§ 58-19-60. Recovery. - North Carolina Statutes

§58‑19‑60.  Recovery.

(a)        If an order forliquidation or rehabilitation of a domestic insurer has been entered, thereceiver appointed under such order has a right to recover on behalf of theinsurer, (i) from any parent corporation or holding company or person oraffiliate who otherwise controlled the insurer, the amount of distributions(other than distributions of shares of the same class of stock) paid by theinsurer on its capital stock, or (ii) any payment in the form of a bonus,termination settlement, or extraordinary lump sum salary adjustment made by theinsurer or its subsidiary or subsidiaries to a director, officer, or employee,where the distribution or payment pursuant to (i) or (ii) above is made at anytime during the one year preceding the petition for liquidation orrehabilitation, as the case may be, subject to the limitations of subsections(b), (c), and (d) of this section.

(b)        No suchdistribution is recoverable if the parent or affiliate shows that when paidsuch distribution was lawful and reasonable, and that the insurer did not knowand could not reasonably have known that such distribution might adverselyaffect the ability of the insurer to fulfill its contractual obligations.

(c)        Any person that wasa parent corporation or holding company or a person that otherwise controlledthe insurer or affiliate at the time such distributions were paid is liable upto the amount of distributions or payments under subsection (a) of this sectionsuch person received.  Any person who otherwise controlled the insurer at thetime such distributions were declared is liable up to the amount ofdistributions he would have received if they had been paid immediately.  If twoor more persons are liable with respect to the same distributions, they are jointlyand severally liable.

(d)        The maximum amountrecoverable under this section is the amount needed in excess of all otheravailable assets of the insurer to pay its contractual obligations and toreimburse any guaranty funds.

(e)        To the extent thatany person liable under subsection (c) of this section is insolvent orotherwise fails to pay claims due from it pursuant to that subsection, itsparent corporation, holding company, or person who otherwise controlled it atthe time that the distribution was paid, are jointly and severally liable forany resulting deficiency in the amount recovered from such parent corporationor holding company or person who otherwise controlled it. (1989,c. 722, s. 1.)