215 ILCS 5/ Illinois Insurance Code.

(215 ILCS 5/531.07) (from Ch. 73, par. 1065.80-7)

Sec. 531.07. Board of Directors.) The board of directors of the Association consists of not less than 7 nor more than 11 members serving terms as established in the plan of operation. The insurer members of the board are to be selected by member insurers subject to the approval of the Director. In addition, 2 persons who must be public representatives may be appointed by the Director to the board of directors. A public representative may not be an officer, director, or employee of an insurance company or a health maintenance organization or any person engaged in the business of insurance. Vacancies on the board must be filled for the remaining period of the term in the manner described in the plan of operation.

In approving selections or in appointing members to the board, the Director must consider, whether all member insurers are fairly represented.

Members of the board may be reimbursed from the assets of the Association for expenses incurred by them as members of the board of directors but members of the board may not otherwise be compensated by the Association for their services.

(Source: P.A. 100-687, eff. 8-3-18.)

(215 ILCS 5/531.08) (from Ch. 73, par. 1065.80-8)

Sec. 531.08. Powers and duties of the Association.

(a) In addition to the powers and duties enumerated in other Sections of this Article:

(1) If a member insurer is an impaired insurer, then the Association may, in its discretion and subject to any conditions imposed by the Association that do not impair the contractual obligations of the impaired insurer and that are approved by the Director:

(A) guarantee, assume, reissue, or reinsure or cause to be guaranteed, assumed, reissued, or reinsured, any or all of the policies or contracts of the impaired insurer; or

(B) provide such money, pledges, loans, notes, guarantees, or other means as are proper to effectuate paragraph (A) and assure payment of the contractual obligations of the impaired insurer pending action under paragraph (A).

(2) If a member insurer is an insolvent insurer, then the Association shall, in its discretion, either:

(A) guaranty, assume, reissue, or reinsure or cause to be guaranteed, assumed, reissued, or reinsured the policies or contracts of the insolvent insurer or assure payment of the contractual obligations of the insolvent insurer and provide money, pledges, loans, notes, guarantees, or other means reasonably necessary to discharge the Association's duties; or

(B) provide benefits and coverages in accordance with the following provisions:

(i) with respect to policies and contracts, ensure payment of benefits that would have been payable under the policies or contracts of the insolvent insurer for claims incurred:

(a) with respect to group policies and contracts, not later than the earlier of the next renewal date under those policies or contracts or 45 days, but in no event less than 30 days, after the date on which the Association becomes obligated with respect to the policies and contracts;

(b) with respect to nongroup policies, contracts, and annuities not later than the earlier of the next renewal date (if any) under the policies or contracts or one year, but in no event less than 30 days, from the date on which the Association becomes obligated with respect to the policies or contracts;

(ii) make diligent efforts to provide all known insureds, enrollees, or annuitants (for nongroup policies and contracts), or group policy owners or contract owners with respect to group policies and contracts, 30 days notice of the termination (pursuant to subparagraph (i) of this paragraph (B)) of the benefits provided;

(iii) with respect to nongroup policies and contracts covered by the Association, make available to each known insured, enrollee, or annuitant, or owner if other than the insured, enrollee, or annuitant, and with respect to an individual formerly an insured, enrollee, or annuitant under a group policy or contract who is not eligible for replacement group coverage, make available substitute coverage on an individual basis in accordance with the provisions of subsection (b), if the insureds, enrollees, or annuitants had a right under law or the terminated policy, contract, or annuity to convert coverage to individual coverage or to continue an individual policy, contract, or annuity in force until a specified age or for a specified time, during which the insurer or health maintenance organization had no right unilaterally to make changes in any provision of the policy, contract, or annuity or had a right only to make changes in premium by class.

(b) In providing the substitute coverage required under subparagraph (iii) of paragraph (B) of item (2) of subsection (a) of this Section, the Association may offer either to reissue the terminated coverage or to issue an alternative policy or contract at actuarially justified rates, subject to the prior approval of the Director.

Alternative or reissued policies or contracts shall be offered without requiring evidence of insurability, and shall not provide for any waiting period or exclusion that would not have applied under the terminated policy or contract.

The Association may reinsure any alternative or reissued policy or contract.

Alternative policies or contracts adopted by the Association shall be subject to the approval of the Director. The Association may adopt alternative policies or contracts of various types for future issuance without regard to any particular impairment or insolvency.

Alternative policies or contracts shall contain at least the minimum statutory provisions required in this State and provide benefits that shall not be unreasonable in relation to the premium charged. The Association shall set the premium in accordance with a table of rates which it shall adopt. The premium shall reflect the amount of insurance to be provided and the age and class of risk of each insured, but shall not reflect any changes in the health of the insured after the original policy or contract was last underwritten.

Any alternative policy or contract issued by the Association shall provide coverage of a type similar to that of the policy or contract issued by the impaired or insolvent insurer, as determined by the Association.

(c) If the Association elects to reissue terminated coverage at a premium rate different from that charged under the terminated policy or contract, the premium shall be actuarially justified and set by the Association in accordance with the amount of insurance or coverage provided and the age and class of risk, subject to approval of the Director.

(d) The Association's obligations with respect to coverage under any policy or contract of the impaired or insolvent insurer or under any reissued or alternative policy or contract shall cease on the date such coverage or policy or contract is replaced by another similar policy or contract by the policyholder, the insured, the enrollee, or the Association.

(e) When proceeding under this Section with respect to any policy or contract carrying guaranteed minimum interest rates, the Association shall assure the payment or crediting of a rate of interest consistent with subparagraph (2)(b)(iii)(B) of Section 531.03.

(f) Nonpayment of premiums thirty-one days after the date required under the terms of any guaranteed, assumed, alternative or reissued policy or contract or substitute coverage shall terminate the Association's obligations under such policy, contract, or coverage under this Act with respect to such policy, contract, or coverage, except with respect to any claims incurred or any net cash surrender value which may be due in accordance with the provisions of this Act.

(g) Premiums due for coverage after entry of an order of liquidation of an insolvent insurer shall belong to and be payable at the direction of the Association, and the Association shall be liable for unearned premiums due to policy or contract owners arising after the entry of such order.

(h) In carrying out its duties under paragraph (2) of subsection (a) of this Section, the Association may:

(1) subject to approval by a court in this State, impose permanent policy or contract liens in connection with a guarantee, assumption, or reinsurance agreement if the Association finds that the amounts which can be assessed under this Article are less than the amounts needed to assure full and prompt performance of the Association's duties under this Article or that the economic or financial conditions as they affect member insurers are sufficiently adverse to render the imposition of such permanent policy or contract liens to be in the public interest; or

(2) subject to approval by a court in this State, impose temporary moratoriums or liens on payments of cash values and policy loans or any other right to withdraw funds held in conjunction with policies or contracts in addition to any contractual provisions for deferral of cash or policy loan value. In addition, in the event of a temporary moratorium or moratorium charge imposed by the receivership court on payment of cash values or policy loans or on any other right to withdraw funds held in conjunction with policies or contracts, out of the assets of the impaired or insolvent insurer, the Association may defer the payment of cash values, policy loans, or other rights by the Association for the period of the moratorium or moratorium charge imposed by the receivership court, except for claims covered by the Association to be paid in accordance with a hardship procedure established by the liquidator or rehabilitator and approved by the receivership court.

(i) There shall be no liability on the part of and no cause of action shall arise against the Association or against any transferee from the Association in connection with the transfer by reinsurance or otherwise of all or any part of an impaired or insolvent insurer's business by reason of any action taken or any failure to take any action by the impaired or insolvent insurer at any time.

(j) If the Association fails to act within a reasonable period of time as provided in subsection (2) of this Section with respect to an insolvent insurer, the Director shall have the powers and duties of the Association under this Act with regard to such insolvent insurers.

(k) The Association or its designated representatives may render assistance and advice to the Director, upon his request, concerning rehabilitation, payment of claims, continuations of coverage, or the performance of other contractual obligations of any impaired or insolvent insurer.

(l) The Association shall have standing to appear or intervene before a court or agency in this State with jurisdiction over an impaired or insolvent insurer concerning which the Association is or may become obligated under this Article or with jurisdiction over any person or property against which the Association may have rights through subrogation or otherwise. Standing shall extend to all matters germane to the powers and duties of the Association, including, but not limited to, proposals for reinsuring, reissuing, modifying, or guaranteeing the policies or contracts of the impaired or insolvent insurer and the determination of the policies or contracts and contractual obligations. The Association shall also have the right to appear or intervene before a court or agency in another state with jurisdiction over an impaired or insolvent insurer for which the Association is or may become obligated or with jurisdiction over any person or property against whom the Association may have rights through subrogation or otherwise.

