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Article 76     § 7601-7614

Article 76 - Property/Casualty Security Funds

§7601 - Property/casualty insurance security fund; public motor vehicle liability security fund.
§7602 - Definitions.
§7603 - Property/casualty insurance security fund.
§7604 - Public motor vehicle liability security fund.
§7605 - Quarterly returns.
§7606 - Determination of net value of funds; limits.
§7607 - Management and investment of funds.
§7608 - Payments from funds; subrogation; limit on payments.
§7609 - Rights of funds against insolvent insurers.
§7610 - Defense of claims.
§7611 - Expense of administering funds.
§7612 - Foreign and alien insurers.
§7613 - Rules and regulations.
§7614 - Penalties.

 

§ 7601. Property/casualty insurance security fund; public motor vehicle liability security fund.
     (a) The property and liability insurance security fund is continued and shall hereafter be known as "the property/casualty insurance security fund".
     (b) The public motor vehicle liability security fund is continued.
     (c) The property/casualty insurance security fund shall consist of all payments made to it by insurers and of securities acquired by and through the use of moneys belonging to it, together with interest and accretions earned upon such payments or investments earned prior to January first, nineteen hundred seventy-four.
     (d) The public motor vehicle liability security fund shall consist of all payments made to it by insurers and of securities acquired by and through the use of moneys belonging to it, together with interest and accretions earned upon such payments or investments.
     (e) Each fund shall be administered separately by the superintendent in accordance with this article.


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§7602. Definitions.
     In this article, unless the context or subject matter otherwise requires:
     (a) "Fund" means either the property/casualty insurance security fund or the public motor vehicle liability security fund.
     (b) "Fund year" means the calendar year.
     (c) "Insurer" means any insurer (other than an insolvent insurer, or a municipal reciprocal insurer which issues policies not covered by the property/casualty insurance security fund, or a risk retention group as defined in article fifty-nine of this chapter, or a provider of service contracts pursuant to article seventy-nine of this chapter) authorized to transact the kinds of business specified in paragraphs four through fourteen, sixteen, seventeen, nineteen through twenty-one of subsection (a) of section one thousand one hundred thirteen of this chapter.
     (d) "Policy" means a policy issued by an insurer authorized to do business in this state, including a policy or surety bond filed pursuant to article six or seven of the vehicle and traffic law, insuring against legal liability arising out of the ownership, operation or maintenance of motor vehicles, including surety bonds or insurance policies issued to meet the requirements of section three hundred seventy of the vehicle and traffic law.
     (e) "Net direct written premiums" means direct gross premiums written on policies subject to this article, insuring:
          (1) property or risks located or resident in this state,
          (2) legal liability arising out of the ownership, operation or maintenance of motor vehicles which are principally garaged in this state, less return premiums thereon and dividends paid to policyholders on such direct business. For the purposes of this article premiums written by any authorized insurer on policies issued to self insurers, whether or not designated as reinsurance contracts, shall be deemed "net direct written premiums".
     (f) "Motor vehicle accident" means either an accident occurring within or without this state arising out of the ownership, operation or maintenance of a motor vehicle which is principally garaged in this state or an accident occurring within this state arising out of the ownership, operation or maintenance of a motor vehicle which is not principally garaged in this state.
     (g) "Allowed claim" means a claim which has been allowed by the court in a proceeding under article seventy-four of this chapter and which is based upon:
          (1) a policy insuring property or risks located or resident in this state, or
          (2) a policy issued in this state to a resident of this state insuring property or risks, located or resident outside this state but within the United States, its possessions and territories, and Canada, provided that, with respect to policies covered under this paragraph:
               (A) irrespective of the amount of claim which has been allowed, no person shall recover any amount from this fund until such person has exhausted all rights of recovery from any security fund, guaranty association, or the equivalent in the jurisdiction where such property or risks are located or resident; and, thereafter, such person's recovery from this fund, when combined with amounts recovered or recoverable from any other security fund, guaranty association, or the equivalent in such jurisdiction, shall not exceed the maximum limit available to a qualified claimant for a recovery solely from such other security fund, guaranty association, or the equivalent; and
               (B) the aggregate limit for all claims arising out of any one policy, excluding claims with respect to property or risks located or resident in this state, shall not exceed the lesser of the aggregate limit of the policy or five million dollars.
     (h) "Injured party claim" means a claim of a person, other than a policyholder or assured, who suffered an injury to his person or property arising out of an insured incident within the coverage of the policy.
     (i) "Policyholder claim" means a claim of a policyholder or assured within the coverage of the policy, wherein such person suffered loss or damage under the coverage of the policy or where such person has paid an injured party claim, subject to allowance of such policyholder claim in a proceeding under article seventy-four of this chapter.
     (j) "Commissioner" means the commissioner of taxation and finance of this state.


