Risk Based Capital (RBC) for Property and Casualty Insurers

Section 1.  Purpose

The purposes of this regulation are to require and set forth the rules for the calculation and filing of Risk Based Capital (RBC) reports and establish related procedural requirements of RBC for certain property and casualty insurers. The related procedural requirements of the regulation do not apply to domestic risk retention groups. This treatment for domestic risk retention groups is not intended to alter the commissioner's authority with respect to domestic risk retention groups.

Section 2.  Authority

This regulation is issued pursuant to the authority vested in the Commissioner of Banking, Insurance, Securities and Health Care Administration by Title 8 V.S.A. Sections 75, 3304, 3309, 3561, 3569 and Chapter 145.

Section 3.  Definitions

As used in this regulation, these terms shall have the following meanings:

A.  "Adjusted RBC Report" means an RBC report which has been adjusted by the commissioner in accordance with Section 4D.
B.  "Commissioner" means the Commissioner of the Department of Banking, Insurance Securities and Health Care Administration.
C.  "Corrective order" means an order issued by the commissioner specifying corrective actions which the commissioner has determined are required.
D.  "Domestic insurer" means any property and casualty insurance company organized in this state under Subchapter 1 of Chapter 101 of 8 V.S.A., but shall not include life and/or health insurers, monoline mortgage guaranty insurers, financial guaranty insurers, and title insurers.
E.  "Foreign insurer" means any insurance company which is licensed to do business in this State under 8 V.S.A. § 3361 and is not domiciled in this State.
F.  "NAIC" means the National Association of Insurance Commissioners.
G.  "RBC instructions" means the RBC Report including risk-based capital instructions adopted by the NAIC, as such RBC Instructions may be amended by the NAIC from time to time in accordance with the procedures adopted by the NAIC or as modified and approved by the commissioner.
H.  "RBC Level" means an insurer's Company Action Level RBC, Regulatory Action Level RBC, Authorized Control Level RBC, or Mandatory Control Level RBC where:
(1)  "Company Action Level RBC" means, with respect to any insurer, the product of 2.0 and its Authorized Control Level RBC;
(2)  "Regulatory Action Level RBC" means the product of 1.5 and its Authorized Control Level RBC;
(3)  "Authorized Control Level RBC" means the number determined under the risk-based capital formula in accordance with the RBC Instructions;
(4)  "Mandatory Control Level RBC" means the product of .70 and the Authorized Control Level RBC.
I.  "RBC Plan" means a comprehensive financial plan containing the elements specified in Sections 5B through 5F. If the commissioner rejects the RBC Plan, and it is revised by the insurer, with or without the commissioner's recommendation, the plan shall be called the "Revised RBC Plan."
J.  "RBC Report" means the report required in Section 4.
K.  "Total adjusted capital" means the sum of:
(1)  An insurer's statutory capital and surplus reported in the insurer's annual statement under 8 V.S.A. § 3561; and
(2)  Such other items, if any, as the RBC instructions may provide.
Section 4.  RBC Reports
A.  Every domestic insurer shall, on or prior to each March 15, prepare and submit to the commissioner a report of its RBC Levels as of the end of the calendar year just ended, in a form and containing such information as is required by the RBC Instructions. In addition, every domestic insurer shall file its RBC Report:
(1)  With the NAIC in accordance with the RBC Instructions; and
(2)  With the insurance commissioner in any state in which the insurer is authorized to do business, if the insurance commissioner of that state has notified the insurer of the commissioner's request in writing, in which case the insurer shall file its RBC Report not later than the later of:
(a)  Fifteen (15) days from the receipt of notice to file its RBC Report with that state; or
(b)  The filing date.
B.  An insurer's RBC shall be determined in accordance with the formula set forth in the RBC instructions. The formula shall take the following into account (and may adjust for the covariance between).
(1)  Asset risk;
(2)  Credit risk;
(3)  Underwriting risk; and
(4)  All other business risks and such other relevant risks as are set forth in the RBC instructions.
C.  An excess of capital over the amount produced by the risk-based capital requirements contained in this regulation and the formulas, schedules and instructions referenced in this regulation is desirable in the business of insurance. Accordingly, insurers should seek to maintain capital above the RBC Levels required by this regulation. Additional capital is used and useful in the insurance business and helps to secure an insurer against various risks inherent in, or affecting, the business of insurance and not accounted for or only partially measured by the risk-based capital requirements contained in this regulation.
D.  If a domestic insurer files an RBC Report which in the judgment of the commissioner is inaccurate, then the commissioner shall adjust the RBC Report to correct the inaccuracy and shall notify the insurer of the adjustment. The notice shall contain a statement of the reason for the adjustment. An RBC Report as so adjusted is referred to as an "Adjusted RBC Report."
Section 5.  Company Action Level Event
A.  "Company Action Level Event" means any of the following events:
(1)  The filing of an RBC Report by an insurer which indicates that the insurer's total adjusted capital is greater than or equal to its regulatory action level RBC but less than its company action level RBC; or
