insurer. The amount of any Class A assessment is determined by the board and may be made on a pro rata or non-pro rata basis. If pro rata, the board may provide that it be credited against future Class B assessments. The amount of any Class B assessment, except for assessments related to long-term care insurance, must be allocated for assessment purposes between the accounts and subaccounts of the life insurance and annuity account pursuant to an allocation formula that may be based on the premiums or reserves of the impaired or insolvent insurer, or any other standard deemed by the board in its sole discretion as being fair and reasonable under the circumstances. The amount of the Class B assessment for long-term care insurance written by the impaired or insolvent member insurer must be allocated according to a methodology included in the plan of operation and approved by the commissioner. The methodology must provide for fifty percent (50%) of the assessment to be allocated to accident and health member insurers and fifty percent (50%) allocated to life and annuity member insurers. Class B assessments against member insurers for each account and subaccount must be in the proportion that the premiums received on business in this state by each assessed member insurer on policies or contracts covered by each account for the three (3) most recent calendar years for which information is available preceding the year in which the member insurer became impaired or insolvent, as the case may be, bears to the premiums received on business in this state for those calendar years by all assessed member insurers. Assessments for funds to meet the requirements of the association with respect to an impaired or insolvent insurer must not be made until necessary to implement the purposes of this part. Classification of assessments by subsection (b) and computation of assessments by this subsection (c) must be made with a reasonable degree of accuracy, recognizing that exact determinations may not always be possible. The association may abate or defer, in whole or in part, the assessment of a member insurer if, in the opinion of the board, payment of the assessment would endanger the ability of the member insurer to fulfill its contractual obligations. In the event an assessment against a member insurer is abated, or deferred in whole or in part, the amount by which the assessment is abated or deferred may be assessed against the other member insurers in a manner consistent with the basis for assessments set forth in this section. Subject to subdivision (e)(1)(B), the total of all assessments authorized by the association with respect to a member insurer for each subaccount of the life insurance and annuity account and for the health account must not in one (1) calendar year exceed two percent (2%) of that member insurer's average annual premiums received in this state on the policies and contracts covered by the subaccount or account during the three (3) calendar years preceding the year in which the member insurer became an impaired or insolvent insurer. If two (2) or more assessments are authorized in one (1) calendar year with respect to member insurers that become impaired or insolvent in different calendar years, the average annual premiums for purposes of the aggregate assessment percentage limitation referenced in subdivision (e)(1)(A) must be equal and limited to the higher of the three-year average annual premiums for the applicable subaccount or account as calculated pursuant to this section. If the maximum assessment, together with the other assets of the association in an account, does not provide in one (1) year in either account an amount sufficient to carry out the responsibilities of the association, the necessary additional funds must be assessed as soon thereafter as permitted by this part. The board may provide in the plan of operation a method of allocating funds among claims, whether relating to one (1) or more impaired or insolvent insurers, when the maximum assessment will be insufficient to cover anticipated claims. If the maximum assessment for a subaccount of the life and annuity account in one (1) year does not provide an amount sufficient to carry out the responsibilities of the association, then pursuant to subdivision (c)(2), the board has the authority to assess the other subaccounts of the life and annuity account for the necessary additional amount, subject to the maximum stated in subdivision (e)(1). The board may, by an equitable method established in the plan of operation, refund to member insurers, in proportion to the contribution of each member insurer to that account, the amount by which the assets of the account exceed the amount the board finds is necessary to carry out during the coming year the obligations of the association with regard to that account, including assets accruing from assignment, subrogation, net realized gains, and income from investment. A reasonable amount may be retained in any account to provide funds for the continuing expenses of the association and for future claims. It is proper for any member insurer, in determining its premium rates and policy owner dividends as to any kind of insurance or health maintenance organization business within the scope of this part, to consider the amount reasonably necessary to meet its assessment obligations under this part. The association shall issue to each member insurer paying an assessment under this part, other than Class A assessments, a certificate of contribution, in a form prescribed by the commissioner, for the amount of the assessment paid. All outstanding certificates must be of equal dignity and priority without reference to amounts or dates of issue. A certificate of contribution may be shown by the member insurer in its financial statement as an asset in the form and for the amount, if any, and period of time as the commissioner may approve. A member insurer that wishes to protest all or part of an