§2028. Proof and allowance of claims

A. A proof of claim shall consist of a statement under oath, in writing, signed by the claimant, setting forth the claim, the consideration therefor, and whether any, and if so, what securities are held therefor, and whether any, and if so, what payments have been made thereon, and that the sum claimed is justly owing from the insurer to the claimant. Whenever a claim is founded upon an instrument in writing, such instrument, unless lost or destroyed, shall be filed with the proof of claim. If such instrument is lost or destroyed, a statement of such fact and of the circumstances of such loss or destruction shall be filed under oath with the claim.

B. Upon the liquidation of any domestic insurer which has issued policies insuring the lives of persons, the commissioner of insurance shall, within a reasonable time, after the last day set for the filing of claims, make a list of the persons who have not filed proofs of claim with him and whose rights have not been reinsured, to whom it appears from the books of the insurer, there are owing amounts on such policies and he shall set opposite the name of each person such amount so owing to such person. The commissioner of insurance shall incur no personal liability by reason of any mistake in such list. Each person whose name shall appear upon such list shall be deemed to have duly filed prior to the last day set for filing of claims a proof of claim for the amount set opposite his name on such list.

C. No contingent claim other than claims of the character described in Subsection D of this Section shall share in a distribution of the assets of an insurer which has been adjudicated to be insolvent by an order made pursuant to R.S. 22:2027 except that a contingent claim, if properly presented, may be allowed, and entitled to share where such claim becomes absolute against the insurer on or before the last day fixed for the filing of proofs of claim against the assets of such insurer, or there is a surplus to be distributed as if no order pursuant to R.S. 22:2027 had been made.

D.(1) When an insurer has been adjudicated to be insolvent by an order made pursuant to R.S. 22:2027, any person who claims to have a cause of action against an assured of such insurer, which accrued prior to the filing of the petition for liquidation and which is the subject of indemnity under a liability policy issued by such insurer, or any assured against whom any such action is claimed to exist, may file a claim in the liquidation proceedings, regardless of the fact that such claim may be contingent, but no such claim shall be allowed in favor of an assured if any claim has been filed by the person who claims to have such cause of action against the assured. No such claim shall be allowed in favor of the assured, unless a final judgment shall be entered against the assured by a court of competent jurisdiction within three years from the filing of a petition to show cause against an insurer under this Chapter or within such further time as may be allowed by the court for good cause shown. In the event that the total amount of all allowable claims based upon causes of action arising out of the same act of any assured be greater than the total liability of the insurer in connection therewith, such claims shall be reduced pro rata and allowed in such sums so that the aggregate of such allowed claims shall equal such total liability.

(2) No judgment taken by default or collusion against the assured shall be considered as evidence in the liquidation proceeding either of the liability of such assured to the judgment creditor upon such cause of action or of the amount of damages to which such judgment creditor is entitled. No claim of such a judgment creditor, or any assured against whom such a judgment may have been taken, shall be allowed unless proof be made in the liquidation proceedings of the liability of such assured upon the alleged cause of action and the amount of damages arising therefrom.

(3) When the receiver allows or disallows a claim in a lesser amount than claimed, he shall notify the person making the claim by letter addressed to the last known address of the claimant, allowing ten days after receipt of said notice in which to file objections to the action of the receiver. The objections shall be filed with the receiver and in the receivership court and shall be heard in the receivership proceedings in a summary manner.

(4) No judgment or order against an insured or an insurer entered after the date of the commencement of proceedings under this Chapter shall be considered in the proceedings as evidence of liability or of the amount of damages of the insured or the insurer and no judgment or order entered at any time against an insured or the insurer by default or by collusion shall be considered as conclusive evidence in the proceedings under this Chapter, either of the liabilities of such insured or insurer to such person upon such cause of action or of the amount of damages to which such person is therein entitled. No claim of any judgment creditor or any insured against whom a judgment may have been taken shall be allowed unless proof is made in the proceedings under this Chapter of the liability of such insured upon the alleged cause of action and the amount of damages arising therein.

(5) Upon the issuance of an order appointing a receiver of a domestic insurer or of an alien insurer, no action at law or equity shall be brought against the insurer, its insureds, or the receiver, whether in this state or elsewhere, nor shall any such existing actions be maintained or further presented after issuance of such an order. Whenever, in the receiver's judgment, protection of the estate of the insurer necessitates intervention in an action against the insurer or its insured that is pending outside this state, the receiver may intervene in the action. The receiver may defend any action in which the receiver intervenes, at the election of and in the sole discretion of the receiver, under this Section at the expense of the estate of the insurer.

(6) When the receiver allows or disallows a claim in a lesser amount than claimed, he shall notify the person making the claim by petition in the receivership proceedings, allowing ten days after receipt of such notice in which to file objections to the action of the receiver. The objections shall be heard in the receivership by summary proceedings.

E. The value of securities held by secured creditors shall be determined by converting the same into money according to the terms of the agreement pursuant to which such securities were delivered to such creditors, or by such creditors and the commissioner of insurance by agreement, or by the court, and the amount of such value shall be credited upon the claims of such secured creditors and their claims allowed only for the balance.

F. Claims of creditors or policyholders who have received preferences voidable under R.S. 22:2020 or to whom conveyances or transfers, assignments or encumbrances have been made or given which are void under R.S. 22:2020, shall not be allowed unless such creditors or policyholders shall surrender such preferences, conveyances, transfers, assignments or encumbrances.

Acts 1958, No. 125. Amended by Acts 1960, No. 173, §1; Acts 1993, No. 955, §1; Redesignated from R.S. 22:749 by Acts 2008, No. 415, §1, eff. Jan. 1, 2009; Acts 2012, No. 271, §§1, 2; Acts 2012, No. 468, §1.

NOTE: Former R.S. 22:2028 redesignated as R.S. 22:1161 by Acts 2008, No. 415, §1, eff. Jan. 1, 2009.