2006 Georgia Code - 33-59-7

33-59-7. (a) Authority, scope, and scheduling of examinations. (1) The Commissioner may conduct an examination under this chapter of a licensee as often as the Commissioner in his or her sole discretion deems appropriate. (2) For purposes of completing an examination of a licensee under this chapter, the Commissioner may examine or investigate any person, or the business of any person, in so far as the examination or investigation is, in the sole discretion of the Commissioner, necessary or material to the examination of the licensee. (3) In lieu of an examination under this chapter of any foreign or alien licensee licensed in this state, the Commissioner may, at the Commissioneŕs discretion, accept an examination report on the licensee as prepared by the commissioner for the licenseés state of domicile or port-of-entry state. (b) Record retention requirements. (1) A person required to be licensed by this chapter shall for five years retain copies of all: (A) Proposed, offered, or executed contracts, underwriting documents, policy forms, and applications from the date of the proposal, offer, or execution of the contract, whichever is later; (B) All checks, drafts, or other evidence and documentation related to the payment, transfer, deposit, or release of funds from the date of the transaction; and (C) All other records and documents related to the requirements of this chapter. (2) This Code section does not relieve a person of the obligation to produce these documents to the Commissioner after the retention period has expired if the person has retained the documents. (3) Records required to be retained by this Code section shall be legible and complete and may be retained in paper, photograph, micro process, magnetic, mechanical, or electronic media or by any process that accurately reproduces or forms a durable medium for the reproduction of a record. (c) Conduct of examinations. (1) Upon determining that an examination should be conducted, the Commissioner shall issue an examination warrant appointing one or more examiners to perform the examination and instructing them as to the scope of the examination. In conducting the examination, the examiner shall observe those guidelines and procedures set forth in the ExaminerśHandbook adopted by the National Association of Insurance Commissioners. The Commissioner may also employ such other guidelines or procedures as the Commissioner may deem appropriate. (2) Every licensee or person from whom information is sought and its officers, directors, and agents shall provide to the examiners timely, convenient, and free access at all reasonable hours at its offices to all books, records, accounts, papers, documents, assets, and computer or other recordings relating to the property, assets, business, and affairs of the licensee being examined. The officers, directors, employees, and agents of the licensee or person shall facilitate the examination and aid in the examination so far as it is in their power to do so. The refusal of a licensee, by its officers, directors, employees, or agents, to submit to examination or to comply with any reasonable written request of the Commissioner shall be grounds for suspension or refusal of or nonrenewal of any license or authority held by the licensee to engage in the life settlement business or other business subject to the Commissioneŕs jurisdiction. Any proceedings for suspension, revocation, or refusal of any license or authority shall be conducted pursuant to Code Section 33-2-24. (3) The Commissioner shall have the power to issue subpoenas, to administer oaths, and to examine under oath any person as to any matter pertinent to the examination. Upon the failure or refusal of a person to obey a subpoena, the Commissioner may petition a court of competent jurisdiction and, upon proper showing, the court may enter an order compelling the witness to appear and testify or produce documentary evidence. Failure to obey the court order shall be punishable as contempt of court. (4) When making an examination under this chapter, the Commissioner may retain attorneys, appraisers, independent actuaries, independent certified public accountants, or other professionals and specialists as examiners, the reasonable cost of which shall be borne by the licensee that is the subject of the examination. (5) Nothing contained in this chapter shall be construed to limit the Commissioneŕs authority to terminate or suspend an examination in order to pursue other legal or regulatory action pursuant to the insurance laws of this state. Findings of fact and conclusions made pursuant to any examination shall be prima-facie evidence in any legal or regulatory action. (6) Nothing contained in this chapter shall be construed to limit the Commissioneŕs authority to use and, if appropriate, to make public any final or preliminary examination report, any examiner or licensee work papers or other documents, or any other information discovered or developed during the course of any examination in the furtherance of any legal or regulatory action which the Commissioner may, in his or her sole discretion, deem appropriate. (7) The licensee shall pay the charges incurred in the examination, including the expenses of the Commissioner or his or her designee and the expenses and compensation of the Commissioneŕs examiners and assistants. If a licensee feels the fees assessed are unreasonable in relation to the examination performed, the licensee may appeal the assessments pursuant to Chapter 13 of Title 50. If no hearing is requested or if after a hearing and appeal process the licensee refuses or fails to pay, the Commissioner or his or her designee shall promptly institute a civil action to recover the expenses of examination against a licensee. (d) Examination reports. (1) Examination reports shall comprise only facts appearing upon the books, records, or other documents of the licensee, its agents, or other persons examined or as ascertained from the testimony of its officers or agents or other persons examined concerning its affairs and such conclusions and recommendations as the examiners find reasonably warranted from the facts. (2) No later than 60 days