assessment shall pay when due the full amount of the assessment set forth in the notice provided by the association so that the payment is available to meet association obligations during the pendency of the protest or any subsequent appeal. Payment must be accompanied by a written statement that the payment is made under protest and setting forth a brief statement of the grounds for the protest. Except as provided in subdivision (i)(4), within sixty (60) days following the payment of an assessment under protest by a member insurer, the association shall notify the member insurer in writing of its determination with respect to the protest unless the association notifies the member insurer that additional time is required to resolve the issues raised by the protest. Within thirty (30) days after a final decision has been made, the association shall notify the protesting member insurer in writing of that final decision. Within sixty (60) days of receipt of notice of the final decision, the protesting member insurer may appeal that final action to the commissioner. In the alternative to rendering a final decision with respect to a protest based on a question regarding the assessment base, the association may refer protests to the commissioner for a final decision, with or without a recommendation from the association. If the protest or appeal on the assessment is upheld, then the association shall return the amount paid in error or excess plus applicable interest to the member insurer. Interest on a refund due a protesting member insurer must be paid at the rate actually earned by the association. The association may request information of member insurers in order to aid in the exercise of its power under this section, and member insurers shall promptly comply with a request. Acts 1988, ch. 1032, § 8; 2019, ch. 5, § 6. Compiler's Notes. Acts 2019, ch. 5, § 8 provided that sections 2 through 6 of the act, which amended §§ 56-12-203 , 56-12-204 , 56-12-205 , 56-12-207 , and 56-12-208 , shall not apply to any member insurer that is impaired or insolvent on July 1, 2019. Amendments. The 2019 amendment, in (a), substituted “Assessments are due not less than thirty (30) days after prior written notice to the member insurers and accrue interest” for “Assessments shall be due not less than thirty (30) days after prior written notice to the member insurers and shall accrue interest” in the second sentence; in (b), substituted “are two (2) classes of assessments” for “shall be two (2) assessments”; in (b)(1) and (b)(2), substituted “are made” for “shall be made”; rewrote (c) which read: “(c)(1) The amount of any Class A assessment shall be determined by the board and may be made on a pro rata or non-pro rata basis. If pro rata, the board may provide that it be credited against future Class B assessments. A non-pro rata assessment shall not exceed one hundred fifty dollars ($150) per member insurer in any one (1) calendar year. The amount of any Class B assessment shall be allocated for assessment purposes among the accounts pursuant to an allocation formula that may be based on the premiums or reserves of the impaired or insolvent insurer or any other standard deemed by the board in its sole discretion as being fair and reasonable under the circumstances. (2) Class B assessments against member insurers for each account shall be in the proportion that the premiums received on business in this state by each assessed member insurer or policies or contracts covered by each account for the three (3) most recent calendar years for which information is available preceding the year in which the insurer became impaired or insolvent, as the case may be, bears to such premiums received on business in this state for such calendar years by all assessed member insurers. (3) Assessments for funds to meet the requirements of the association with respect to an impaired or insolvent insurer shall not be made until necessary to implement the purposes of this part. Classification of assessments by subsection (b) and computation of assessments by this subsection (c) shall be made with a reasonable degree of accuracy, recognizing that exact determinations may not always be possible.”; in (d), substituted “the assessment is abated” for the “such assessment is abated” in the second sentence; rewrote (e), which read: “(e)(1) The total of all assessments upon a member insurer for each account shall not in any one (1) calendar year exceed two percent (2%) of such insurer's average premiums received in this state on the policies and contracts covered by the account during the three (3) calendar years preceding the year in which the insurer became an impaired or insolvent insurer. If the maximum assessment, together with the other assets of the association in any account, does not provide in any one (1) year in either account an amount sufficient to carry out the responsibilities of the association, the necessary additional funds shall be assessed as soon thereafter as permitted by this part. (2) The board may provide in the plan of operation a method of allocating funds among claims, whether relating to one (1) or more impaired or insolvent insurers, when the maximum assessment will be insufficient to cover anticipated claims.”; in (f), deleted “as” preceding “established in the plan of operation, refund to member insurers, in proportion to the contribution of each” and inserted “member” thereafter in the first sentence, substituted “claims” for “losses” at the end; in (g), inserted “or health maintenance organization business”; in (h), inserted “member” twice, deleted “so” following “the amount of the assessment”, substituted “must” for “shall”, and substituted “asset in the form and for the amount” for “such form and for such amount” in the third sentence; and added (i) and (j). Effective Dates. Acts 2019, ch. 5, § 9. July 1, 2019. Collateral References. Validity, construction, and application of Uniform Insurers Liquidation Act. 44 A.L.R.5th 683.