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§7603. Property/casualty insurance security fund.
     (a)
          (1) The property/casualty insurance security fund shall be used in the payment of allowed claims remaining unpaid, in whole or in part, by reason of the inability due to insolvency of an authorized insurer to meet its insurance obligations under policies:
               (A) on account of claims from motor vehicle accidents as defined in subsection (f) of section seven thousand six hundred two of this article,
               (B) for all of the kinds of insurance specified in paragraphs four through fourteen, sixteen, nineteen through twenty-one, twenty-four and subparagraphs (A) and (B) of paragraph twenty-six of subsection (a) of section one thousand one hundred thirteen of this chapter with respect to coverage of property or risks located or resident in this state, or outside this state but within the United States, its possessions and territories, and Canada,
               (C) for the kind of insurance providing disability benefits pursuant to article nine of the workers' compensation law issued by an authorized insurer licensed under article forty-one, sixty-one or sixty-six of this chapter with respect to coverage of risks located or resident in this state,
               (D) in the kind of insurance providing workers' compensation insurance pursuant to subsection (j) of section three thousand four hundred twenty of this chapter,
               (E) for the insurance provided by the medical malpractice insurance association,
               (F) for the insurance provided pursuant to subdivision two-a of section seventy-six of the workers' compensation law if and when operative,
               (G) for the kinds of credit insurance as defined in subparagraphs (B) and (C) of paragraph seventeen of subsection (a) of section one thousand one hundred thirteen of this chapter, and
               (H) any obligation for the return of unearned premiums on any policy specified in subparagraphs (A), (B), (C), (D), (E), (F) and (G) hereof, which shall, for the purposes of this article, be deemed to include the obligations of an insurer and the medical malpractice insurance association under medical malpractice claims-made policies to pay to successor entities the actuarially appropriate amounts for the provision of coverage to comply with the requirements of subsections (b), (c) and (d) of section three thousand four hundred thirty-six and paragraphs two, three and four of subsection (f) of section five thousand five hundred four of this chapter.
          (2) No payment from the property/casualty insurance security fund shall be made to any person who owns or controls ten percent or more of the voting securities of the insolvent insurer and no payment on any one claim shall exceed one million dollars, provided that the amount of payment on a claim and the aggregate for all claims shall be furthe limited by the provisions of paragraph two of subsection (g) of section seven thousand six hundred two of this article.
     (b)
          (1) Contributions to the property/casualty insurance security fund shall be determined on the basis of net direct written premiums on policies insuring property or risks located or resident in this state.
          (2) Every insurer shall pay into such fund, upon filing each quarterly return pursuant to section seven thousand six hundred five of this article, one-half of one percent of its net direct written premiums as shown for the period covered by such return.
     (c)
          (1) Whenever the superintendent determines, pursuant to section seven thousand six hundred six of this article, that the net value of the property/casualty insurance security fund is at least one hundred fifty million dollars, no further contributions shall be made after the fund year in which the determination is first made, but if thereafter the superintendent determines that payments made from the fund by the commissioner to the superintendent acting as liquidator, rehabilitator or conservator have reduced the net value to an amount less than such amount, the superintendent shall cause contributions to be resumed until the end of the fund year in which he first determines that such net value exceeds such amount.
          (2) If contributions are so resumed, they shall be apportioned:
               (A) ratably among those kinds of insurance as to which the commissioner made payments during the fund year in which the net value of the property/casualty insurance security fund was reduced below such amount, and
               (B) among insurers in accordance with their respective amounts of net direct premiums written in each such kind of insurance.
     (d)
