NRS: CHAPTER 695E - LIABILITY RISK RETENTION

[Rev. 6/29/2024 5:02:47 PM--2023]

CHAPTER 695E - LIABILITY RISK RETENTION

GENERAL PROVISIONS

NRS 695E.010 Statement of purpose.

NRS 695E.020 Definitions.

NRS 695E.030 “Completed operations liability” defined.

NRS 695E.040 “Domicile” defined.

NRS 695E.050 “Hazardous financial condition” defined.

NRS 695E.060 “Liability” defined.

NRS 695E.070 “Personal risk liability” defined.

NRS 695E.080 “Plan of operation” defined.

NRS 695E.090 “Product liability” defined.

NRS 695E.100 “Purchasing group” defined.

NRS 695E.110 “Risk retention group” defined.

PURCHASING GROUPS

NRS 695E.120 Requirements.

NRS 695E.125 Notification of change in information provided to Commissioner.

NRS 695E.130 Purchase of insurance; exemption from certain laws.

NRS 695E.135 Extent of liability for payment of premium tax.

RISK RETENTION GROUPS

NRS 695E.140 Requirements.

NRS 695E.150 Statement of registration; plan of operation; appointment of Commissioner as agent for service of process; filing fee; transmission of revisions of plan of operation by Commissioner.

NRS 695E.160 Submission of financial statement, examinations, audits and other information.

NRS 695E.170 Applicability of other provisions; duties of agent or broker.

NRS 695E.180 Notice required in policy.

NRS 695E.190 Risk retention group not chartered and doing business in this State: Examination by Commissioner; compliance with order issued in certain proceedings if finding of financial impairment after examination; enforcement by district courts in this State of order issued by federal court enjoining conduct of operations or transaction of insurance in any state.

NRS 695E.200 Prohibited acts.

MISCELLANEOUS PROVISIONS

NRS 695E.210 Applicability of other provisions; fines and penalties for violation of chapter by risk retention group.

NRS 695E.220 Annual notice of intent to continue doing business in Nevada.

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GENERAL PROVISIONS

NRS 695E.010 Statement of purpose. The purpose of this chapter is to regulate the formation and operation in this state of organizations formed pursuant to the provisions of the Liability Risk Retention Act of 1986.

(Added to NRS by 1987, 1327)

NRS 695E.020 Definitions. As used in this chapter, the words and terms defined in NRS 695E.030 to 695E.110, inclusive, have the meanings ascribed to them in those sections.

(Added to NRS by 1987, 1327)

NRS 695E.030 “Completed operations liability” defined.

1. “Completed operations liability” means liability arising out of the installation, maintenance or repair of any product at a site that is not owned or controlled by:

(a) Any person who performs the work; or

(b) Any person who hires an independent contractor to perform the work.

2. The term includes liability for activities that are completed or abandoned before the occurrence giving rise to the liability.

(Added to NRS by 1987, 1328)

NRS 695E.040 “Domicile” defined. “Domicile” means:

1. For a corporation, the state in which it is incorporated; and

2. For any other person, the state of the person’s principal place of business.

(Added to NRS by 1987, 1328)

NRS 695E.050 “Hazardous financial condition” defined. “Hazardous financial condition” means that, based on its present or reasonably anticipated financial condition, a risk retention group, although not yet financially impaired or insolvent, is unlikely to be able to:

1. Meet obligations to policyholders with respect to known claims and reasonably anticipated claims; or

2. Pay other obligations in the normal course of business.

(Added to NRS by 1987, 1328)

NRS 695E.060 “Liability” defined.

1. “Liability” means legal liability for damages, including costs of defense, legal costs and fees, and other expenses for claims, because of injuries to other persons, damage to their property, or other damage or loss to those persons resulting from or arising out of any:

(a) Business, whether or not conducted for profit, or any trade, product, services, whether or not professional, or any premises or operations; or

(b) Activity of any state or local government, or any agency or political subdivision thereof.

2. The term does not include personal risk liability and an employer’s liability concerning its employees, other than legal liability under the Federal Employers’ Liability Act.

