56-6-602 - Part definitions.
56-6-602. Part definitions.
As used in this part, unless the context otherwise requires:
(1) Control or controlled 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 contract for goods or nonmanagement services, or otherwise. Control shall be presumed to exist if any person, directly or indirectly, owns, controls, holds with the powers to vote, or holds proxies representing a majority of the outstanding voting securities of any other person. No person shall be deemed to control another person solely by reason of being an officer or director of the person. The commissioner may determine upon application that any person does not or will not upon the taking of some proposed action control another person. The commissioner may prospectively revoke or modify the commissioner's determination, after notice and opportunity to be heard, whenever, in the commissioner's judgment, revocation or modification is consistent with this part;
(2) Independent casualty actuary means a casualty actuary who is a member of the American Academy of Actuaries and who is not affiliated with, nor an employee, principal, nor the direct or indirect owner of, or in any way controlled by, the insurer or producer;
(3) Licensed property/casualty insurer or insurer means any person, firm, association or corporation duly licensed to transact a property/casualty insurance business in this state and that issues policies covered by chapter 12 of this title. The following are not licensed property/casualty insurers for the purposes of this part:
(A) All nonadmitted insurers;
(B) All risk retention groups as defined in the Superfund Amendments Reauthorization Act of 1986, Pub. L. No. 99-499, 100 Stat. 1613, the Liability Risk Retention Act, compiled in 15 U.S.C. § 3901 et seq., and the Tennessee Risk Retention Group Act, compiled in chapter 45 of this title;
(C) All residual market pools and joint underwriting authorities or associations; and
(D) All captive insurers, i.e., insurance companies owned by another organization whose exclusive purpose is to insure risks of the parent organization and affiliated companies or, in the case of groups and associations, insurance organizations owned by the insureds whose exclusive purpose is to insure risks of member organizations and/or group members and their affiliates;
(4) Producer means an insurance broker or brokers or any other person, firm, association or corporation, when, for any compensation, commission or other thing of value, the person, firm, association or corporation acts or aids in any manner in soliciting, negotiating or procuring the making of any insurance contract on behalf of an insured other than the person, firm, association or corporation; and
(5) Violation means a finding by the commissioner that:
(A) The controlling producer did not materially comply with § 56-6-603;
(B) The controlled insurer, with respect to business placed by the controlling producer, engaged in a pattern of charging premiums that were lower than those being charged by the insurer or other insurers for similar risks written during the same period and placed by noncontrolling producers. When determining whether premiums were lower than those prevailing in the market, the commissioner shall take into consideration applicable industry or actuarial standards at the time the business was written;
(C) The controlling producer failed to maintain records, sufficient to:
(i) Demonstrate that the producer's dealings with its controlled insurer were fair and equitable and in compliance with the Insurance Holding Company System Act of 1986, compiled in chapter 11 of this title; and
(ii) Accurately disclose the nature and details of its transactions with the controlled insurer, including information necessary to support the charges or fees to the respective parties;
(D) The controlled insurer, with respect to business placed by the controlling producer, either failed to establish or deviated from its underwriting procedures;
(E) The controlled insurer's capitalization at the time the business was placed by the controlling producer and with respect to the business was not in compliance with criteria established by the commissioner or with the insurance law or regulations; or
(F) The controlling producer or the controlled insurer failed to substantially comply with the holding company provisions of the insurance law and any rules and regulations relative to the provisions.
[Acts 1991, ch. 142, § 8; 1993, ch. 253, § 12.]