This chapter shall be known as the Alabama Risk-Based Capital (RBC) for Insurers Act.

(a) The provisions of this chapter are supplemental to any other provisions of the laws of this state, and shall not preclude or limit any other powers or duties of the commissioner under other laws, including, but not limited to, Chapter 32, and Section 27-2-33.

(b) The commissioner may adopt reasonable rules necessary for the implementation of this chapter.

(c) The commissioner may exempt from the application of this chapter any domestic property and casualty insurer that meets all of the following criteria:

(1) Writes direct business only in this state.

(2) Writes direct annual premiums of two million dollars ($2,000,000) or less.

(3) Assumes no reinsurance in excess of five percent of direct premium written.

(a) Any foreign insurer shall, upon the written request of the commissioner, submit to the commissioner an RBC report, as of the end of the calendar year just ended, the later of either:

(1) The date an RBC report would be required to be filed by a domestic insurer under this chapter.

(2) Fifteen days after the request is received by the foreign insurer.

Any foreign insurer shall, at the written request of the commissioner, promptly submit to the commissioner a copy of any RBC plan that is filed with the insurance commissioner of any other state.

(b) In the event of a company action level event, regulatory action level event, or authorized control level event with respect to any foreign insurer, as determined under the RBC statute applicable in the state of domicile of the insurer or, if no RBC statute is in force in that state, pursuant to this chapter, or if the insurance commissioner of the state of domicile of the foreign insurer fails to require the foreign insurer to file an RBC plan, in the manner specified under that state's RBC statute or, if no RBC statute is in force in that state, under Section 27-2B-4, the commissioner may require the foreign insurer to file an RBC plan with the commissioner. In that event, the failure of the foreign insurer to file an RBC plan with the commissioner shall be grounds to order the insurer to cease and desist from writing new insurance business in this state.

(c) In the event of a mandatory control level event with respect to any foreign insurer, if no domiciliary receiver has been appointed with respect to the foreign insurer under the rehabilitation and liquidation statute applicable in the state of domicile of the foreign insurer, the commissioner may make application to the circuit court permitted under Chapter 32, with respect to the liquidation of property of foreign insurers found in this state. The occurrence of the mandatory control level event shall be considered adequate grounds for the application.

There shall be no liability on the part of, and no cause of action shall arise against, the commissioner or the Department of Insurance, or its employees or agents for any action taken by them in the performance of their powers and duties pursuant to this chapter.

All notices by the commissioner to an insurer that may result in regulatory action pursuant to this chapter, shall be effective upon dispatch if transmitted by registered or certified mail, or in the case of any other transmission shall be effective upon the insurer's receipt of the notice.

(a) For RBC reports required to be filed by life insurers with respect to 1996, the following requirements shall apply in lieu of the provisions of Sections 27-2B-4, 27-2B-5, 27-2B-6, and 27-2B-7 as follows:

(1) In the event of a company action level event, with respect to a domestic insurer, the commissioner shall take no regulatory action hereunder.

(2) In the event of an regulatory action level event under subdivisions (1), (2), or (3) of subsection (a) of Section 27-2B-5, the commissioner shall take the actions required under Section 27-2B-4.

(3) In the event of a regulatory action level event under subdivisions (4), (5), (6), (7), (8), or (9) of subsection (a) of Section 27-2B-5, or an authorized control level event, the commissioner shall take the actions required under Section 27-2B-5 with respect to the insurer.

(4) In the event of a mandatory control level event with respect to an insurer, the commissioner shall take the actions required under Section 27-2B-6.

(b) For RBC reports required to be filed by property and casualty insurers with respect to 1996, the following requirements shall apply in lieu of the provisions of Sections 27-2B-4, 27-2B-5, 27-2B-6, and 27-2B-7:

(1) In the event of a company action level event with respect to a domestic insurer, the commissioner shall take no regulatory action hereunder.

(2) In the event of a regulatory action level event under subdivisions (1), (2), or (3) of subsection (a) of Section 27-2B-5, the commissioner shall take the actions required under Section 27-2B-4.

