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IC 27-4-5
Chapter 5. Unauthorized Insurers Act
IC 27-4-5-1
Purpose; legislative declaration
Sec. 1. The purpose of this chapter is to subject certain insurers to
the jurisdiction of the insurance commissioner and the courts of this
state in suits by or on behalf of the state. The general assembly
declares that it is concerned with the protection of residents of this
state against acts by insurers not authorized to do an insurance
business in this state, by the maintenance of fair and honest insurance
markets, by protecting authorized insurers which are subject to
regulation from unfair competition by unauthorized insurers, and by
protecting against the evasion of the insurance regulatory laws of this
state. In furtherance of such state interest, the general assembly
provides methods in this chapter for substituted service of process
upon such insurers in any proceeding, suit, or action in any court and
substituted service of any notice, order, pleading, or process upon
such insurers in any proceeding by the commissioner of insurance to
enforce or effect full compliance with this title. In so doing, the state
exercises its powers to protect residents of this state and to define
what constitutes transacting an insurance business in this state, and
also exercises powers and privileges available to this state by virtue
of 15 U.S.C. 1011 through 1015, as amended, which declares that the
business of insurance and every person engaged therein shall be
subject to the laws of the several states.
(Formerly: Acts 1969, c.194, s.1.) As amended by P.L.252-1985,
SEC.165.
IC 27-4-5-2
Prohibition of unauthorized insurance business; exceptions;
business by mail; venue; validity of contract; right to defend;
prerequisites to action
Sec. 2. (a) It is a Class A infraction for an insurer to transact
insurance business in this state, as set forth in subsection (b), without
a certificate of authority from the commissioner. However, this
section does not apply to the following:
(1) The lawful transaction of surplus lines insurance.
(2) The lawful transaction of reinsurance by insurers.
(3) Transactions in this state involving a policy lawfully
solicited, written, and delivered outside of this state covering
only subjects of insurance not resident, located, or expressly to
be performed in this state at the time of issuance, and which
transactions are subsequent to the issuance of such policy.
(4) Attorneys acting in the ordinary relation of attorney and
client in the adjustment of claims or losses.
(5) Transactions in this state involving group life and group
sickness and accident or blanket sickness and accident insurance
or group annuities where the master policy of such groups was
lawfully issued and delivered in and pursuant to the laws of a
state in which the insurer was authorized to do an insurance
business, to a group organized for purposes other than the
procurement of insurance, and where the policyholder is
domiciled or otherwise has a bona fide situs.
(6) Transactions in this state relative to a policy issued or to be
issued outside this state involving insurance on vessels, craft or
hulls, cargos, marine builder's risk, marine protection and
indemnity or other risk, including strikes and war risks
commonly insured under ocean or wet marine forms of policy.
(7) Transactions in this state involving life insurance, health
insurance, or annuities provided to religious or charitable
institutions organized and operated without profit to any private
shareholder or individual for the benefit of such institutions and
individuals engaged in the service of such institutions.
(8) Transactions in this state involving contracts of insurance
not readily obtainable in the ordinary insurance market and
issued to one (1) or more industrial insureds. For purposes of
this section, an "industrial insured" means an insured:
(A) who procures the insurance of any risk or risks by use of
the services of a full-time employee acting as an insurance
manager or buyer or the services of a regularly retained and
continuously qualified insurance consultant;
(B) whose aggregate annual premium for insurance on all
risks totals at least twenty-five thousand dollars ($25,000);
(C) who has at least twenty-five (25) full-time employees;
(D) who, on or before February 1 (for the preceding six (6)
month period ending December 31) and August 1 (for the
preceding six (6) month period ending June 30) of each year,
remits to the department an amount equal to two and
one-half percent (2.5%) of all gross premiums upon all
policies and contracts procured by the insured under this
section, plus:
(i) ten percent (10%) of the amount due for the first month
after the date specified in this clause, during which the
amount described in this clause is not remitted in
compliance with this clause; and
(ii) an additional one percent (1%) of the amount due for
each additional month during which the amount due under
this clause is unpaid; and
(E) who files with the department, with the amount remitted
under clause (D), an affidavit specifying all transactions
undertaken and policies and contracts procured during the
preceding calendar year, including the following:
(i) The description and location of the insured property or
risk and the name of the insured.
