Article XXVIII - Final Provisions - Illinois Statutes

      (215 ILCS 5/Art. XXVIII heading)ARTICLE XXVIII. FINAL PROVISIONS

(215 ILCS 5/441) (from Ch. 73, par. 1053)     Sec. 441. General corporate powers.     (1) In order to carry out the purpose for which it is organized, each company under the laws of the State and subject to the provisions of this Code shall have     (a) perpetual succession by its corporate name unless a limited period of duration is stated in its articles of incorporation;     (b) power in its corporate name to sue and be sued, to contract and be contracted with, to own, hold, sell, convey, mortgage, pledge, lease and otherwise dispose of real and personal property;     (c) power to adopt by‑laws not in conflict with the provisions of this Code, and to adopt and use a seal and to alter the same at pleasure;     (d) power to make donations in reasonable amounts for the public welfare or for charitable, scientific, religious or educational purposes;     (e) such other powers as shall be needful to accomplish the purposes of its organization.     (2) Such power shall be exercised subject to the provisions and restrictions of this Code and other laws of this State.     (3) No conveyance or transfer by or to any company of property, real or personal, of any kind or description, shall be invalid or fail because in making such conveyance or transfer or in acquiring such property, real or personal, the company, its board of directors, trustees or other governing body, or any of its officers, acting within the scope of the actual or apparent authority given to them by its board of directors, trustees or other governing body, have in so doing exceeded any of the purposes or powers of the company. (Source: Laws 1959, p. 151.)

(215 ILCS 5/442) (from Ch. 73, par. 1054)     Sec. 442. Validation of illegally issued policies.     Any contract or policy of insurance or any application, endorsement or rider form used in connection therewith issued in violation of any section of this Code requiring certain provisions to be inserted therein or the inclusion of provisions prohibited, or issued without submitting same for approval by the Director in accordance with section 143, shall nevertheless be held valid but shall be construed in accordance with the requirements of the section that the said policy, application, endorsement or rider violates, and when any provision in such contract, application, endorsement or rider is in conflict with any provision of this Code, the rights, and obligations of the company thereunder shall not be less favorable to the holder of the contract and the beneficiary or annuitant thereunder than is required by the provisions of this Code applicable thereto. (Source: Laws 1937, p. 696.)

(215 ILCS 5/443) (from Ch. 73, par. 1055)     Sec. 443. Reciprocity.     The policies of a company, not organized under the laws of this State, may contain any provision which the law of the state or country under which the company is organized prescribes shall be in such policies when issued in this State, and the policies of such insurance company organized under the laws of this State may, when issued or delivered in any other state or country, contain any provisions required by the laws of the state or country in which the same are issued, anything in this Code to the contrary notwithstanding. (Source: Laws 1937, p. 696.)