(Added to NRS by 1987, 1328)

NRS 695E.070 “Personal risk liability” defined. “Personal risk liability” means liability for damages because of injury to any person, damage to property, or other loss or damage resulting from any personal, familial or household responsibilities or activities.

(Added to NRS by 1987, 1328)

NRS 695E.080 “Plan of operation” defined. “Plan of operation” means an analysis of the expected activities and results of a risk retention group, including:

1. The coverages, deductibles, limits of coverage, rates and systems of rating classification for each line of insurance the group intends to offer;

2. Historical and expected loss experience of the proposed members, and national experience of similar exposures to the extent that this experience is reasonably available;

3. Pro forma financial statements and projections;

4. Appropriate opinions by a qualified, independent casualty actuary, including a determination of minimum premium or participation levels required to commence operations and to prevent a hazardous financial condition;

5. Identification of management, underwriting procedures, policies for investment and methods for managerial oversight;

6. Identification of each state in which the group has obtained, or sought to obtain, a charter and a license, and a description of the status of the group in each of those states;

7. Information that is deemed sufficient by the Commissioner to verify that members of the group are engaged in business activities similar or related with respect to the liability to which they are exposed because of any related, similar or common business, trade, product, service, premise or operation; and

8. Such other matters as are prescribed by the Commissioner for liability insurers authorized by the insurance laws of the state in which the risk retention group is chartered.

(Added to NRS by 1987, 1328; A 2013, 3374)

NRS 695E.090 “Product liability” defined. “Product liability” means liability for damages because of any personal injury, death, emotional harm, consequential economic damage or damage to property, including damages resulting from the loss of use of property, arising out of the manufacture, design, importation, distribution, packaging, labeling, lease or sale of a product, but does not include the liability of any person for those damages if the product involved was in the possession of that person when the incident giving rise to the claim occurred.

(Added to NRS by 1987, 1329)

NRS 695E.100 “Purchasing group” defined. “Purchasing group” means any group which:

1. Has as one of its purposes the purchase of liability insurance on a group basis;

2. Purchases such insurance only for its members and only to cover their similar or related exposure to liability, as described in subsection 3;

3. Is composed of members whose businesses or activities are similar or related with respect to the liability to which they are exposed by virtue of any related, similar or common business, trade, product, services, premises or operations; and

4. Is domiciled in any state.

(Added to NRS by 1987, 1329)

NRS 695E.110 “Risk retention group” defined. “Risk retention group” means any corporation or association with limited liability that is formed under the laws of any state, Bermuda or the Cayman Islands:

1. Whose primary activity consists of assuming and spreading all or any portion of the exposure of its corporation or association members to liability;

2. Which is organized primarily to conduct the activity described in subsection 1;

3. Which:

(a) Is chartered and licensed as a liability insurer and authorized to transact insurance under the laws of any state; or

(b) Before January 1, 1985, was chartered or licensed and authorized to transact insurance under the laws of Bermuda or the Cayman Islands and, before that date, had certified to the Commissioner of Insurance of at least one state that it satisfied the state’s requirements for capitalization, except that such a group is considered to be a risk retention group only if it has been engaged in business continuously since that date and only for the purpose of continuing to provide insurance to cover product liability or completed operations liability;

4. Which does not exclude any person from membership in the group solely to provide for members of the group a competitive advantage over an excluded person;

5. Which has as its:

(a) Owners only persons who comprise the membership of the risk retention group and who are provided insurance by the risk retention group; or

(b) Sole owner an organization which has as its:

(1) Members only persons who comprise the membership of the risk retention group; and

(2) Owners only persons who comprise the membership of the risk retention group and who are provided insurance by the group;

6. Whose members are engaged in businesses or activities similar or related with respect to the liability to which they are exposed by virtue of any related, similar or common business, trade, product, services, premises or operations;

7. Whose activities do not include the provision of insurance other than:

(a) Liability insurance for assuming and spreading all or any portion of the liability of the members of the group; and

(b) Reinsurance with respect to the liability of any other risk retention group, or any member of such a group, that is engaged in a business or activity such that the other group or member meets the requirements of subsection 6 for membership in the risk retention group that provides reinsurance; and

8. The name of which includes the phrase “risk retention group.”

(Added to NRS by 1987, 1329; A 1995, 1780; 2011, 3397)