(2)  The notification by the commissioner to the insurer of an Adjusted RBC Report that indicates an event in subsection (1), provided the insurer does not challenge the Adjusted RBC Report under Section 9; or
(3)  Notification by the commissioner to the insurer that the commissioner has rejected the insurer's challenge, pursuant to Section 9, of an Adjusted RBC Report that indicates the event in subsection (1) has occurred.
B.  In the event of a Company Action Level Event, the insurer shall prepare and submit to the commissioner an RBC Plan which shall:
(1)  Identify the conditions which contribute to the Company Action Level Event;
(2)  Contain proposals of corrective actions which the insurer intends to take and would be expected to result in the elimination of the Company Action Level Event;
(3)  Provide projections of the insurer's financial results in the current year and at least the four (4) succeeding years, both in the absence of proposed corrective actions and giving effect to the proposed corrective actions, including projections of statutory operating income, net income, capital and surplus. (The projections for both new and renewal business might include separate projections for each major line of business and separately identify each significant income, expense and benefit component);
(4)  Identify the key assumptions impacting the insurer's projections and the sensitivity of the projections to the assumptions; and
(5)  Identify the quality of, and problems associated with, the insurer's business, including but not limited to its assets, anticipated business growth and associated surplus strain, extraordinary exposure to risk, mix of business and use of reinsurance, if any, in each case.
C.  The RBC Plan shall be submitted
(1)  Within forty-five (45) days of the Company Action Level Event; or
(2)  If the insurer challenges an Adjusted RBC Report pursuant to Section 9, within forty-five (45) days after notification to the insurer that the commissioner has rejected the insurer's challenge.
D.  Within sixty (60) days after the submission by an insurer of an RBC Plan to the commissioner, the commissioner shall notify the insurer whether the RBC Plan shall be implemented or is, in the judgment of the commissioner, unsatisfactory. If the commissioner determines the RBC Plan is unsatisfactory, the notification to the insurer shall set forth the reasons for the determination, and may set forth proposed revisions which will render the RBC Plan satisfactory, in the judgment of the commissioner. Upon notification from the commissioner, the insurer shall prepare a Revised RBC Plan, which may incorporate by reference any revisions proposed by the commissioner, and shall submit the Revised RBC Plan to the commissioner:
(1)  Within forty-five (45) days after the notification from the commissioner; or
(2)  If the insurer challenges the notification from the commissioner under Section 9, within forty-five (45) days after a notification to the insurer that the commissioner has rejected the insurer's challenge.
E.  In the event of a notification by the commissioner to an insurer that the insurer's RBC Plan or Revised RBC Plan is unsatisfactory, the commissioner may at the commissioner's discretion specify in the notification that the notification constitutes a Regulatory Action Level Event.
F.  Every domestic insurer that files an RBC Plan or Revised RBC Plan with the commissioner shall file a copy of the RBC Plan or Revised RBC Plan with the insurance commissioner in any state in which the insurer is authorized to do business if:
(1)  Such state has an RBC provision substantially similar to Section 10; and
(2)  The insurance commissioner of that state has notified the insurer of its request for the filing in writing, in which case the insurer shall file a copy of the RBC Plan or Revised RBC Plan in that state no later than the later of:
(a)  Fifteen (15) days after the receipt of notice to file a copy of its RBC Plan or Revised RBC Plan with the state; or
(b)  The date on which the RBC Plan or Revised RBC Plan is filed under Section 5C and 5D.
Section 6.  Regulatory Action Level Event
A.  "Regulatory Action Level Event" means, with respect to any insurer, any of the following events:
(1)  The filing of an RBC Report by the insurer which indicates that the insurer's Total Adjusted Capital is greater than or equal to its Authorized Control Level RBC but less than its Regulatory Action Level RBC;
(2)  The notification by the commissioner to an insurer of an Adjusted RBC Report that indicates the event in subsection (1), provided the insurer does not challenge the Adjusted RBC Report under Section 9;
(3)  Notification by the commissioner to the insurer that the commissioner has rejected the insurer's challenge, pursuant to Section 9, of an Adjusted RBC Report that indicates the event in subsection (1) has occurred;
(4)  The failure of the insurer to file an RBC Report by the filing date, unless the insurer has provided an explanation for such failure which is satisfactory to the commissioner and has cured the failure within ten (10) days after the filing date;
(5)  The failure of the insurer to submit an RBC Plan to the commissioner within the time period set forth in Section 5C;
(6)  Notification by the commissioner to the insurer that:
(a)  The RBC Plan or revised RBC Plan submitted by the insurer is, in the judgment of the commissioner, unsatisfactory; and
(b)  Such notification constitutes a Regulatory Action Level Event with respect to the insurer, provided the insurer has not challenged the determination under Section 9;
(7)  Notification by the commissioner to the insurer that the commissioner has rejected the insurer's challenge, pursuant to Section 9, of an Adjusted RBC Report that indicates the event in subsection (6) has occurred;