(m)(1) A person receiving benefits under this Article shall be deemed to have assigned the rights under and any causes of action against any person for losses arising under, resulting from, or otherwise relating to the covered policy or contract to the Association to the extent of the benefits received because of this Article, whether the benefits are payments of or on account of contractual obligations, continuation of coverage, or provision of substitute or alternative policies, contracts, or coverages. The Association may require an assignment to it of such rights and cause of action by any enrollee, payee, policy, or contract owner, beneficiary, insured, or annuitant as a condition precedent to the receipt of any right or benefits conferred by this Article upon the person.

(2) The subrogation rights of the Association under this subsection have the same priority against the assets of the impaired or insolvent insurer as that possessed by the person entitled to receive benefits under this Article.

(3) In addition to paragraphs (1) and (2), the Association shall have all common law rights of subrogation and any other equitable or legal remedy that would have been available to the impaired or insolvent insurer or owner, beneficiary, enrollee, or payee of a policy or contract with respect to the policy or contracts, including without limitation, in the case of a structured settlement annuity, any rights of the owner, beneficiary, enrollee, or payee of the annuity to the extent of benefits received pursuant to this Article, against a person originally or by succession responsible for the losses arising from the personal injury relating to the annuity or payment therefor, excepting any such person responsible solely by reason of serving as an assignee in respect of a qualified assignment under Internal Revenue Code Section 130.

(4) If the preceding provisions of this subsection (m) are invalid or ineffective with respect to any person or claim for any reason, then the amount payable by the Association with respect to the related covered obligations shall be reduced by the amount realized by any other person with respect to the person or claim that is attributable to the policies or contracts, or portion thereof, covered by the Association.

(5) If the Association has provided benefits with respect to a covered obligation and a person recovers amounts as to which the Association has rights as described in the preceding paragraphs of this subsection (10), then the person shall pay to the Association the portion of the recovery attributable to the policies or contracts, or portion thereof, covered by the Association.

(n) The Association may:

(1) Enter into such contracts as are necessary or proper to carry out the provisions and purposes of this Article.

(2) Sue or be sued, including taking any legal actions necessary or proper for recovery of any unpaid assessments under Section 531.09. The Association shall not be liable for punitive or exemplary damages.

(3) Borrow money to effect the purposes of this Article. Any notes or other evidence of indebtedness of the Association not in default are legal investments for domestic member insurers and may be carried as admitted assets.

(4) Employ or retain such persons as are necessary to handle the financial transactions of the Association, and to perform such other functions as become necessary or proper under this Article.

(5) Negotiate and contract with any liquidator, rehabilitator, conservator, or ancillary receiver to carry out the powers and duties of the Association.

(6) Take such legal action as may be necessary to avoid payment of improper claims.

(7) Exercise, for the purposes of this Article and to the extent approved by the Director, the powers of a domestic life insurer, health insurer, or health maintenance organization, but in no case may the Association issue policies or contracts other than those issued to perform the contractual obligations of the impaired or insolvent insurer.

(8) Exercise all the rights of the Director under Section 193(4) of this Code with respect to covered policies after the association becomes obligated by statute.

(9) Request information from a person seeking coverage from the Association in order to aid the Association in determining its obligations under this Article with respect to the person, and the person shall promptly comply with the request.

(9.5) Unless prohibited by law, in accordance with the terms and conditions of the policy or contract, file for actuarially justified rate or premium increases for any policy or contract for which it provides coverage under this Article.

(10) Take other necessary or appropriate action to discharge its duties and obligations under this Article or to exercise its powers under this Article.

(o) With respect to covered policies for which the Association becomes obligated after an entry of an order of liquidation or rehabilitation, the Association may elect to succeed to the rights of the insolvent insurer arising after the date of the order of liquidation or rehabilitation under any contract of reinsurance to which the insolvent insurer was a party, to the extent that such contract provides coverage for losses occurring after the date of the order of liquidation or rehabilitation. As a condition to making this election, the Association must pay all unpaid premiums due under the contract for coverage relating to periods before and after the date of the order of liquidation or rehabilitation.

(p) A deposit in this State, held pursuant to law or required by the Director for the benefit of creditors, including policy owners or contract owners, not turned over to the domiciliary liquidator upon the entry of a final order of liquidation or order approving a rehabilitation plan of a member insurer domiciled in this State or in a reciprocal state, pursuant to Article XIII 1/2 of this Code, shall be promptly paid to the Association. The Association shall be entitled to retain a portion of any amount so paid to it equal to the percentage determined by dividing the aggregate amount of policy owners' or contract owners' claims related to that insolvency for which the Association has provided statutory benefits by the aggregate amount of all policy owners' or contract owners' claims in this State related to that insolvency and shall remit to the domiciliary receiver the amount so paid to the Association less the amount retained pursuant to this subsection (p). Any amount so paid to the Association and retained by it shall be treated as a distribution of estate assets pursuant to applicable State receivership law dealing with early access disbursements.

(q) The Board of Directors of the Association shall have discretion and may exercise reasonable business judgment to determine the means by which the Association is to provide the benefits of this Article in an economical and efficient manner.

(r) Where the Association has arranged or offered to provide the benefits of this Article to a covered person under a plan or arrangement that fulfills the Association's obligations under this Article, the person shall not be entitled to benefits from the Association in addition to or other than those provided under the plan or arrangement.

(s) Venue in a suit against the Association arising under the Article shall be in Cook County. The Association shall not be required to give any appeal bond in an appeal that relates to a cause of action arising under this Article.

(t) The Association may join an organization of one or more other State associations of similar purposes to further the purposes and administer the powers and duties of the Association.

(u) In carrying out its duties in connection with guaranteeing, assuming, reissuing, or reinsuring policies or contracts under subsections (1) or (2), the Association may issue substitute coverage for a policy or contract that provides an interest rate, crediting rate, or similar factor determined by use of an index or other external reference stated in the policy or contract employed in calculating returns or changes in value by issuing an alternative policy or contract in accordance with the following provisions:

(1) in lieu of the index or other external reference provided for in the original policy or contract, the alternative policy or contract provides for (i) a fixed interest rate, or (ii) payment of dividends with minimum guarantees, or (iii) a different method for calculating interest or changes in value;

(2) there is no requirement for evidence of insurability, waiting period, or other exclusion that would not have applied under the replaced policy or contract; and

(3) the alternative policy or contract is substantially similar to the replaced policy or contract in all other material terms.

(Source: P.A. 100-687, eff. 8-3-18.)

(215 ILCS 5/531.09) (from Ch. 73, par. 1065.80-9)

Sec. 531.09. Assessments.

(1) For the purpose of providing the funds necessary to carry out the powers and duties of the Association, the board of directors shall assess the member insurers, separately for each account, at such times and for such amounts as the board finds necessary. Assessments shall be due not less than 30 days after written notice to the member insurers and shall accrue interest from the due date at such adjusted rate as is established under Section 6621 of Chapter 26 of the United States Code and such interest shall be compounded daily.

(2) There shall be 2 classes of assessments, as follows:

(a) Class A assessments shall be made for the purpose of meeting administrative costs and other general expenses and examinations conducted under the authority of the Director under subsection (5) of Section 531.12.

(b) Class B assessments shall be made to the extent necessary to carry out the powers and duties of the Association under Section 531.08 with regard to an impaired or insolvent domestic insurer or insolvent foreign or alien insurers.

(3)(a) The amount of any Class A assessment shall be determined at the discretion of the board of directors and such assessments shall be authorized and called on a non-pro rata basis. The amount of any Class B assessment, except for assessments related to long-term care insurance, shall be allocated for assessment purposes among the accounts and subaccounts pursuant to an allocation formula which may be based on the premiums or reserves of the impaired or insolvent insurer or any other standard deemed by the board in its sole discretion as being fair and reasonable under the circumstances.

(b) Class B assessments against member insurers for each account and subaccount shall be in the proportion that the premiums received on business in this State by each assessed member insurer on policies or contracts covered by each account or subaccount for the three most recent calendar years for which information is available preceding the year in which the member insurer became impaired or insolvent, as the case may be, bears to such premiums received on business in this State for such calendar years by all assessed member insurers.

(b-5) The amount of the Class B assessment for long-term care insurance written by the impaired or insolvent insurer shall be allocated according to a methodology included in the plan of operation and approved by the Director. The methodology shall provide for 50% of the assessment to be allocated to accident and health member insurers and 50% to be allocated to life and annuity member insurers.

(c) Assessments for funds to meet the requirements of the Association with respect to an impaired or insolvent insurer shall not be made until necessary to implement the purposes of this Article. Classification of assessments under subsection (2) and computations of assessments under this subsection shall be made with a reasonable degree of accuracy, recognizing that exact determinations may not always be possible.

(4) The Association may abate or defer, in whole or in part, the assessment of a member insurer if, in the opinion of the board, payment of the assessment would endanger the ability of the member insurer to fulfill its contractual obligations. In the event an assessment against a member insurer is abated or deferred in whole or in part the amount by which the assessment is abated or deferred may be assessed against the other member insurers in a manner consistent with the basis for assessments set forth in this Section. Once the conditions that caused a deferral have been removed or rectified, the member insurer shall pay all assessments that were deferred pursuant to a repayment plan approved by the Association.

