3 AAC 21.370. Investment transactions with affiliated or controlling persons for a property and casualty insurer

(a) Except as provided in this section, a property and casualty insurer may not, without first fulfilling the obligation imposed under this section,

(1) invest in an otherwise qualifying investment issued by or due from an affiliated party;

(2) purchase from an affiliated party an otherwise qualifying investment; or

(3) use the services of a broker or commissioned sales agent who is an affiliated or controlling person in securing an otherwise qualifying investment.

(b) Before completing an investment activity with or through an affiliated or controlling person or completing a transaction of the type listed in (f) of this section, a property and casualty insurer shall fully disclose and document in writing to its board of directors and the committee authorized by the board and charged with the supervision or making of the investment or loan involved the material facts concerning the affiliation or circumstances of control. A property and casualty insurer may not complete an investment activity with or through an affiliated or controlling person unless the board of directors, by specific board action, authorizes the transaction and concludes that the transaction complies with (c) and (d) of this section. The vote of the board authorizing the transaction must be recorded in the minutes on a member-by-member basis and must indicate each vote approving, disapproving, or abstaining on the transaction.

(c) A property and casualty insurer shall consummate an investment or loan with an affiliated or controlling person at current market transfer prices and under a fee structure and at interest or discount rates that are commercially reasonable in the area in which the transaction occurs.

(d) The property and casualty insurer's board of directors is responsible for determining that a transfer price is at current market and for determining the commercial reasonableness of the transaction with an affiliated or controlling person. The board of directors may rely on an independent third-party expert in making its determination.

(e) This section does not apply to a circumstance in which the financial interest of the affiliated or controlling party is only nominal or so remote as not to give rise to a conflict of interest.

(f) A property and casualty insurer, either alone or in cooperation with one or more persons, may organize or acquire one or more subsidiaries engaged in the following kinds of business:

(1) insurance business authorized by AS 21;

(2) acting as an insurance producer or as an insurance agent for the property and casualty insurer's parent or for any of the property and casualty insurer's parent's insurer subsidiaries and controlled affiliates;

(3) investing, reinvesting, or trading in securities for the property and casualty insurer's own account, or an account of the property and casualty insurer's parent, a subsidiary of the property and casualty insurer's parent, an affiliate, or a subsidiary;

(4) management of an investment company subject to or registered under 15 U.S.C. 80a-1 - 80a-64 (Investment Company Act of 1940), including related sales and services;

(5) acting as a broker-dealer subject to or registered under 15 U.S.C. 78a - 78mm (Securities Exchange Act of 1934);

(6) rendering investment advice to a government, government agency, corporation, or other organization or group;

(7) rendering other services related to the operations of an insurance business, including actuarial, loss prevention, safety engineering, data processing, accounting, claims, appraisal, and collection services;

(8) ownership and management of assets that the parent corporation could own or manage;

(9) acting as administrative agent for a governmental instrumentality that is performing an insurance function;

(10) financing an insurance premium, agent, or other form of consumer financing;

(11) any other business activity determined by the director in writing using the standards set out in this section to be reasonably ancillary to an insurance business;

(12) owning a corporation engaged or organized to engage exclusively in one or more of the businesses specified in this section.

(g) A property and casualty insurer may also

(1) invest in securities described in 3 AAC 21.330 - 3 AAC 21.355 of a subsidiary in an amount that, in the aggregate with all other investments in subsidiaries, does not exceed the lesser of 10 percent of the property and casualty insurer's assets or 50 percent of the property and casualty insurer's policyholder surplus if, after the investment, the property and casualty insurer's policyholder surplus is reasonable in relation to the property and casualty insurer's outstanding liabilities and adequate to the property and casualty insurer's financial needs; in calculating the amount of the investment, a property and casualty insurer shall include the following:

(A) total net money or other consideration expended and all obligations assumed in the acquisition or formation of a subsidiary, including all organizational expenses and contributions to capital and surplus of the subsidiary if represented or not represented by the purchase of capital stock or issuance of other securities;

(B) all amounts expended in acquiring additional securities described in 3 AAC 21.330 - 3 AAC 21.355 and all contributions to the capital or surplus of a subsidiary subsequent to the subsidiary's acquisition or formation;

(2) invest an amount in a security described in 3 AAC 21.330 - 3 AAC 21.355 of a subsidiary engaged or organized to engage exclusively in the ownership and management of assets authorized as an investment for the property and casualty insurer if that subsidiary agrees to limit the subsidiary's investment in an asset in a way that the investment does not cause the amount of the total investment of the property and casualty insurer to exceed the limitations specified in (1) of this subsection or in 3 AAC 21.325 - 3 AAC 21.395; for the purpose of this paragraph, the total investment of the property and casualty insurer includes

(A) a direct investment by the property and casualty insurer in an asset; and

(B) the property and casualty insurer's proportionate share of an investment in an asset by a subsidiary of the property and casualty insurer calculated by multiplying the amount of the subsidiary's investment by the percentage of the ownership in the subsidiary; or

(3) with the prior written approval of the director, invest a greater amount in a security described in 3 AAC 21.330 - 3 AAC 21.355 of a subsidiary if after the investment the insurer's policyholder surplus is reasonable in relation to the property and casualty insurer's outstanding liabilities and adequate to the property and casualty insurer's financial needs.

(h) A property and casualty insurer shall determine if an investment meets the applicable requirements under (g) of this section before the investment is made by calculating the applicable limitations under 3 AAC 21.325 as though the investment had already been made and by taking into account the existing outstanding principal balance on all previous investments under 3 AAC 21.330 - 3 AAC 21.355, calculated at admitted asset value, giving effect to a return of capital invested and not giving effect to dividends.

(i) If a property and casualty insurer ceases to control a subsidiary, the property and casualty insurer shall dispose of an investment in the subsidiary made under this section within three years after cessation of control unless, at any time after the investment has been made, the investment meets the requirements for investment under another provision of 3 AAC 21.201 - 3 AAC 21.399 and the property and casualty insurer has notified the director regarding the application of another provision of 3 AAC 21.201 - 3 AAC 21.399 to the investment.

History: Eff. 12/28/2001, Register 160; am 11/21/2004, Register 172

Authority: AS 21.06.090

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