§ 58-7-95. Establishment of separate accounts by life insurance companies.
§ 58‑7‑95. Establishment of separate accounts by life insurance companies.
(a) When used in thissection, "variable contract" shall mean any individual or groupcontract issued by an insurance company providing for life insurance or annuitybenefits or contractual payments or values which vary so as to reflectinvestment results of any segregated portfolio of investments or of adesignated separate account or accounts in which amounts received or retainedin connection with any of such contracts have been placed.
(b) Any domestic lifeinsurance company may, pursuant to resolution of its board of directors,establish one or more separate accounts and may allocate to such account oraccounts amounts (including without limitation proceeds applied under optionalmodes of settlement or under dividend options) to provide for life insurance,guaranteed investment contracts, or annuities (and benefits incidental thereto)payable in fixed or variable amounts or both.
(c) In addition to theamounts allocated under subsection (b), such company may allocate from itsgeneral accounts to such separate account or accounts additional amounts, whichmay include an initial allocation to establish such account; provided, thatsuch company shall be entitled to withdraw at any time, in whole or in part,its participation in any separate account to which funds have been allocated asprovided in this subsection (c), and to receive, upon withdrawal, itsproportionate share of the value of the assets of the separate account at the timeof withdrawal.
(d) Except ashereinafter provided, the amounts allocated to any separate account andaccumulations thereon may be invested and reinvested without regard to anyrequirements or limitations prescribed by the laws of this State governing theinvestments of life insurance companies; provided, that to the extent that thecompany's reserve liability with regard to (i) benefits guaranteed as to amountand duration, and (ii) funds guaranteed as to principal amount or stated rateof interest is maintained in any separate account, a portion of the assets ofsuch separate account at least equal to such reserve liability shall be, exceptas the Commissioner may otherwise approve, invested in accordance with the lawsof this State governing the investments of life insurance companies. Theinvestments in such separate account or accounts shall not be taken intoaccount in applying the investment limitations applicable to other investmentsof the company.
(e) Repealed by SessionLaws 2001‑223, s. 6.3, effective June 15, 2001.
(f) Repealed bySession Laws 2001‑223, s. 6.3, effective June 15, 2001.
(g) The life insurancecompany shall maintain in each separate account assets with a value at leastequal to the reserves and other contract liabilities with respect to theaccount, except as may otherwise be approved by the Commissioner.
(h) The income, if any,and gains and losses, realized or unrealized, from assets allocated to eachaccount shall be credited to or charged against the account without regard toother income, gains or losses of the company.
(i) Unless otherwiseapproved by the Commissioner, assets allocated to a separate account shall bevalued at their market value on the date of valuation, or if there is noreadily available market, then as provided under the terms of the contract orthe rules or other written agreement applicable to such separate account;provided, that unless otherwise approved by the Commissioner that portion ofthe assets of such separate account equal to the company's reserve liabilitywith regard to the guaranteed benefits and funds referred to in subsection (d)hereof, if any, shall be valued in accordance with the rules otherwiseapplicable to the company's assets. The reserve liability for variablecontracts shall be determined in accordance with actuarial procedures thatrecognize the variable nature of the benefits provided and any mortalityguarantees.
(j) If and to theextent so provided under the applicable contracts, that portion of the assetsof any such separate account equal to the reserves and other contractliabilities with respect to such account shall not be chargeable withliabilities arising out of any other business the company may conduct.
(k) The life insurancecompany shall have the power and the company's charter shall be deemed amendedto authorize such company to do all things necessary under any applicable stateor federal law in order that variable contracts may be lawfully sold or offeredfor sale. To the extent such company deems it necessary to comply with anyapplicable federal or state laws, such company, with respect to any separateaccount, including without limitation any separate account which is amanagement investment company or a unit investment trust, may provide, forpersons having an interest therein, appropriate voting and other rights andspecial procedures for the conduct of the business of such account, includingwithout limitation special rights and procedures relating to investment policy,investment advisory services, selection of independent public accountants, andthe selection of a committee, the members of which need not be otherwiseaffiliated with such company, to manage the business of such account. Thisprovision shall not affect existing laws pertaining to the voting rights of thelife insurance company's policyholders.
(l) Amounts allocatedto a separate account in the exercise of the power granted by this sectionshall be owned by the company, and the company shall not be, or hold itself outto be, a trustee with respect to such amounts.