(ii) The gross premiums charged for the policy or contract.
(iii) The name and home office address of the insurer that
issues the policy or contract and the kind of insurance
affected.
(iv) A statement that the insured, after diligent effort, was
unable to procure from any insurer authorized to transact
the particular kind of insurance business in Indiana the full
amount of insurance coverage required to protect the
insured.
(9) Transactions in Indiana involving the rendering of any
service by any ambulance service provider and all fees, costs,
and membership payments charged for the service. To qualify
under this subdivision, the ambulance service provider:
(A) must have its ambulance service program approved by an
ordinance of the legislative body of the county or city in
which it operates; and
(B) may not offer any membership program that includes
benefits exceeding one (1) year in duration.
(b) Any of the following acts in this state effected by mail or
otherwise by or on behalf of an unauthorized insurer constitutes the
transaction of an insurance business in this state. The venue of an act
committed by mail is at the point where the matter transmitted by
mail is delivered and takes effect. Unless otherwise indicated, the
term "insurer" as used in this section includes all persons engaged as
principals in the business of insurance and also includes
interinsurance exchanges and mutual benefit societies.
(1) The making of or proposing to make, as an insurer, an
insurance contract.
(2) The making of or proposing to make, as guarantor or surety,
any contract of guaranty or suretyship as a vocation and not
merely incidental to any other legitimate business or activity of
the guarantor or surety.
(3) The taking or receiving of any application for insurance.
(4) The receiving or collection of any premium, commission,
membership fees, assessments, dues, or other consideration for
any insurance or any part thereof.
(5) The issuance or delivery of contracts of insurance to
residents of this state or to persons authorized to do business in
this state.
(6) Acting as an agent for or otherwise representing or aiding on
behalf of another person or insurer in the solicitation,
negotiation, procurement, or effectuation of insurance or
renewals thereof or in the dissemination of information as to
coverage or rates, or forwarding of applications, or delivery of
policies or contracts, or inspection of risks, a fixing of rates or
investigation or adjustment of claims or losses or in the
transaction of matters subsequent to effectuation of the contract
and arising out of it, or representing or assisting a person or an
insurer in the transaction of insurance with respect to subjects of
insurance resident, located, or to be performed in this state. This
subdivision does not prohibit full-time salaried employees of a
corporate insured from acting in the capacity of an insurance
manager or buyer in placing insurance in behalf of the
employer.
(c)(1) The failure of an insurer transacting insurance business in
this state to obtain a certificate of authority does not impair the
validity of any act or contract of such insurer and does not prevent
such insurer from defending any action at law or suit in equity in any
court of this state, but no insurer transacting insurance business in
this state without a certificate of authority may maintain an action in
any court of this state to enforce any right, claim, or demand arising
out of the transaction of such business until such insurer obtains a
certificate of authority.
(2) In the event of failure of any such unauthorized insurer to pay
any claim or loss within the provisions of such insurance contract,
any person who assisted or in any manner aided directly or indirectly
in the procurement of such insurance contract is liable to the insured
for the full amount of the claim or loss in the manner provided by the
insurance contract.
(Formerly: Acts 1969, c.194, s.2.) As amended by Acts 1978, P.L.2,
SEC.2720; P.L.161-1988, SEC.1; P.L.130-1994, SEC.39;
P.L.116-1994, SEC.51; P.L.252-1995, SEC.2; P.L.11-2011, SEC.25.
IC 27-4-5-3
Injunction
Sec. 3. Whenever the commissioner believes, from evidence
satisfactory to the commissioner, that any insurer is violating or about
to violate the provisions of section 2 of this chapter, the
commissioner may cause a complaint to be filed in the circuit or
superior court to enjoin and restrain such insurer from continuing
such violation or engaging therein or doing any act in furtherance
thereof. The court shall have jurisdiction of the proceeding and shall
have the power to make and enter an order or judgment awarding
such preliminary or final injunctive relief as in its judgment is proper.
(Formerly: Acts 1969, c.194, s.3.) As amended by P.L.252-1985,
SEC.166; P.L.255-1995, SEC.5.
