A. This section applies to actuarial opinions issued prior to the operative date of the valuation manual.

B. Every life insurer doing business in New Mexico shall annually submit the opinion of a qualified actuary as to whether the reserves and related actuarial items held in support of the policies and contracts specified by the superintendent by regulation are computed appropriately, are based on assumptions that satisfy contractual provisions, are consistent with prior reported amounts and comply with applicable laws of New Mexico. The superintendent by regulation shall define the specifics of this opinion and add any other items deemed to be necessary to its scope.

C. Every life insurer, except as exempted by or pursuant to regulation, shall also annually include in the opinion required by Subsection B of this section, an opinion of the same qualified actuary as to whether the reserves and related actuarial items held in support of the policies and contracts specified by the superintendent by regulation, when considered in light of the assets held by the insurer with respect to the reserves and related actuarial items, including but not limited to the investment earnings on the assets and the considerations anticipated to be received and retained under the policies and contracts, make adequate provision for the insurer's obligations under the policies and contracts, including but not limited to the benefits under and expenses associated with the policies and contracts. The superintendent may provide by regulation for a transition period for establishing any higher reserves that the qualified actuary may deem necessary in order to render the opinion required by this section.

D. Every opinion required by Subsection C of this section shall be governed by the following provisions:

(1) a memorandum, in form and substance acceptable to the superintendent as specified by regulation, shall be prepared to support each actuarial opinion; and

(2) if the insurer fails to provide a supporting memorandum at the request of the superintendent within a period specified by rule or if the superintendent determines that the supporting memorandum provided by the insurer fails to meet the standards prescribed by the regulations or is otherwise unacceptable to the superintendent, the superintendent may engage a qualified actuary at the expense of the insurer to review the opinion and the basis for the opinion and prepare such supporting memorandum as is required by the superintendent.

E. Every opinion required by this section shall be governed by the following provisions:

(1) the opinion shall be submitted with the annual statement reflecting the valuation of such reserve liabilities for each year ending on or after December 31, 1994;

(2) the opinion shall apply to all business in force, including individual and group health insurance plans in form and substance acceptable to the superintendent as specified by regulation;

(3) the opinion shall be based on standards adopted from time to time by the actuarial standards board and on such additional standards as the superintendent may by regulation prescribe;

(4) in the case of an opinion required to be submitted by a foreign or alien insurer, the superintendent may accept the opinion filed by that insurer with the insurance supervisory official of another state if the superintendent determines that the opinion reasonably meets the requirements applicable to an insurer domiciled in New Mexico;

(5) for the purposes of this section, "qualified actuary" means a member in good standing of the American academy of actuaries who meets the requirements set forth in such regulations;

(6) except in cases of fraud or willful misconduct, the qualified actuary shall not be liable for damages to any person, other than the insurer and the superintendent, for any act, error, omission, decision or conduct with respect to the actuary's opinion;

(7) disciplinary action by the superintendent against the insurer or the qualified actuary shall be defined in regulations by the superintendent;

(8) except as provided in Paragraph (12) of this subsection, the documents, materials and other information that constitute a memorandum in support of the opinion and that are in the possession or control of the office of superintendent of insurance, and other materials provided by the company to the superintendent in connection with the memorandum, are confidential and are not subject to the Inspection of Public Records Act [Chapter 14, Article 2 NMSA 1978]. Nothing in this section shall be construed as a grant of privilege or confidentiality or a bar to production of that information by an insurer in a civil suit, whether or not the office of superintendent of insurance is a party; provided that the superintendent may use the documents, materials or other information in the furtherance of a regulatory or legal action brought in the course of the superintendent's official duties;

(9) neither the superintendent nor any person who receives documents, materials or other information while acting pursuant to the authority of the superintendent shall be permitted or required in a private civil action to testify on the confidential documents, materials or information subject to Paragraph (8) of this subsection;

(10) to assist in the performance of the superintendent's duties, the superintendent may:

(a) if the recipient agrees to maintain the confidentiality and privilege of the document, material or other information, share documents, materials or other information, including the confidential and privileged documents, with a state, federal or international regulatory agency, with the national association of insurance commissioners, its affiliates or its subsidiaries and with state, federal and international law enforcement authorities;