(5) (a) Subject to the provisions of this paragraph, the total of all assessments authorized by the Association with respect to a member insurer for each subaccount of the life insurance and annuity account and for the health account shall not in one calendar year exceed 2% of that member insurer's average annual premiums received in this State on the policies and contracts covered by the subaccount or account during the 3 calendar years preceding the year in which the member insurer became an impaired or insolvent insurer.

If 2 or more assessments are authorized in one calendar year with respect to member insurers that become impaired or insolvent in different calendar years, the average annual premiums for purposes of the aggregate assessment percentage limitation referenced in subparagraph (a) of this paragraph shall be equal and limited to the higher of the 3-year average annual premiums for the applicable subaccount or account as calculated pursuant to this Section.

If the maximum assessment, together with the other assets of the Association in an account, does not provide in one year in either account an amount sufficient to carry out the responsibilities of the Association, the necessary additional funds shall be assessed as soon thereafter as permitted by this Article.

(b) The board may provide in the plan of operation a method of allocating funds among claims, whether relating to one or more impaired or insolvent insurers, when the maximum assessment will be insufficient to cover anticipated claims.

(c) If the maximum assessment for a subaccount of the life insurance and annuity account in one year does not provide an amount sufficient to carry out the responsibilities of the Association, then pursuant to paragraph (b) of subsection (3), the board shall assess the other subaccounts of the life insurance and annuity account for the necessary additional amount, subject to the maximum stated in paragraph (a) of this subsection.

(6) The board may, by an equitable method as established in the plan of operation, refund to member insurers, in proportion to the contribution of each member insurer to that account, the amount by which the assets of the account exceed the amount the board finds is necessary to carry out during the coming year the obligations of the Association with regard to that account, including assets accruing from net realized gains and income from investments. A reasonable amount may be retained in any account to provide funds for the continuing expenses of the Association and for future losses.

(7) An assessment is deemed to occur on the date upon which the board votes such assessment. The board may defer calling the payment of the assessment or may call for payment in one or more installments.

(8) It is proper for any member insurer, in determining its premium rates and policy owner dividends as to any kind of insurance or health maintenance organization business within the scope of this Article, to consider the amount reasonably necessary to meet its assessment obligations under this Article.

(9) The Association must issue to each member insurer paying a Class B assessment under this Article a certificate of contribution, in a form acceptable to the Director, for the amount of the assessment so paid. All outstanding certificates are of equal dignity and priority without reference to amounts or dates of issue. A certificate of contribution may be shown by the member insurer in its financial statement as an asset in such form and for such amount, if any, and period of time as the Director may approve, provided the member insurer shall in any event at its option have the right to show a certificate of contribution as an admitted asset at percentages of the original face amount for calendar years as follows:

100% for the calendar year after the year of issuance;

80% for the second calendar year after the year of issuance;

60% for the third calendar year after the year of issuance;

40% for the fourth calendar year after the year of issuance;

20% for the fifth calendar year after the year of issuance.

(10) The Association may request information of member insurers in order to aid in the exercise of its power under this Section and member insurers shall promptly comply with a request.

(Source: P.A. 100-687, eff. 8-3-18.)

(215 ILCS 5/531.10) (from Ch. 73, par. 1065.80-10)

Sec. 531.10. Plan of operation.

(1)(a) The Association must submit to the Director a plan of operation and any amendments thereto necessary or suitable to assure the fair, reasonable, and equitable administration of the Association. The plan of operation and any amendments thereto become effective upon approval in writing by the Director.

(b) If the Association fails to submit a suitable plan of operation within 180 days following the effective date of this Article or if at any time thereafter the Association fails to submit suitable amendments to the plan, the Director may, after notice and hearing, adopt and promulgate such reasonable rules as are necessary or advisable to effectuate the provisions of this Article. Such rules are in force until modified by the Director or superseded by a plan submitted by the Association and approved by the Director.

(2) All member insurers must comply with the plan of operation.

(3) The plan of operation must, in addition to requirements enumerated elsewhere in this Article:

(a) Establish procedures for handling the assets of the Association;

(b) Establish the amount and method of reimbursing members of the board of directors under Section 531.07;

(c) Establish regular places and times for meetings of the board of directors;

(d) Establish procedures for records to be kept of all financial transactions of the Association, its agents, and the board of directors;

(e) Establish the procedures whereby selections for the board of directors will be made and submitted to the Director;

(f) Establish any additional procedures for assessments under Section 531.09; and

(g) Contain additional provisions necessary or proper for the execution of the powers and duties of the Association.

(4) The plan of operation shall establish a procedure for protest by any member insurer of assessments made by the Association pursuant to Section 531.09. Such procedures shall require that:

(a) a member insurer that wishes to protest all or part of an assessment shall pay when due the full amount of the assessment as set forth in the notice provided by the Association. The payment shall be available to meet Association obligations during the pendency of the protest or any subsequent appeal. Payment shall be accompanied by a statement in writing that the payment is made under protest and setting forth a brief statement of the grounds for the protest;

(b) within 30 days following the payment of an assessment under protest by any protesting member insurer, the Association must notify the member insurer in writing of its determination with respect to the protest unless the Association notifies the member that additional time is required to resolve the issues raised by the protest;

(c) in the event the Association determines that the protesting member insurer is entitled to a refund, such refund shall be made within 30 days following the date upon which the Association makes its determination;

(d) the decision of the Association with respect to a protest may be appealed to the Director pursuant to Section 531.11(3);

(e) in the alternative to rendering a decision with respect to any protest based on a question regarding the assessment base, the Association may refer such protests to the Director for final decision, with or without a recommendation from the Association; and

(f) interest on any refund due a protesting member insurer shall be paid at the rate actually earned by the Association.

(5) The plan of operation may provide that any or all powers and duties of the Association, except those under paragraph (3) of subsection (n) of Section 531.08 and Section 531.09 are delegated to a corporation, association or other organization which performs or will perform functions similar to those of this Association, or its equivalent, in 2 or more states. Such a corporation, association or organization shall be reimbursed for any payments made on behalf of the Association and shall be paid for its performance of any function of the Association. A delegation under this subsection shall take effect only with the approval of both the Board of Directors and the Director, and may be made only to a corporation, association or organization which extends protection not substantially less favorable and effective than that provided by this Act.

(Source: P.A. 100-687, eff. 8-3-18.)

(215 ILCS 5/531.11) (from Ch. 73, par. 1065.80-11)

Sec. 531.11. Duties and powers of the Director. In addition to the duties and powers enumerated elsewhere in this Article:

(1) The Director must do all of the following:

(a) Upon request of the board of directors, provide the Association with a statement of the premiums in the appropriate accounts for each member insurer.

(b) Notify the board of directors of the existence of an impaired or insolvent insurer not later than 3 days after a determination of impairment or insolvency is made or when the Director receives notice of impairment or insolvency.

(c) Give notice to an impaired insurer as required by Sections 34 or 60. Notice to the impaired insurer shall constitute notice to its shareholders, if any.

(d) In any liquidation or rehabilitation proceeding involving a domestic member insurer, be appointed as the liquidator or rehabilitator. If a foreign or alien member insurer is subject to a liquidation proceeding in its domiciliary jurisdiction or state of entry, the Director shall be appointed conservator.

(2) The Director may suspend or revoke, after notice and hearing, the certificate of authority to transact business in this State of any member insurer which fails to pay an assessment when due or fails to comply with the plan of operation. As an alternative the Director may levy a forfeiture on any member insurer which fails to pay an assessment when due. Such forfeiture may not exceed 5% of the unpaid assessment per month, but no forfeiture may be less than $100 per month.

(3) Any action of the board of directors or the Association may be appealed to the Director by any member insurer or any other person adversely affected by such action if such appeal is taken within 30 days of the action being appealed. Any final action or order of the Director is subject to judicial review in a court of competent jurisdiction.

(4) The liquidator, rehabilitator, or conservator of any impaired insurer may notify all interested persons of the effect of this Article.

(Source: P.A. 100-687, eff. 8-3-18.)

(215 ILCS 5/531.12) (from Ch. 73, par. 1065.80-12)

Sec. 531.12. Prevention of Insolvencies. To aid in the detection and prevention of member insurer insolvencies or impairments:

(1) It shall be the duty of the Director:

(a) To notify the Commissioners of all other states, territories of the United States, and the District of Columbia when he takes any of the following actions against a member insurer:

(i) revocation of license;

(ii) suspension of license;

(iii) makes any formal order except for an order issued pursuant to Article XII 1/2 of this Code that such member insurer restrict its premium writing, obtain additional contributions to surplus, withdraw from the State, reinsure all or any part of its business, or increase capital, surplus or any other account for the security of policy owners, contract owners, certificate holders, or creditors.