IC 27-4-5-4
Appointment of attorney for service of process; method of service
Sec. 4. (a) Any act of transacting an insurance business as set forth
in section 2 of this chapter by any unauthorized insurer is equivalent
to and shall constitute an irrevocable appointment by such insurer,
binding upon him, his executor or administrator, or successor in
interest if a corporation, of the secretary of state or his successor in
office, to be the true and lawful attorney of such insurer upon whom
may be served all lawful process in any action, suit, or proceeding in
any court by the commissioner of insurance or by the state and upon
whom may be served any notice, order, pleading, or process in any
proceeding before the commissioner of insurance and which arises
out of transacting an insurance business in this state by such insurer.
Any act of transacting an insurance business in this state by any
unauthorized insurer shall be signification of its agreement that any
such lawful process in such court action, suit, or proceeding and any
such notice, order, pleading, or process in such administrative
proceeding before the commissioner of insurance so served shall be
of the same legal force and validity as personal service of process in
this state upon such insurer.
(b) Service of process in such action shall be made by delivering
to and leaving with the secretary of state, or some person in apparent
charge of his office, two (2) copies thereof and by payment to the
secretary of state of the fee prescribed by law. Service upon the
secretary of state as such attorney shall be service upon the principal.
(c) The secretary of state shall forthwith forward by certified mail
one (1) of the copies of such process or such notice, order, pleading,
or process in proceedings before the commissioner to the defendant
in such court proceeding or to whom the notice, order, pleading, or
process in such administrative proceeding is addressed or directed at
its last known principal place of business and shall keep a record of
all process so served on him which shall show the day and hour of
service. Such service is sufficient, provided:
(1) notice of such service and a copy of the court process or the
notice, order, pleading, or process in such administrative
proceeding are sent within ten (10) days thereafter by certified
mail by the plaintiff or the plaintiff's attorney in the court
proceeding or by the commissioner of insurance in the
administrative proceeding to the defendant in the court
proceeding or to whom the notice, order, pleading, or process in
such administrative proceeding is addressed or directed at the
last known place of business of the defendant in the court or
administrative proceeding; and
(2) the defendant's receipt or receipts issued by the post office
with which the letter is registered, showing the name of the
sender of the letter and the name and address of the person or
insurer to whom the letter is addressed, and an affidavit of the
plaintiff or the plaintiff's attorney in court proceeding or of the
commissioner of insurance in administrative proceeding,
showing compliance therewith are filed with the clerk of the
court in which such action, suit, or proceeding is pending or
with the commissioner in administrative proceedings, on or
before the date the defendant in the court or administrative
proceeding is required to appear or respond thereto, or within
such further time as the court or commissioner of insurance may
allow.
(d) No plaintiff shall be entitled to a judgment or a determination
by default in any court or administrative proceeding in which court
process or notice, order, pleading, or process in proceedings before
the commissioner of insurance is served under this section until the
expiration of forty-five (45) days from the date of filing of the
affidavit of compliance.
(e) Nothing in this section shall limit or affect the right to serve
any process, notice, order, or demand upon any person or insurer in
any other manner permitted by law.
(Formerly: Acts 1969, c.194, s.4; Acts 1971, P.L.1, SEC.10.) As
amended by P.L.252-1985, SEC.167.
IC 27-4-5-5
Prerequisites to pleading; deposit to secure payment of judgment;
procuring certificate of authority; motion to quash
Sec. 5. (a) Before any unauthorized insurer files or causes to be
filed in any pleading in any court action, suit, or proceeding or in any
notice, order, pleading, or process in such administrative proceeding
before the commissioner instituted against such person or insurer, by
services made as provided in section 4 of this chapter, such insurer
shall either:
(1) deposit with the clerk in which such action, suit, or
proceeding is pending, or with the commissioner of insurance in
administrative proceedings before the commissioner, cash or
securities, or file with such clerk or commissioner a bond with
good and sufficient sureties, to be approved by the clerk or
commissioner in an amount to be fixed by the court or
commissioner sufficient to secure the payment of any final
judgment which may be rendered in such action or
administrative proceeding; or
(2) procure a certificate of authority to transact the business of
insurance in this state.
In considering the application of an insurer for a certificate of
authority, for the purposes of this section the commissioner need not
assert the provisions of IC 27-1-20-12 against such insurer with
respect to its application if he determines that such company would
otherwise comply with the requirements for such certificate of
authority.