(b) receive documents, materials or information, including that which is otherwise confidential and privileged, from the national association of insurance commissioners, its affiliates or its subsidiaries and from regulatory and law enforcement officials of other foreign or domestic jurisdictions if the superintendent maintains as confidential or privileged a document, material or other information received with notice or the understanding that the content is confidential or privileged pursuant to the laws of the jurisdiction from which the information originates; and

(c) consistent with Paragraphs (8) through (10) of this subsection, enter into agreements governing sharing and the use of information;

(11) a disclosure to or a sharing by the superintendent pursuant to this section does not constitute a waiver of an applicable privilege or claim of confidentiality in the documents, materials or information; and

(12) a memorandum in support of the opinion and any other material provided by the insurer to the superintendent in connection therewith may be subject to subpoena for the purpose of defending an action seeking damages from the actuary who submitted the memorandum by reason of any action required by this section or by regulations promulgated hereunder; provided, however, that the memorandum or other material may otherwise be released by the superintendent, with the written consent of the insurer, or to the American academy of actuaries upon request stating that the memorandum or other material is required for the purpose of professional disciplinary proceedings and setting forth procedures satisfactory to the superintendent for preserving the confidentiality of the memorandum or other material. Once any portion of the confidential memorandum is cited by the insurer in its marketing or is cited before any governmental agency other than a state insurance department or is released by the insurer to the news media, all portions of the confidential memorandum shall be no longer confidential.

History: 1978 Comp., § 59A-8-7, enacted by Laws 1993, ch. 320, § 22; recompiled and amended as § 59A-8A-4 by Laws 2014, ch. 59, § 18.

Recompilations. — Laws 2014, ch. 59, § 18 recompiled and amended former 59A-8-7 NMSA 1978 as 59A-8A-4 NMSA 1978.

The 2014 amendment, effective January 1, 2017, provided for the confidentiality and sharing of certain information under the control of the superintendent; in the catchline, after "opinion", deleted "of reserves" and added "prior to operative date of valuation manual"; in Subsection A, after "This section", deleted "shall become operative on January 1, 1995 for calendar years 1994 and thereafter" and added "applies to actuarial opinions issued prior to the operating date of the valuation manual"; in Subsection D, Paragraph (2), after "request of the superintendent", added "within a period specified by rule or if the superintendent"; in Subsection E, added Paragraphs (8), (9), (10) and (11); and in Subsection E, Paragraph (12), in the first sentence, after "in connection therewith", deleted "shall be kept confidential by the superintendent and shall not be made public and shall not" and added "may", after "subpoena", deleted "other than", and after "seeking damages from", deleted "any person" and added "the actuary who submitted the memorandum".

Compiler's notes. — Pursuant to Laws 2014, ch. 59, § 55, the effective date of Laws 2014, ch. 59, §§ 15 through 27 was January 1, 2017. On June 30, 2016, the superintendent of insurance certified to the New Mexico compilation commission and the director of the legislative council service that:

(1) the most recent version of the manual of valuation instructions adopted by the national association of insurance commissioners has been adopted by the national association of insurance commissioners by an affirmative vote of at least forty-two members or three-fourths of the members voting, whichever is greater;

(2) the Standard Valuation Law of the national association of insurance commissioners, as amended in 2009, or legislation including substantially similar terms and provisions, has been enacted by states that collectively represent more than seventy-five percent of written direct premiums, as reported in the life, accident and health annual statements, the health annual statements and the fraternal annual statements submitted for 2008; and

(3) the Standard Valuation Law of the national association of insurance commissioners, as amended in 2009, or legislation including substantially similar terms and provisions, has been enacted by at least forty-two of the following fifty-five jurisdictions:

(a) the fifty states of the United States;

(b) American Samoa;

(c) the Virgin Islands of the United States;

(d) the District of Columbia;

(e) Guam; and

(f) Puerto Rico.

Severability. — Laws 2014, ch. 59, § 54 provided that if any part or application of the provisions of Laws 2014, ch. 59 is held invalid, the remainder or its application to other situations or persons shall not be affected.