(8)  Notification by the commissioner to the insurer that the insurer has failed to adhere to its RBC Plan or Revised RBC Plan, but only if such failure has a substantial adverse effect on the ability of the insurer to eliminate the Company Action Level Event in accordance with its RBC Plan or Revised RBC Plan and the commissioner has so stated in the notification, provided the insurer has not challenged the determination under Section 9; or
(9)  If, pursuant to Section 9, the insurer challenges a determination by the commissioner under subsection (8), the notification by the commissioner to the insurer that the commissioner has, after a hearing, rejected the challenge.
B.  In the event of a Regulatory Action Level Event the commissioner shall:
(1)  Require the insurer to prepare and submit an RBC Plan or, if applicable, a Revised RBC Plan;
(2)  Perform such examination or analysis as the commissioner deems necessary of the assets, liabilities and operations of the insurer including a review of its RBC Plan or Revised RBC Plan; and
(3)  Subsequent to the examination or analysis, issue an order specifying such corrective actions as the commissioner shall determine are required (a "corrective order").
C.  In determining corrective actions, the commissioner may take into account such factors as are deemed relevant with respect to the insurer based upon the commissioner's examination or analysis of the assets, liabilities and operations of the insurer, including, but not limited to, the results of any sensitivity tests undertaken pursuant to the RBC instructions. The RBC Plan or Revised RBC Plan shall be submitted:
(1)  Within forty-five (45) days after the occurrence of the Regulatory Action Level Event;
(2)  If the insurer challenges an Adjusted RBC Report pursuant to Section 9 and the challenge is not frivolous in the judgment of the commissioner within forty-five (45) days after the notification to the insurer that the commissioner has rejected the insurer's challenge; or
(3)  If the insurer challenges a Revised RBC Plan pursuant to Section 9 and the challenge is not frivolous in the judgment of the commissioner, within forty-five (45) days after the notification to the insurer that the commissioner has rejected the insurer's challenge.
D.  The commissioner may retain actuaries and investment experts and other consultants as may be necessary in the judgment of the commissioner to review the insurer's RBC Plan or Revised RBC Plan, examine or analyze the assets, liabilities and operations of the insurer and formulate the corrective order with respect to the insurer. The fees, costs and expenses relating to consultants shall be borne by the affected insurer or such other party as directed by the commissioner.
Section 7.  Authorized Control Level Event
A.  "Authorized Control Level Event" means any of the following events:
(1)  The filing of an RBC Report by the insurer which indicates that the insurer's total adjusted capital is greater than or equal to its Mandatory Control Level RBC but less than its Authorized Control Level RBC;
(2)  The notification by the commissioner to the insurer of an Adjusted RBC Report that indicates the event in subsection (1), provided the insurer does not challenge the Adjusted RBC Report under Section 9;
(3)  Notification by the commissioner to the insurer that the commissioner has rejected the insurer's challenge, pursuant to Section 9, of an Adjusted RBC Report that indicates the event in subsection (1) has occurred;
(4)  The failure of the insurer to respond, in a manner satisfactory to the commissioner, to a corrective order (provided the insurer has not challenged the corrective order under Section 9); or
(5)  If the insurer has challenged a corrective order under Section 9 and the commissioner has rejected the challenge or modified the corrective order, the failure of the insurer to respond, in a manner satisfactory to the commissioner, to the corrective order subsequent to rejection or modification by the commissioner.
B.  In the event of an Authorized Control Level Event with respect to an insurer, the commissioner shall:
(1)  Take such actions as are required under Section 6 regarding an insurer with respect to which an Regulatory Action Level Event has occurred; or
(2)  If the commissioner deems it to be in the best interests of the policyholders and creditors of the insurer and of the public, take such actions as are necessary to cause the insurer to be placed under regulatory control under 8 V.S.A. Chapter 145. In the event the commissioner takes such actions, the Authorized Control Level Event shall be deemed sufficient grounds for the commissioner to take action under 8 V.S.A. Chapter 145, and the commissioner shall have the rights, powers and duties with respect to the insurer as are set forth in 8 V.S.A. Chapter 145. In the event the commissioner takes actions pursuant to an Adjusted RBC Report, the insurer shall be entitled to such protection as are afforded to insurers under the provisions of 8 V.S.A. Chapter 145 pertaining to summary proceedings.
Section 8.  Mandatory Control Level Event
A.  "Mandatory Control Level Event" means any of the following events:
(1)  The filing of an RBC Report which indicates that the insurer's total adjusted capital is less than its Mandatory Control Level RBC;
(2)  Notification by the commissioner to the insurer of an Adjusted RBC Report that indicates the event in subsection (1), provided the insurer does not challenge the Adjusted RBC Report under Section 9; or
(3)  Notification by the commissioner to the insurer that the commissioner has rejected the insurer's challenge, pursuant to Section 9, of an Adjusted RBC Report that indicates the event in subsection (1) has occurred.
