2011 New Mexico Statutes
Chapter 59A: Insurance Code
Article 5A: Risk-Based Capital, 59A-5A-1 through 59A-5A-13
Section 59A-5A-9: Confidentiality; prohibition on announcements; prohibition on use in ratemaking.

59A-5A-9. Confidentiality; prohibition on announcements; prohibition on use in ratemaking.

A. To the extent not set forth in any other form accessible to the public, all information in risk-based capital reports, risk-based capital plans, results or reports of any examination or analysis of an insurer performed pursuant to the Risk-Based Capital Act [this article] and all corrective orders issued by the superintendent pursuant to such examination or analysis, is and shall be kept confidential by the superintendent. This information shall not be made public or be subject to subpoena, other than by the superintendent and then only for the purpose of enforcement actions taken by the superintendent pursuant to the Insurance Code.

B. The comparison of an insurer's total adjusted capital to any of its risk-based capital levels is a regulatory tool that may indicate the need for possible corrective action by the superintendent with respect to the insurer, and is not intended as a means to rank insurers generally or to compare insurers for marketing purposes. Use of such comparisons for such purposes is inherently misleading and deceptive. Except as otherwise required under the provisions of the Risk-Based Capital Act or applicable law, no insurer, agent, broker or other person engaged in any manner in the business of insurance shall make, publish, disseminate, circulate or place before the public, or cause, directly or indirectly, to be made, published, disseminated, circulated or placed before the public in a newspaper, magazine or other publication, or in the form of a notice, circular, pamphlet, letter or poster, or over any radio or television station, or in any other way, an advertisement, announcement or statement containing an assertion, representation or statement with regard to the risk-based capital levels of any insurer, or of any component derived in their calculation; provided, however, that if any materially false statement with respect to the comparison regarding an insurer's total adjusted capital to its risk-based capital levels or an inappropriate comparison of any other amount to the insurer's risk-based capital levels is published in any written publication and the insurer is able to demonstrate to the superintendent's satisfaction the falsity or inappropriateness of the statement, then the insurer may publish an announcement approved in advance by the superintendent in a written publication whose sole purpose is to rebut the materially false statement.

C. The risk-based capital instructions, risk-based capital reports, adjusted risk-based capital reports, risk-based capital plans and revised risk-based capital plans are intended solely for use by the superintendent in monitoring the solvency of insurers and the need for possible corrective action with respect to insurers. They shall not be used by the superintendent for ratemaking, considered or introduced as evidence in any rate proceeding or used to calculate or derive any elements of an appropriate premium level or rate of return for any line of insurance which an insurer or any affiliate is authorized to write.