(3) In the event of a regulatory action level event under subdivisions (4), (5), (6), (7), (8), or (9) of subsection (a) of Section 27-2B-5, or an authorized control level event, the commissioner shall take the actions required under Section 27-2B-5 with respect to the insurer.

(4) In the event of a mandatory control level event with respect to an insurer, the commissioner shall take the actions required under Section 27-2B-6.

As used in this chapter, these terms shall have the following meanings:

(1) ADJUSTED RBC REPORT. An RBC report which has been adjusted by the commissioner in accordance with subsection (c) of Section 27-2B-3.

(2) CORRECTIVE ORDER. An order issued by the commissioner specifying corrective actions which the commissioner has determined are required.

(3) DOMESTIC INSURER. Any insurance company domiciled in this state.

(4) FOREIGN INSURER. Any insurance company which is licensed to do business in this state but not domiciled in this state.

(5) LIFE OR HEALTH INSURER. Any insurance company licensed to do business in this state and authorized to transact life and/or disability insurance, including a property and casualty insurer writing only disability insurance, but shall not include fraternal benefit societies, health care service corporations, dental service organizations, health maintenance organizations, dental plan organizations or mutual aid associations.

(6) NAIC. The National Association of Insurance Commissioners.

(7) NEGATIVE TREND. With respect to a life or health insurer, a negative trend over a period of time, as determined in accordance with the trend test calculation included in the RBC instructions.

(8) PROPERTY AND CASUALTY INSURER. Any insurance company licensed to do business in this state and authorized to transact property, marine, casualty and/or surety insurance, but shall not include monoline mortgage guaranty insurers, financial guaranty insurers and title insurers.

(9) RBC. Risk-based capital.

(10) RBC INSTRUCTIONS. The RBC report including risk-based capital instructions adopted by the NAIC, as the RBC instructions may be amended by the NAIC from time to time in accordance with the procedures adopted by the NAIC.

(11) RBC LEVEL. An insurer's company action level RBC, regulatory action level RBC, authorized control level RBC, or mandatory control level RBC where:

a. 'Company action level RBC' means, with respect to any insurer, the product of 2.0 and its authorized control level RBC.

b. 'Regulatory action level RBC' means the product of 1.5 and its authorized control level RBC.

c. 'Authorized control level RBC' means the number determined under the risk-based capital formula in accordance with the RBC instructions.

d. 'Mandatory control level RBC' means the product of .70 and the authorized control level RBC.

(12) RBC PLAN. A comprehensive financial plan containing the elements specified in subsection (b) of Section 27-2B-4. If the commissioner rejects the RBC plan, and it is revised by the insurer, with or without the commissioner's recommendation, the plan shall be called the revised RBC plan.

(13) RBC REPORT. The report required in Section 27-2B-3.

(14) STATUTORY CAPITAL AND SURPLUS. The combination of capital and surplus. As used in this definition, these terms shall have the following meanings:

a. Capital. At any particular time, the sum of (i) the par value of all shares of the insurer having a par value that have been issued, (ii) the amount of consideration received by the insurer for all shares of the insurer without par value that have been issued, except any part of the consideration therefor as may have been allocated to surplus in a manner permitted by law, and (iii) any amounts not included in clauses (i) and (ii) of this subdivision as have been transferred to capital of the insurer, whether upon the issue of shares as a share dividend or otherwise, minus all reductions from the sum as have been affected in a manner permitted by law.

b. Surplus. The excess of the net admitted assets of an insurer over its capital. As used in this definition, 'net admitted assets' means the excess of admitted assets of an insurer over its liabilities.

(15) TOTAL ADJUSTED CAPITAL. The sum of:

a. An insurer's statutory capital and surplus.

b. Other items, if any, as the RBC instructions may provide.

(a) Every domestic insurer shall, on or prior to each March 1 (the 'filing date'), prepare and submit to the commissioner a report of its RBC levels as of the end of the calendar year just ended, in a form and containing information as is required by the RBC instructions. In addition, every domestic insurer shall file its RBC report with:

(1) The NAIC according to the RBC instructions.

(2) The insurance commissioner in any state in which the insurer is authorized to do business, if the insurance commissioner has notified the insurer of its request in writing, in which case the insurer shall file its RBC report not later than the later of either of the following:

a. Fifteen days from the receipt of notice to file its RBC report with that state.

b. The filing date.