Such notice shall be transmitted to all commissioners within 30 days following the action taken or the date on which the action occurs.

(b) To report to the board of directors when he has taken any of the actions set forth in subparagraph (a) of this paragraph or has received a report from any other commissioner indicating that any such action has been taken in another state. Such report to the board of directors shall contain all significant details of the action taken or the report received from another commissioner.

(c) To report to the board of directors when the Director has reasonable cause to believe from an examination, whether completed or in process, of any member insurer that the member insurer may be an impaired or insolvent insurer.

(d) To furnish to the board of directors the National Association of Insurance Commissioners Insurance Regulatory Information System ratios and listings of companies not included in the ratios developed by the National Association of Insurance Commissioners. The board may use the information contained therein in carrying out its duties and responsibilities under this Section. The report and the information contained therein shall be kept confidential by the board of directors until such time as made public by the Director or other lawful authority.

(2) The Director may seek the advice and recommendations of the board of directors concerning any matter affecting his or her duties and responsibilities regarding the financial condition of member insurers and insurers or health maintenance organizations seeking admission to transact business in this State.

(3) The board of directors may, upon majority vote, make reports and recommendations to the Director upon any matter germane to the liquidation, rehabilitation or conservation of any member insurer and insurers or health maintenance organizations seeking admission to transact business in this State. Such reports and recommendations shall not be considered public documents.

(4) The board of directors may, upon majority vote, make recommendations to the Director for the detection and prevention of member insurer insolvencies.

(5) The board of directors shall, at the conclusion of any member insurer insolvency in which the Association was obligated to pay covered claims prepare a report to the Director containing such information as it may have in its possession bearing on the history and causes of such insolvency. The board shall cooperate with the boards of directors of guaranty associations in other states in preparing a report on the history and causes for insolvency of a particular member insurer, and may adopt by reference any report prepared by such other associations.

(Source: P.A. 100-687, eff. 8-3-18.)

(215 ILCS 5/531.13) (from Ch. 73, par. 1065.80-13)

Sec. 531.13. Tax offset. In the event the aggregate Class A, B and C assessments for all member insurers do not exceed $3,000,000 in any one calendar year, no member insurer shall receive a tax offset. However, for any one calendar year before 1998 in which the total of such assessments exceeds $3,000,000, the amount in excess of $3,000,000 shall be subject to a tax offset to the extent of 20% of the amount of such assessment for each of the 5 calendar years following the year in which such assessment was paid, and ending prior to January 1, 2003, and each member insurer may offset the proportionate amount of such excess paid by the member insurer against its liabilities for the tax imposed by subsections (a) and (b) of Section 201 of the Illinois Income Tax Act. The provisions of this Section shall expire and be given no effect for any tax period commencing on and after January 1, 2003.

(Source: P.A. 100-687, eff. 8-3-18.)

(215 ILCS 5/531.14) (from Ch. 73, par. 1065.80-14)

Sec. 531.14. Miscellaneous provisions.

(1) Nothing in this Article may be construed to reduce the liability for unpaid assessments of the insured of an impaired or insolvent insurer operating under a plan with assessment liability.

(2) Records must be kept of all negotiations and meetings in which the Association or its representatives are involved to discuss the activities of the Association in carrying out its powers and duties under Section 531.08. Records of such negotiations or meetings may be made public only upon the termination of a liquidation, rehabilitation, or conservation proceeding involving the impaired or insolvent insurer, upon the termination of the impairment or insolvency of the insurer, or upon the order of a court of competent jurisdiction. Nothing in this paragraph (2) limits the duty of the Association to render a report of its activities under Section 531.15.

(3) For the purpose of carrying out its obligations under this Article, the Association is deemed to be a creditor of the impaired or insolvent insurer to the extent of assets attributable to covered policies or contracts reduced by any amounts to which the Association is entitled as subrogee (under subsection (m) of Section 531.08). All assets of the impaired or insolvent insurer attributable to covered policies or contracts must be used to continue all covered policies and pay all contractual obligations of the impaired insurer as required by this Article. "Assets attributable to covered policies or contracts", as used in this paragraph (3), is that proportion of the assets which the reserves that should have been established for such policies or contracts bear to the reserve that should have been established for all policies of insurance or health benefit plans written by the impaired or insolvent insurer.

(4) (a) Prior to the termination of any liquidation, rehabilitation, or conservation proceeding, the court may take into consideration the contributions of the respective parties, including the Association, the shareholders, contract owners, certificate holders, enrollees, and policy owners of the impaired or insolvent insurer, and any other party with a bona fide interest, in making an equitable distribution of the ownership rights of such impaired or insolvent insurer. In such a determination, consideration must be given to the welfare of the policy owners, contract owners, certificate holders, and enrollees of the continuing or successor insurer.

(b) No distribution to stockholders, if any, of an impaired or insolvent insurer may be made until and unless the total amount of valid claims of the Association for funds expended with interest in carrying out its powers and duties under Section 531.08, with respect to such member insurer have been fully recovered by the Association.

(5) (a) If an order for liquidation or rehabilitation of a member insurer domiciled in this State has been entered, the receiver appointed under such order has a right to recover on behalf of the member insurer, from any affiliate that controlled it, the amount of distributions, other than stock dividends paid by the member insurer on its capital stock, made at any time during the 5 years preceding the petition for liquidation or rehabilitation subject to the limitations of paragraphs (b) to (d).

(b) No such dividend is recoverable if the member insurer shows that when paid the distribution was lawful and reasonable, and that the member insurer did not know and could not reasonably have known that the distribution might adversely affect the ability of the member insurer to fulfill its contractual obligations.

(c) Any person who as an affiliate that controlled the member insurer at the time the distributions were paid is liable up to the amount of distributions he received. Any person who was an affiliate that controlled the member insurer at the time the distributions were declared, is liable up to the amount of distributions he would have received if they had been paid immediately. If 2 persons are liable with respect to the same distributions, they are jointly and severally liable.

(d) The maximum amount recoverable under subsection (5) of this Section is the amount needed in excess of all other available assets of the insolvent insurer to pay the contractual obligations of the insolvent insurer.

(e) If any person liable under paragraph (c) of subsection (5) of this Section is insolvent, all its affiliates that controlled it at the time the dividend was paid are jointly and severally liable for any resulting deficiency in the amount recovered from the insolvent affiliate.

(6) As a creditor of the impaired or insolvent insurer as established in subsection (3) of this Section and consistent with subsection (2) of Section 205 of this Code, the Association and other similar associations shall be entitled to receive a disbursement of assets out of the marshaled assets, from time to time as the assets become available to reimburse it, as a credit against contractual obligations under this Article. If the liquidator has not, within 120 days after a final determination of insolvency of a member insurer by the receivership court, made an application to the court for the approval of a proposal to disburse assets out of marshaled assets to guaranty associations having obligations because of the insolvency, then the Association shall be entitled to make application to the receivership court for approval of its own proposal to disburse these assets.

(Source: P.A. 100-687, eff. 8-3-18.)

(215 ILCS 5/531.15) (from Ch. 73, par. 1065.80-15)

Sec. 531.15. Examination of the Association - Annual Report. The Association shall be subject to examination and regulation by the Director. The board of directors must submit to the Director, not later than the first day of the fifth month following the end of the Association's fiscal year, a financial report for such fiscal year in a form acceptable to the Director and a report of its activities during such fiscal year.

(Source: P.A. 86-753.)

(215 ILCS 5/531.16) (from Ch. 73, par. 1065.80-16)

Sec. 531.16. Tax Exemptions.) The Association is exempt from payment of all fees and all taxes levied by this State or any of its subdivisions, except taxes levied on real property.

(Source: P.A. 81-899.)

(215 ILCS 5/531.17) (from Ch. 73, par. 1065.80-17)

Sec. 531.17. Immunity.) There is no liability on the part of and no cause of action of any nature may arise against any member insurer or its agents or employees, the Association or its agents or employees, members of the board of directors, or the Director or his representatives, for any action taken by them in the performance of their powers and duties under this Article.

(Source: P.A. 81-899.)

(215 ILCS 5/531.18) (from Ch. 73, par. 1065.80-18)

Sec. 531.18. Stay of Proceedings - Reopening Default Judgments.) All proceedings in which the insolvent insurer is a party in any court in this State shall be stayed 180 days from the date an order of liquidation, rehabilitation, or conservation is final to permit proper legal action by the Association on any matters germane to its powers or duties. As to a judgment under any decision, order, verdict, or finding based on default the Association may apply to have such judgment set aside by the same court that made such judgment and must be permitted to defend against such suit on the merits.

(Source: P.A. 96-1450, eff. 8-20-10.)

(215 ILCS 5/531.19) (from Ch. 73, par. 1065.80-19)

Sec. 531.19. Prohibited advertisement of action of the Insurance Guaranty Association in sale of insurance.