    (215 ILCS 5/444)(from Ch. 73, par. 1056)
    Sec. 444. Retaliation.
    (1) Whenever the existing or future laws of any other state or country shall require of companies incorporated or organized under the laws of this State as a condition precedent to their doing business in such other state or country, compliance with laws, rules, regulations, and prohibitions more onerous or burdensome than the rules and regulations imposed by this State on foreign or alien companies, or shall require any deposit of securities or other obligations in such state or country, for the protection of policyholders or otherwise or require of such companies or agents thereof or brokers the payment of penalties, fees, charges, or taxes greater than the penalties, fees, charges, or taxes required in the aggregate for like purposes by this Code or any other law of this State, of foreign or alien companies, agents thereof or brokers, then such laws, rules, regulations, and prohibitions of said other state or country shall apply to companies incorporated or organized under the laws of such state or country doing business in this State, and all such companies, agents thereof, or brokers doing business in this State, shall be required to make deposits, pay penalties, fees, charges, and taxes, in amounts equal to those required in the aggregate for like purposes of Illinois companies doing business in such state or country, agents thereof or brokers. Whenever any other state or country shall refuse to permit any insurance company incorporated or organized under the laws of this State to transact business according to its usual plan in such other state or country, the director may, if satisfied that such company of this State is solvent, properly managed, and can operate legally under the laws of such other state or country, forthwith suspend or cancel the license of every insurance company doing business in this State which is incorporated or organized under the laws of such other state or country to the extent that it insures in this State against any of the risks or hazards which are sought to be insured against by the company of this State in such other state or country.
    (2) The provisions of this Section shall not apply to residual market or special purpose assessments or guaranty fund or guaranty association assessments, both under the laws of this State and under the laws of any other state or country, and any tax offset or credit for any such assessment shall, for purposes of this Section, be treated as a tax paid both under the laws of this State and under the laws of any other state or country.
    (3) The terms "penalties", "fees", "charges", and "taxes" in subsection (1) of this Section shall include: the penalties, fees, charges, and taxes collected under State law and referenced within Article XXV exclusive of any items referenced by subsection (2) of this Section, but including any tax offset allowed under Section 531.13 of this Code; the Illinois corporate income taxes imposed under subsections (a) through (d) of Section 201 of the Illinois Income Tax Act after any tax offset allowed under Section 531.13 of this Code; income or personal property taxes imposed by other states or countries; penalties, fees, charges, and taxes of other states or countries imposed for purposes like those of the penalties, fees, charges, and taxes specified in Article XXV of this Code exclusive of any item referenced in subsection (2) of this Section; and any penalties, fees, charges, and taxes required as a franchise, privilege, or licensing tax for conducting the business of insurance whether calculated as a percentage of income, gross receipts, premium, or otherwise.
    (4) Nothing contained in this Section or Section 409 or Section 444.1 is intended to authorize or expand any power of local governmental units or municipalities to impose taxes, fees, or charges.
    (5) This Section is subject to the provisions of Section 10 of the New Markets Development Program Act.
(Source: P.A. 95‑1024, eff. 12‑31‑08.)

    (215 ILCS 5/444.1)(from Ch. 73, par. 1056.1)
    Sec. 444.1. Payment of retaliatory taxes.
    (1) Every foreign or alien company doing insurance business in this State shall pay the Director the retaliatory tax determined in accordance with Section 444.
    (2) (a) All companies subject to the provisions of this Section shall make an annual return for the preceding calendar year on or before March 15 setting forth such information on such forms as the Director may reasonably require. Payments of quarterly installments of the taxpayer's total estimated retaliatory tax for the current calendar year shall be due on or before April 15, June 15, September 15, and December 15 of such year, except that all companies transacting insurance business in this State whose annual tax for the immediately preceding calendar year was less than $5,000 shall make only an annual return. Failure of a company to make the annual payment, or to make the quarterly payments, if required, of at least one‑fourth of either (i) the total tax paid during the previous calendar year or (ii) 80% of the actual tax for the current calendar year shall subject it to the penalty provisions set forth in Section 412 of this Code.
    (b) Notwithstanding the foregoing provisions of paragraph (a) of this subsection, the retaliatory tax liability of companies under Section 444 of this Code for the calendar year ended December 31, 1997 shall be determined in accordance with this amendatory Act of 1998 and shall include in the aggregate comparative tax burden for the State of Illinois, any tax offset allowed under Section 531.13 of this Code and any income taxes paid for the year 1997 under subsections (a) through (d) of Section 201 of the Illinois Income Tax Act after any tax offset allowed under Section 531.13 of this Code.
        (i) Any annual retaliatory tax returns and payments

made for the year ended December 31, 1997 and any quarterly installments of the taxpayer's total estimated 1998 retaliatory tax liability paid prior to the effective date of this Amendatory Act of 1998 that do not include the items specified by subsection (1) of this Section shall be amended and restated, at the taxpayer's election, on forms prepared by the Director so as to provide for the inclusion of such items. An amended and restated return for the year ended December 31, 1997 filed under this subparagraph shall treat any payment of estimated privilege taxes under Section 409 as in effect prior to October 23, 1997 as a payment of estimated retaliatory taxes for the year ended December 31, 1997.

(ii) Any overpayment resulting from such amended

return and restated tax liability shall be allowed as a credit against any subsequent privilege or retaliatory tax obligations of the taxpayer.

(iii) In the year 1999 and thereafter all companies

shall make annual and quarterly installments of their estimated tax as provided by paragraph (a) of this subsection.