          (1) All income earned on moneys in the fund (after deducting any amounts paid for allowed claims and administrative expenses during the preceding year) shall be credited, upon certification by the superintendent to the commissioner, to the general fund of the state treasury; except that with respect to all such income earned on or after July first, nineteen hundred seventy-nine such moneys shall be distributed annually in the following manner:
               (A) Pursuant to regulations of the superintendent, the deficit from the operations of the New York property insurance underwriting association shall be credited with such income earned, upon certification by the superintendent to the commissioner, in a sum not exceeding such total income earned or the sum of fifteen million dollars whichever is the lesser in any one year. Such credit shall be in lieu of a transfer of such funds to the general fund of the state treasury.
               (B) Any balance of earned income shall be credited, upon certification by the superintendent to the commissioner, to the general fund of the state treasury; but only when the value of the fund exceeds the sum of two hundred forty million dollars.
          (2) The superintendent, after consultation with the commissioner, may by regulation provide for contributions to be made in the form of acceptable securities, and for the management and disposition of such securities. The income from such securities shall be included in the distribution outlined in paragraph one hereof.
          (3) The superintendent is authorized to use the income earned on the moneys of the fund to offset the deficit of the New York property insurance underwriting association in accordance with subsection (d) of section five thousand four hundred five of this chapter, provided that any income earned on the moneys of the fund which in any one year exceeds fifteen million dollars or which the superintendent has not utilized for the purposes of such subsection shall be credited to the corpus of the fund until the superintendent determines that its net value is two hundred forty million dollars, and thereafter shall be credited, upon certification by the superintendent to the commissioner, to the general fund of the state treasury.
     (e)
          (1)
               (A) Notwithstanding any other provision of law to the contrary, the superintendent shall annually no later than November first in each year submit to the director of the budget a request for an appropriation of ninety million dollars. The governor shall include such amount in a budget bill for the next state fiscal year. The state comptroller shall encumber the amount so appropriated before the end of the fiscal year for which any such appropriation is made. If for any fiscal year commencing on or after April first, nineteen hundred eighty-three, the governor fails to submit a budget bill containing an appropriation in the amount requested by the superintendent or the legislature fails to appropriate the amount in a budget bill submitted by the governor for such fiscal year, the amount appropriated for and encumbered during the preceding fiscal year shall be payable forthwith to the fund on July first of such year in the manner prescribed by law, provided, however, that such amount shall not exceed the amount of moneys transferred to the general fund from the fund pursuant to the provisions of chapter fifty-five of the laws of nineteen hundred eighty-two.
               (B) Any appropriation made to the fund pursuant to this section shall be included as an asset for the purposes of computing the value or net value of the fund pursuant to this section.
               (C) Any transfer of moneys from the fund to the general fund in accordance with the provisions of chapter fifty-five of the laws of nineteen hundred eighty-two is deemed a proper and prudent legal undertaking for any state officer with the responsibility for the custody or the investment of the assets of the fund, notwithstanding any other provision of law to the contrary.
          (2) Upon certification by the superintendent that further sums, not exceeding fifty million dollars in the aggregate, are required by the public motor vehicle liability security fund to meet its obligations and accomplish the purposes of this article the commissioner shall transfer from the assets of the property/casualty insurance security fund to the public motor vehicle liability security fund amounts to be specified by the superintendent. Such sums, not exceeding fifty million dollars in the aggregate, shall be a liability of the public motor vehicle liability security fund and shall be repaid to the property/casualty insurance security fund pursuant to a plan of repayment to be prescribed by the superintendent which may provide for an increase in the level of payments into the fund provided for in subsection (b) of section seven thousand six hundred four of this article.