(a) No person, including a member insurer, agent or affiliate of a member insurer shall make, publish, disseminate, circulate, or place before the public, or cause directly or indirectly, to be made, published, disseminated, circulated or placed before the public, in any newspaper, magazine or other publication, or in the form of a notice, circular, pamphlet, letter or poster, or over any radio station or television station, or in any other way, any advertisement, announcement or statement, written or oral, which uses the existence of the Insurance Guaranty Association of this State for the purpose of sales, solicitation or inducement to purchase any form of insurance or other coverage covered by this Article; provided, however, that this Section shall not apply to the Illinois Life and Health Guaranty Association or any other entity which does not sell or solicit insurance or coverage by a health maintenance organization.

(b) Within 180 days of August 16, 1993, the Association shall prepare a summary document describing the general purposes and current limitations of this Article and complying with subsection (c). This document shall be submitted to the Director for approval. Sixty days after receiving approval, no member insurer may deliver a policy or contract described in subparagraph (a) of paragraph (2) of Section 531.03 and not excluded under subparagraph (b) of that Section to a policy owner, contract owner, certificate holder, or enrollee unless the document is delivered to the policy owner, contract owner, certificate holder, or enrollee prior to or at the time of delivery of the policy or contract. The document should also be available upon request by a policy owner, contract owner, certificate holder, or enrollee. The distribution, delivery, or contents or interpretation of this document shall not mean that either the policy or the contract or the policy owner, contract owner, certificate holder, or enrollee thereof would be covered in the event of the impairment or insolvency of a member insurer. The description document shall be revised by the Association as amendments to this Article may require. Failure to receive this document does not give the policy owner, contract owner, certificate holder, enrollee, or insured any greater rights than those stated in this Article.

(c) The document prepared under subsection (b) shall contain a clear and conspicuous disclaimer on its face. The Director shall promulgate a rule establishing the form and content of the disclaimer. The disclaimer shall:

(1) State the name and address of the Life and Health Insurance Guaranty Association and of the Department.

(2) Prominently warn the policy owner, contract owner, certificate holder, or enrollee that the Life and Health Insurance Guaranty Association may not cover the policy or contract or, if coverage is available, it will be subject to substantial limitations and exclusions and conditioned on continued residence in the State.

(3) State that the member insurer and its agents are prohibited by law from using the existence of the Life and Health Insurance Guaranty Association for the purpose of sales, solicitation, or inducement to purchase any form of insurance or health maintenance organization coverage.

(4) Emphasize that the policy owner, contract owner, certificate holder, or enrollee should not rely on coverage under the Life and Health Insurance Guaranty Association when selecting an insurer or health maintenance organization.

(5) Provide other information as directed by the Director.

(d) (Blank).

(Source: P.A. 100-687, eff. 8-3-18.)

(215 ILCS 5/531.20)

Sec. 531.20. Merger of Illinois Health Maintenance Organization Guaranty Association with and into the Illinois Life and Health Insurance Guaranty Association. In order to provide for the merger of the Illinois Health Maintenance Organization Guaranty Association with and into the Illinois Life and Health Insurance Guaranty Association, the following shall apply:

(1) The Illinois Health Maintenance Organization Guaranty Association is merged with and into the Illinois Life and Health Insurance Guaranty Association, which shall then continue to be known as the Illinois Life and Health Insurance Guaranty Association.

(2) All premerger rights, powers, privileges, assets, property, duties, debts, obligations, and liabilities of each association related to a liquidated member shall remain with the members of the respective association prior to merger and subject to the laws in effect at the time the order of liquidation was entered with respect to the liquidated member, but shall be administered by the Illinois Life and Health Insurance Guaranty Association. The Illinois Life and Health Insurance Guaranty Association shall adopt changes to its plan of operation which reasonably accomplish this.

(3) Subject to paragraph (2), the Illinois Life and Health Insurance Guaranty Association shall succeed, without other transfer, to all the rights, powers, privileges, assets, and property of the Illinois Health Maintenance Organization Guaranty Association and shall be subject to all duties, debts, obligations, and liabilities of the Illinois Health Maintenance Organization that exist as of the date of the merger of the Illinois Health Maintenance Organization Guaranty Association into the Illinois Life and Health Insurance Guaranty Association. Without limiting the generality of the foregoing, the Illinois Life and Health Insurance Guaranty Association shall succeed to (A) all collected, uncollected, or unbilled assessments of the Illinois Health Maintenance Organization Guaranty Association, (B) all cash, bank accounts, accrued interest, and tangible property of the Illinois Health Maintenance Organization Guaranty Association, (C) all rights, powers, privileges, duties, and obligations of the Illinois Health Maintenance Organization Guaranty Association under any of its contracts or commitments, and (D) all subrogations, assignments, and creditor rights and interests of the Illinois Health Maintenance Organization Guaranty Association.

(4) All rights of creditors and all liens upon the property of the Illinois Health Maintenance Organization Guaranty Association shall be preserved unimpaired, provided that the liens upon property of the Illinois Health Maintenance Organization Guaranty Association shall be limited to the property affected thereby immediately prior to the effective date of this amendatory Act of the 100th General Assembly.

(5) Any action or proceeding pending by or against the Illinois Health Maintenance Organization Guaranty Association may be prosecuted to judgment.

(6) Notwithstanding any other provision to the contrary in this Article:

(A) It is the intent of this Section to preserve only the rights, powers, privileges, assets, property, debts, obligations, and liabilities of the Illinois Health Maintenance Organization Guaranty Association as they existed on the date of its merger into the Illinois Life and Health Insurance Guaranty Association, and not to provide contract owners, certificate holders, enrollees and policy owners, or their respective payees, beneficiaries, or assignees, with duplicative or new rights, powers, privileges, assets, or property.

(B) Accordingly, no contract owner, certificate holder, enrollee and policy owner, and no contract owner's, certificate holder's, enrollee's or policy owner's payee, beneficiary, or assignee, shall be entitled to (i) a recovery from the Illinois Life and Health Insurance Guaranty Association that is duplicative of a previous recovery from the Illinois Health Maintenance Organization Guaranty Association or (ii) a recovery from the Illinois Life and Health Insurance Guaranty Association on account of a claim against the Illinois Health Maintenance Organization Guaranty Association where the Illinois Life and Health Insurance Guaranty Association is liable with respect to a claim under the same policy or contract under this Article.

(Source: P.A. 100-687, eff. 8-3-18.)

(215 ILCS 5/Art. XXXIV heading) ARTICLE XXXIV. ILLINOIS INSURANCE GUARANTY FUND

(215 ILCS 5/532) (from Ch. 73, par. 1065.82)

Sec. 532. Purpose.

(a) The purpose of this Article is to provide a mechanism for the payment of covered claims under certain insurance policies, to avoid excessive delay in payment of covered claims, to avoid financial loss to claimants or policyholders because of the entry of an Order of Liquidation against an insolvent company, including through services offered to the Director in her or his capacity as receiver under Article XIII of this Code that relate to covered claims, to provide a Fund to assess among member companies the costs of such protection and maintain the continuity and self-sufficient operation of the Fund, and to offset the costs associated with maintaining the Fund's continuity and self-sufficient operations when practical by providing assistance and services to the Director in her or his capacity as receiver under Article XIII of this Code as described in this Section.

(b) The purpose of this Article is also to provide a mechanism for the Fund to participate in and facilitate the process by which the assets of an insolvent company are marshaled and distributed pursuant to Article XIII of this Code beyond reimbursing the cost of covered claims. This subsection (b) is inoperative 5 years after the effective date of this amendatory Act of the 102nd General Assembly.

(Source: P.A. 102-396, eff. 8-16-21.)

(215 ILCS 5/533) (from Ch. 73, par. 1065.83)

Sec. 533. Scope. This Article applies to all of the kinds of insurance written on a direct basis which are included in Class 2 and Class 3 of Section 4 of this Code, except that it shall not apply to:

(a) accident and health insurance written under clause (a) of Class 2, or

(b) mortgage guaranty or other financial guaranty written as suretyship obligations or insurance under clause (g), clause (h) or clause (i) of Class 2 or otherwise, or

(c) fidelity or surety bonds, or any other bonding obligations other than employee fidelity bonds, or

(d) marine insurance other than inland marine insurance, written under clause (d) of Class 3, or

(e) insurance of warranties or service contracts, including insurance that provides for the repair, replacement, or service of goods or property or indemnification for repair, replacement, or service for the operational or structural failure of the goods or property due to a defect in materials, workmanship, or normal wear and tear or provides reimbursement for the liability incurred by the issuer of agreements or service contracts that provide these benefits, or

(f) any claim servicing agreement or insurance policy which contains a retrospective rating or other premium adjustment agreement under which premiums are substantially equal to the losses and loss expenses covered under the policy or any policy providing retroactive insurance of known loss, or

(g) any insurance which is provided, guaranteed or reinsured pursuant to the Federal Crop Insurance Program or the National Flood Insurance Program, including flood insurance written by National Flood Insurance Program Write Your Own Companies.