(3) Any tax payment made under this Section and any tax returns prepared in compliance with Section 410 shall give full consideration to the impact of any future reduction in or elimination of a taxpayer's liability under Section 409, whether such reduction or elimination is due to an operation of law or an Act of the General Assembly.     (4) Any foreign or alien taxpayer who makes, under protest, a tax payment required by Section 409 shall, at the time of payment, file a retaliatory tax return sufficient to disclose the full amount of retaliatory taxes which would be due and owing for the tax period in question if the protest were upheld. Notwithstanding the provisions of the State Officers and Employees Money Disposition Act or any other laws of this State, the protested payment, to the extent of the retaliatory tax so disclosed, shall be deposited directly in the General Revenue Fund; and the balance of the payment, if any, shall be deposited in a protest account pursuant to the provisions of the aforesaid Act, as now or hereafter amended.     (5) The failure of a company to make the annual payment or to make the quarterly payments, if required, of at least one‑fourth of either (i) the total tax paid during the preceding calendar year or (ii) 80% of the actual tax for the current calendar year shall subject it to the penalty provisions set forth in Section 412 of this Code.     (6) This Section is subject to the provisions of Section 10 of the New Markets Development Program Act. (Source: P.A. 95‑1024, eff. 12‑31‑08.)

(215 ILCS 5/445) (from Ch. 73, par. 1057)     Sec. 445. Surplus line.     (1) Surplus line defined; surplus line insurer requirements. "Surplus line insurance" means insurance on an Illinois risk of the kinds specified in Classes 2 and 3 of Section 4 of this Code procured from an unauthorized insurer after the insurance producer representing the insured or the surplus line producer is unable, after diligent effort, to procure said insurance from authorized insurers.     "Authorized insurer" means an insurer that holds a certificate of authority issued by the Director but, for the purposes of this Section, does not include a domestic surplus line insurer as defined in Section 445a or any residual market mechanism.     "Residual market mechanism" means an association, organization, or other entity described in Article XXXIII of this Code or Section 7‑501 of the Illinois Vehicle Code or any similar association, organization, or other entity.     "Unauthorized insurer" means an insurer that does not hold a valid certificate of authority issued by the Director but, for the purposes of this Section, shall also include a domestic surplus line insurer as defined in Section 445a.     Insurance producers may procure surplus line insurance only if licensed as a surplus line producer under this Section and may procure that insurance only from an unauthorized insurer:         (a) that based upon information available to the

surplus line producer has a policyholders surplus of not less than $15,000,000 determined in accordance with accounting rules that are applicable to authorized insurers; and

(b) that has standards of solvency and management

that are adequate for the protection of policyholders; and

(c) where an unauthorized insurer does not meet the

standards set forth in (a) and (b) above, a surplus line producer may, if necessary, procure insurance from that insurer only if prior written warning of such fact or condition is given to the insured by the insurance producer or surplus line producer.

Insurance producers shall not procure from an unauthorized insurer an insurance policy:         (i) that is designed to satisfy the proof of

financial responsibility and insurance requirements in any Illinois law where the law requires that the proof of insurance is issued by an authorized insurer or residual market mechanism;

(ii) that covers the risk of accidental injury to

employees arising out of and in the course of employment according to the provisions of the Workers' Compensation Act; or

(iii) that insures any Illinois personal lines risk,

as defined in subsection (a), (b), or (c) of Section 143.13 of this Code, that is eligible for residual market mechanism coverage, unless the insured or prospective insured requests limits of liability greater than the limits provided by the residual market mechanism. In the course of making a diligent effort to procure insurance from authorized insurers, an insurance producer shall not be required to submit a risk to a residual market mechanism when the risk is not eligible for coverage or exceeds the limits available in the residual market mechanism.