(b) A life and health insurer's RBC shall be determined in accordance with the formula set forth in the RBC instructions. The formula shall take into account, and may adjust for the covariance between:

(1) The risk with respect to the insurer's assets.

(2) The risk of adverse insurance experience with respect to the insurer's liabilities and obligations.

(3) The interest rate risk with respect to the insurer's business.

(4) All other business risks and other relevant risks as are set forth in the RBC instructions. Subdivisions (1) to (4), inclusive, shall be determined in each case by applying the factors in the manner set forth in the RBC instructions.

(c) A property and casualty insurer's RBC shall be determined in accordance with the formula set forth in the RBC instructions. The formula shall take into account and may adjust for the covariance between the following:

(1) Asset risk.

(2) Credit risk.

(3) Underwriting risk.

(4) All other business risks and other relevant risks as are set forth in the RBC instructions. Subdivisions (1) to (4), inclusive, shall be determined by applying the factors in the manner set forth in the RBC instructions.

(d) An excess of capital over the amount produced by the risk-based capital requirements contained in this chapter and the formulas, schedules, and instructions referenced in this chapter is desirable in the business of insurance. Accordingly, insurers should seek to maintain capital above the RBC levels required by this chapter. Additional capital is used and useful in the insurance business and helps to secure an insurer against various risks inherent in or affecting the business of insurance and not accounted for or only partially measured by the risk-based capital requirements contained in this chapter.

(e) If a domestic insurer files an RBC report which in the judgment of the commissioner is inaccurate, then the commissioner shall adjust the RBC report to correct the inaccuracy and shall notify the insurer of the adjustment. The notice shall contain a statement of the reason for the adjustment. An RBC report as so adjusted is referred to as an 'adjusted RBC report.'

(a) 'Company action level event' means any of the following events:

(1) The filing of an RBC report by an insurer which indicates either of the following:

a. The insurer's total adjusted capital is greater than or equal to its regulatory action level RBC, but less than its company action level RBC.

b. If a life or health insurer, the insurer has total adjusted capital which is greater than or equal to its company action level RBC but less than the product of its authorized control level RBC and 2.5 and has a negative trend.

(2) The notification by the commissioner to the insurer of an adjusted RBC report that indicates an event in subdivision (1) of this subsection, provided the insurer does not challenge the adjusted RBC report under Section 27-2B-8.

(3) If, pursuant to Section 27-2B-8, an insurer challenges an adjusted RBC report that indicates the event in subdivision (1) of this subsection, the notification by the commissioner to the insurer that the commissioner has, after a hearing, rejected the insurer's challenge.

(b) In the event of a company action level event, the insurer shall prepare and submit to the commissioner an RBC plan which shall include all of the following:

(1) Identify the conditions which contribute to the company action level event.

(2) Contain proposals of corrective actions which the insurer intends to take and would be expected to result in the elimination of the company action level event.

(3) Provide projections of the insurer's financial results in the current year and at least the four succeeding years, both in the absence of proposed corrective actions and giving effect to the proposed corrective actions, including projections of statutory operating income, net income, capital, or surplus. The projections for both new and renewal business may include separate projections for each major line of business and separately identify each significant income, expense, and benefit component.

(4) Identify the key assumptions impacting the insurer's projections and the sensitivity of the projections to the assumptions.

(5) Identify the quality of, and problems associated with, the insurer's business, including, but not limited to, its assets, anticipated business growth and associated surplus strain, extraordinary exposure to risk, mix of business, and use of reinsurance, if any, in each case.

(c) The RBC plan shall be submitted as follows:

(1) Within 45 days of the company action level event.

(2) If the insurer challenges an adjusted RBC report pursuant to Section 27-2B-8, within 45 days after notification to the insurer that the commissioner has, after a hearing, rejected the insurer's challenge.

