2019 South Dakota Codified Laws
Title 58 - Insurance
Chapter 29B - Insurers Supervision, Rehabilitation And Liquidation
§ 58-29B-49 Powers of liquidator.

58-29B-49. Powers of liquidator. The liquidator may:

(1) Appoint a special deputy to act for the liquidator under this chapter and determine his reasonable compensation. The special deputy shall have all powers of the liquidator granted by this section. The special deputy shall serve at the pleasure of the liquidator;

(2) Employ employees, representatives, insurance producers, legal counsel, actuaries, accountants, appraisers, consultants, and such other personnel as the liquidator may consider necessary to assist in the liquidation;

(3) Fix the reasonable compensation of employees, representatives, insurance producers, legal counsel, actuaries, accountants, appraisers, and consultants with the approval of the court;

(4) Pay reasonable compensation to persons appointed and defray from the funds or assets of the insurer all expenses of taking possession of, conserving, conducting, liquidating, disposing of, or otherwise dealing with the business and property of the insurer. If the property of the insurer does not contain sufficient cash or liquid assets to defray the costs incurred, the director may advance the costs so incurred out of any appropriation for the maintenance of the Division of Insurance. Any amounts so advanced for expenses of administration shall be repaid to the director for the use of the Division of Insurance out of the first available money of the insurer;

(5) Hold hearings, subpoena witnesses to compel their attendance, administer oaths, examine any person under oath, and compel any person to subscribe to the person's testimony after it has been correctly reduced to writing, and, in connection therewith, require the production of any books, papers, records, or other documents which the liquidator considers relevant to the inquiry;

(6) Collect all debts and money due and claims belonging to the insurer, wherever located, and, for this purpose:

(a) To institute timely action in other jurisdictions, in order to forestall garnishment and attachment proceedings against such debts;

(b) To do such other acts as are necessary or expedient to collect, conserve, or protect its assets or property, including the power to sell, compound, compromise, or assign debts for purposes of collection upon such terms and condition as the liquidator deems best; and

(c) To pursue any creditor's remedies available to enforce the creditor's claims;

(7) Conduct public and private sales of the property of the insurer;

(8) Use assets of the estate of an insurer under a liquidation order to transfer policy obligations to a solvent assuming insurer, if the transfer can be arranged without prejudice to applicable priorities under § 58-29B-124;

(9) Acquire, hypothecate, encumber, lease, improve, sell, transfer, abandon, or otherwise dispose of or deal with, any property of the insurer at its market value or upon such terms and conditions as are fair and reasonable. The liquidator may also execute, acknowledge, and deliver any and all deeds, assignments, releases, and other instruments necessary or proper to effectuate any sale of property or other transaction in connection with liquidation;

(10) Borrow money on the security of the insurer's assets or without security and to execute and deliver all documents necessary to that transaction for the purpose of facilitating the liquidation;

(11) Enter into such contracts as are necessary to carry out the order to liquidate, and affirm or disavow any contracts to which the insurer is a party;

(12) Continue to prosecute and institute in the name of the insurer or in the liquidator's name any and all suits and other legal proceedings, in this state or elsewhere, and abandon the prosecution of claims the liquidator considers unprofitable to pursue further. If the insurer is dissolved under § 58-29B-48, the liquidator may apply to any court in this state or elsewhere for leave to proceed on behalf of the insurer as plaintiff;

(13) Prosecute any action which may exist on behalf of the creditors, members, policyholders, or shareholders of the insurer against any officer of the insurer, or any other person;

(14) Remove any or all records and property of the insurer to the offices of the director or to such other place as may be convenient for the purposes of efficient and orderly execution of the liquidation. Guaranty associations and foreign guaranty associations shall have such reasonable access to the records of the insurer as is necessary for them to carry out their statutory obligations;

(15) Deposit in one or more banks in this state such sums as are required for meeting current administration expenses and dividend distributions;

(16) Invest all sums not currently needed, unless the court orders otherwise;

(17) File any necessary documents for record in the office of any register of deeds or record office in this state or elsewhere where property of the insurer is located;

(18) Assert all defenses available to the insurer as against third persons, including statutes of limitation, statutes of frauds, and the defense of usury. A waiver of any defense by the insurer after a petition in liquidation has been filed does not bind the liquidator. If a guaranty association or foreign guaranty association has an obligation to defend any suit, the liquidator shall give precedence to such obligation and may defend only in the absence of a defense by such guaranty associations;

(19) Exercise and enforce all the rights, remedies, and powers of any creditor, shareholder, policyholder, or member, including any power to avoid any transfer or lien that may be given by the general law and that is not included with §§ 58-29B-61 to 58-29B-83, inclusive;

(20) Intervene in any proceeding wherever instituted that might lead to the appointment of a receiver or trustee, and act as the receiver or trustee if the appointment is offered;

(21) Enter into agreements with any receiver or director of any other state relating to the rehabilitation, liquidation, conservation, or dissolution of an insurer doing business in both states;

(22) Exercise all powers conferred upon receivers by the laws of this state not inconsistent with the provisions of this chapter;

(23) To appoint, with the approval of the court, an advisory committee of policyholders, claimants, or other creditors including guaranty associations. The committee shall serve at the pleasure of the director and shall serve without compensation other than reimbursement for reasonable travel and per diem living expenses. No other committee of any nature may be appointed by the director or the court in liquidation proceedings;

(24) To audit the books and records of all representatives and insurance producers of the insurer insofar as those records relate to the business activities of the insurer.
Source: SL 1989, ch 436, § 49; SL 1992, ch 351, § 7; SL 2001, ch 286, § 143.