Where there is an insurance policy issued by an authorized insurer or residual market mechanism insuring a risk described in item (i), (ii), or (iii) above, nothing in this paragraph shall be construed to prohibit a surplus line producer from procuring from an unauthorized insurer a policy insuring the risk on an excess or umbrella basis where the excess or umbrella policy is written over one or more underlying policies.     (2) Surplus line producer; license. Any licensed producer who is a resident of this State, or any nonresident who qualifies under Section 500‑40, may be licensed as a surplus line producer upon:         (a) completing a prelicensing course of study. The

course provided for by this Section shall be conducted under rules and regulations prescribed by the Director. The Director may administer the course or may make arrangements, including contracting with an outside educational service, for administering the course and collecting the non‑refundable application fee provided for in this subsection. Any charges assessed by the Director or the educational service for administering the course shall be paid directly by the individual applicants. Each applicant required to take the course shall enclose with the application a non‑refundable $20 application fee payable to the Director plus a separate course administration fee. An applicant who fails to appear for the course as scheduled, or appears but fails to complete the course, shall not be entitled to any refund, and shall be required to submit a new request to attend the course together with all the requisite fees before being rescheduled for another course at a later date; and

(b) payment of an annual license fee of $400; and         (c) procurement of the surety bond required in

subsection (4) of this Section.

A surplus line producer so licensed shall keep a separate account of the business transacted thereunder which shall be open at all times to the inspection of the Director or his representative.     The prelicensing course of study requirement in (a) above shall not apply to insurance producers who were licensed under the Illinois surplus line law on or before January 1, 2002.     (3) Taxes and reports.         (a) Surplus line tax and penalty for late payment.         A surplus line producer shall file with the Director

on or before February 1 and August 1 of each year a report in the form prescribed by the Director on all surplus line insurance procured from unauthorized insurers during the preceding 6 month period ending December 31 or June 30 respectively, and on the filing of such report shall pay to the Director for the use and benefit of the State a sum equal to 3.5% of the gross premiums less returned premiums upon all surplus line insurance procured or cancelled during the preceding 6 months.

Any surplus line producer who fails to pay the full

amount due under this subsection is liable, in addition to the amount due, for such penalty and interest charges as are provided for under Section 412 of this Code. The Director, through the Attorney General, may institute an action in the name of the People of the State of Illinois, in any court of competent jurisdiction, for the recovery of the amount of such taxes and penalties due, and prosecute the same to final judgment, and take such steps as are necessary to collect the same.

(b) Fire Marshal Tax.         Each surplus line producer shall file with the

Director on or before March 31 of each year a report in the form prescribed by the Director on all fire insurance procured from unauthorized insurers subject to tax under Section 12 of the Fire Investigation Act and shall pay to the Director the fire marshal tax required thereunder.

(c) Taxes and fees charged to insured. The taxes

imposed under this subsection and the countersigning fees charged by the Surplus Line Association of Illinois may be charged to and collected from surplus line insureds.

(4) Bond. Each surplus line producer, as a condition to receiving a surplus line producer's license, shall execute and deliver to the Director a surety bond to the People of the State in the penal sum of $20,000, with a surety which is authorized to transact business in this State, conditioned that the surplus line producer will pay to the Director the tax, interest and penalties levied under subsection (3) of this Section.     (5) Submission of documents to Surplus Line Association of Illinois. A surplus line producer shall submit every insurance contract issued under his or her license to the Surplus Line Association of Illinois for recording and countersignature. The submission and countersignature may be effected through electronic means. The submission shall set forth:         (a) the name of the insured;         (b) the description and location of the insured

property or risk;

(c) the amount insured;         (d) the gross premiums charged or returned;         (e) the name of the unauthorized insurer from whom

coverage has been procured;

(f) the kind or kinds of insurance procured; and         (g) amount of premium subject to tax required by

Section 12 of the Fire Investigation Act.

Proposals, endorsements, and other documents which are

incidental to the insurance but which do not affect the premium charged are exempted from filing and countersignature.

The submission of insuring contracts to the Surplus Line

Association of Illinois constitutes a certification by the surplus line producer or by the insurance producer who presented the risk to the surplus line producer for placement as a surplus line risk that after diligent effort the required insurance could not be procured from authorized insurers and that such procurement was otherwise in accordance with the surplus line law.