(d) Within 60 days after the submission by an insurer of an RBC plan to the commissioner, the commissioner shall notify the insurer whether the RBC plan shall be implemented or is, in the judgment of the commissioner, unsatisfactory. If the commissioner determines the RBC plan is unsatisfactory, the notification to the insurer shall set forth the reasons for the determination, and may set forth proposed revisions which will render the RBC plan satisfactory, in the judgment of the commissioner. Upon notification from the commissioner, the insurer shall prepare a revised RBC plan, which may incorporate by reference any revisions proposed by the commissioner, and shall submit the revised RBC plan to the commissioner as follows:

(1) Within 45 days after the notification from the commissioner.

(2) If the insurer challenges the notification from the commissioner under Section 27-2B-8, within 45 days after a notification to the insurer that the commissioner has, after a hearing, rejected the insurer's challenge.

(e) In the event of a notification by the commissioner to an insurer that the insurer's RBC plan or revised RBC plan is unsatisfactory, the commissioner may, at the commissioner's discretion, subject to the insurer's right to a hearing under Section 27-2B-8, specify in the notification that the notification constitutes a regulatory action level event.

(f) Every domestic insurer that files an RBC plan or revised RBC plan with the commissioner shall file a copy of the RBC plan or revised RBC plan with the insurance commissioner in any state in which the insurer is authorized to do business if:

(1) The state has an RBC provision substantially similar to subsection (a) of Section 27-2B-9.

(2) The insurance commissioner of that state has notified the insurer of its request for the filing in writing, in which case the insurer shall file a copy of the RBC plan or revised RBC plan in that state no later than the later of either of the following:

a. Fifteen days after the receipt of notice to file a copy of its RBC plan or revised RBC plan with the state.

b. The date on which the RBC plan or revised RBC plan is filed under subsections (c) and (d) of this section.

(a) 'Regulatory action level event' means, with respect to any insurer, any of the following events:

(1) The filing of an RBC report by the insurer which indicates that the insurer's total adjusted capital is greater than or equal to its authorized control level RBC but less than its regulatory action level RBC.

(2) The notification by the commissioner to an insurer of an adjusted RBC report that indicates the event in subdivision (1), provided the insurer does not challenge the adjusted RBC report under Section 27-2B-8.

(3) If, pursuant to Section 27-2B-8, the insurer challenges an adjusted RBC report that indicates the event in subdivision (1), the notification by the commissioner to the insurer that the commissioner has, after a hearing, rejected the insurer's challenge.

(4) The failure of the insurer to file an RBC report by the filing date, unless the insurer has provided an explanation for the failure which is satisfactory to the commissioner and has cured the failure within 10 days after the filing date.

(5) The failure of the insurer to submit an RBC plan to the commissioner within the time period set forth in subsection (c) of Section 27-2B-4.

(6) Notification by the commissioner to the insurer of both of the following:

a. The RBC plan or revised RBC plan submitted by the insurer is, in the judgment of the commissioner, unsatisfactory.

b. The notification constitutes a regulatory action level event with respect to the insurer, provided the insurer has not challenged the determination under Section 27-2B-8.

(7) If, pursuant to Section 27-2B-8, the insurer challenges a determination by the commissioner under subdivision (6), the notification by the commissioner to the insurer that the commissioner has, after a hearing, rejected the challenge.

(8) Notification by the commissioner to the insurer that the insurer has failed to adhere to its RBC plan or revised RBC plan, but only if the failure has a substantial adverse effect on the ability of the insurer to eliminate the company action level event in accordance with its RBC plan or revised RBC plan and the commissioner has so stated in the notification, provided the insurer has not challenged the determination under Section 27-2B-8.

(9) If, pursuant to Section 27-2B-8, the insurer challenges a determination by the commissioner under subdivision (8), the notification by the commissioner to the insurer that the commissioner has, after a hearing, rejected the challenge.

(b) In the event of a regulatory action level event, the commissioner shall do all of the following:

(1) Require the insurer to prepare and submit an RBC plan or, if applicable, a revised RBC plan.

(2) Perform an examination or analysis as the commissioner deems necessary of the assets, liabilities, and operations of the insurer including a review of its RBC plan or revised RBC plan.

(3) Subsequent to the examination or analysis, issue an order specifying corrective action as the commissioner shall determine is required.

