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304.33-040 Jurisdiction and venue.
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Actions by commissioner. Except as provided in subsection (2) of this section,
and subsection (1) of KRS 304.33-230, no delinquency proceeding shall be
commenced under this subtitle by anyone other than the commissioner and no
court shall have jurisdiction to entertain, hear or determine any proceeding
commenced by any other person.
Action by judgment creditors:
(a) The judgment creditors of three (3) or more unrelated judgments may
commence proceedings under the conditions and in the manner
prescribed in this subsection, by serving notice upon the commissioner
and the insurer of intention to file a petition for liquidation under KRS
304.33-190 or 304.33-520. Each of the judgments must:
1.
Have been rendered against the insurer by a court in this state
having jurisdiction over the subject matter and the insurer;
2.
Have been entered more than sixty (60) days before the service of
notice;
3.
Not have been paid in full;
4.
Not be the subject of a valid contract between the insurer and any
judgment creditor for payment of the judgment, unless the contract
has been breached by the insurer; and
5.
Not be a judgment on which an appeal or review is pending.
(b) If any one (1) of the judgments in favor of a petitioning creditor remains
unpaid for thirty (30) days after service of the notice, and the
commissioner has not then filed a petition for liquidation, the creditor may
file in the name of the commissioner a verified petition for liquidation of
the insurer under KRS 304.33-190 or 304.33-520 alleging the conditions
stated in this subsection. The commissioner shall be served and joined in
the action.
Exclusiveness of proceedings.
(a) The court shall have exclusive jurisdiction to entertain, hear, or determine
all matters in any way relating to any delinquency proceeding under this
subtitle, including but not limited to all disputes involving purported assets
of the insurer.
(b) Notwithstanding the provisions of paragraph (a) of this subsection, the
court may authorize the receiver to seek injunctive or other appropriate
relief from other courts, either within or without this state, if, in the opinion
of the court, this action will be an aid to any delinquency proceeding.
(c) The court may issue any order, process, or judgment that is necessary or
appropriate to carry out the provisions of this subtitle. No provisions in this
subtitle shall be construed to preclude the court from, on its own motion,
taking any action or making any determination necessary or appropriate
to enforce or implement court orders or rules or to prevent an abuse of
process.
Change of venue. Venue for proceedings arising under this subtitle shall be
laid initially as specified in the sections providing for such proceedings. All
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other actions and proceedings initiated by the receiver may be commenced
and tried where the delinquency proceedings are then pending, or where
venue would be laid by KRS Chapter 452 or other applicable law. All other
actions and proceedings against the receiver shall be commenced and tried in
the county where the delinquency proceedings are pending. At any time upon
motion of any party, venue may be changed by order of the court or the
presiding judge thereof to any other Circuit Court in this state, as the
convenience of the parties and witnesses and the ends of justice may require.
This subsection relates only to venue and is not jurisdictional.
Personal jurisdiction, grounds for. In addition to other grounds for jurisdiction
provided by the law of this state, a court of this state having jurisdiction of the
subject matter shall have jurisdiction over a person served in an action brought
by the receiver of a domestic insurer or an alien insurer domiciled in this state:
(a) If the person served is obligated to the insurer in any way as an incident
to any agency or brokerage arrangement that may exist or has existed
between the insurer and the agent or broker, in any action on or incident
to the obligation;
(b) If the person served is a reinsurer who has at any time issued a contract
of reinsurance to an insurer against which a rehabilitation or liquidation
order is in effect when the action is commenced, or is an agent or broker
of or for the reinsurer, in any action on or incident to the reinsurance
contract;
(c) If the person served is or has been an officer, manager, trustee,
organizer, promoter, or person in a position of comparable authority or
influence in an insurer against which a rehabilitation or liquidation order is
in effect when the action is commenced, in any action resulting from the
relationship with the insurer;
(d) If the person served is or was at the time of the institution of the
delinquency proceedings holding assets in which the receiver claims an
interest on behalf of the insurer;
(e) If the person served has filed a claim against the insurer under the
provisions of KRS 304.33-360;
(f) If the person served is otherwise amenable to the exercise of personal
jurisdiction by the courts of this state under the provisions of the due
process clause of the Fourteenth Amendment to the United States
Constitution; or
(g) If the person served is obligated to the insurer in any way in any action on
or incident to the obligation.
Service of process.
(a) If personal jurisdiction is authorized by this section, service of process
may be made on the person, or any agent of the person, in the county of
this state where he or she may be found, or on the Secretary of State
who, for this purpose, shall be deemed to be the statutory agent of the
person.
(b) The clerk of the court in which the action is brought shall issue a
summons against the defendant named in the complaint. The clerk shall
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execute the summons by sending by certified mail a true copy to the
Secretary of State and shall also mail with the summons an attested copy
of the complaint. The Secretary of State shall, within seven (7) days of
receipt thereof in his or her office, mail the copy of the summons and
complaint to the defendant at the address given in the complaint. The
letter shall be posted by certified mail, return receipt requested, and shall
bear the return address of the Secretary of State. The clerk shall make
the usual return to the court, and, in addition, the Secretary of State shall
make a return to the court showing that the acts contemplated by this
statute have been performed, and shall attach to his or her return the
registry receipt, if any. Summons shall be deemed to be served upon the
return of the Secretary of State and the action shall proceed as provided
in the Rules of Civil Procedure.
(c) The clerk mailing the summons to the Secretary of State shall mail to him
or her, at the same time, a fee of ten dollars ($10), which shall be taxed
as costs in the action.
Forum non conveniens. If the court on motion of any party finds that any action
commenced under subsection (5) of this section should as a matter of
substantial justice be tried in a forum outside this state, the court may enter an
order to stay further proceedings on the action in this state.
Effective:July 15, 2010
History: Amended 2010 Ky. Acts ch. 24, sec. 1430, effective July 15, 2010. -Amended 1990 Ky. Acts ch. 422, sec. 4, effective July 13, 1990. -- Created 1970
Ky. Acts ch. 301, subtit. 33, sec. 4, effective June 18, 1970.
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