(Source: P.A. 103-113, eff. 6-30-23.)

(215 ILCS 5/534) (from Ch. 73, par. 1065.84)

Sec. 534. Definitions. For the purposes of this Article, unless the context requires otherwise, the words and phrases defined in Sections 534.1 through 534.9 have the meanings set forth in those Sections.

(Source: P.A. 103-113, eff. 6-30-23.)

(215 ILCS 5/534.1) (from Ch. 73, par. 1065.84-1)

Sec. 534.1. "Fund" means the Illinois Insurance Guaranty Fund created by this Article.

(Source: P.A. 77-305.)

(215 ILCS 5/534.2) (from Ch. 73, par. 1065.84-2)

Sec. 534.2. "Director" means the Director of Insurance of the State of Illinois.

(Source: P.A. 77-305.)

(215 ILCS 5/534.3) (from Ch. 73, par. 1065.84-3)

Sec. 534.3. Covered claim; unearned premium defined.

(a) "Covered claim" means an unpaid claim for a loss arising out of and within the coverage of an insurance policy to which this Article applies and which is in force at the time of the occurrence giving rise to the unpaid claim, including claims presented during any extended discovery period which was purchased from the company before the entry of a liquidation order or which is purchased or obtained from the liquidator after the entry of a liquidation order, made by a person insured under such policy or by a person suffering injury or damage for which a person insured under such policy is legally liable, and for unearned premium, if:

(i) The company issuing, assuming, or being allocated the policy becomes an insolvent company as defined in Section 534.4 after the effective date of this Article; and

(ii) The claimant or insured is a resident of this State at the time of the insured occurrence, or the property from which a first party claim for damage to property arises is permanently located in this State or, in the case of an unearned premium claim, the policyholder is a resident of this State at the time the policy was issued; provided, that for entities other than an individual, the residence of a claimant, insured, or policyholder is the state in which its principal place of business is located at the time of the insured event.

(b) "Covered claim" does not include:

(i) any amount in excess of the applicable limits of liability provided by an insurance policy to which this Article applies; nor

(ii) any claim for punitive or exemplary damages or fines and penalties paid to government authorities; nor

(iii) any first party claim by an insured who is an affiliate of the insolvent company; nor

(iv) any first party or third party claim by or against an insured whose net worth on December 31 of the year next preceding the date the insurer becomes an insolvent insurer exceeds $25,000,000; provided that an insured's net worth on such date shall be deemed to include the aggregate net worth of the insured and all of its affiliates as calculated on a consolidated basis. However, this exclusion shall not apply to third party claims against the insured where the insured has applied for or consented to the appointment of a receiver, trustee, or liquidator for all or a substantial part of its assets, filed a voluntary petition in bankruptcy, filed a petition or an answer seeking a reorganization or arrangement with creditors or to take advantage of any insolvency law, or if an order, judgment, or decree is entered by a court of competent jurisdiction, on the application of a creditor, adjudicating the insured bankrupt or insolvent or approving a petition seeking reorganization of the insured or of all or substantial part of its assets; nor

(v) any claim for any amount due any reinsurer, insurer, insurance pool, or underwriting association as subrogated recoveries, reinsurance recoverables, contribution, indemnification or otherwise. No such claim held by a reinsurer, insurer, insurance pool, or underwriting association may be asserted in any legal action against a person insured under a policy issued by an insolvent company other than to the extent such claim exceeds the Fund obligation limitations set forth in Section 537.2 of this Code.

(c) "Unearned Premium" means the premium for the unexpired period of a policy which has been terminated prior to the expiration of the period for which premium has been paid and does not mean premium which is returnable to the insured for any other reason.

(Source: P.A. 101-60, eff. 7-12-19; 102-558, eff. 8-20-21.)

(215 ILCS 5/534.4) (from Ch. 73, par. 1065.84-4)

Sec. 534.4. "Insolvent company" means a company organized as a stock company, mutual company, reciprocal or Lloyds (a) which holds a certificate of authority to transact insurance in this State either at the time the policy was issued or when the insured event occurred, or any company which has assumed or has been allocated such policy obligation through merger, division, insurance business transfer, consolidation, or reinsurance, whether or not such assuming company held a certificate of authority to transact insurance in this State at the time such policy was issued or when the insured event occurred; and (b) against which a final Order of Liquidation with a finding of insolvency to which there is no further right of appeal has been entered by a court of competent jurisdiction in the company's State of domicile after the effective date of this Article.

(Source: P.A. 103-75, eff. 6-9-23.)

(215 ILCS 5/534.5) (from Ch. 73, par. 1065.84-5)

Sec. 534.5. Member company. "Member Company" means any insurance company organized as a stock company, mutual company, reciprocal or Lloyds, which holds a certificate of authority to transact any kind of insurance in this State to which this Article applies, and which is either:

(a) a domestic insurance company formed before or after the effective date of this Article; or

(b) a foreign or alien insurance company.

An insurance company shall cease to be a member company effective on the day following the termination or expiration of its license to transact the kinds of insurance to which this Article applies; provided, however, that the insurance company shall remain liable as a member company for any and all obligations, including obligations for assessments levied before the termination or expiration of the insurance company's license and assessments levied after the termination or expiration, based on any insolvency as to which the determination of insolvency by a court of competent jurisdiction occurs before the termination or expiration of the insurance company's license.

(Source: P.A. 89-97, eff. 7-7-95.)

(215 ILCS 5/534.6) (from Ch. 73, par. 1065.84-6)

Sec. 534.6. "Net direct written premiums" means direct gross premiums written in this State on insurance policies to which this Article applies, less return premiums thereon and dividends paid or credited to policyholders on such direct business. "Net direct written premiums" does not include premiums on contracts of reinsurance or other contracts between insurers or reinsurers.

(Source: P.A. 85-576.)

(215 ILCS 5/534.7) (from Ch. 73, par. 1065.84-7)

Sec. 534.7. Affiliate. An "affiliate" of a specified person means a person who directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with the specified person on December 31 of the year next preceding the date the insolvent company became an insolvent company.

(Source: P.A. 89-97, eff. 7-7-95.)

(215 ILCS 5/534.8) (from Ch. 73, par. 1065.84-8)

Sec. 534.8. "Control" means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, the holding of proxies, by contract other than a commercial contract for goods or nonmanagement services, or otherwise, unless the power is solely the result of an official position with or corporate office held by the person. Control shall be presumed to exist if any person, directly or indirectly, owns, controls, holds with the power to vote, or holds proxies representing, 10% or more of the voting securities or voting power of any other person. This presumption may be rebutted by a showing that control does not exist in fact.

(Source: P.A. 85-576.)

(215 ILCS 5/534.9)

Sec. 534.9. Cybersecurity insurance. "Cybersecurity insurance" means a type of insurance under Class 2 of Section 4 of this Code that involves first-party and third-party coverage, in a policy or endorsement, written on a direct, admitted basis to cover losses and loss mitigation arising out of or relating to data privacy breaches, unauthorized information network security intrusions, computer viruses, ransomware, cyber extortion, identity theft, and similar exposures.

(Source: P.A. 103-113, eff. 6-30-23.)

(215 ILCS 5/535) (from Ch. 73, par. 1065.85)

Sec. 535. Creation of the Fund. There is created a nonprofit unincorporated legal entity to be known as the Illinois Insurance Guaranty Fund. All member companies as defined in Section 534.5 shall be and remain members of the Fund as a condition of their authority to transact business in this State. The Fund shall perform its functions under a plan of operation established and approved under Section 539 and shall exercise its powers through a board of directors established under Section 536. For purposes of administration and assessment, the Fund shall be divided into 2 separate accounts: (a) the automobile insurance account; and (b) the account for all other insurance to which this Article applies, including Workers' Compensation.

(Source: P.A. 85-576.)

(215 ILCS 5/536) (from Ch. 73, par. 1065.86)

Sec. 536. Board of Directors.

(a) The board of directors of the Fund shall consist of not less than 5 nor more than 10 persons, with one public member appointed by the Director, serving terms as established in the plan of operation. The public member shall be a resident of this State, and he or she shall either (1) be a licensed and certified public accountant under the laws of this State or (2) have earned, and maintain in good standing, the Chartered Property and Casualty Underwriter (CPCU) designation from the American Institute for Chartered Property Casualty Underwriters. The plan of operation shall provide that the board of directors be elected on the basis of one vote for each member company of the Fund. If more than one company of a group of wholly owned or controlled companies is a member company of the Fund only one vote will be allowed for the entire group. The members of the board of directors shall be elected by member companies subject to the approval of the Director. Vacancies on the board of directors shall be filled for the remaining period of the term by the board of directors, subject to the approval of the Director.

(b) In approving elections to the board of directors, the Director shall consider among other things whether all member companies are fairly represented.

(c) Members of the board of directors shall receive no compensation, but may be reimbursed from the assets of the Fund for expenses incurred by them as members of the board of directors.

