2013 Hawaii Revised Statutes
TITLE 24. INSURANCE
431. Insurance Code
431:15-103 Definitions.

Case Notes

Under §§431:15-310 and 431:15-313, the commissioner has exclusive standing under this article to assert claims arising out of the liquidation or rehabilitation of an insurance company on behalf of not only the insolvent insurer, but also its policyholders, creditors, and all other interested parties. 89 H. 427, 974 P.2d 1017.

This article applies to mutual benefit societies. 99 H. 53, 52 P.3d 823.

PART I. GENERAL PROVISIONS

§431:15-103 Definitions. (a) For the purposes of this article:

"Ancillary state" means any state other than a domiciliary state.

"Creditor" means a person having any claim, whether matured or unmatured, liquidated or unliquidated, secured or unsecured, absolute, fixed, or contingent.

"Delinquency proceeding" means any proceeding instituted against an insurer for the purpose of liquidating, rehabilitating, reorganizing, or conserving such insurer, and any summary proceeding under section 431:15-201 or 431:15-202.

"Doing business" means transacting the business of insurance as defined in section 431:1-215, or operating, whether by mail or otherwise, as an insurer under a license or certificate of authority issued by the insurance division.

"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.

"Fair consideration" means consideration given for property or obligation:

(1) When in exchange for such property or obligation, as a fair equivalent therefor, and in good faith, property is conveyed or services are rendered or an obligation is incurred or an antecedent debt is satisfied; or

(2) When such property or obligation is received in good faith to secure a present advance or antecedent debt in an amount not disproportionately small as compared to the value of the property or obligation obtained.

"Foreign country" means any other jurisdiction not in any state.

"Formal delinquency proceeding" means any liquidation or rehabilitation proceeding.

"General assets" means all property, real, personal, or otherwise, not specifically mortgaged, pledged, deposited, or otherwise encumbered for the security or benefit of specified persons or classes of persons. As to specifically encumbered property, general assets includes all such property or its proceeds in excess of the amount necessary to discharge the sum or sums secured. Assets held in trust and on deposit for the security or benefit of all policyholders or all policyholders and creditors, in more than a single state, shall be treated as general assets.

"Guaranty association" means the Hawaii insurance guaranty association created by part I of article 16, the Hawaii life and disability insurance association created by part II of article 16, and any other similar entity now or hereafter created by the legislature of this State for the payment of claims of insolvent insurers. Foreign guaranty association means any similar entities created by the legislature of any other state.

"Insolvency" or "insolvent" means:

(1) For an insurer issuing only assessable fire insurance policies:

(A) The inability to pay any obligation within thirty days after it becomes payable; or

(B) If an assessment be made within thirty days after such date, the inability to pay such obligation thirty days following the date specified in the first assessment notice issued after the date of loss pursuant to this code;

(2) For any other insurer, that it is unable to pay its obligations when they are due, or when its admitted assets do not exceed its liabilities plus the greater of:

(A) Any capital and surplus required by law for its organization; or

(B) The total par or stated value of its authorized and issued capital stock; and

(3) As to any insurer licensed to do business in this State as of July 1, 1988, who does not meet the standard established under subparagraph (B), the term insolvency or insolvent shall mean, for a period not to exceed three years from July 1, 1988, that it is unable to pay its obligations when they are due or that its admitted assets do not exceed its liabilities plus any required capital contribution ordered by the commissioner under provisions of this code.

"Insurer" means any person who has done, purports to do, is doing or is licensed to do an insurance business, 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 article, any other persons included under section 431:15-102 shall be deemed to be insurers.

"Liabilities" include but are not limited to reserves required by statute, insurance division rules, or specific requirements imposed by the commissioner upon a subject company at the time of admission or subsequent thereto.

"Preferred claim" means any claim with respect to which the terms of this article accord priority of payment from the general assets of the insurer.

"Receiver" means receiver, liquidator, rehabilitator, or conservator as the context requires.

"Reciprocal state" means any state other than this State in which in substance and effect sections 431:15-307(a), 431:15-403, 431:15-404, and 431:15-406 through 431:15-408 are in force, and in which provisions are in force requiring the commissioner or equivalent official be the receiver of a delinquent insurer, and in which some provision exists for the avoidance of fraudulent conveyances and preferential transfers.

"Secured claim" means any claim secured by mortgage, trust deed, pledge, deposit as security, escrow, or otherwise, but not including special deposit claims or claims against general assets. The term also includes claims that have become liens upon specific assets by reason of judicial process.

"Secured deposit claim" means any claim secured by a deposit made pursuant to statute for the security or benefit of a limited class or classes of persons, but not including any claim secured by general assets.

"State" means any state, district, or territory of the United States and the Panama Canal Zone.

"Transfer" means every method, direct or indirect, of disposing of property, of an interest in property, of the possession of property, of fixing a lien upon property, or upon an interest in property, absolutely or conditionally, voluntarily or involuntarily, by or without judicial proceedings. The retention of a security interest in or title to property delivered to a debtor is considered a transfer by the debtor.

(b) If the subject of a rehabilitation or liquidation proceeding under this article is an insurer engaged in a surety business, then as used in this article:

(1) Policy includes a bond issued by a surety;

(2) Policyholder includes a principal on a bond;

(3) Beneficiary includes an obligee of a bond; and

(4) Insured includes both the principal and obligee of a bond. [L 1987, c 347, pt of §2; am L 1996, c 121, §1; am L 2004, c 122, §66]