Title 58 — INSURANCE

Any guaranty association or foreign guaranty association may appear in any court proceeding concerning the liquidation of an insurer if such association is or may become liable to act as a result of the liquidation of an insurer if such association is or may become liable to act …

As soon as practicable after the liquidation order, but not later than one hundred twenty days thereafter, the liquidator shall prepare in duplicate a list of the insurer's assets. The list shall be amended or supplemented from time to time as the liquidator may determine. One co…

In addition to other grounds for jurisdiction provided by the law of this state, a court of this state having jurisdiction of the subject matter has jurisdiction over a person served pursuant to chapter 15-6 or other applicable provisions of law in an action brought by the receiv…

The liquidator shall reduce the assets to a degree of liquidity that is consistent with the execution of the liquidation. Source: SL 1989, ch 436 , § 60.

Every transfer made or suffered and every obligation incurred by an insurer within one year prior to the filing of a successful petition for rehabilitation or liquidation under this chapter is fraudulent as to then existing and future creditors if made or incurred without fair co…

Any person receiving any property or benefit from the insurer which is a fraudulent transfer under § 58-29B-61 is personally liable and shall account to the liquidator concerning it. Source: SL 1992, ch 351 , § 9.

Any transaction of the insurer with a reinsurer shall be deemed fraudulent and may be avoided by the receiver under § 58-29B-61 if: (1) The transaction consists of the termination, adjustment, or settlement of a reinsurance contract in which the reinsurer is released from any par…

After a petition for rehabilitation or liquidation has been filed a transfer of any of the real property of the insurer made to a person acting in good faith shall be valid against the receiver if made for a present fair equivalent value, or, if not made for a present fair equiva…

After a petition for rehabilitation or liquidation has been filed and before either the receiver takes possession of the property of the insurer or an order of rehabilitation or liquidation is granted: (1) A transfer of any of the property of the insurer, other than real property…

Nothing in this chapter may impair the negotiability of currency or negotiable instruments. Source: SL 1989, ch 436 , § 65.

A preference is a transfer of any of the property of an insurer to or for the benefit of a creditor, for or on account of an antecedent debt, made or suffered by the insurer within one year before the filing of a successful petition for liquidation under this chapter, the effect …

Any preference may be avoided by the liquidator if: (1) The insurer was insolvent at the time of the transfer; (2) The transfer was made within four months before the filing of the petition; (3) The creditor receiving it or to be benefited thereby or his agent acting with referen…

If the preference is voidable, the liquidator may recover the property or, if it has been converted, its value from any person who has received or converted the property, except where a bona fide purchaser or lienor has given less than fair equivalent value, he shall have a lien …

For purposes of §§ 58-29B-61 and 58-29B-66 , transfer of property other than real property shall be deemed to be made or suffered when it becomes so far perfected that no subsequent lien obtainable by legal or equitable proceedings on a simple contract could become superior to th…

Any action authorized in this chapter shall be brought in the circuit court of Hughes County. Source: SL 1989, ch 436 , § 7.

A transfer of real property shall be deemed to be made or suffered when it becomes so far perfected that no subsequent bona fide purchaser from the insurer could obtain rights superior to the rights of the transferee. Source: SL 1989, ch 436 , § 70.

No transfer which creates an equitable lien may be deemed to be perfected if there are available means by which a legal lien could be created. Source: SL 1989, ch 436 , § 71.

A transfer not perfected prior to the filing of a petition for liquidation shall be deemed to be made immediately before the filing of the successful petition. Source: SL 1989, ch 436 , § 72.

The provisions of §§ 58-29B-69 to 58-29B-72 , inclusive, apply whether or not there are or were creditors who might have obtained liens or persons who might have become bona fide purchasers. Source: SL 1989, ch 436 , § 73.

A lien obtainable by legal or equitable proceedings upon a simple contract is one arising in the ordinary course of such proceedings upon the entry or docketing of a judgment or decree, or upon attachment, garnishment, execution, or like process, whether before, upon, or after ju…

A lien obtainable by legal or equitable proceedings could become superior to the rights of a transferee, or a purchaser could obtain rights superior to the rights of a transferee within the meaning of §§ 58-29B-69 to 58-29B-72 , inclusive, if such consequences would follow only f…

A transfer of property for or on account of a new and contemporaneous consideration which is deemed under §§ 58-29B-69 to 58-29B-72 , inclusive, to be made or suffered after the transfer because of delay in perfecting it does not thereby become a transfer for or on account of an …

If any lien deemed voidable under § 58-29B-67 has been dissolved by the furnishing of a bond or other obligation, the surety on which has been indemnified directly or indirectly by the transfer of or the creation of a lien upon any property of an insurer before the filing of a pe…

The property affected by any lien deemed voidable under §§ 58-29B-66 to 58-29B-68 , inclusive, and 58-29B-77 , shall be discharged from such lien, and that property and any of the indemnifying property transferred to or for the benefit of a surety shall pass to the liquidator, ex…

The circuit court of Hughes County shall have summary jurisdiction of any proceeding by the liquidator to hear and determine the rights of any parties under §§ 58-29B-71 to 58-29B-88 , inclusive. Reasonable notice of any hearing in the proceeding shall be given to all parties in …