B.  In the event of a Mandatory Control Level Event, the commissioner shall take such actions as are included in Section 7B(1) and may, unless the commissioner does not deem it to be in the best interest of the policyholders and creditors of the insured and of the public, take other such actions including those that are necessary to place the insurer under regulatory control under 8 V.S.A. Chapter 145 or, in the case of an insurer which is writing no business and which is running-off its existing business, may allow the insurer to continue its run-off under the supervision of the commissioner. In either event, the Mandatory Control Level Event shall be deemed sufficient grounds for the commissioner to take action under 8 V.S.A. Chapter 145 and the commissioner shall have the rights, powers, and duties with respect to the insurer as are set forth in 8 V.S.A. Chapter 145. If the commissioner takes actions pursuant to an Adjusted RBC Report, the insurer shall be entitled to the protections of 8 V.S.A. Chapter 145 pertaining to summary proceedings. Notwithstanding any of the foregoing, the commissioner may forego action for up to ninety (90) days after the Mandatory Control Level Event if the commissioner finds there is a reasonable expectation that the Mandatory Control Level Event may be eliminated with the ninety (90) day period.
Section 9.  Hearings
A.  The insurer shall have the right to a hearing before the commissioner in accordance with Title 3 Chapter 25 of 8 V.S.A. upon the occurrence of any of the following events.
1.  Notification to an insurer by the commissioner of an Adjusted RBC Report; or
2.  Notification to an insurer by the commissioner that
(a.)  The insurer's RBC Plan or Revised RBC Plan is unsatisfactory; and
(b.)  Such notification constitutes a Regulatory Action Level Event with respect to such insurer; or
3.  Notification to any insurer by the commissioner that the insurer has failed to adhere to its RBC Plan or Revised RBC Plan and that such failure has a substantial adverse effect on the ability of the insurer to eliminate the Company Action Level Event with respect to the insurer in accordance with its RBC Plan or Revised RBC Plan; or
4.  Notification to an insurer by the commissioner of a corrective order with respect to the insurer.
B.  The insurer shall notify the commissioner of its request for a hearing within five (5) days after the notification by the commissioner under subsection 1,2,3 or 4 of section (A). Upon receipt of the insurer's request for a hearing, the commissioner shall set a date for the hearing, which date shall be no less than ten (10) nor more than thirty (30) days after the date of the insurer's request.
Section 10.  Prohibition on Announcements, Prohibition on Use in Ratemaking
A.  It is the judgment of the commissioner that the comparison of an insurer's total adjusted capital to any of its RBC Levels is a regulatory tool which may indicate the need for possible corrective action with respect to the insurer, and is not intended as a means to rank insurers generally. Therefore, except as otherwise required under the provisions of this regulation, the making, publishing, disseminating, circulating or placing before the public, or causing, directly or indirectly to be made, published, disseminated, circulated or placed before the public, in a newspaper, magazine or other publication, or in the form of a notice, circular, pamphlet, letter or poster, or over any radio or television station, or in any other way, an advertisement, announcement or statement containing an assertion, representation or statement with regard to the RBC Levels of any insurer, or of any component derived in the calculation, by any insurer, agent, broker or other person engaged in any manner in the insurance business would be misleading and is therefore prohibited; provided, however, that if any materially false statement with respect to the comparison regarding an insurer's total adjusted capital to its RBC Levels (or any of them) or an inappropriate comparison of any other amount to the insurer's RBC Levels is published in any written publication and the insurer is able to demonstrate to the commissioner with substantial proof the falsity of such statement, or the inappropriateness, as the case may be, then the insurer may publish an announcement in a written publication if the sole purpose of the announcement is to rebut the materially false statement.
B.  RBC instructions, RBC Reports, Adjusted RBC Reports, RBC Plans and Revised RBC Plans are intended solely for use by the commissioner in monitoring the solvency of insurers and the need for possible corrective action with respect to insurers and shall not be used by the commissioner for ratemaking nor considered or introduced as evidence in any rate proceeding nor used by the commissioner to calculate or derive any elements of an appropriate premium level or rate of return for any line of insurance which an insurer or any affiliate is authorized to write.
Section 11.  Supplemental Provisions; Exemption
A.  The provisions of this regulation are supplemental to any other provisions of the laws of this state, and shall not preclude or limit any other powers or duties of the commissioner under such laws, including, but not limited to, 8 V.S.A. Chapter 145 and Regulation 93-2.
B.  The commissioner may exempt from the application of this Regulation any domestic property and casualty insurer which;
(1)  Writes direct business only in this state;
(2)  Writes direct annual premiums of $ 2,000,000 or less; and
(3)  Assumes no reinsurance in excess of five percent (5%) of direct premium written.
Section 12.  Foreign Insurers
A.  Any foreign insurer shall, upon the written request of the commissioner, submit to the commissioner an RBC Report as of the end of the calendar year just ended no later than the later of:
(1)  The date an RBC Report would be required to be filed by a domestic insurer under this Regulation; or
(2)  Fifteen (15) days after the request is received by the foreign insurer.