(Source: P.A. 98-202, eff. 1-1-14.)

(215 ILCS 5/537) (from Ch. 73, par. 1065.87)

Sec. 537. Duties and obligations of the Fund. The Fund shall have the duties and obligations enumerated in Sections 537.1 through 537.9.

(Source: P.A. 82-210.)

(215 ILCS 5/537.1) (from Ch. 73, par. 1065.87-1)

Sec. 537.1. The Fund may provide for an equal annual fee of all member companies on a non-pro rata basis to provide for contingent expenses of the Fund. This fee may not exceed $500 per member company for any one calendar year.

(Source: P.A. 85-576.)

(215 ILCS 5/537.2) (from Ch. 73, par. 1065.87-2)

Sec. 537.2. Obligation of Fund. The Fund shall be obligated to the extent of the covered claims existing prior to the entry of an Order of Liquidation against an insolvent company and arising within 30 days after the entry of such Order, or before the policy expiration date if less than 30 days after the entry of such Order, or before the insured replaces the policy or on request effects cancellation, if he does so within 30 days after the entry of such Order. If the entry of an Order of Liquidation occurs on or after October 1, 1975 and before October 1, 1977, such obligations shall not: (i) exceed $100,000, or (ii) include any obligation to refund the first $100 of any unearned premium claim; and if the entry of an Order of Liquidation occurs on or after October 1, 1977 and before January 1, 1988, such obligations shall not: (i) exceed $150,000, except that this limitation shall not apply to any workers compensation claims, or (ii) include any obligation to refund the first $100 of any unearned premium claim; and if the entry of an Order of Liquidation occurs on or after January 1, 1988 and before January 1, 2011, such obligations shall not: (i) exceed $300,000, except that this limitation shall not apply to any workers compensation claims, or (ii) include any obligation to refund the first $100 of any unearned premium claim or to refund any unearned premium over $10,000 under any one policy. If the entry of an Order of Liquidation occurs on or after January 1, 2011, then such obligations shall not: (i) exceed $500,000, except that this limitation shall not apply to any workers compensation claims or (ii) include any obligation to refund the first $100 of any unearned premium claim or refund any unearned premium over $10,000 under any one policy. If the entry of an Order of Liquidation occurs on or after January 1, 2023, then such obligations shall not: (i) exceed $500,000, except that this limitation shall not apply to any workers compensation claims, or (ii) exceed without any deduction $50,000 for any unearned premium claim or refund under any one policy. In no event shall the Fund be obligated to a policyholder or claimant in an amount in excess of the face amount of the policy from which the claim arises, including, but not limited to, any applicable specific or aggregate limits. For purposes of this Article, obligations arising under an insurance policy written to indemnify a permissibly self-insured employer under subsection (a) of Section 4 of the Workers' Compensation Act for its liability to pay workers' compensation benefits in excess of a specific or aggregate retention shall be subject to the applicable per-claim limits set forth in this Section.

In no event shall the Fund be obligated to pay an amount in excess of $500,000 in the aggregate for all first-party and third-party claims under a policy or endorsement providing cybersecurity insurance as defined in Section 534.9 and arising out of or related to a single insured event, regardless of the number of claims made or number of claimants.

In no event shall the Fund be liable for any interest on any judgment entered against the insured or the insolvent company, or for any other interest claim against the insured or the insolvent company, regardless of whether the insolvent company would have been obligated to pay such interest under the terms of its policy. The Fund shall be liable for interest at the statutory rate on money judgments entered against the Fund until the judgment is satisfied.

Any obligation of the Fund to defend an insured shall cease upon the Fund's payment or tender of an amount equal to the lesser of the Fund's covered claim obligation limit or the applicable policy limit.

(Source: P.A. 103-113, eff. 6-30-23.)

(215 ILCS 5/537.3) (from Ch. 73, par. 1065.87-3)

Sec. 537.3. Access to insolvent company records.

The liquidator of an insolvent company shall permit access by the Fund or its authorized representatives, and by any similar organization in another state or its authorized representatives, to such of the insolvent company's records which are necessary for the Fund or such similar organization in carrying out its functions under this Article or similar laws in other states with regard to covered claims. In addition, the liquidator shall provide the Fund or its representative, or such similar organization, with copies of such records upon the request and at the expense of the Fund or such similar organization.

(Source: P.A. 85-576.)

(215 ILCS 5/537.4) (from Ch. 73, par. 1065.87-4)

Sec. 537.4. Fund assumes obligations of insolvent companies. The Fund shall be deemed the insolvent company to the extent of the Fund's obligation for covered claims and to such extent shall have all rights, duties, and obligations of the insolvent company, subject to the limitations provided in this Article, as if the company had not become insolvent, with the exception that the liquidator shall retain the sole right to recover any reinsurance proceeds. The Fund's rights under this Section include, but are not limited to, the right to pursue and retain salvage and subrogation recoveries on paid covered claim obligations to the extent paid by the Fund. The extent of the Fund's subrogation rights and any other rights of reimbursement with respect to its covered claims payments shall not be limited as if the Fund were the insolvent company, but shall be determined independently by taking into account the Fund's rights under Section 546 of this Article.

(Source: P.A. 99-387, eff. 8-17-15.)

(215 ILCS 5/537.6) (from Ch. 73, par. 1065.87-6)

Sec. 537.6. Allocation of claims; assessments. The Fund shall allocate covered claims paid and expenses incurred between the accounts established by Section 535 separately, and assess member companies separately for each account amounts necessary to pay the obligations of the Fund under Section 537.2 subsequent to the entry of an Order of Liquidation against an insolvent company, the expenses of handling covered claims subsequent to such Order of Liquidation and other expenses authorized by this Article. The assessments of each member company shall be in the proportion that the net direct written premiums of the member company for the calendar year immediately preceding the year in which the assessment is levied on the kinds of insurance in the account bears to the net direct written premiums of all member companies for such preceding calendar year on the kinds of insurance in the account. Each member company shall be notified of the assessment not later than 30 days before it is due. Before January 1, 2002, no member company may be assessed in any year on any account an amount greater than 1% of that member company's net direct written premiums on the kinds of insurance in the account for the calendar year preceding the assessment. Beginning January 1, 2002, the amount a member company may be assessed in any year on any account shall be a maximum of 2% of that member company's net direct written premium on the kinds of insurance in the account for the calendar year preceding the assessment. This 2% maximum shall apply regardless of the date of any insolvency that gives rise to the need for the assessment. If the maximum assessment, together with the other assets of the Fund in any account, does not provide, in any one year, in any account, an amount sufficient to make all necessary payments from that account, the funds available shall be paid in the manner determined by the Fund and approved by the Director and the unpaid portion shall be paid as soon thereafter as funds become available. If requested by a member company, the Director may exempt or defer the assessment of any member company, if the assessment would cause the member company's financial impairment.

In addition to the other assessment authority provided in this Section, the board of directors shall also have the assessment authority to pay off a loan as provided in Section 538.3. If a loan is projected to be outstanding for 3 years or more, then the board of directors shall have the authority to increase the assessment to 3% of the net direct written premiums for the previous year until the loan has been paid in full.

(Source: P.A. 101-60, eff. 7-12-19.)

(215 ILCS 5/537.7) (from Ch. 73, par. 1065.87-7)

Sec. 537.7. Investigation of claims; disposition.

(a) The Fund shall investigate claims brought against the Fund and adjust, compromise, settle, and pay covered claims to the extent of the Fund's obligation and deny all other claims.

(b) The Fund shall not be bound by a settlement, release, compromise, waiver, or final judgment executed or entered within 12 months prior to an order of liquidation and shall have the right to assert all defenses available to the Fund including, but not limited to, defenses applicable to determining and enforcing its statutory rights and obligations to any claim. The Fund shall be bound by a settlement, release, compromise, waiver, or final judgment executed or entered more than 12 months prior to an order of liquidation, but only if the claim is a covered claim and the settlement, release, compromise, waiver, or final judgment was not a result of fraud, collusion, default, or failure to defend. In addition, with respect to covered claims arising from a judgment under a decision, verdict, or finding based on the default of the insolvent insurer or its failure to defend, upon application by the Fund, either on its own behalf or on behalf of an insured, the court shall set aside the judgment, order, decision, verdict, or finding, and the Fund shall be permitted to defend against the claim on the merits. The same criteria determining whether the Fund will be bound, as specified in this subsection (b), shall apply to any settlement, release, compromise, waiver, or final judgment entered into by a high net worth insured before the date on which claims by or against that insured became non-exempt for reasons specified in paragraph (iv) of subsection (b) of Section 534.3.

(c) The Fund shall have the right to appoint or approve and to direct legal counsel retained under liability insurance policies for the defense of covered claims as well as the right to appoint or approve and to direct legal counsel and other service providers under any other insurance policies subject to this Article, regardless of any limitations in the policy.

(Source: P.A. 103-113, eff. 6-30-23.)