PURCHASING GROUPS

NRS 695E.120 Requirements. A purchasing group that intends to conduct business in this state shall register with the Commissioner and:

1. Furnish notice to the Commissioner that:

(a) Identifies the state in which the group is domiciled;

(b) Specifies the lines and classifications of liability insurance that the purchasing group intends to purchase;

(d) Identifies the principal place of business of the group;

(e) Identifies all other states in which the group intends to do business;

(f) Specifies the method by which insurance will be offered to its members whose risks are resident, located or to be performed in this State;

(g) Provides the name, address and telephone number of each person, if any, through whom insurance will be offered to its members whose risks are resident, located or to be performed in this State; and

(h) Provides such other information as the Commissioner requires to verify and determine:

(1) Its qualification as a purchasing group;

(2) Where the purchasing group is located; and

(3) The appropriate tax treatment of the purchasing group; and

2. Appoint the Commissioner as its agent solely to receive service of legal process, and pay the fee for filing a power of attorney required by subsection 4 of NRS 680B.010, except that this subsection does not apply to a purchasing group that:

(a) Was domiciled before April 1, 1986, and on and after October 27, 1986, in any state;

(b) Before and after October 27, 1986, purchased its insurance from an insurer licensed in any state;

(c) Was a purchasing group under the requirements of the Product Liability Risk Retention Act of 1981 before October 27, 1986; and

(d) Does not purchase insurance that was not authorized for an exemption under that act, as in effect before October 27, 1986.

(Added to NRS by 1987, 1330; A 1995, 1781; 2013, 3374)

NRS 695E.125 Notification of change in information provided to Commissioner. A purchasing group shall notify the Commissioner of any change in any of the information required pursuant to subsection 1 of NRS 695E.120, within 10 days after the information ceases to be accurate.

(Added to NRS by 1995, 1780)

NRS 695E.130 Purchase of insurance; exemption from certain laws.

1. Except as otherwise provided in chapter 685A of NRS, a purchasing group shall not purchase insurance from an unauthorized insurer or a risk retention group that is not chartered or registered in this state.

2. A purchasing group is exempt from any law of this state that relates to the formation or prohibition of groups for the purchase of insurance, and any law that would discriminate against a purchasing group or its members.

3. An insurer is exempt from any law of this state that prohibits providing, or offering to provide, to a purchasing group or its members advantages based on their loss and expense experiences not afforded to other persons with respect to rates, policy forms, coverages or other matters.

4. A purchasing group that obtains liability insurance from a surplus lines insurer or a risk retention group shall inform each of the members of the purchasing group which have a risk resident or located in this state that the risk is not protected by an insurance insolvency guaranty fund in this state, and that the risk retention group or insurer may not be subject to all insurance laws and regulations of this state.

5. No purchasing group may purchase insurance providing for a deductible or self-insured retention applicable to the group as a whole, but the coverage may provide for a deductible or self-insured retention applicable to individual members of the group.

6. Purchases of insurance by purchasing groups are subject to the same standards regarding aggregate limits which are applicable to all purchases of group insurance.

(Added to NRS by 1987, 1330; A 1995, 1782; 2009, 1819)

NRS 695E.135 Extent of liability for payment of premium tax. All premiums paid by a purchasing group or any member of the purchasing group for insurance on risks resident, located or to be performed in this state are subject to the payment of premium taxes and any related fines or penalties pursuant to chapters 680A, 680B and 685A of NRS. To the extent that premiums are paid by a purchasing group or any member of the purchasing group:

1. To an authorized insurer, the insurer shall pay the premium taxes and any related fines or penalties pursuant to chapters 680A and 680B of NRS;

2. To a surplus lines broker for insurance procured as surplus lines coverage, the surplus lines broker shall pay the premium taxes and any related fines or penalties pursuant to chapter 685A of NRS; or

3. To an unauthorized insurer for insurance independently procured by the purchasing group or any member of the group, premium taxes and any related fines and penalties are payable first by the purchasing group, and if not paid by the purchasing group, then by each of its members, pursuant to NRS 680B.040.

(Added to NRS by 1995, 1780)

RISK RETENTION GROUPS

NRS 695E.140 Requirements.

