As used in this chapter, unless the context otherwise requires:
(1) “Attorney” refers to the attorney in fact of a reciprocal insurer. The attorney may be an individual, firm, or corporation. The attorney of a foreign or alien reciprocal insurer, which insurer is duly authorized to transact insurance in this state, shall not, by virtue of discharge of its duties as the attorney with respect to the insurer's transactions in this state, be thereby deemed to be doing business in this state within the meaning of any laws of this state applying to foreign firms or corporations;
(2) “Reciprocal” insurance is that resulting from an interexchange among persons, known as “subscribers”, of reciprocal agreements of indemnity, the interexchange being effectuated through an “attorney in fact” common to all the persons; and
(3) “Reciprocal insurer” means an unincorporated aggregation of subscribers operating individually and collectively through an attorney in fact to provide reciprocal insurance among themselves.
(a) All authorized reciprocal insurers shall be governed by those sections of this chapter not expressly made applicable to domestic reciprocals.
(b) Existing authorized reciprocal insurers shall comply with the provisions of this chapter after January 1, 1960.
(a) A reciprocal insurer, upon qualifying therefor as provided for by the Arkansas Insurance Code, may transact any kinds of insurance defined by the Arkansas Insurance Code, other than life or title insurances.
(b) Such an insurer may purchase reinsurance, and may grant reinsurance as to any kind of insurance it is authorized to transact.
A reciprocal insurer shall:
(1) Have and use a business name. The name shall include the word “reciprocal”, “interinsurer”, “interinsurance”, “exchange”, “underwriters”, or “underwriting”; and
(2) Sue and be sued in its own name.
(a) A domestic reciprocal insurer formed pursuant to this chapter, if it has otherwise complied with the applicable provisions of the Arkansas Insurance Code, may be authorized to transact insurance if it has and maintains surplus funds as follows:
(1) To transact property insurance, surplus funds of not less than the amount required of a foreign reciprocal insurer under § 23-63-205;
(2) To transact casualty insurance, surplus funds of not less than the amount required of a foreign reciprocal insurer under § 23-63-205; and
(3) The surplus funds required in this subsection shall be deposited or adjusted by the July 1 following the filing of the annual statement.
(b) In addition to surplus required to be maintained under subsection (a) of this section, the insurer shall have, when first so authorized, expendable surplus in an amount as required of a like foreign reciprocal insurer under § 23-63-207.
(c) A domestic reciprocal insurer may be authorized to transact additional kinds of insurance if it has otherwise complied with the provisions of the Arkansas Insurance Code therefor and possesses and so maintains surplus funds in an amount equal to the minium capital stock required of a stock insurer for authority to transact a like combination of kinds of insurance.
(a) Twenty-five (25) or more persons domiciled in this state may organize a domestic reciprocal insurer and make application to the Insurance Commissioner for a certificate of authority to transact insurance.
(b) The proposed attorney shall fulfill the requirements of and shall execute and file with the commissioner when applying for a certificate of authority a declaration setting forth:
(1) The name of the insurer;
(2) The location of the insurer's principal office, which shall be the same as that of the attorney and shall be maintained within this state;
(3) The kinds of insurance proposed to be transacted;
(4) The names and addresses of the original subscribers;
(5) The designation and appointment of the proposed attorney, and a copy of the power of attorney;
(6) The names and addresses of the officers and directors of the attorney, if a corporation, or its members, if a firm;
(7) The powers of the subscribers' advisory committee, and the names and terms of office of the members thereof;
(8) That all moneys paid to the insurer shall be held in the name of the insurer and for the purposes specified in the subscribers' agreement, after deducting therefrom any sum payable to the attorney;
(9) A copy of the subscribers' agreement;
(10) A statement that each of the original subscribers has in good faith applied for insurance of a kind proposed to be transacted and that the insurer has received from each such subscriber the full premium deposit required for the policy applied for, for a term of not less than six (6) months, at an adequate rate theretofore filed with and approved by the commissioner;
(11) A statement of the financial condition of the insurer, a schedule of its assets, and a statement that the surplus as required by § 23-70-105 is on hand; and
(12) A copy of each policy, endorsement, and application form it then proposes to issue or use.
(c) The declaration shall be acknowledged by the attorney in the manner required for the acknowledgement of deeds.