(6) Countersignature required. It shall be unlawful for an insurance producer to deliver any unauthorized insurer contract unless such insurance contract is countersigned by the Surplus Line Association of Illinois.     (7) Inspection of records. A surplus line producer shall maintain separate records of the business transacted under his or her license, including complete copies of surplus line insurance contracts maintained on paper or by electronic means, which records shall be open at all times for inspection by the Director and by the Surplus Line Association of Illinois.     (8) Violations and penalties. The Director may suspend or revoke or refuse to renew a surplus line producer license for any violation of this Code. In addition to or in lieu of suspension or revocation, the Director may subject a surplus line producer to a civil penalty of up to $2,000 for each cause for suspension or revocation. Such penalty is enforceable under subsection (5) of Section 403A of this Code.     (9) Director may declare insurer ineligible. If the Director determines that the further assumption of risks might be hazardous to the policyholders of an unauthorized insurer, the Director may order the Surplus Line Association of Illinois not to countersign insurance contracts evidencing insurance in such insurer and order surplus line producers to cease procuring insurance from such insurer.     (10) Service of process upon Director. Insurance contracts delivered under this Section from unauthorized insurers, other than domestic surplus line insurers as defined in Section 445a, shall contain a provision designating the Director and his successors in office the true and lawful attorney of the insurer upon whom may be served all lawful process in any action, suit or proceeding arising out of such insurance. Service of process made upon the Director to be valid hereunder must state the name of the insured, the name of the unauthorized insurer and identify the contract of insurance. The Director at his option is authorized to forward a copy of the process to the Surplus Line Association of Illinois for delivery to the unauthorized insurer or the Director may deliver the process to the unauthorized insurer by other means which he considers to be reasonably prompt and certain.     (10.5) Insurance contracts delivered under this Section from unauthorized insurers, other than domestic surplus line insurers as defined in Section 445a, shall have stamped or imprinted on the first page thereof in not less than 12‑pt. bold face type the following legend: "Notice to Policyholder: This contract is issued, pursuant to Section 445 of the Illinois Insurance Code, by a company not authorized and licensed to transact business in Illinois and as such is not covered by the Illinois Insurance Guaranty Fund." Insurance contracts delivered under this Section from domestic surplus line insurers as defined in Section 445a shall have stamped or imprinted on the first page thereof in not less than 12‑pt. bold face type the following legend: "Notice to Policyholder: This contract is issued by a domestic surplus line insurer, as defined in Section 445a of the Illinois Insurance Code, pursuant to Section 445, and as such is not covered by the Illinois Insurance Guaranty Fund."     (11) The Illinois Surplus Line law does not apply to insurance of property and operations of railroads or aircraft engaged in interstate or foreign commerce, insurance of vessels, crafts or hulls, cargoes, marine builder's risks, marine protection and indemnity, or other risks including strikes and war risks insured under ocean or wet marine forms of policies.     (12) Surplus line insurance procured under this Section, including insurance procured from a domestic surplus line insurer, is not subject to the provisions of the Illinois Insurance Code other than Sections 123, 123.1, 401, 401.1, 402, 403, 403A, 408, 412, 445, 445.1, 445.2, 445.3, 445.4, and all of the provisions of Article XXXI to the extent that the provisions of Article XXXI are not inconsistent with the terms of this Act. (Source: P.A. 92‑386, eff. 1‑1‑02; 93‑29, eff. 6‑20‑03; 93‑32, eff. 7‑1‑03; 93‑876, eff. 8‑6‑04.)

(215 ILCS 5/445a)     Sec. 445a. Domestic surplus line insurer.     (a) A domestic insurer possessing policyholder surplus of at least $15,000,000 may pursuant to a resolution by its board of directors, and with the written approval of the Director, be designated as a "domestic surplus line insurer".     (b) A domestic surplus line insurer may only insure in this State an Illinois risk procured from a surplus line producer pursuant to Section 445 of this Code.     (c) A domestic surplus line insurer must agree not to issue a policy designed to satisfy the financial responsibility requirements of the Illinois Vehicle Code, the Workers' Compensation Act, or the Workers' Occupational Diseases Act. A domestic surplus line insurer is not subject to the provisions of Articles XXXIII, XXXIII 1/2, XXXIV, XXXVIIIA, Section 468, or Section 478.1 of this Code. (Source: P.A. 90‑794, eff. 8‑14‑98.)

