§431:16-105 Definitions. As used in this part:

"Affiliate" means a person who, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with an insolvent insurer on December 31 of the year immediately preceding the date the insurer becomes an insolvent insurer.

"Association" means the Hawaii insurance guaranty association created under section 431:16-106.

"Claimant" means any insured making a first party claim or any person instituting a liability claim; provided that no person who is an affiliate of the insolvent insurer may be a claimant.

"Control" means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract other than a commercial contract for goods or nonmanagement services, or otherwise, unless the power is the result of an official position with or corporate office held by the person. Control shall be presumed to exist if any person, directly or indirectly, owns, controls, holds with the power to vote, or holds proxies representing, ten per cent or more of the voting securities of any other person. This presumption may be rebutted by a showing that control does not exist in fact.

"Covered claim":

(1) Means an unpaid claim, including one for unearned premiums, submitted by a claimant, that arises out of and is within the coverage and is subject to the applicable limits of an insurance policy to which this part applies issued by an insurer, if the insurer becomes an insolvent insurer after July 1, 2000, and:

(A) The claimant or insured is a resident of this State at the time of the insured event; provided that for entities other than an individual, the residence of a claimant, insured, or policyholder is the state in which its principal place of business is located at the time of the insured event; or

(B) The claim is a first party claim for damage to property with a permanent location in this State; and

(2) Shall not include:

(A) Any amount awarded as punitive or exemplary damages;

(B) Any amount sought as a return of premium under any retrospective rating plan;

(C) Any amount due any reinsurer, insurer, insurance pool, or underwriting association, as subrogation recoveries, reinsurance recoveries, contribution, indemnification, or otherwise;

(D) Any first party claims by an insured whose net worth exceeds $25,000,000 on December 31 of the year prior to the year in which the insurer becomes an insolvent insurer; provided that an insured's net worth on that date shall be deemed to include the aggregate net worth of the insured and all of its subsidiaries as calculated on a consolidated basis;

(E) Any first party claims by an insured who is an affiliate of the insolvent insurer;

(F) Any fee or other amount relating to goods or services sought by or on behalf of any attorney or other provider of goods or services retained by the insolvent insurer or an insured prior to the date it was determined to be insolvent;

(G) Any fee or other amount sought by or on behalf of any attorney or other provider of goods or services retained by any insured or claimant in connection with the assertion or prosecution of any claim, covered or otherwise, against the association;

(H) Any claims for interest; or

(I) Any claim filed with the association or a liquidator for protection afforded under the insured's policy for incurred but not reported losses.

"Insolvent insurer" means an insurer licensed to transact insurance in this State, either at the time the policy was issued or when the insured event occurred, and against whom a final order of liquidation has been entered after May 16, 2000 with a finding of insolvency by a court of competent jurisdiction in the insurer's state of domicile.

"Insured" means any named insured, any additional insured, any vendor, any lessor, or any other party identified as an insured under the policy.

"Member insurer" means any person who:

(1) Writes any kind of insurance to which this part applies under section 431:16-103, including the exchange of reciprocal or inter-insurance contracts; and

(2) Is licensed to transact insurance in this State.

An insurer shall cease to be a member insurer effective on the day following the termination or expiration of its certificate of authority to transact the kinds of insurance to which this part applies. However, the insurer shall remain liable as a member insurer for any and all obligations, including obligations for assessments levied either prior to or after the termination or expiration of its certificate of authority, even though the insurer became insolvent before the termination or expiration of its certificate of authority.

"Net direct written premiums" means direct gross premiums written in this State on insurance policies to which this part applies, including policy and membership fees, less the following amounts:

(1) Return premiums;

(2) Premiums on policies not taken; and

(3) Dividends paid or credited to policyholders on such direct business.

Net direct written premiums shall not include premiums on contracts between insurers or reinsurers.

"Person" means any individual, corporation, partnership, association, or voluntary organization.

"Receiver" includes liquidator, rehabilitator, conservator, or ancillary receiver, as applicable.

"Self-insurer" means a person that covers its liability through a qualified individual or group self-insurance program or any other formal program created for the specific purpose of covering liabilities typically covered by insurance. [L 1987, c 347, pt of §2; am L 2000, c 93, §4; am L 2012, c 250, §1]

Revision Note

"May 16, 2000" substituted for "the effective date of this Act" pursuant to §23G-15.

Case Notes

In light of the legislature's silence on the meaning and means of valuing "net worth" under this section, "net worth" may be "book" or "balance sheet" net worth as governed by generally accepted accounting principles. 123 H. 135 (App.), 231 P.3d 60 (2010).