(c) In determining corrective actions, the commissioner may take into account the factors as are deemed relevant with respect to the insurer, based upon the commissioner's examination or analysis of the assets, liabilities, and operations of the insurer, including, but not limited to, the results of any sensitivity tests undertaken pursuant to the RBC instructions. The RBC plan or revised RBC plan shall be submitted:

(1) Within 45 days after the occurrence of the regulatory action level event.

(2) If the insurer challenges an adjusted RBC report pursuant to Section 27-2B-8, and the challenge is not frivolous in the judgment of the commissioner, within 45 days after the notification to the insurer that the commissioner has, after a hearing, rejected the insurer's challenge.

(3) If the insurer challenges a revised RBC plan pursuant to Section 27-2B-8, and the challenge is not frivolous in the judgment of the commissioner, within 45 days after the notification to the insurer that the commissioner has, after a hearing, rejected the insurer's challenge.

(d) The commissioner may retain actuaries and investment experts and other consultants, as may be necessary in the judgment of the commissioner, to review the insurer's RBC plan or revised RBC plan or to examine or analyze the assets, liabilities, and operations of the insurer, and to formulate the corrective order with respect to the insurer. The fees, costs, and expenses relating to consultants shall be borne by the affected insurer or other party as directed by the commissioner.

(a) 'Authorized control level event' means any of the following events:

(1) The filing of an RBC report by the insurer which indicates that the insurer's total adjusted capital is greater than or equal to its mandatory control level RBC but less than its authorized control level RBC.

(2) The notification by the commissioner to the insurer of an adjusted RBC report that indicates the event in subdivision (1), provided the insurer does not challenge the adjusted RBC report under Section 27-2B-8.

(3) If, pursuant to Section 27-2B-8, the insurer challenges an adjusted RBC report that indicates the event in subdivision (1), notification by the commissioner to the insurer that the commissioner has, after a hearing, rejected the insurer's challenge.

(4) The failure of the insurer to respond, in a manner satisfactory to the commissioner, to a corrective order, provided the insurer has not challenged the corrective order under Section 27-2B-8.

(5) If the insurer has challenged a corrective order under Section 27-2B-8 and the commissioner has, after a hearing, rejected the challenge or modified the corrective order, the failure of the insurer to respond, in a manner satisfactory to the commissioner, to the corrective order subsequent to rejection or modification by the commissioner.

(b) In the event of an authorized control level event with respect to an insurer, the commissioner shall:

(1) Take actions as required under Section 27-2B-5 regarding an insurer with respect to which a regulatory action level event has occurred, or

(2) If the commissioner deems it to be in the best interests of the policyholders and creditors of the insurer and of the public, take actions as necessary to cause the insurer to be placed under regulatory control, pursuant to Chapter 32. In the event the commissioner takes actions, the authorized control level event shall be deemed sufficient grounds for the commissioner to take action pursuant to Chapter 32, and the commissioner shall have the rights, powers, and duties with respect to the insurer as are set forth in Chapter 32.

(a) 'Mandatory control level event' means any of the following events:

(1) The filing of an RBC report which indicates that the insurer's total adjusted capital is less than its mandatory control level RBC.

(2) Notification by the commissioner to the insurer of an adjusted RBC report that indicates the event in subdivision (1), provided the insurer does not challenge the adjusted RBC report under Section 27-2B-8.

(3) If, pursuant to Section 27-2B-8, the insurer challenges an adjusted RBC report that indicates the event in subdivision (1), notification by the commissioner to the insurer that the commissioner has, after a hearing, rejected the insurer's challenge.

(b) In the event of a mandatory control level event:

(1) With respect to a life insurer, the commissioner shall take actions as necessary to place the insurer under regulatory control pursuant to Chapter 32. In that event, the mandatory control level event shall be deemed sufficient grounds for the commissioner to take action pursuant to Chapter 32, and the commissioner shall have the rights, powers, and duties with respect to the insurer as are set forth in Chapter 32. Notwithstanding any of the foregoing, the commissioner may forego action for up to 90 days after the mandatory control level event if the commissioner finds there is a reasonable expectation that the mandatory control level event may be eliminated within the 90-day period.

