The following definitions apply for the purposes of this section only:
Terms Used In Utah Code 31A-16-104.5
Application: means a document:
(a)
(i)
completed by an applicant to provide information about the risk to be insured; and
(ii)
that contains information that is used by the insurer to evaluate risk and decide whether to:
(A)
insure the risk under:
(I)
the coverage as originally offered; or
(II)
a modification of the coverage as originally offered; or
(B)
decline to insure the risk; or
(b)
used by the insurer to gather information from the applicant before issuance of an annuity contract. See Utah Code 31A-1-301
Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
business of insurance: includes :
(a)
providing health care insurance by an organization that is or is required to be licensed under this title;
(b)
providing a benefit to an employee in the event of a contingency not within the control of the employee, in which the employee is entitled to the benefit as a right, which benefit may be provided either:
(i)
by a single employer or by multiple employer groups; or
(ii)
through one or more trusts, associations, or other entities;
(c)
providing an annuity:
(i)
including an annuity issued in return for a gift; and
(ii)
except an annuity provided by a person specified in Subsections 31A-22-1305(2) and (3);
(d)
providing the characteristic services of a motor club;
(e)
providing another person with insurance;
(f)
making as insurer, guarantor, or surety, or proposing to make as insurer, guarantor, or surety, a contract or policy offering title insurance;
(g)
transacting or proposing to transact any phase of title insurance, including:
(i)
solicitation;
(ii)
negotiation preliminary to execution;
(iii)
execution of a contract of title insurance;
(iv)
insuring; and
(v)
transacting matters subsequent to the execution of the contract and arising out of the contract, including reinsurance;
(h)
transacting or proposing a life settlement; and
(i)
doing, or proposing to do, any business in substance equivalent to Subsections (95)(a) through (h) in a manner designed to evade this title. See Utah Code 31A-1-301
Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
Filed: means that a filing is:
(i)
submitted to the department as required by and in accordance with applicable statute, rule, or filing order;
(ii)
received by the department within the time period provided in applicable statute, rule, or filing order; and
(iii)
accompanied by the appropriate fee in accordance with:
a risk distributing arrangement providing for compensation or replacement for damages or loss through the provision of a service or a benefit in kind;
(ii)
a contract of guaranty or suretyship entered into by the guarantor or surety as a business and not as merely incidental to a business transaction; and
(iii)
a plan in which the risk does not rest upon the person who makes an arrangement, but with a class of persons who have agreed to share the risk. See Utah Code 31A-1-301
License: includes a certificate of authority issued to an insurer. See Utah Code 31A-1-301
Ocean marine insurance: means insurance against loss of or damage to:
(a)
ships or hulls of ships;
(b)
goods, freight, cargoes, merchandise, effects, disbursements, profits, money, securities, choses in action, evidences of debt, valuable papers, bottomry, respondentia interests, or other cargoes in or awaiting transit over the oceans or inland waterways;
(c)
earnings such as freight, passage money, commissions, or profits derived from transporting goods or people upon or across the oceans or inland waterways; or
(d)
a vessel owner or operator as a result of liability to employees, passengers, bailors, owners of other vessels, owners of fixed objects, customs or other authorities, or other persons in connection with maritime activity. See Utah Code 31A-1-301
Reinsurance: means an insurance transaction where an insurer, for consideration, transfers any portion of the risk it has assumed to another insurer. See Utah Code 31A-1-301
State: when applied to the different parts of the United States, includes a state, district, or territory of the United States. See Utah Code 68-3-12.5
(a)
“Acquisition” means an agreement, arrangement, or activity the consummation of which results in a person acquiring directly or indirectly the control of another person and includes the acquisition of voting securities, the acquisition of assets, bulk reinsurance, and mergers.
(b)
“Insurer” includes any company or group of companies under common management, ownership, or control.
(c)
“Involved insurer” includes an insurer that either acquires or is acquired, is affiliated with an acquirer or acquired, or is the result of a merger.
(d)
(i)
“Market” means the relevant product and geographical markets. In determining the relevant product and geographical markets, the commissioner shall give due consideration to, among other things, the definitions or guidelines, if any, promulgated by the National Association of Insurance Commissioners and to information, if any, submitted by parties to the acquisition. In the absence of sufficient information to the contrary, the relevant product market is assumed to be the direct written insurance premium for a line of business, such line being that used in the annual statement required to be filed by insurers doing business in this state, and the relevant geographical market is assumed to be this state.
(ii)
Notwithstanding Subsection (1)(d)(i), for purposes of Subsection (2)(b), “market” means direct written insurance premium in this state for a line of business as contained in the annual statement required to be filed by insurers licensed to do business in this state.
(2)
(a)
This section applies to any acquisition in which there is a change in control of an insurer authorized to do business in Utah.
