26-11-104. Conditions for export.

(a) If certain insurance coverages cannot be procured from authorized insurers, those coverages, designated in this chapter as "surplus lines", may be procured from nonadmitted insurers, subject to the following conditions:

(i) The insurance shall be procured through a licensed surplus line broker;

(ii) The full amount of insurance required is not procurable, after diligent effort has been made to do so, from among the insurers authorized to transact and actually writing that kind and class of insurance in this state, and the amount of insurance exported shall be only the excess over the amount procurable from authorized insurers. The surplus lines broker shall verify that a properly conducted diligent effort search was performed and documented as prescribed by the commissioner;

(iii) The insurance shall not be exported for the purpose of securing advantages either as to:

(A) A lower premium rate than would be accepted by an authorized insurer; or

(B) Terms of the insurance contract.

(iv) The insurer is an eligible nonadmitted insurer;

(v) The insurer is authorized to write the kind of insurance in its domiciliary jurisdiction;

(vi) All other requirements of this chapter are met.

(b) A surplus lines broker is not required to make a diligent effort search to determine whether the full amount or type of insurance can be obtained from admitted insurers when the broker is seeking to procure or place nonadmitted insurance for an exempt commercial purchaser provided:

(i) The broker procuring or placing the surplus lines insurance has disclosed to the exempt commercial purchaser that such insurance may or may not be available from the admitted market that may provide greater protection with more regulatory oversight; and

(ii) The exempt commercial purchaser has subsequently requested in writing for the broker to procure or place such insurance from a nonadmitted insurer.

(c) For purposes of this section, the term "exempt commercial purchaser" means any person purchasing commercial insurance that, at the time of placement, meets the following requirements:

(i) The person employs or retains a qualified risk manager to negotiate insurance coverage;

(ii) The person has paid aggregate nationwide commercial property and casualty insurance premiums in excess of one hundred thousand dollars ($100,000.00) in the immediately preceding twelve (12) months;

(iii) The person meets at least one (1) of the following criteria:

(A) The person possesses a net worth in excess of twenty million dollars ($20,000,000.00) as adjusted pursuant to paragraph (iv) of this subsection;

(B) The person generates annual revenues in excess of fifty million dollars ($50,000,000.00) as adjusted pursuant to paragraph (iv) of this subsection;

(C) The person employs more than five hundred (500) full-time or full-time equivalent employees per individual insured or is a member of an affiliated group employing more than one thousand (1,000) employees in the aggregate;

(D) The person is a not-for-profit organization or public entity generating annual budgeted expenditures of at least thirty million dollars ($30,000,000.00) as adjusted pursuant to paragraph (iv) of this subsection;

(E) The person is a municipality with a population in excess of fifty thousand (50,000) individuals.

(iv) Effective on January 1, 2015 and every five (5) years thereafter, the amounts in subparagraphs (A), (B) and (D) of paragraph (iii) of this subsection shall be adjusted to reflect the percentage change for such five (5) year period in the consumer price index for all urban consumers published by the bureau of labor statistics of the United States department of labor.