(215 ILCS 5/445.1) (from Ch. 73, par. 1057.1)     Sec. 445.1. Surplus Line Association of Illinois. There is hereby created a non‑profit association to be known as the Surplus Line Association of Illinois. All surplus line producers shall be and must remain individual members of the Association as a condition of their holding a license as a surplus line producer in this State. The Association must perform its functions under the plan of operation established and approved under Section 445.3 and must exercise its powers through a board of directors established under Section 445.2 of this Code. The Association shall be supervised by the Director and is subject to the applicable provisions of the Illinois Insurance Code. The Association shall be authorized and have the duty to:     (1) receive, record and countersign all surplus line insurance contracts which surplus line producers are required to file with the Association under subsection (5) of Section 445;     (2) prepare monthly reports for the Director on surplus line insurance procured by its members during the preceding month in such form and providing such information as the Director may prescribe;     (3) prepare and deliver to each licensee and to the Director the reports of surplus line business prescribed in subsection (3) of Section 445;     (4) assess its members for costs of operations in accordance with a schedule adopted by the Board of Directors of the Association and approved by the Director;     (5) employ and retain such persons as are necessary to carry out the duties of the Association;     (6) borrow money as necessary to effect the purposes of the Association;     (7) enter contracts as necessary to effect the purposes of the Association;     (8) perform such other acts as will facilitate and encourage compliance by its members with the surplus line law of this State and rules promulgated thereunder; and     (9) provide such other services to its members as are incidental or related to the purposes of the Association. Nothing in this Act shall be construed as giving the Association any discretionary authority to enforce this Act or to withhold countersignature of insurance contracts which meet the requirements of subsection (5) of Section 445. (Source: P.A. 83‑1300.)

(215 ILCS 5/445.2) (from Ch. 73, par. 1057.2)     Sec. 445.2. Board of Directors. The Association shall function through a Board of Directors elected by the Association members, and officers who shall be elected by the Board of Directors.     The Board of Directors of the Association shall consist of not less than 5 nor more than 9 persons serving terms as established in the plan of operation. The plan of operation shall provide for the election of a Board of Directors by the members of the Association from its membership. The plan of operation shall fix the manner of voting and may weigh each member's vote to reflect the annual surplus line insurance premium written by the member. Members employed by the same or affiliated employers may consolidate their premiums written and delegate an individual officer or partner to represent the member in the exercise of Association affairs, including service on the Association Board of Directors. The Director shall appoint an interim Board of Directors for the sole purpose of conducting an election of Directors. If no Board of Directors is elected within 90 days after the effective date of this amendatory Act of 1984, the Director shall appoint the initial members of the Board of Directors.     The Board of Directors shall elect such officers as may be provided in the plan of operation. (Source: P.A. 83‑1300.)

(215 ILCS 5/445.3) (from Ch. 73, par. 1057.3)     Sec. 445.3. Plan of Operation. (1) The Association shall submit to the Director a plan of operation and any amendments thereto to provide operating procedures for the administration of the Association. The plan of operation and any amendments thereto shall become effective upon approval in writing by the Director.     (2) If the Association fails to submit a suitable plan of operation within 180 days following the effective date of this amendatory Act of 1984, or if at any time thereafter the Association fails to submit required amendments to the plan of operation, the Director shall, after notice and hearing pursuant to Sections 401, 402 and 403 of this Code, adopt and promulgate such rules as are necessary or advisable to effectuate the provisions of this Act. Such rules shall continue in force until modified by the Director or superseded by a plan of operation submitted by the Association and approved by the Director.     (3) All Association members must comply with the plan of operation. (Source: P.A. 83‑1300.)

(215 ILCS 5/445.4) (from Ch. 73, par. 1057.4)     Sec. 445.4. Examination. The Director shall, at such times as he deems necessary, make or cause to be made an examination of the Association. The reasonable cost of any such examination shall be paid by the Association upon presentation to it by the Director of a detailed account of such cost. During the course of such examination, the directors, officers, members, agents and employees of the Association may be examined under oath regarding the operation of the Association and shall make available all books, records, accounts, documents and agreements pertaining thereto. The Director shall furnish a copy of the examination report to the Association. Within 20 days after receipt of the report, the Association may request a hearing on the report or any facts or recommendations therein. If the Director finds the Association or any of its members to be in violation of this Act, he may issue an order requiring discontinuance of such violation. (Source: P.A. 83‑1300.)

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