(215 ILCS 5/537.9) (from Ch. 73, par. 1065.87-9)

Sec. 537.9. The Fund shall handle claims through its employees or through one or more companies or other persons employed as servicing facilities.

(Source: P.A. 85-576.)

(215 ILCS 5/538) (from Ch. 73, par. 1065.88)

Sec. 538. Powers of the Fund. The Fund shall have the powers enumerated in the Sections following this Section and preceding Section 539.

(Source: P.A. 102-396, eff. 8-16-21.)

(215 ILCS 5/538.1) (from Ch. 73, par. 1065.88-1)

Sec. 538.1. The Fund may appear in, defend and appeal any action on a claim brought against it on a covered claim.

(Source: P.A. 77-305.)

(215 ILCS 5/538.2) (from Ch. 73, par. 1065.88-2)

Sec. 538.2. The Fund may employ or retain such persons as are necessary to handle claims, provide policy benefits and services, and perform other duties of the Fund.

(Source: P.A. 103-113, eff. 6-30-23.)

(215 ILCS 5/538.3) (from Ch. 73, par. 1065.88-3)

Sec. 538.3. The Fund may borrow an amount of money necessary to effect the purposes of this Article in accord with the plan of operation. The board of directors shall have the authority to pledge all or an appropriate portion of future assessments as necessary to secure a loan that may be needed to pay covered claims. Until all loans secured by assessments are fully satisfied, the board of directors shall assess the maximum allowable under Section 537.6.

(Source: P.A. 101-60, eff. 7-12-19.)

(215 ILCS 5/538.4) (from Ch. 73, par. 1065.88-4)

Sec. 538.4. Legal actions by Fund. The Fund may sue or be sued, including, but not limited to, taking any legal actions necessary or proper for recovery of: (i) any unpaid assessments under Section 537.1 or 537.6; (ii) any amounts due to the Fund for salvage and subrogation under Section 537.4 or from insurers described in subsection (a) of Section 546; or (iii) any amounts due from an insured pursuant to subsections (a) and (d) of Section 545. The Fund's power to sue includes, but is not limited to, the power and right to intervene as a party before any court that has jurisdiction over an insolvent insurer when the Fund is a creditor or potential creditor of the insolvent insurer.

(Source: P.A. 101-60, eff. 7-12-19.)

(215 ILCS 5/538.5) (from Ch. 73, par. 1065.88-5)

Sec. 538.5. The Fund may negotiate and become a party to such contracts as are necessary to carry out the purposes of this Article.

(Source: P.A. 82-210.)

(215 ILCS 5/538.7) (from Ch. 73, par. 1065.88-7)

Sec. 538.7. (a) The Fund may perform such other acts as are necessary or proper to effectuate the purposes of this Article.

(b) The Fund may contract with the Office of Special Deputy Receiver or any other person or organizations authorized by law to carry out the duties of the Director in her or his capacity as a receiver under Article XIII of this Code. The power of the Fund to contract with these persons or entities includes, but is not limited to, providing consulting services and claims administration services that assist with these persons or entities in the performance of their respective statutory and legal functions provided by law. The Fund may only exercise the authority to contract pursuant to this subsection upon the board of director's written determination that the provisioning of such services will advance the purposes set forth in Section 532. Any contract the Fund may enter into to provide services pursuant to this subsection shall be subordinate and subject to the Fund's statutory obligations to timely pay covered claims and avoid financial loss to claimants or policyholders described in this Article.

This subsection (b) is inoperative 5 years after the effective date of this amendatory Act of the 102nd General Assembly.

(Source: P.A. 102-396, eff. 8-16-21.)

(215 ILCS 5/538.8) (from Ch. 73, par. 1065.88-8)

Sec. 538.8. (a) If, at any time, the board of directors finds that the assets of the Fund in any account exceed the liabilities and expected costs and expenses of that account, the Fund may refund that amount of assets of the account which exceed such liabilities, expenses and costs to the member companies in such a manner as is determined by the board of directors.

(b) If, at any time, the Fund receives monies as reimbursement from the estate of an insolvent company, the Fund shall distribute those monies in accordance with the procedures established in the plan of operation.

(Source: P.A. 85-576.)

(215 ILCS 5/538.9)

Sec. 538.9. Action regarding insolvent company records.

(a) In this Section, "claims information" includes files, records, and electronic data.

(b) The Fund may bring an action against any third-party administrator, agent, attorney, or other representative of the insolvent insurer to obtain custody and control of all claims information related to an insolvent company that are appropriate or necessary for the Fund or a similar association in other states to carry out its duties under this Article. In such an action, the Fund shall have the absolute right through emergency equitable relief to obtain custody and control of such claims information in possession of such third-party administrator, agent, attorney or other representative of the insolvent insurer, regardless of where that claims information may be physically located. In bringing an action under this Section, the Fund shall not be subject to any defense, lien (possessory or otherwise), or other legal or equitable ground whatsoever for refusal to surrender such claims information that might be asserted against the liquidator of the insolvent insurers. To the extent that litigation is required for the Fund to obtain custody and control of the claims information requested and it results in the relinquishment of claims information to the Fund after refusal to provide that information in response to a written demand, the court shall award the Fund its costs, expenses, and reasonable attorney's fees incurred in bringing the action. This Section shall have the same effect on the rights and remedies that the custodian of such claims information may have against the insolvent insurers, so long as these rights and remedies do not conflict with the rights of the Fund to custody and control of the claims information under this Article.

(Source: P.A. 101-60, eff. 7-12-19.)

(215 ILCS 5/539) (from Ch. 73, par. 1065.89)

Sec. 539. Plan of operation. (a) The Fund shall submit to the Director a plan of operation and any amendments thereto necessary or suitable to assure the fair, reasonable, and equitable administration of the Fund. The plan of operation and any amendments thereto shall become effective upon approval in writing by the Director.

(b) If the Fund fails to submit a suitable plan of operation within 90 days following the effective date of this Article or if at any time thereafter the Fund fails to submit suitable 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 reasonable rules as are necessary or advisable to effectuate the provisions of this Article. Such rules shall continue in force until modified by the Director or superseded by a plan of operation submitted by the Fund and approved by the Director.

(c) All member companies must comply with the plan of operation.

(Source: P.A. 82-210.)

(215 ILCS 5/540) (from Ch. 73, par. 1065.90)

Sec. 540. The plan of operation shall do the following as enumerated in Sections 540.1 through 540.9.

(Source: P.A. 77-305.)

(215 ILCS 5/540.1) (from Ch. 73, par. 1065.90-1)

Sec. 540.1. The plan of operation shall establish the procedures whereby all the powers and duties of the Fund under Sections 537.1 through 537.9 will be performed.

(Source: P.A. 82-210.)

(215 ILCS 5/540.2) (from Ch. 73, par. 1065.90-2)

Sec. 540.2. The plan of operation shall establish procedures for handling assets of the Fund.

(Source: P.A. 77-305.)

(215 ILCS 5/540.3) (from Ch. 73, par. 1065.90-3)

Sec. 540.3. The plan of operation shall establish the amount and method of reimbursing members of the board of directors under subsection (c) of Section 536.

(Source: P.A. 82-210.)

(215 ILCS 5/540.5) (from Ch. 73, par. 1065.90-5)

Sec. 540.5. (a) A covered claim, for other than unearned premium, is a claim which appears on the books and records of the insolvent company as of the date of the Order of Liquidation or a claim for which notice is given in writing to the liquidator of the insolvent company's domiciliary state or to an ancillary receiver in this State, if any, or to the Fund or its agents prior to the earlier of the last date fixed for the timely filing of proofs of claim in the domiciliary liquidation proceedings or 18 months after the entry of the order of liquidation. The liquidator or ancillary receiver in this State, if any, shall periodically submit a list of claims to the Fund or similar organization in another state.

(b) The Fund shall establish procedures by which unearned premium claims are to be determined and paid as covered claims.

(Source: P.A. 85-576.)

(215 ILCS 5/540.6) (from Ch. 73, par. 1065.90-6)

Sec. 540.6. The plan of operation shall provide that any member company aggrieved by any final action or decision of the Fund may appeal to the Director within 30 days after the action or decision.

(Source: P.A. 77-305.)

(215 ILCS 5/540.7) (from Ch. 73, par. 1065.90-7)

Sec. 540.7. The plan of operation shall establish the procedures whereby selections for the board of directors will be submitted to the Director.

(Source: P.A. 77-305.)

(215 ILCS 5/540.8) (from Ch. 73, par. 1065.90-8)

Sec. 540.8. The plan of operation shall establish the procedures for disposition of monies reimbursed from the estate of the insolvent company.

(Source: P.A. 85-576.)

(215 ILCS 5/540.9) (from Ch. 73, par. 1065.90-9)

Sec. 540.9. The plan of operation may contain additional provisions necessary or proper for the execution of the powers, duties and obligations of the Fund.

(Source: P.A. 77-305.)