1. A risk retention group seeking to be chartered in this State must obtain a certificate of authority pursuant to chapter 694C of NRS to transact liability insurance and, except as otherwise provided in this chapter, must comply with:

(a) All of the laws, regulations and requirements applicable to liability insurers in this State, unless otherwise approved by the Commissioner; and

(b) The provisions of NRS 695E.150 to 695E.210, inclusive, to the extent that those provisions do not limit or conflict with the provisions with which the group is required to comply pursuant to paragraph (a).

2. A risk retention group applying to be chartered in this State must submit to the Commissioner an application for licensure as an association captive insurer in accordance with NRS 694C.210.

3. A risk retention group chartered in a state other than Nevada that is seeking to transact insurance as a risk retention group in this State must comply with the provisions of NRS 694C.390 and 695E.150 to 695E.210, inclusive, including, without limitation, by submitting the statement of registration required by paragraph (a) of subsection 1 of NRS 695E.150 and paying all fees required for the statement of registration.

(Added to NRS by 1987, 1330; A 1995, 1782; 2005, 2158; 2013, 3375; 2015, 3508; 2021, 2995)

NRS 695E.150 Statement of registration; plan of operation; appointment of Commissioner as agent for service of process; filing fee; transmission of revisions of plan of operation by Commissioner.

1. Before transacting insurance in this state, a risk retention group must submit to the Commissioner:

(a) A statement of registration identifying:

(1) Each state in which the risk retention group is chartered or licensed as a liability insurer;

(2) The date of its charter;

(3) Its principal place of business; and

(4) Such other information, including information concerning its membership, as the Commissioner requires to verify its qualification as a risk retention group;

(b) A copy of its plan of operation and any revisions of the plan submitted to its state of domicile, except with respect to any line or classification of liability that was:

(1) Defined in the Product Liability Risk Retention Act of 1981 before October 27, 1986; and

(2) Offered before that date by a risk retention group that had been chartered and operating for not less than 3 years before that date; and

(c) A statement appointing the Commissioner as its agent for service of process pursuant to NRS 680A.250, together with the fee for filing a power of attorney required by subsection 4 of NRS 680B.010.

2. The Commissioner shall, upon receipt of any revisions of a plan of operation provided by a risk retention group pursuant to paragraph (b) of subsection 1, transmit a copy of those revisions to the National Association of Insurance Commissioners.

(Added to NRS by 1987, 1331; A 1995, 1783; 2013, 3376)

NRS 695E.160 Submission of financial statement, examinations, audits and other information. A risk retention group transacting insurance in this state shall submit to the Commissioner:

1. A copy of the group’s financial statement submitted to its state of domicile, which must be certified by an independent public accountant and contain a statement of opinion on its reserves for loss and expenses of loss adjustment made by a member of the American Academy of Actuaries or another qualified specialist in reserves for loss;

2. A copy of each examination of the risk retention group, certified by the Commissioner or other public officer conducting the examination;

3. Upon the request of the Commissioner, a copy of any audit performed with respect to the risk retention group; and

4. Such other information as the Commissioner requires to verify its continuing qualification as a risk retention group.

(Added to NRS by 1987, 1331)

NRS 695E.170 Applicability of other provisions; duties of agent or broker.

1. A risk retention group and its agents and representatives are subject to the provisions of:

(a) NRS 680A.205 and any regulations adopted pursuant thereto, including, without limitation, regulations relating to the standards which may be used by the Commissioner in determining whether a risk retention group is in a hazardous financial condition.

(b) NRS 686A.010 to 686A.310, inclusive. Any injunction obtained pursuant to those sections must be obtained from a court of competent jurisdiction.

2. All premiums paid for coverages within this state to a risk retention group are subject to the provisions of chapter 680B of NRS. Each risk retention group shall report all premiums paid to it and shall pay the taxes on premiums and any related fines or penalties for risks resident, located or to be performed in the state.

3. Any person acting as an agent or a broker for a risk retention group pursuant to NRS 695E.210 shall:

(a) Report to the Commissioner each premium for direct business for risks resident, located or to be performed in this State which the person has placed with or on behalf of a risk retention group that is not chartered in this State.