Any receiver appointed in a proceeding under this chapter, may at any time apply for and the court may grant, such restraining orders, preliminary and permanent injunctions, and other orders as may be deemed necessary and proper to prevent: (1) The transaction of further business…

The liability of a surety under a releasing bond or other like obligation shall be discharged to the extent of the value of the indemnifying property recovered or the indemnifying lien nullified and avoided by the liquidator or, if the property is retained under § 58-29B-79 , to …

If a creditor has been preferred, and afterward in good faith gives the insurer further credit without security of any kind, for property which becomes a part of the insurer's estate, the amount of the new credit remaining unpaid at the time of the petition may be set off against…

If an insurer shall, directly or indirectly, within four months before the filing of a successful petition for liquidation under this chapter, or at any time in contemplation of a proceeding to liquidate it, pay money or transfer property to an attorney - at - law for services re…

Every officer, manager, employee, shareholder, member, subscriber, attorney, or any other person acting on behalf of the insurer who knowingly participates in giving any preference when he has reasonable cause to believe the insurer is or is about to become insolvent at the time …

No claims of a creditor who has received or acquired a preference, lien, conveyance, transfer, assignment, or encumbrance, voidable under this chapter, may be allowed unless he surrenders the preference, lien, conveyance, transfer, assignment, or encumbrance. If the avoidance is …

Filing of claims under §

Mutual debts or mutual credits between the insurer and another person in connection with any action or proceeding under this chapter shall be set off and the balance only shall be allowed or paid, except as provided in § 58-29B-87 , and §§ 58-29B-95 to 58-29B-97 , inclusive. Sour…

No setoff or counterclaim may be allowed in favor of any person if: (1) The obligation of the insurer to the person would not at the date of the filing of a petition for liquidation entitle the person to share as a claimant in the assets of the insurer; or (2) The obligation of t…

As soon as practicable, but not more than two years from the date of an order of liquidation under §§ 58-29B-41 to 58-29B-45 , inclusive, of an insurer issuing assessable policies, the liquidator shall make a report to the court setting forth: (1) The reasonable value of the asse…

Upon the basis of the report provided in § 58-29B-88 , including any supplements and amendments thereto, the court may levy one or more assessments against all members of the insurer who are subject to assessment. Subject to any applicable legal limits on assessability, the aggre…

Any officer, manager, director, trustee, owner, employee, representative, or insurance producer of any insurer, or any other persons with authority over or in charge of any segment of the insurer's affairs, shall cooperate with the director in any proceeding under this chapter or…

After levy of assessment under § 58-29B-89 , the liquidator shall issue an order directing each member who has not paid the assessment pursuant to the order to show cause why the liquidator should not pursue a judgment therefor. Source: SL 1989, ch 436 , § 90.

The liquidator shall give notice of the order to show cause by legal publication in the county of the principal place of business of the insurer and by first class mail to each member liable thereunder mailed to his last known address as it appears on the insurer's records, at le…

58-29B-94.1 Association election to succeed to rights and obligations of insolvent insurer under reinsurance contract--Reinsurer's liability to pay claims. 58-29B-95 No liability for unearned premiums or uncollected earned premiums before declaration of insolvency--Recovery of un…

Enforcement of order or judgment under §

The amount recoverable by the liquidator from reinsurers may not be reduced as a result of delinquency proceedings, unless the reinsurance contract provides, in substance, that in the event of the insolvency of the ceding insurer, the reinsurance is payable under a contract reins…

Notwithstanding § 58-29B-94 , if a life and health insurance guaranty association has made the election to succeed to the rights and obligations of the insolvent insurer under the contract of reinsurance, the reinsurer's liability to pay covered reinsured claims continues under t…

No insurance producer, premium finance company, or any other person, responsible for the payment of a premium at the time of the declaration of insolvency, may be held liable for payment of collected or uncollected unearned premiums or for uncollected earned premiums as shown on …

Upon satisfactory evidence of a violation of § 58-29B-95 , the director may pursue either one or both of the following courses of action; suspend, revoke, or refuse to renew the licenses of such offending party or parties or impose a penalty of not more than one thousand dollars …

Before the director shall take any action as set forth in § 58-29B-96 , he shall give written notice to the person, company, association, or exchange accused of violating the law, stating specifically the nature of the alleged violation, and fixing a time and place, at least ten …

Within one hundred twenty days of a final determination of insolvency of an insurer by the court, the liquidator shall make application to the court for approval of a proposal to disburse assets out of marshaled assets, from time to time as such assets become available, to a guar…

The proposal under § 58-29B-98 shall include, but is not limited to, provisions for: (1) Reserving amounts for the payment of expenses of administration and the payment of claims of secured creditors to the extent of the value of the security held, and claims falling within the p…

The association shall perform its functions under the plan of operation established and approved under § 58-29C-53 and shall exercise its powers through a board of directors established under §

This chapter shall be known and may be cited as the South Dakota Life and Health Insurance Guaranty Association Act. Source: SL 2003, ch 252 , § 1.