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§7604. Public motor vehicle liability security fund.
     (a) The purpose of the public motor vehicle liability security fund is to secure the benefits contemplated by section three hundred seventy of the vehicle and traffic law in those cases where a policy of insurance or corporate surety bond, therein described, of a solvent and responsible insurer is accepted by the commissioner of motor vehicles as a compliance with such section. The fund shall be used to pay allowed claims of injured parties and policyholders under insurance policies or surety bonds, remaining unpaid, in whole or in part, by reason of the insurer's insolvency or its inability to meet its insurance obligations (including any obligation for the return of unearned premiums) provided the insurer has made payments to the fund as required by subsection (b) hereof.
     (b)
          (1) Contributions to this fund shall be determined on the basis of net direct written premiums on insurance policies or surety bonds issued to meet the requirements of section three hundred seventy of the vehicle and traffic law.
          (2) Every insurer issuing such policies or bonds, upon filing its quarterly return pursuant to section seven thousand six hundred five of this article, shall pay into the fund three percent of its net direct written premiums as shown for the period covered by such return.


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§7605. Quarterly returns.
     With respect to each fund subject to this article, every insurer on or before the fifteenth days of February, May, August and November of each year, shall file, with the commissioner and the superintendent identical returns, subscribed and affirmed by the insurer to be true under the penalties of perjury, on a form prescribed by the superintendent, stating the amount of net direct written premiums charged by such insurer during the quarter year ending on the last day of the second month preceding that in which the report is required to be filed.


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§7606. Determination of net value of funds; limits.
     (a) The superintendent shall annually, on or before March first, ascertain and determine the net value of each fund as of the next preceding December thirty-first by deducting from the value of the assets of each fund, ascertained pursuant to this article, the aggregate actual and estimated liabilities of each fund as determined by the superintendent. When the net value of a fund, as thus determined, reaches an amount equal to fifteen percent of the outstanding claim reserves of all authorized insurers, incurred under policies or bonds providing benefits as specified in subsection (a) of section seven thousand six hundred three or subsection (a) of section seven thousand six hundred four of this article, as the case may be, no further contributions to such fund shall be required to be made.
     (b) Whenever, thereafter, the amount of a fund is reduced below such fifteen percent, by reason of payments from, and known and estimated liabilities of, that fund, then contributions to such fund shall be resumed and continued until that fund, over and above its known and estimated liabilities, reaches such amount.


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§7607. Management and investment of funds.
     (a) Each of the two funds governed by this article shall be separate and apart. Each fund shall also be separate and apart from any other fund and from all other state moneys, and the faith and credit of the state of New York is pledged for their safekeeping. The commissioner shall be the custodian of the funds. All disbursements shall be made by the commissioner upon vouchers signed by the superintendent, or his deputy. The moneys of the funds may be invested by the commissioner in obligations of the United States or of this state and in interest bearing certificates of deposit of a bank or trust company located and authorized to do business in this state, or of a national bank located in this state, secured by a pledge of direct obligations of the United States or of the state of New York in an amount equal to the amount of such certificates of deposit, or in accordance with the provisions of section ninety-eight-a of the state finance law.
     (b) With respect to the moneys in the property/casualty insurance security fund the commissioner may also invest in:
          (1) obligations of public benefit corporations whose obligations are legal for investment by public officers and bodies of this state;
          (2) up to thirty-three and one-third percent of the net value of the fund in mortgage loans or deeds of trust on real property improved by one, two, three or four family residences owned by one or more individuals and occupied by an owner and located in this state. The amount invested in mortgage loans and deeds of trust may not exceed the lesser of ninety percent of the appraised value of the real property or thirty-five thousand dollars if a one-family residence, forty thousand dollars if a two-family residence, forty-five thousand dollars if a three-family residence, or fifty thousand dollars if a four-family residence. The mortgage or deed of trust shall provide for monthly principal and interest payments in amounts sufficient to pay all interest and effect full repayment of principal within seventy-five percent of the estimated remaining useful life of the building or thirty years, whichever is less.
     (c) The commissioner may sell any investment of either fund, if advisable, for proper administration or in the best interests of the fund.


