K.S.A. § 40-4365 — KS Code / Chapter 40 / Article 43 / Section 40-4365
40-4365 - Protected cells, establishment and maintenance, conditions of operations; powers of commissioner of insurance related thereto.
Status: in_force

40-4365. Protected cells, establishment and maintenance, conditions of operations; powers of commissioner of insurance related thereto. A protected cell captive insurance company formed or licensed under this chapter may establish and maintain one or more incorporated or unincorporated protected cells to insure risks of one or more participants, subject to the following conditions:

(a) (1) A protected cell captive insurance company may establish one or more protected cells if the commissioner has approved in writing a plan of operation or amendments to a plan of operation submitted by the protected cell captive insurance company with respect to each protected cell. A plan of operation includes, but is not limited to, the specific business objectives and investment guidelines of the protected cell, except that the commissioner may require additional information in the plan of operation. The commissioner may put into effect a plan of operation or amendments to a plan of operation on or before the date that the approval is signed if the effective date is not earlier than the date that the plan of operation or amendments to the plan of operation were filed with the department;

(2) upon the commissioner's written approval of the plan of operation, the protected cell captive insurance company, in accordance with the approved plan of operation, may attribute insurance obligations with respect to its insurance business to the protected cell;

(3) a protected cell shall have its own distinct name or designation that shall include the words "protected cell" or "incorporated cell." An incorporated cell formed as a series of a limited liability company shall bear a distinct name or designation as reflected in its formation documents and include the words "series cell." Such names or designations may also be reasonably abbreviated, including, without limitation, pc or p.c. for "protected cell," ic, i.c., ipc, or i.p.c. for "incorporated cell" and sc, s.c., spc or s.p.c. for "series cell";

(4) the protected cell captive insurance company shall transfer all assets attributable to a protected cell to one or more separately established and identified protected cell accounts bearing the name or designation of such protected cell. Protected cell assets shall be held in the protected cell accounts for the purpose of satisfying the obligations of such protected cell;

(5) an incorporated protected cell may be organized and operated in any form of business organization authorized by the commissioner, including, but not limited to, an individual series of a limited liability company as provided for in the Kansas revised limited liability company act. Each incorporated protected cell of a protected cell captive insurer shall be treated as a captive insurer for purposes of this act and shall have the power to enter into contracts, including an individual series of a limited liability company. Unless otherwise permitted by the organizational documents of a protected cell captive insurer, each incorporated protected cell of the protected cell captive insurer shall have the same directors, secretary and registered office as the protected cell captive insurer; and

(6) all attributions of assets and liabilities between a protected cell and the general account shall be in accordance with the plan of operation and participant contracts approved by the commissioner. No other attribution of assets or liabilities shall be made by a protected cell captive insurance company between the protected cell captive insurance company's general account and its protected cells. Any attribution of assets and liabilities between the general account and a protected cell shall be in cash or in readily marketable securities with established market values.

(b) The creation of a protected cell does not create, with respect to such protected cell, a legal person separate from the protected cell captive insurance company unless the protected cell is an incorporated cell. Amounts attributed to a protected cell under this section, including assets transferred to a protected cell account, are deemed to be owned by the protected cell. No protected cell captive insurance company shall be, or represent itself as a trustee with respect to those protected cell assets of such protected cell account. Notwithstanding the provisions of this subsection, the protected cell captive insurance company may allow for a security interest to attach to protected cell assets or a protected cell account when in favor of a creditor of the protected cell and otherwise allowed under applicable law.

(c) This act shall not be construed to prohibit the protected cell captive insurance company from contracting with or arranging for an investment advisor, commodity trading advisor or other third party to manage the protected cell assets of a protected cell if all remuneration, expenses and other compensation of the third-party advisor or manager are payable from the protected cell assets of such protected cell and not from the protected cell assets of other protected cells or the assets of the protected cell captive insurance company's general account.

(d) (1) A protected cell captive insurance company shall establish administrative and accounting procedures necessary to properly identify the one or more protected cells of the protected cell captive insurance company and the protected cell assets and protected cell liabilities attributable to the protected cells. The directors of a protected cell captive insurance company shall keep protected cell assets and protected cell liabilities:

(A) Separate and separately identifiable from the assets and liabilities of the protected cell captive insurance company's general account; and

(B) attributable to one protected cell that is separate and separately identifiable from protected cell assets and protected cell liabilities attributable to other protected cells.