Any foreign insurer shall, at the written request of the commissioner, promptly submit to the commissioner a copy of any RBC Plan that is filed with the insurance commissioner of any other state.

B.  In the event of a Company Action Level Event, Regulatory Action Level Event or Authorized Control Level Event with respect to any foreign insurer as determined under the RBC statute applicable in the state of domicile of the insurer (or, if no RBC statute is in force in that state, under the provisions of this Regulation), if the insurance commissioner of the state of domicile of the foreign insurer fails to require the foreign insurer to file an RBC Plan in the manner specified under that state's RBC statute (or, if no RBC statute is in force in that state, under Section 5 hereof), the commissioner may require the foreign insurer to file an RBC Plan with the commissioner. In such event, the failure of the foreign insurer to file an RBC Plan with the commissioner shall be grounds to order the insurer to cease and desist from writing new insurance business in this state.
C.  In the event of a Mandatory Control Level Event with respect to any foreign insurer, if no domiciliary receiver has been appointed with respect to the foreign insurer under the rehabilitation and liquidation statute applicable in the state of domicile of the foreign insurer, the commissioner may make application to the appropriate state court permitted under 8 V.S.A. Chapter 145 with respect to the liquidation of property of foreign insurers found in this state, and the occurrence of the Mandatory Control Level Event shall be considered adequate grounds for the application.
Section 13.  Severability Clause