(b) The commissioner of insurance, in any administrative
proceeding in which service is made as provided in section 4 of this
chapter, may in his discretion order such postponement as may be
necessary to afford the defendant reasonable opportunity to comply
with the provisions of subsection (a) and to defend such action.
(c) Nothing in subsection (a) shall be construed to prevent an
unauthorized insurer from filing a motion to quash a writ or to set
aside service thereof made in the manner provided in section 4 of this
chapter on the ground that such unauthorized insurer has not done
any of the acts enumerated in section 2 of this chapter.
(Formerly: Acts 1969, c.194, s.5.) As amended by P.L.252-1985,
SEC.168.
IC 27-4-5-6
Enforcement of orders in domestic or foreign courts; definitions;
list of reciprocal states; enforcement of foreign decrees; stay; fees
Sec. 6. (a) The attorney general upon request of the commissioner
may proceed in the courts of this state or any reciprocal state to
enforce an order or decision in any court proceeding or in any
administrative proceeding before the commissioner of insurance.
(b) The following definitions apply throughout this section:
(1) "Reciprocal state" means any state or territory of the United
States the laws of which contain procedures substantially similar
to those specified in this section for the enforcement of decrees
or orders in equity issued by courts located in other states or
territories of the United States, against any insurer incorporated
or authorized to do business in said state or territory.
(2) "Foreign decree" means any decree or order in equity of a
court located in a "reciprocal state," including a court of the
United States located therein, against any insurer incorporated
or authorized to do business in this state.
(3) "Qualified party" means a state regulatory agency acting in
its capacity to enforce the insurance laws of its state.
(c) The insurance commissioner of this state shall determine which
states and territories qualify as reciprocal states and shall maintain at
all times an up-to-date list of such states.
(d) A copy of any foreign decree authenticated in accordance with
the statutes of this state may be filed in the office of the clerk of any
circuit or superior court of this state. The clerk, upon verifying with
the insurance commissioner that the decree or order qualifies as a
"foreign decree" shall treat the foreign decree in the same manner as
a decree of a circuit or superior court of this state. A foreign decree
so filed has the same effect and shall be deemed as a decree of a
circuit or superior court of this state, and is subject to the same
procedures, defenses and proceedings for reopening, vacating, or
staying as a decree of a circuit or superior court of this state and may
be enforced or satisfied in like manner.
(e) At the time of the filing of the foreign decree, the attorney
general shall make and file with the clerk of the court an affidavit
setting forth the name and last known post office address of the
defendant.
(f) Promptly upon the filing of the foreign decree and the affidavit,
the clerk shall mail notice of the filing of the foreign decree to the
defendant at the address given and to the insurance commissioner of
this state and shall make a note of the mailing in the docket. In
addition, the attorney general may mail a notice of the filing of the
foreign decree to the defendant and to the insurance commissioner of
this state and may file proof of mailing with the clerk. Lack of
mailing notice of filing by the clerk shall not affect the enforcement
proceedings if proof of mailing by the attorney general has been filed.
(g) No execution or other process for enforcement of a foreign
decree filed under this section shall issue until 30 days after the date
the decree is filed.
(h) If the defendant shows the circuit or superior court that an
appeal from the foreign decree is pending or will be taken, or that a
stay of execution has been granted, the court shall stay enforcement
of the foreign decree until the appeal is concluded, the time for appeal
expires, or the stay of execution expires or is vacated, upon proof that
the defendant has furnished the security for the satisfaction of the
decree required by the state in which it was rendered.
(i) If the defendant shows the circuit or superior court any ground
upon which enforcement of a decree of any circuit or superior court
of this state would be stayed, the court shall stay enforcement of the
foreign decree for an appropriate period, upon requiring the same
security for satisfaction of the decree which is required in this state.
(j) Any person filing a foreign decree shall pay to the clerk of
court six dollars ($6). Fees for docketing, transcription, or other
enforcement proceedings shall be as provided for decrees of the
circuit or superior court.
(Formerly: Acts 1969, c.194, s.6.) As amended by P.L.1-1993,
SEC.201.
IC 27-4-5-7
Repealed
(Repealed by Acts 1978, P.L.2, SEC.2728.)
IC 27-4-5-8
Short title
Sec. 8. This chapter may be cited as the Uniform Unauthorized
Insurers Act.
(Formerly: Acts 1969, c.194, s.8.) As amended by P.L.252-1985,
SEC.169.
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