(a) The certificate of authority of a reciprocal insurer shall be issued to its attorney in the name of the insurer.
(b) The Insurance Commissioner may refuse, suspend, or revoke the certificate of authority, in addition to other grounds therefor, for failure of the attorney to comply with any provision of the Arkansas Insurance Code.
(a) The rights and powers of the attorney of a reciprocal insurer shall be as provided in the power of attorney given it by the subscribers.
(b) The power of attorney must set forth:
(1) The powers of the attorney;
(2) That the attorney is empowered to accept service of process on behalf of the insurer in actions against the insurer upon contracts exchanged;
(3) The general services to be performed by the attorney;
(4) The maximum amount to be deducted from advance premiums or deposits to be paid to the attorney and the general items of expense in addition to losses, to be paid by the insurer; and
(5) Except as to nonassessable policies, a provision for a contingent several liability of each subscriber in a specified amount, which amount shall be not less than one (1) nor more than ten (10) times the premium or premium deposit stated in the policy.
(c) The power of attorney may:
(1) Provide for the right of substitution of the attorney and revocation of the power of attorney and rights thereunder;
(2) Impose such restrictions upon the exercise of the power as are agreed upon by the subscribers;
(3) Provide for the exercise of any right reserved to the subscribers directly or through their advisory committee; and
(4) Contain other lawful provisions deemed advisable.
(d) The terms of any power of attorney or agreement collateral thereto shall be reasonable and equitable.
(a) Modifications of the terms of the subscribers' agreement or of the power of attorney of a domestic reciprocal insurer shall be made jointly by the attorney and the subscribers' advisory committee.
(b) No modification shall be effective retroactively, nor as to any insurance contract issued prior thereto.
(a)(1) Concurrently with the filing of the declaration provided for in § 23-70-106, the attorney of a domestic reciprocal insurer shall file with the Insurance Commissioner a bond in favor of this state for the benefit of all persons damaged as a result of breach by the attorney of the conditions of his or her bond as set forth in subdivision (a)(2) of this section. The bond shall be executed by the attorney and by an authorized corporate surety and shall be subject to the commissioner's approval.
(2) The bond shall be in the penal sum of twenty-five thousand dollars ($25,000), aggregate in form, conditioned that the attorney will faithfully account for all moneys and other property of the insurer coming into his or her hands and that he or she will not withdraw nor appropriate to his or her own use from the funds of the insurer any moneys or property to which he or she is not entitled under the power of attorney.
(3) The bond shall provide that it is not subject to cancellation unless thirty (30) days' advance notice in writing of cancellation is given both the attorney and the commissioner.
(b) In lieu of the bond required under subsection (a) of this section, the attorney may maintain on deposit through the office of the commissioner a like amount in cash or in value of securities eligible for deposit under § 23-63-903 and subject to the same conditions as the bond.
(c) Action on the attorney's bond or to recover against any deposit made in lieu of the attorney's bond may be brought at any time by one (1) or more subscribers suffering loss through a violation of its conditions, or by a receiver or liquidator of the insurer. Amounts recovered on the bond shall be deposited in and become part of the insurer's funds. The total aggregate liability of the surety shall be limited to the amount of the penalty of the bond.
(a) Legal process shall be
served upon a domestic reciprocal insurer by serving the insurer's attorney at
his or her principal offices. Alternatively, service may be made by use of an
(b) Any judgment based upon legal process so served shall be binding upon each of the insurer's subscribers as their respective interests may appear, but in an amount not exceeding their respective contingent liabilities, if any, the same as though personal service of process was had upon each subscriber.
(a) The attorney or other parties may advance to a domestic reciprocal insurer, upon reasonable terms, such funds as it may require from time to time in its operations.
(b) Sums so advanced shall not be treated as a liability of the insurer and, except upon liquidation of the insurer, shall not be withdrawn or repaid except out of the insurer's realized earned surplus in excess of its minimum required surplus.
(c) No withdrawal or repayment shall be made without the advance approval of the Insurance Commissioner.
(d) This section does not apply as to bank loans or to loans for which security is given.
(a) The annual statement of a reciprocal insurer shall be made and filed by its attorney.
(b) The statement shall be supplemented by such information as may be required by the Insurance Commissioner relative to the affairs and transactions of the attorney insofar as they pertain to the reciprocal insurer.