following completion of the examination, the examiner in charge shall file with the Commissioner a verified written report of examination under oath. Upon receipt of the verified report, the Commissioner shall transmit the report to the licensee examined, together with a notice that shall afford the licensee examined a reasonable opportunity of not more than 30 days to make a written submission or rebuttal with respect to any matters contained in the examination report. (3) Within 30 days of the end of the period allowed for the receipt of written submissions or rebuttals, the Commissioner shall fully consider and review the report, together with any written submissions or rebuttals and any relevant portions of the examineŕs work papers and enter an order: (A) Adopting the examination report as filed or with modification or corrections. If the examination report reveals that the company is operating in violation of any law, rule, or prior order of the Commissioner, the Commissioner may order the company to take any action the Commissioner considers necessary and appropriate to cure the violation; (B) Rejecting the examination report with directions to the examiners to reopen the examination for purposes of obtaining additional data, documentation, or information and refiling; or (C) Calling for an investigatory hearing with no less than 20 dayśnotice to the company for purposes of obtaining additional documentation, data, information, and testimony. (4) All orders entered pursuant to this subsection shall be accompanied by findings and conclusions resulting from the Commissioneŕs consideration and review of the examination report, relevant examiner work papers, and any written submissions or rebuttals. Any order issued pursuant to subparagraph (A) of paragraph (3) of this subsection shall be considered a final administrative decision and may be appealed pursuant to Chapter 13 of Title 50 and shall be served upon the company by certified mail or statutory overnight delivery, together with a copy of the adopted examination report. Within 30 days of the issuance of the adopted report the company shall file affidavits executed by each of its directors stating under oath that they have received a copy of the adopted report and related orders. (5) Hearings conducted pursuant to this Code section shall be subject to the following requirements: (A) Any hearing conducted pursuant to this Code section by the Commissioner or the Commissioneŕs authorized representative shall be conducted as a nonadversarial confidential investigatory proceeding as necessary for the resolution of any inconsistencies, discrepancies, or disputed issues apparent upon the face of the filed examination report or raised by or as a result of the Commissioneŕs review of relevant work papers or by the written submission or rebuttal of the company. Within 20 days of the conclusion of any hearing, the Commissioner shall enter an order pursuant to paragraph (3) of this subsection; (B) The Commissioner may not appoint an examiner as an authorized representative to conduct the hearing. The hearing shall proceed expeditiously with discovery by the company limited to the examineŕs work papers which tend to substantiate any assertions set forth in any written submission or rebuttal. The Commissioner or the Commissioneŕs representative may issue subpoenas for the attendance of any witnesses or the production of any documents considered relevant to the investigation whether under the control of the Commissioner, the company, or other persons. The documents produced shall be included in the record and testimony taken by the Commissioner or the Commissioneŕs representative shall be under oath and preserved for the record. Nothing contained in this Code section shall require the Commissioner to disclose any information or records which would indicate or show the existence or content of any investigation or activity of a criminal justice agency; and (C) The hearing shall proceed with the Commissioner or the Commissioneŕs representative posing questions to the persons subpoenaed. Thereafter, the company and the department may present testimony relevant to the investigation. Cross-examination may be conducted only by the Commissioner or the Commissioneŕs representative. The company and the Commissioner shall be permitted to make closing statements and may be represented by counsel of their choice. (6) In the event the Commissioner determines that regulatory action is appropriate as a result of an examination, the Commissioner may initiate any proceedings or actions provided by law. (e) Confidentiality of examination information. (1) Names and individual identification data for all sellers shall be considered private and confidential information and shall not be disclosed by the Commissioner, unless required by law. (2)(A) Except as otherwise provided in this chapter, all examination reports, working papers, recorded information, documents, and copies thereof produced by, obtained by, or disclosed to the Commissioner or any other person in the course of an examination made under this chapter or in the course of analysis or investigation by the Commissioner of the financial condition or market conduct of a licensee are: (i) Confidential by law and privileged; (ii) Not subject to the provisions of Chapter 18 of Title 50; (iii) Not subject to subpoena; and (iv) Not subject to discovery or admissible in evidence in any private civil action. (B) The Commissioner is authorized to use the documents, materials, or other information in the furtherance of any regulatory or legal action brought as part of the Commissioneŕs official duties. (3) Documents, materials, or other information, including, but not limited to, all working papers, and copies thereof, in the possession or control of the National Association of Insurance Commissioners and its affiliates and subsidiaries are: (A) Confidential by law and privileged; (B) Not subject to subpoena; and (C) Not subject to discovery or admissible in evidence in any private civil action if they are: (i) Created, produced, or obtained by or disclosed to the National Association of Insurance Commissioners and its affiliates and subsidiaries in the course of