2023 Laws of Puerto Rico › TITLE TWENTY-SIX - Insurance (§§ 101 — 10377) › Subtitle 1 - Insurance Generally (§§ 101 — 4513) › Chapter 40 - Rehabilitation and Liquidation (§§ 4001 — 4054) › § 4035 - Liquidation—Third party claimants

(1) When a third party claimant asserts a cause of action against an insured party of an insurer in liquidation, the third party claimant may file a claim with the liquidator.
(2) The insured may present a claim in favor of the third party claimant regardless of whether the aforesaid files the claim or not. If the insured fails to file a claim by the date stipulated in the liquidation order for the filing of claims, or within sixty (60) days after the notice required by § 4019 of this title has been issued, whichever is later, the aforementioned shall be an unexcused late claimant.
(3) The liquidator shall make his/her recommendations to the Receivership Court, pursuant to § 4039 of this title, to allow the acceptance of a claim of an insured pursuant to subsection (2) of this section, taking into consideration the probable outcome of any action pending against the insured on which the claim is based, the probable damages recoverable in the action and the probable costs and expenses in the defense. After the court has given its consent, the liquidator shall withhold any dividends payable on the claim pending the outcome of the litigation or negotiation with the insured. Whenever it seems appropriate, the liquidator shall reconsider the claim on the basis of additional information and shall amend his/her recommendations to the court. The insured shall be granted the same notice and the same opportunity to be heard in all changes in the recommendation, as in the initial determination. The court may amend its allowance as it may deem appropriate. As claims against the insured are settled or denied, the aforesaid shall be paid from the amount withheld the same percentage of the dividends as was paid in other similar claims, based on the lesser of the amount in fact recovered from the insured by the action or paid by agreement plus the reasonable costs and expenses of the defense, or the amount allowed on the claims by the court. After all the claims have been settled or denied, any remainder of the amount withheld shall revert to the undistributed assets of the insurer. A delay in the final payment pursuant to this paragraph shall not be a cause for unreasonable delay of final distribution and payment on the part of the liquidator.
(4) If several claims are filed on the basis of one policy, whether by third party claimants or as claims of an insured according to this section, and the aggregate amount granted in the claims to which an equal limit of liability in the policy is applicable, exceeds that limit, each claim granted shall be reduced in the same proportion, so that the total shall equal the limit of the policy. The claims by the insured shall be valued according to the provisions of subsection (3) of this section. If the claim of any insured party is subsequently reduced as indicated in subsection (3) of this section, the amount thus freed shall be apportioned ratably among the claims which have been reduced pursuant to this subsection.
(5) No claim shall be filed under this section if it is, or can be, covered by any guaranty association of foreign guaranty association.
(6) A claimant may withdraw a claim with the approval of the liquidator. The liquidator may approve the withdrawal of the claim after giving notice to the insured party and only upon showing just cause.
(7) The filing of a claims form in connection with a claim against an insured party shall have the following effect on the rights of the claimant and the insured party:
(a) The claimant waives any right to claim the assets of the insured party to the extent of the coverage or policy limits provided by the insurer and agrees that, to the extent of said coverage or limit, his/her claim against the insured party shall be satisfied solely from distributions paid by the liquidator on the claim and any payment that the guaranty association may pay on account of the claim, except as provided in this section.
(b) The waiver provided for in this section is conditioned upon the cooperation of the insured party with the liquidator or with any guaranty association in defense of the claim. This waiver shall not discharge the guaranty association from any of its responsibilities and duties or the insured party with respect to any claim in excess of the coverage or limits of the policy issued by the insurer or any other responsible party.
(c) The waiver provided for under this section is void if:
(i) A claimant withdraws the claims form under subsection (6) of this section, or
(ii) the liquidator denies a claim, because there is no coverage.
History —Ins. Code, added as § 40.350 on Aug. 17, 1991, No. 72, § 1; Dec. 14, 2007, No. 206, § 35.