(b) Maintain a complete and separate record of each policy obtained from each risk retention group. Each record maintained pursuant to this subsection must be made available upon request by the Commissioner for examination pursuant to NRS 679B.240, and must include, for each policy and each kind of insurance provided therein:

(1) The limit of liability;

(2) The period covered;

(3) The effective date;

(4) The name of the risk retention group which issued the policy;

(5) The gross annual premium charged; and

(6) The amount of return premiums, if any.

4. As used in this section, “premiums for direct business” means any premium written in this State for a policy of insurance. The term does not include any premium for reinsurance or for a contract between members of a risk retention group.

(Added to NRS by 1987, 1331; A 1995, 1633, 1783; 1997, 549; 2013, 3376; 2021, 2996; 2023, 22)

NRS 695E.180 Notice required in policy. A policy issued by a risk retention group must contain in 10-point type on the front page and the declaration page, the following notice:

NOTICE

This policy is issued by your risk retention group. Your risk retention group may not be subject to all of the insurance laws and regulations of your state. State insolvency guaranty funds are not available for your risk retention group.

(Added to NRS by 1987, 1332)

1. A risk retention group shall submit to an examination by the Commissioner to determine its financial condition if the commissioner of insurance of the jurisdiction in which the group is chartered does not initiate such an examination within 60 days after a request by the Commissioner of Insurance of this state. The examination must be coordinated to avoid unjustified repetition and conducted in an expeditious manner. The Commissioner shall give due consideration to the procedure outlined in the handbook for examiners sponsored by the National Association of Insurance Commissioners.

2. A risk retention group not chartered in this state and doing business in this state shall comply with a lawful order issued in a proceeding for voluntary dissolution or in a delinquency proceeding commenced by a commissioner of insurance of any state if there has been a finding of financial impairment after an examination conducted pursuant to subsection 1.

3. An order issued by a District Court of the United States, entered upon a finding that a risk retention group is in a hazardous financial condition, that enjoins the group from conducting operations or transacting insurance in any state, must be enforced by the district courts of this state.

(Added to NRS by 1987, 1332)

NRS 695E.200 Prohibited acts. A risk retention group shall not:

1. Transact insurance with any person who is not eligible for membership in the risk retention group;

2. Conduct any business in this state if an insurer is directly or indirectly a member or owner of the group, unless all the members of the group are insurers;

3. Transact insurance or otherwise operate while financially impaired or in a hazardous financial condition;

4. Issue any insurance policy with terms providing, or which have been construed as providing, coverage prohibited by a specific statute of this state or declared unlawful by the highest court of this state which has rendered a judgment concerning the legality of that coverage; or

5. Join or contribute financially to the Nevada Insurance Guaranty Association, or to any similar organization or fund in this state, and the provisions of chapter 687A of NRS do not apply to a risk retention group. A risk retention group and its insureds shall not accept any benefit from such an organization or fund for claims arising out of the operation of the risk retention group.

(Added to NRS by 1987, 1332; A 1995, 1783)

MISCELLANEOUS PROVISIONS

NRS 695E.210 Applicability of other provisions; fines and penalties for violation of chapter by risk retention group.

1. The provisions of chapters 683A and 685A of NRS apply to any person acting, or offering to act, as an agent or broker for:

(a) A purchasing group;

(b) A member of a purchasing group under the group policy; or

2. Except as otherwise provided in this chapter, the provisions of chapter 679B of NRS apply to purchasing groups and risk retention groups, and to the provisions of this chapter, to the extent that the provisions of chapter 679B of NRS are not specifically preempted by the Product Liability Risk Retention Act of 1981, as amended by the Risk Retention Amendments of 1986.

3. A risk retention group that violates any provision of this chapter is subject to the fines and penalties, including revocation of its right to do business in this state, applicable to licensed insurers under this title.

(Added to NRS by 1987, 1333; A 1995, 1784; 2019, 1721)

NRS 695E.220 Annual notice of intent to continue doing business in Nevada. On or before March 1 of each year, a purchasing group and a risk retention group shall submit to the Commissioner a written notice of its intention to continue doing business in Nevada.

(Added to NRS by 1991, 2037)