assisting an examination made under this chapter or assisting an insurance commissioner in the analysis or investigation of the financial condition or market conduct of a licensee; or (ii) Disclosed to the National Association of Insurance Commissioners and its affiliates and subsidiaries under paragraph (5) of this subsection by the Commissioner. (4) For the purposes of paragraph (2) of this subsection, 'chapter' includes the law of another state or jurisdiction that is substantially similar to this chapter. (5) The Commissioner or any person that received the documents, material, or other information while acting under the authority of the Commissioner, including the National Association of Insurance Commissioners and its affiliates and subsidiaries, is permitted to testify in any private civil action concerning any confidential documents, materials, or information subject to paragraph (1) of this subsection. (6) In order to assist in the performance of the Commissioneŕs duties, the Commissioner: (A) May share documents, materials, or other information, including the confidential and privileged documents, materials, or information subject to paragraph (1) of this subsection, with other state, federal, and international regulatory agencies, with the National Association of Insurance Commissioners and its affiliates and subsidiaries, and with state, federal, and international law enforcement authorities, provided that the recipient agrees to maintain the confidentiality and privileged status of the document, material, communication, or other information; (B) May receive documents, materials, communications, or information, including otherwise confidential and privileged documents, materials, or information, from the National Association of Insurance Commissioners and its affiliates and subsidiaries and from regulatory and law enforcement officials of other foreign or domestic jurisdictions and shall maintain as confidential or privileged any document, material, or information received with notice or the understanding that it is confidential or privileged under the laws of the jurisdiction that is the source of the document, material, or information; and (C) May enter into agreements governing sharing and use of information consistent with this subsection. (7) No waiver of any applicable privilege or claim of confidentiality in the documents, materials, or information shall occur as a result of disclosure to the Commissioner under this Code section or as a result of sharing as authorized in paragraph (5) of this subsection. (8) A privilege established under the law of any state or jurisdiction that is substantially similar to the privilege established under this subsection shall be available and enforced in any proceeding in and in any court of this state. (9) Nothing contained in this chapter shall prevent or be construed as prohibiting the Commissioner from disclosing the content of an examination report, preliminary examination report, or results, or any matter relating thereto, to the insurance commissioner of any other state or country or to law enforcement officials of this or any other state or agency of the federal government at any time or to the National Association of Insurance Commissioners, so long as such agency or office receiving the report or matters relating thereto agrees in writing to hold it confidential and in a manner consistent with this chapter. (f) Conflict of interest. (1) An examiner may not be appointed by the Commissioner if the examiner, either directly or indirectly, has a conflict of interest or is affiliated with the management of or owns a pecuniary interest in any person subject to examination under this chapter. This Code section shall not be construed to automatically preclude an examiner from being: (A) A seller; (B) An insured in a purchased policy; or (C) A beneficiary in an insurance policy that is proposed to be the subject of a life settlement contract. (2) Notwithstanding the requirements of this subsection, the Commissioner may retain from time to time, on an individual basis, qualified actuaries, certified public accountants, or other similar individuals who are independently practicing their professions even though these persons may from time to time be similarly employed or retained by persons subject to examination under this chapter. (g) Cost of examinations. The expenses incurred in conducting any examination shall be paid by the licensee or applicant. (h) Immunity from liability. (1) No cause of action shall arise nor shall any liability be imposed against the Commissioner, the Commissioneŕs authorized representatives, or any examiner appointed by the Commissioner for any statements made or conduct performed in good faith while carrying out the provisions of this chapter. (2) No cause of action shall arise, nor shall any liability be imposed against any person, for the act of communicating or delivering information or data to the Commissioner or the Commissioneŕs authorized representative or examiner pursuant to an examination made under this chapter, if the act of communication or delivery was performed in good faith and without fraudulent intent or the intent to deceive. This paragraph does not abrogate or modify in any way any common law or statutory privilege or immunity heretofore enjoyed by any person identified in paragraph (1) of this subsection. (3) A person identified in paragraph (1) or (2) of this subsection shall be entitled to an award of attorneýs fees and costs if he or she is the prevailing party in a civil cause of action for libel, slander, or any other relevant tort arising out of activities in carrying out the provisions of this chapter and the party bringing the action was not substantially justified in doing so. For purposes of this paragraph a proceeding is 'substantially justified' if it had a reasonable basis in law or fact at the time that it was initiated. (i) Investigative authority of the commissioner. The Commissioner may investigate suspected fraudulent life settlement acts and persons engaged in the business of life settlements.

Disclaimer: These codes may not be the most recent version. Georgia may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.