In determining the financial condition of a reciprocal insurer, the Insurance Commissioner shall apply the following rules:
(1) He shall charge as liabilities the same reserves as are required of incorporated insurers issuing nonassessable policies on a reserve basis;
(2) The surplus deposits of subscribers shall be allowed as assets, except that any premium deposits delinquent for ninety (90) days shall first be charged against the surplus deposit;
(3) The surplus deposits of subscribers shall not be charged as a liability;
(4) All premium deposits delinquent less than ninety (90) days shall be allowed as assets;
(5) An assessment levied upon subscribers, and not collected, shall not be allowed as an asset;
(6) The contingent liability of subscribers shall not be allowed as an asset; and
(7) The computation of reserves shall be based upon premium deposits other than membership fees and without any deduction for expenses and the compensation of the attorney.
(a) Individuals, partnerships, and corporations of this state may make application, enter into agreement for, and hold policies or contracts in or with, and be a subscriber of, any domestic, foreign, or alien reciprocal insurer.
(b) Any corporation organized under the laws of this state, in addition to the rights, powers, and franchises specified in its articles of incorporation, shall have full power and authority as a subscriber to exchange insurance contracts through a reciprocal insurer.
(c) The right to exchange contracts is declared to be incidental to the purposes for which the corporations are organized and to be as fully granted as the rights and powers expressly conferred upon such corporations.
(d) Government or governmental agencies, state or political subdivisions thereof, boards, associations, estates, trustees, or fiduciaries are authorized to exchange nonassessable reciprocal interinsurance contracts with each other and with individuals, partnerships, and corporations to the same extent that individuals, partnerships, and corporations are herein authorized to exchange reciprocal interinsurance contracts.
(e) Any officer, representative, trustee, receiver, or legal representative of any such subscriber shall be recognized as acting for or on its behalf for the purpose of the contract but shall not be personally liable upon the contract by reason of acting in a representative capacity.
(a) The advisory committee of a domestic reciprocal insurer exercising the subscribers' rights shall be selected under such rules as the subscribers adopt.
(b) Not less than two-thirds (2/3) of the committee shall be subscribers, other than the attorney or any person employed by, representing, or having a financial interest in the attorney.
(c) The committee shall:
(1) Supervise the finances of the insurer;
(2) Supervise the insurer's operations to such extent as to assure conformity with the subscribers' agreement and power of attorney;
(3) Procure the audit of the accounts and records of the insurer and of the attorney at the expense of the insurer; and
(4) Have such additional powers and functions as may be conferred by the subscribers' agreement.
(a) The liability of each subscriber, other than as to a nonassessable policy, for the obligations of the reciprocal insurer shall be an individual, several, and proportionate liability and not a joint liability.
(b) Except as to a nonassessable policy, each subscriber shall have a contingent assessment liability, in the amount provided for in the power of attorney or in the subscribers' agreement, for payment of actual losses and expenses incurred while his or her policy was in force. The contingent liability may be at the rate of not less than one (1) nor more than ten (10) times the premium or premium deposit stated in the policy, and the maximum aggregate thereof shall be computed in the manner set forth in § 23-70-119.
(c) Each assessable policy issued by the insurer shall contain a statement of the contingent liability.
(d)(1) No action shall lie against any subscriber upon any obligation claimed against the insurer until a final judgment has been obtained against the insurer and remains unsatisfied for thirty (30) days.
(2) Any judgment shall be binding upon each subscriber only in such proportion as his or her interests may appear and in an amount not exceeding his or her contingent liability, if any.
(a) Assessments may be levied from time to time upon subscribers of a domestic reciprocal insurer, liable therefor under the terms of their policies, by the attorney upon approval in advance by the subscribers' advisory committee and the Insurance Commissioner or by the commissioner in liquidation of the insurer.
(b) Each subscriber's share of a deficiency for which an assessment is made, but not exceeding in any event his or her aggregate contingent liability as computed in accordance with § 23-70-119, shall be computed by applying to the premiums earned on the subscribers' policies during the period to be covered by the assessment the ratio of the total deficiency to the total premiums earned during the period upon all policies subject to the assessment.
(c) In computing the earned premiums for the purposes of this section, the gross premiums received by the insurer for the policy shall be used as a base, solely deducting therefrom charges not recurring upon the renewal or extension of the policy.