(m) The company shallnot, in connection with the allocation of investments or expenses, or in anyother respect, discriminate unfairly between separate accounts or betweenseparate and other accounts, but this provision shall not require the companyto follow uniform investment policies for its accounts.
(n) No sale, exchangeor other transfer of assets may be made by a company between any of itsseparate accounts or between any other investment account and one or more ofits separate accounts unless, in case of a transfer into a separate account,such transfer is made solely to establish the account or to support theoperation of the contracts with respect to the separate account to which thetransfer is made, and unless such transfer, whether into or from a separateaccount, is made (i) by a transfer of cash, or (ii) by a transfer of securitieshaving a readily determinable market value, provided that such transfer ofsecurities is approved by the Commissioner. The Commissioner may approve othertransfers among such accounts if, in his opinion, such transfers would not beinequitable.
(o) Any contractproviding benefits payable in variable amounts delivered or issued for deliveryin this State shall contain a statement of the essential features of theprocedure to be followed by the company in determining the dollar amount ofsuch variable benefits. Any such contract under which the benefits vary toreflect investment experience, including a group contract and any certificatein evidence of variable benefits issued thereunder, shall state that suchdollar amount will so vary and shall contain on its first page a statement tothe effect that the benefits thereunder are on a variable basis.
(p) Any variableannuity contract providing benefits payable in variable amounts issued underthis section may include as an incidental benefit provision for payment ondeath during the deferred period of an amount not in excess of the greater ofthe sum of the premiums or stipulated payments paid under the contract or thevalue of the contract at time of death or any other incidental amount approvedby the Commissioner; such contracts will be deemed not to be contracts of lifeinsurance and therefore not subject to the provisions of the insurance lawgoverning life insurance contracts. Provision for any other benefit on deathduring the deferred period will be subject to such insurance provisions.
(q) No domestic lifeinsurance company and no other life insurance company shall deliver or issuefor delivery within this State any contracts under this section unless it islicensed or organized to do a life insurance or annuity business in this State,and the Commissioner is satisfied that its financial condition and its methodsof operation in connection with the issuance of such contracts will not renderits operation hazardous to the public or its policyholders in this State. Indetermining the qualification of a company requesting authority to deliver suchcontracts within this State, the Commissioner shall consider, among otherthings:
(1) The history andfinancial condition of the company;
(2) The character,responsibility and general fitness of the officers and directors of thecompany; and
(3) The law andregulations under which the company is authorized in the state of domicile toissue variable annuity contracts. The state of entry of an alien company shallbe deemed its place of domicile for this purpose.
If the company is a subsidiaryof an admitted life insurance company, or affiliated with such company throughcommon management or ownership, it may be deemed by the Commissioner to havemet the provisions of this subsection if either it or the parent or affiliatedcompany meets the requirements hereof.
(r) The Commissionershall have sole and exclusive authority to regulate the issuance by lifeinsurance companies and the sale of such contracts and to issue such reasonablerules and regulations as may be necessary to carry out the purposes andprovisions of this section, and such contracts and the life insurance companieswhich issue them shall not be subject to the Securities Law of North Carolinanor to the jurisdiction of the Secretary of State thereunder.
(s) Except for G.S. 58‑58‑61and G.S. 58‑58‑120 in the case of a variable annuity contract, G.S.58‑58‑55, 58‑58‑120, and 58‑58‑140(1) inthe case of a variable life insurance policy, and except as otherwise providedin this section, all pertinent provisions of this Chapter apply to separateaccounts and contracts issued in connection with separate accounts. Anyindividual variable life insurance contract, delivered or issued for deliverywithin this State, shall contain reinstatement and nonforfeiture provisionsappropriate to that contract. Any group variable life insurance contract,delivered or issued for delivery within this State, shall contain graceprovisions appropriate to that contract. Any individual variable annuitycontract, delivered or issued for delivery within this State, shall containreinstatement provisions appropriate to that contract. (1965, c. 166; 1969, c. 616,s. 2; 1971, c. 831, s. 2; 1973, c. 490; 1979, c. 409, s. 10; 1991, c. 720, s.4; 1991 (Reg. Sess., 1992), c. 837, s. 7; 2001‑223, ss. 6.1, 6.2, 6.3,6.4; 2003‑144, s. 3.)