If any provision of this Rule, or the application thereof to any person or circumstance, is held invalid, such determination shall not affect the provisions or applications of this Rule which can be given effect without the invalid provision or application, and to that end the provisions of this Regulation are severable.

Section 14.  Notices

All notices by the commissioner to an insurer which may result in regulatory action hereunder shall be effective upon dispatch if transmitted by registered or certified mail, or in the case of any other transmission shall be effective upon the insurer's receipt of such notice.

Section 15.  Effective Date

This regulation shall take effect upon approval. The reporting requirements of this rule shall apply to annual statements filed for years ending December 31, 1997 and thereafter.

Effective August 16, 1997

Final Proposal: Regulation 97-2, Risk Based Capital (RBC) for Property and Casualty Insurers

Attachment A 
1.  Changes to the Proposed Rule:

The rule details both company filing requirements with respect to risk based capital and related procedural requirements that are likely to be applied by the commissioner to a company with a risk based capital result at or below certain levels as reported in a company filing or as adjusted by the commissioner. Domestic risk retention groups are required to file on the NAIC annual statement form. The related procedural requirements of the regulation are not intended to apply to domestic risk retention groups. The amendment would clarify the application of the rule to domestic risk retention groups. The clarification has been added to Section 1 of the Regulation.

2.  Written Public Comment and Evaluation:

The written public comment received is summarized below along with the department's response.

a.  Two representatives of domestic risk retention groups requested clarification of the application of the regulation to domestic risk retention groups.

The regulation applies to domestic risk retention groups' financial filings because they are required to file annual statements in the form required by section 3561 of title 8 as set forth in 8 V.S.A. § 6007 (b). The filing requirement specified in 8 V.S.A. §§ 3561 and 6007 (b) for domestic risk retention groups is not intended to bring domestic risk retention groups within the scope of the procedural requirements set forth.

3.  Oral Public Comment and Evaluation:

No oral public comment was received.Statutory Authority: 8 V.S.A. §§ 75, 3304, 3309, 3561 and 3569; Ch. 145