(d) No subscriber shall have an offset against any assessment for which he or she is liable on account of any claim for unearned premiums or losses payable.
(e) Every subscriber of a domestic reciprocal insurer having contingent liability shall be liable for and shall pay his or her share of any assessment, as computed and limited in accordance with this chapter, if:
(1) While his or her policy is in force or within one (1) year after its termination, he or she is notified by either the attorney or the commissioner of his or her intentions to levy the assessment; or
(2) An order to show cause why a receiver, conservator, rehabilitator, or liquidator of the insurer should not be appointed is issued while his or her policy is in force or within one (1) year after its termination.
No one (1) policy or subscriber as to the policy shall be assessed or charged with an aggregate of contingent liability as to obligations incurred by a domestic reciprocal insurer in any one (1) calendar year in excess of the amount provided for in the power of attorney or in the subscribers' agreement, computed solely upon premium earned on the policy during that year.
(a) If a reciprocal insurer has a surplus of assets over all liabilities at least equal to the minimum capital stock required of a domestic stock insurer authorized to transact like kinds of insurance, then, upon application of the attorney and as approved by the subscribers' advisory committee, the Insurance Commissioner shall issue his or her certificate authorizing the insurer to extinguish the contingent liability of subscribers under its policies then in force in this state and to omit provisions imposing contingent liability in all policies delivered or issued for delivery in this state for so long as all the surplus remains unimpaired.
(b) Upon impairment of the surplus, the commissioner shall forthwith revoke the certificate. The revocation shall not render subject to contingent liability any policy then in force and for the remainder of the period for which the premium has theretofore been paid. However, after the revocation, no policy shall be issued or renewed without providing for contingent assessment liability of the subscriber.
(a) A reciprocal insurer may return to its subscribers from time to time any unused premiums, savings, or credits accruing to their accounts.
(b) Any distribution shall not unfairly discriminate between classes of risks, or policies, or between subscribers, but the distribution may vary as to classes of subscribers based upon the experience of those subscribers.
Upon the liquidation of a domestic reciprocal insurer, its assets remaining after discharge of its indebtedness and policy obligations, the return of any contributions of the attorney or other persons to its surplus made as provided in § 23-70-112, and the return of any unused premium, savings, or credits then standing on subscribers' accounts, shall be distributed to its subscribers who were subscribers within the twelve (12) months prior to the last termination of its certificate of authority, according to such reasonable formula as the Insurance Commissioner may approve.
(a) A domestic reciprocal insurer, upon affirmative vote of not less than two-thirds (2/3) of its subscribers who vote on the merger pursuant to due notice and the approval of the Insurance Commissioner of the terms therefor, may merge with another reciprocal insurer or be converted to a stock or mutual insurer.
(b) The stock or mutual insurer shall be subject to the same capital or surplus requirements and shall have the same rights as a like domestic insurer transacting like kinds of insurance.
(c) The commissioner shall not approve any plan for the merger or conversion which is inequitable to subscribers, or which, if for conversion to a stock insurer, does not give each subscriber preferential right to acquire stock of the proposed insurer proportionate to his or her interest in the reciprocal insurer as determined in accordance with § 23-70-122 and a reasonable length of time within which to exercise the right.
(a) If the assets of a reciprocal insurer are at any time insufficient to discharge its liabilities, other than any liability on account of funds contributed by the attorney or others, and to maintain the required surplus, its attorney shall immediately make up the deficiency or levy an assessment upon the subscribers for the amount needed to make up the deficiency, but subject to the limitation set forth in the power of attorney or policy.
(b) If the attorney fails to make up the deficiency or to make the assessment within thirty (30) days after the Insurance Commissioner orders the attorney to do so or if the deficiency is not fully made up within sixty (60) days after the date the assessment was made, the insurer shall be deemed insolvent and shall be proceeded against as authorized by §§ 23-68-101 — 23-68-113 and 23-68-115 — 23-68-132.
(c) If liquidation of the insurer is ordered, an assessment shall be levied upon the subscribers for such an amount, subject to limits as provided by this chapter, as the commissioner determines to be necessary to discharge all liabilities of the insurer, exclusive of any funds contributed by the attorney or other persons, but including the reasonable cost of the liquidation.