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§7608. Payments from funds; subrogation; limit on payments.
     (a) Payments from the funds shall be made by the commissioner to the superintendent acting as liquidator, rehabilitator or conservator pursuant to article seventy-four of this chapter upon the authority of appropriate certificates filed with him by the superintendent acting in such capacity.
     (b)
          (1) Payments from the funds upon allowed claims give no right of recovery by the commissioner as custodian of the funds against principals or assureds under policies of insurance or surety bonds, for the benefit and reimbursement of the fund.
          (2) Any assured under such a policy of insurance or surety bond who pays, in whole or in part, any injured party claim which is eligible for payment, in whole or in part, from the funds, shall thereupon be subrogated to the injured party's rights against the fund but not in excess of the subrogee's claim as allowed in the proceeding under article seventy-four of this chapter.
     (c) No payment from the funds shall exceed the limit of liability provided for in the insurance policy or surety bond.


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§7609. Rights of funds against insolvent insurers.
     (a) The commissioner as custodian of each of the funds shall be entitled to a valid claim against an insurer which becomes insolvent or unable to meet its insurance obligations, or its liquidator, rehabilitator, conservator, receiver, or trustee in bankruptcy, in an amount equal to the liabilities, including loss adjustment expenses relating to such liabilities, of the insurer paid from the fund less the net payments paid into the fund by such insurer.
     (b) All moneys recovered through the prosecution of claims in the liquidation, rehabilitation or conservation proceeding shall be forthwith placed to the credit of the appropriate fund by the commissioner.


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§7610. Defense of claims.
     (a) The superintendent may, in his discretion, designate or appoint a duly authorized representative to appear before any court or other body or official having jurisdiction and defend any action or proceeding against principals or assureds on insurance policies or bonds issued to them where the insurer has become insolvent or unable to meet its insurance obligations. The superintendent shall have, as of the date of such insolvency or inability to meet its insurance obligations, only the rights which the insurer would have had if not insolvent or unable to meet its insurance obligations.
     (b) For the purposes of this section, the superintendent shall have power to employ such counsel, clerks and assistants as may be necessary.


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§7611. Expense of administering funds.
     (a) The expense of administering each fund shall be paid out of such fund. Prior to the first days of January, April, July and October, there shall be submitted to the director of the budget for approval an estimated budget of expenditures for the succeeding three months.
     (b) There may not be expended for the purpose of administering the funds more than the amounts as authorized by the director of the budget. The superintendent shall serve as administrator of the funds without additional compensation, but may be allowed and paid from the funds the expenses incurred in performing his duties in connection with the funds. The compensation of persons employed by the superintendent, within the amounts approved by the director of the budget, shall be deemed administration expense payable from the funds.


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§7612. Foreign and alien insurers.
     Every foreign or alien insurer subject to this article is deemed to have consented to the adjudication of all claims secured by this article in a proceeding under article seventy-four of this chapter.


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§7613. Rules and regulations.
     The superintendent may adopt, amend and enforce all reasonable rules and regulations necessary for the proper administration of the funds.


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§7614. Penalties.
     (a) If any insurer fails to file any return or make any payment required by this article, or if the superintendent has cause to believe that any return or other statement filed is false or inaccurate in any particular, or that any payment made is incorrect, he may examine all the books and records of the insurer to ascertain the facts and determine the correct amount to be paid and may proceed in any court of competent jurisdiction to recover for the benefit of the fund any sums shown to be due upon such examination and determination.
     (b) Any insurer which fails to make any such required statement, or to make any payment to the fund when due, shall thereby forfeit to the appropriate fund a penalty of five percent of the amount determined to be due plus one percent of such amount for each month of delay, or fraction thereof, after the expiration of the first month of such delay. If satisfied that the delay was excusable, the superintendent may remit all or any part of the penalty.
     (c) The superintendent, in his discretion, may revoke the certificate of authority to do business in this state of any foreign insurer which fails to comply with this article or to pay any penalty imposed hereunder.


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