Texas § IN.443.004 - DEFINITIONS

§ IN.443.004. DEFINITIONS

DEFINITIONS. (a) For the purposes of this chapter: (1) "Affiliate," "control," and "subsidiary" have the meanings assigned by Chapter 823. (2) "Alien insurer" means an insurer incorporated or organized under the laws of a jurisdiction that is not a state. (3) "Creditor" or "claimant" means a person having any claim against an insurer, whether the claim is matured or not, liquidated or unliquidated, secured or unsecured, absolute, fixed, or contingent. (4) "Delinquency proceeding" means any proceeding instituted against an insurer for the purpose of liquidating, rehabilitating, or conserving the insurer, and any proceeding under Section 443.051. (5) "Doing business," including "doing insurance business" and the "business of insurance," includes any of the following acts, whether effected by mail, electronic means, or otherwise: (A) the issuance or delivery of contracts of insurance, either to persons resident or covering a risk located in this state; (B) the solicitation of applications for contracts described by Paragraph (A) or other negotiations preliminary to the execution of the contracts; (C) the collection of premiums, membership fees, assessments, or other consideration for contracts described by Paragraph (A); (D) the transaction of matters subsequent to the execution of contracts described by Paragraph (A) and arising out of those contracts; or (E) operating as an insurer under a certificate of authority issued by the department. (6) "Domiciliary state" means the state in which an insurer is incorporated or organized or, in the case of an alien insurer, its state of entry. (7) "Foreign insurer" means an insurer domiciled in another state. (8) "Formal delinquency proceeding" means any rehabilitation or liquidation proceeding. (9) "General assets" includes: (A) all property of the estate that is not: (i) subject to a secured claim or a valid and existing express trust for the security or benefit of specified persons or classes of persons; or (ii) required by the insurance laws of this state or any other state to be held for the benefit of specified persons or classes of persons; and (B) all property of the estate and the proceeds of that property in excess of the amount necessary to discharge any secured claims described by Paragraph (A). (10) "Good faith" means honesty in fact and intention, and for the purposes of Subchapter F also requires the absence of: (A) information that would lead a reasonable person in the same position to know that the insurer is financially impaired or insolvent; and (B) knowledge regarding the imminence or pendency of any delinquency proceeding against the insurer. (11) "Guaranty association" means any mechanism mandated by Chapter 462, 463, or 2602 or other laws of this state or a similar mechanism in another state that is created for the payment of claims or continuation of policy obligations of financially impaired or insolvent insurers. (12) "Impaired" means that an insurer does not have admitted assets at least equal to all its liabilities together with the minimum surplus required to be maintained under this code. (13) "Insolvency" or "insolvent" means an insurer: (A) is unable to pay its obligations when they are due; (B) does not have admitted assets at least equal to all its liabilities; or (C) has a total adjusted capital that is less than that required under: (i) Chapter 822, 841, or 843, as applicable; or (ii) applicable rules or guidelines adopted by the commissioner under Section 822.210, 841.205, or 843.404. (14) "Insurer" means any person that has done, purports to do, is doing, or is authorized to do the business of insurance in this state, and is or has been subject to the authority of or to liquidation, rehabilitation, reorganization, supervision, or conservation by any insurance commissioner. For purposes of this chapter, any other persons included under Section 443.003 are insurers. (15) "Netting agreement" means a contract or agreement, including terms and conditions incorporated by reference in a contract or agreement, and a master agreement (which master agreement, together with all schedules, confirmations, definitions, and addenda to the agreement and transactions under the agreement, schedules, confirmations, definitions, or addenda, are to be treated as one netting agreement) that documents one or more transactions between the parties to the contract or agreement for or involving one or more qualified financial contracts and that, among the parties to the netting agreement, provides for the netting or liquidation of qualified financial contracts, present or future payment obligations, or payment entitlements under the contract or agreement, including liquidation or close-out values relating to the obligations or entitlements. (16) "New value" means money, money's worth in goods, services, or new credit, or release by a transferee of property previously transferred to the transferee in a transaction that is neither void nor voidable by the insurer or the receiver under any applicable law, including proceeds of the property. The term does not include an obligation substituted for an existing obligation. (17) "Party in interest" means the commissioner, a 10 percent or greater equity security holder in the insolvent insurer, any affected guaranty association, any nondomiciliary commissioner for a jurisdiction in which the insurer has outstanding claims liabilities, and any of the following parties that have filed a request for inclusion on the service list under Section 443.007: (A) an insurer that ceded to or assumed business from the insolvent insurer; and (B) an equity shareholder, policyholder, third-party claimant, creditor, and any other person, including any indenture trustee, with a financial or regulatory interest in the receivership proceeding. (18) "Person" means individual, aggregation of individuals, partnership, corporation, or other entity. (19) "Policy" means a written contract of insurance, written agreement for or effecting insurance, or the certificate for or effecting insurance, by whatever name. The term includes all clauses, riders, endorsements, and papers that are a part of the contract, agreement, or certificate. The term does not include a contract of reinsurance. (20) "Property of the insurer" or "property of the estate" includes: (A) all right, title, and interest of the insurer in property, whether legal or equitable, tangible or intangible, choate or inchoate, and includes choses in action, contract rights, and any other interest recognized under the laws of this state; (B) entitlements that: (i) existed prior to the entry of an order of rehabilitation or liquidation; and (ii) may arise by operation of the provisions of this chapter or other provisions of law allowing the receiver to avoid prior transfers or assert other rights; and (C) all records and data that are otherwise the property of the insurer, in whatever form maintained, within the possession, custody, or control of a managing general agent, third-party administrator, management company, data processing company, accountant, attorney, affiliate, or other person, including: (i) claims and claim files; (ii) policyholder lists; (iii) application files; (iv) litigation files; (v) premium records; (vi) rate books and underwriting manuals; (vii) personnel records; and (viii) financial records or similar records. (21) "Qualified financial contract" means a commodity contract, forward contract, repurchase agreement, securities contract, swap agreement, and any similar agreement that the commissioner determines by rule to be a qualified financial contract for the purposes of this chapter. (22) "Receiver" means liquidator, rehabilitator, or ancillary conservator, as the context requires. (23) "Receivership" means any liquidation, rehabilitation, or ancillary conservation, as the context requires. (24) "Receivership court" refers to the court in which a delinquency proceeding is pending, unless the context requires otherwise. (25) "Reinsurance" means transactions or contracts by which an assuming insurer agrees to indemnify a ceding insurer against all, or a part, of any loss that the ceding insurer might sustain under the policy or policies that it has issued or will issue. (26) "Secured claim" means any claim secured by an asset that is not a general asset. The term includes the right to set off as provided in