(2) If subsection (d)(1) is violated, then the remedy of tracing is applicable to protected cell assets when commingled with protected cell assets of other protected cells or the assets of the protected cell captive insurance company's general account. The remedy of tracing shall not be construed as an exclusive remedy.

(e) When establishing a protected cell, the protected cell captive insurance company shall attribute to the protected cell assets a value that is at least equal to the reserves and other insurance liabilities attributed to such protected cell.

(f) Each protected cell shall be accounted for separately on the books and records of the protected cell captive insurance company to reflect the financial condition and results of operations of such protected cell, net income or loss, dividends or other distributions to participants and such other factors as may be provided in the participant contract or required by the commissioner.

(g) No asset of a protected cell shall be chargeable with liabilities arising out of any other insurance business that the protected cell captive insurance company may conduct.

(h) No sale, exchange or other transfer of assets shall be made by such protected cell captive insurance company between or among any of its protected cells without the consent of such protected cells.

(i) No sale, exchange, transfer of assets, dividend or distribution shall be made from a protected cell to another protected cell captive insurance company or participant without the commissioner's approval. In no event shall the commissioner's approval be given if the sale, exchange, transfer, dividend or distribution would result in the insolvency or impairment of a protected cell.

(j) All attributions of assets and liabilities to the protected cells and the general account shall be in accordance with the plan of operation approved by the commissioner. No other attribution of assets or liabilities shall be made by a protected cell captive insurance company between its general account and any protected cell or between any protected cells. The protected cell captive insurance company shall attribute all insurance obligations, assets and liabilities relating to a reinsurance contract entered into with respect to a protected cell to such protected cell. The performance under such reinsurance contract and any tax benefits, losses, refunds or credits allocated pursuant to a tax allocation agreement to which the protected cell captive insurance company is a party, including any payments made by or due to be made to the protected cell captive insurance company pursuant to the terms of such agreement, shall reflect the insurance obligations, assets and liabilities relating to the reinsurance contract that are attributed to such protected cell.

(k) In connection with the conservation, rehabilitation or liquidation of a protected cell captive insurance company, the assets and liabilities of a protected cell shall, to the extent that the commissioner determines that such assets and liabilities are separable, at all times be kept separate from and shall not be commingled with those of other protected cells and the protected cell captive insurance company.

(l) Each protected cell captive insurance company shall annually file with the commissioner such financial reports as required by the commissioner. Any such financial report shall include, without limitation, accounting statements detailing the financial experience of each protected cell.

(m) Each protected cell captive insurance company shall notify the commissioner in writing within 10 business days of any protected cell that is insolvent or otherwise unable to meet its claim or expense obligations.

(n) No participant contract shall take effect without the commissioner's prior written approval. The addition of each new protected cell, the withdrawal of any participant or the termination of any existing protected cell shall constitute a change in the plan of operation requiring the commissioner's prior written approval.

(o) The business written by a protected cell captive insurance company, with respect to each protected cell, shall be:

(1) Fronted by an insurance company licensed under the laws of any state;

(2) reinsured by a reinsurer authorized or approved by this state; or

(3) secured by a trust fund in the United States for the benefit of policyholders and claimants or funded by an irrevocable letter of credit or other arrangement that is acceptable to the commissioner. The amount of security provided shall be not less than the reserves associated with those liabilities that are neither fronted nor reinsured, including reserves for losses, allocated loss adjustment expenses, incurred but not reported losses and unearned premiums for business written through the participant's protected cell. The commissioner may require the protected cell captive insurance company to increase the funding of any security arrangement established under this subsection. If the form of security is a letter of credit, the letter of credit shall be issued or confirmed by a bank approved by the commissioner. A trust maintained pursuant to this subsection shall be established in a form and upon such terms approved by the commissioner.

(p) Notwithstanding this act or other laws of Kansas, and in addition to article 36 of chapter 40 of the Kansas Statutes Annotated, and amendments thereto, in the event of an insolvency of a protected cell captive insurance company in which the commissioner determines that one or more protected cells remain solvent, the commissioner may separate such cells from the protected cell captive insurance company and may allow, on application of the protected cell captive insurance company, for the conversion of such protected cells into one or more new or existing protected cell captive insurance companies or one or more other captive insurance companies, pursuant to such plan of operation as the commissioner deems acceptable.

(q) Biographical affidavits shall not be required for participants in unincorporated cells. Biographical affidavits shall be required for owners of incorporated cells, including series members of a series LLC.

(r) A protected cell captive insurance company formed or licensed under this act may establish and operate unincorporated and incorporated protected cells.