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304.33-040 Jurisdiction and venue.
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(2)
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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 304.33520. 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
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initially as specified in the sections providing for such proceedings. All 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 execute the
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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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