§2055. Definitions

As used in this Part:

(1) "Affiliate" means a person who directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with another person.

(2) "Association" means the Louisiana Insurance Guaranty Association created under R.S. 22:2056.

(3) "Association similar to the association" means any guaranty association, security fund or other insolvency mechanism that affords protection similar to that of the association. The term shall also include any property and casualty insolvency mechanism that obtains assessments or other contributions from insurers on a pre-insolvency basis.

(4) "Commissioner" means the commissioner of insurance of this state.

(5) "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 non-management 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 a person, directly or indirectly owns, controls, holds with the power to vote, or holds proxies representing, ten percent 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.

(6) "Covered claim" means the following:

(a) An unpaid claim, including one for unearned premiums that arises out of and is within the coverage and not in excess of the applicable limits of an insurance policy to which this Part applies issued by an insurer, if such insurer becomes an insolvent insurer after September 1, 1970, and the policy was issued by such insurer and any of the following:

(i) The claimant or insured is a resident of this state at the time of the insured event, provided that, for entities, the residence of a claimant or insured is the state in which its principal place of business is located at the time of the insured event.

(ii) The claimant is a self-insurer, including an arrangement or trust formed under R.S. 23:1191 et seq., and is principally domiciled in this state at the time of the insured event.

(iii) The claim is a first party claim for damage to property with a permanent location in this state.

(b) "Covered claim" shall not include:

(i) Any amount awarded as penalties, punitive or exemplary damages.

(ii) Any amount sought as a return of premium under any retrospective rating plan.

(iii) Any amount due any reinsurer, insurer, insurance pool or underwriting association, health maintenance organization or plan, preferred provider organization or plan, hospital plan corporation, professional health service corporation, employee retirement fund including but not limited to plans subject to the Employee Retirement Income Security Act of 1974, Medicaid, or the self-insured portion due any self-insurer as subrogation recoveries, reinsurance recoveries, contribution, indemnification or otherwise. In addition, any person insured under a policy issued by an insolvent insurer shall likewise not be liable for any subrogation claim or any contractual indemnity claim asserted by any reinsurer, insurer, insurance pool, underwriting association, health maintenance organization or plan, hospital plan corporation, professional health service corporation, preferred provider organization or plan, employee retirement fund including but not limited to plans subject to the Employee Retirement Income Security Act of 1974, Medicaid, self-insurer, or any other person with an interest in the claim, other than to the extent the claim exceeds the association's obligation limitations.

(iv) Any claims excluded due to the high net worth of an insured as defined in this Part.

(v) Any first party claims by an insured that is an affiliate of the insolvent insurer.

(vi) 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.

(vii) 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.

(viii) Any claim for interest.

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

(x) Any claim the payment of which exceeds the powers and duties of the association in R.S. 22:2058(A)(1) or is outside the scope of coverage in R.S. 22:2053(A).

(xi) Any claim by a group self-insurance fund for the amount within the self-insured retention, deductible, co-pay, or any other obligation or liability of the group self-insurance fund, stated in the policy of the insolvent insurer, or for the first three hundred thousand dollars of each claim, whichever is greater.

(7) "Insolvent insurer" means an insurer who meets both of the following criteria:

(a) Is licensed and authorized to transact insurance in this state, either at the time the policy was issued or when the insured event occurred.

(b) Against whom an order of liquidation with a finding of insolvency has been entered by a final judgment of a court of competent jurisdiction in the insurer's state of domicile or of this state, and which order of liquidation has not been stayed or been the subject of a perfected suspensive appeal or other comparable order.

(8) "Insurance policy" means an insurance contract as defined in R.S. 22:864, and shall not include an agreement in which an insurer agrees to assume and carry out directly with the policyholder any of the policy obligations of another insurer, such as cut-through endorsements, reinsurance endorsements, facultative reinsurance agreements, treaty reinsurance agreements, and other such agreements, when either insurer is an affiliate of the other.

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

(10)(a) "Member insurer" means any person who meets both of the following criteria:

(i) Is licensed and authorized to transact insurance in this state.

(ii) Since September 1, 1970, has written at least one policy of insurance to which this Part applies.

(b) An insurer shall cease to be a member insurer effective on the day following the termination or expiration of its license 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 prior to the termination or expiration of the insurer's license.

(11) "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 return premiums thereon, premiums on policies not taken, and dividends paid or credited to policyholders on such direct business. "Net direct written premiums" does not include premiums on contracts between insurers or reinsurers. Notwithstanding any law to the contrary, no assuming reinsurer shall be required to pay or otherwise contribute to any fund or assessment of the association except for any insurance that the reinsurer directly writes in the state.

(12) "Ocean marine insurance" shall have the same meaning as that term is defined in R.S. 22:46.

(13) "Person" means any natural or juridical person, company, insurer, association, organization, reciprocal or inter-insurance exchange, partnership, business, trust, corporation, or other entity, including governmental entities.

(14) "Receiver" means liquidator, rehabilitator, conservator or ancillary receiver, as the context requires.

(15) "Self-insurer" means a person that covers its liabilities through a qualified individual or group self-insurance program created for the specific purpose of covering liabilities typically covered by insurance. A group self-insurance fund formed under R.S. 23:1191 et seq. shall not be deemed to be an insurer with respect to this Chapter.

Added by Acts 1970, No. 81, §1. Amended by Acts 1980, No. 486, §1; Acts 1987, No. 172, §1, eff. June 19, 1987; Acts 1989, No. 620, §1; Acts 1989, No. 688, §1; Acts 1990, No. 105, §1; Acts 1990, No. 129, §1; Acts 1990, No. 254, §1; Acts 1992, No. 835, §1; Acts 1997, No. 1340, §1, eff. July 15, 1997; Acts 1999, No. 475, §1, eff. June 18, 1999; Acts 1999, No. 476, §1, eff. June 18, 1999; Acts 1999, No. 477, §1, eff. June 18, 1999; Acts 2004, No. 109, §1; Acts 2008, No. 109, §1; Redesignated from R.S. 22:1379 by Acts 2008, No. 415, §1, eff. Jan. 1, 2009; Acts 2010, No. 959, §1, eff. July 6, 2010; Acts 2012, No. 271, §1; Acts 2017, No. 183, §2.

NOTE: Former R.S. 22:2055 redesignated as R.S. 22:415 by Acts 2008, No. 415, §1, eff. Jan. 1, 2009.