(2) With respect to a property and casualty insurer, the commissioner shall take actions as necessary to place the insurer under regulatory control pursuant to Chapter 32. In the case of an insurer which is writing no business and which is running-off its existing business, the commissioner may allow the insurer to continue its run-off under his or her supervision. In either event, the mandatory control level event shall be deemed sufficient grounds for the commissioner to take action, pursuant to Chapter 32, and the commissioner shall have the rights, powers, and duties with respect to the insurer as are set forth in Chapter 32. Notwithstanding any of the foregoing, the commissioner may forego action for up to 90 days after the mandatory control level event if the commissioner finds there is a reasonable expectation that the mandatory control level event may be eliminated within the 90-day period.

(a) An insurer shall have the right to a departmental hearing, on the record, at which the insurer may challenge a determination or action by the commissioner upon any of the following:

(1) Notification to an insurer by the commissioner of an adjusted RBC report.

(2) Notification to an insurer by the commissioner that:

a. The insurer's RBC plan or revised RBC plan is unsatisfactory.

b. The notification constitutes a regulatory action level event with respect to the insurer.

(3) Notification to any insurer by the commissioner that the insurer has failed to adhere to its RBC plan or revised RBC plan and that the failure has a substantial adverse effect on the ability of the insurer to eliminate the company action level event with respect to the insurer in accordance with its RBC plan or revised RBC plan.

(4) Notification to an insurer by the commissioner of a corrective order with respect to the insurer.

(b) The insurer shall notify the commissioner of its request for a hearing within five days after the notification by the commissioner under subdivisions (1), (2), (3), or (4) of subsection (a). Upon receipt of the insurer's request for a hearing, the commissioner shall set a date for the hearing, which date shall be no less than 10 nor more than 30 days after the date of the insurer's request.

(a) All RBC reports, to the extent the information therein is not required to be set forth in a publicly available annual statement schedule, and RBC plans, including the results or report of any examination or analysis of an insurer performed pursuant hereto and any corrective order issued by the commissioner pursuant to examination or analysis, with respect to any domestic insurer or foreign insurer which are filed with the commissioner constitute information that may be damaging to the insurer if made available to its competitors and therefore shall be kept confidential by the commissioner. This information shall not be made public or be subject to subpoena, other than by the commissioner, and then only for the purpose of enforcement actions taken by the commissioner pursuant to this chapter or any other provision of the insurance laws of this state.

(b) It is the judgment of the Legislature that the comparison of an insurer's total adjusted capital to any of its RBC levels is a regulatory tool which may indicate the need for possible corrective action with respect to the insurer, and is not intended as a means to rank insurers generally. Therefore, except as otherwise required under the provisions of this chapter, the making, publishing, disseminating, circulating, or placing before the public, or causing, directly or indirectly to be made, published, disseminated, circulated, or placed before the public, in a newspaper, magazine, or other publication, or in the form of a notice, circular, pamphlet, letter, or poster, or over any radio or television station, or in any other way, an advertisement, announcement, or statement containing an assertion, representation, or statement with regard to the RBC levels of any insurer, or of any component derived in the calculation, by any insurer, agent, broker, or other person engaged in any manner in the insurance business, would be misleading and is therefore prohibited. Except, if any materially false statement with respect to the comparison regarding an insurer's total adjusted capital to its RBC levels, or any of them, or an inappropriate comparison of any other amount to the insurer's RBC levels is published in any written publication, and the insurer is able to demonstrate to the commissioner with substantial proof the falsity of the statement, or the inappropriateness, as the case may be, then the insurer may publish an announcement in a written publication if the sole purpose of the announcement is to rebut the materially false statement.

(c) It is the further judgment of the Legislature that the RBC instructions, RBC reports, adjusted RBC reports, RBC plans, and revised RBC plans are intended solely for use by the commissioner in monitoring the solvency of insurers and the need for possible corrective action with respect to insurers and shall not be used by the commissioner for ratemaking nor considered or introduced as evidence in any rate proceeding nor used by the commissioner to calculate or derive any elements of an appropriate premium level or rate of return for any line of insurance which an insurer or any affiliate is authorized to write.