Sec. 31.04.18.12. Transactions Subject to Prior Notice — Notice Filing and Standards

A. A person filing notice with the Commissioner of a proposed transaction pursuant to Insurance Article, Title 7, Subtitle 7, Annotated Code of Maryland, shall file a Form D, in accordance with the format, guidelines, and instructions approved by the Commissioner.

B. Pursuant to Insurance Article, §7-702(6), Annotated Code of Maryland, agreements, including but not limited to management agreements, service contracts, tax allocation agreements, or cost-sharing agreements shall include as applicable, the following provisions:

(1) Identification of the person providing services and the nature of such services, managerial responsibilities, or services to be performed;

(2) The methods to allocate costs;

(3) Timely settlement, not less frequently than on a quarterly basis and compliance with the requirements in the NAIC Accounting Practices and Procedure Manual regarding expense allocation;

(4) The prohibition of the advancement of funds by the insurer to the affiliate except to pay for services defined in the agreement;

(5) The statement that the insurer will maintain oversight for functions provided to the insurer by the affiliate and that the insurer will monitor services annually for quality assurance;

(6) The definition of books and records of the insurer to include all books and records developed or maintained under or related to the agreement;

(7) The statement that all books and records of the insurer are and remain the property of the insurer and are subject to control of the insurer;

(8) The statement that all funds and invested assets of the insurer are the exclusive property of the insurer, held for the benefit of the insurer, and are subject to the control of the insurer;

(9) The standards for termination of the agreement with and without cause;

(10) The indemnification of the insurer in the event of gross negligence or willful misconduct on the part of the affiliate providing the services;

(11) The statement that, if the insurer is placed in receivership or seized by the Commissioner pursuant to Insurance Article, §9-212, Annotated Code of Maryland:

(a) All of the rights of the insurer under the agreement extend to the receiver or the Commissioner; and

(b) All books and records will immediately be made available to the receiver or the Commissioner, and shall be turned over to the receiver or the Commissioner immediately upon the receiver’s or the Commissioner’s request;

(12) The statement that if the insurer is placed in receivership pursuant to Insurance Article, §9-212, Annotated Code of Maryland the affiliate has no automatic right to terminate the agreement; and

(13) The statement that the affiliate will continue to maintain any systems, programs, or other infrastructure notwithstanding a seizure by the Commissioner pursuant to Insurance Article, §9-212, Annotated Code of Maryland, and will make them available to the receiver, for so long as the affiliate continues to receive timely payment for services rendered.

C. In determining whether a transaction is fair and reasonable pursuant to Insurance Article, §7-702, Annotated Code of Maryland, the Commissioner may consider:

(1) Services received or provided;

(2) Whether the services provided by the affiliated entity are:

(a) Only being provided to other affiliated entities; or

(b) Being provided to both affiliated and nonaffiliated entities;

(3) The cost of services received or provided, including:

(a) Actual cost;

(b) Market cost;

(c) Overhead charges;

(d) Profit margin; and

(e) The allocation method used to share:

(i) Costs of services received or provided; and

(ii) Federal income tax expenses and credits among parties to consolidated federal income tax filing agreements; and

(4) Other factors deemed necessary by the Commissioner to determine if the terms of the transaction are fair and reasonable.