(b)
This section does not apply to the following:
(i)
securities purchased solely for investment purposes so long as the securities are not used by voting or otherwise to cause or attempt to cause the substantial lessening of competition in any insurance market in this state;
(ii)
if a purchase of securities results in a presumption of control under Subsection 31A-1-301(29)(d), it is not solely for investment purposes unless the commissioner of the insurer’s state of domicile accepts a disclaimer of control or affirmatively finds that control does not exist and the disclaimer action or affirmative finding is communicated by the domiciliary commissioner to the commissioner of this state;
(iii)
the acquisition of a person by another person when both persons are neither directly nor through affiliates primarily engaged in the business of insurance, if pre-acquisition notification is filed with the commissioner in accordance with Subsection (3)(a) 30 days before the proposed effective date of the acquisition;
(iv)
the acquisition of an already affiliated person;
(v)
an acquisition if, as an immediate result of the acquisition:
(A)
in no market would the combined market share of the involved insurers exceed 5% of the total market;
(B)
there would be no increase in any market share; or
(C)
in no market would the combined market share of the involved insurers exceeds 12% of the total market, and the market share increase by more than 2% of the total market;
(vi)
an acquisition for which a pre-acquisition notification would be required pursuant to this section due solely to the resulting effect on the ocean marine insurance line of business; or
(vii)
an acquisition of an insurer whose domiciliary commissioner affirmatively finds that the insurer is in failing condition, and:
(A)
there is a lack of feasible alternative to improving such condition;
(B)
the public benefits of improving the insurer’s condition through the acquisition exceed the public benefits that would arise from not lessening competition; and
(C)
the findings are communicated by the domiciliary commissioner to the commissioner of this state.
(3)
An acquisition covered by Subsection (2) may be subject to an order pursuant to Subsection (5) unless the acquiring person files a pre-acquisition notification and the waiting period has expired. The acquired person may file a pre-acquisition notification. The commissioner shall give confidential treatment to information submitted under this Subsection (3) in the same manner as provided in Section 31A-16-109.
(a)
The pre-acquisition notification shall be in the form and contain such information as prescribed by the National Association of Insurance Commissioners relating to those markets that, under Subsection (2)(b)(v), cause the acquisition not to be exempted from this section. The commissioner may require additional material and information as considered necessary to determine whether the proposed acquisition, if consummated, would violate the competitive standard of Subsection (4). The required information may include an opinion of an economist as to the competitive impact of the acquisition in this state accompanied by a summary of the education and experience of the economist indicating the economist’s ability to render an informed opinion.
(b)
The waiting period required shall begin on the date of receipt of the commissioner of a pre-acquisition notification and shall end on the earlier of the 30th day after the date of receipt, or termination of the waiting period by the commissioner. Before the end of the waiting period, the commissioner on a one-time basis may require the submission of additional needed information relevant to the proposed acquisition, in which event the waiting period shall end on the earlier of the 30th day after receipt of the additional information by the commissioner or termination of the waiting period by the commissioner.
(4)
(a)
The commissioner may enter an order under Subsection (5)(a) with respect to an acquisition if there is substantial evidence that the effect of the acquisition may be substantially to lessen competition in any line of insurance in this state, tend to create a monopoly, or if the insurer fails to file adequate information in compliance with this section.
(b)
In determining whether a proposed acquisition would violate the competitive standard of Subsection (4)(a), the commissioner shall consider the following:
(i)
Any acquisition covered under this Subsection (4) involving two or more insurers competing in the same market is prima facie evidence of violation of the competitive standards if:
(A)
the market is highly concentrated and the involved insurers possess the following shares of the market:
Insurer A
Insurer B
4%
4% or more
10%
2% or more
15%
1% or more; or
(B)
the market is not highly concentrated and the involved insurers possess the following shares of the market:
Insurer A
Insurer B
5%
5% or more
10%
4% or more
15%
3% or more
19%
1% or more.
(ii)
For purposes of this section, a highly concentrated market is one in which the share of the four largest insurers is 75% or more of the market. Percentages not shown in the tables are interpolated proportionately to the percentages that are shown. If more than two insurers are involved, exceeding the total of the two columns in the table is prima facie evidence of violation of the competitive standard in Subsection (4)(a).
(iii)
For purposes of this section, the insurer with the largest share of the market shall be considered to be Insurer A.
(c)
There is a significant trend toward increased concentration when the aggregate market share of any grouping of the largest insurers in the market, from the two largest to the eight largest, has increased by 7% or more of the market over a period of time extending from any base year 5 to 10 years before the acquisition up to the time of the acquisition. Any acquisition or merger covered under Subsection (1) involving two or more insurers competing in the same market is prima facie evidence of violation of the competitive standard in Subsection (4)(a) if:
(i)
there is a significant trend toward increased concentration in the market;
(ii)
one of the insurers involved is one of the insurers in a grouping of large insurers showing the requisite increase in the market share; and
(iii)
another involved insurer’s market is 2% or more.
(d)
The burden of showing prima facie evidence of violation of the competitive standard rests upon the commissioner.
(e)
Even though an acquisition is not prima facie violative of the competitive standard under Subsections (4)(b) and (4)(c), the commissioner may establish the requisite anticompetitive effect based upon other substantial evidence.
(f)
Even though an acquisition is prima facie violative of the competitive standard under Subsections (4)(b) and (4)(c), a party may establish the absence of the requisite anticompetitive effect based upon other substantial evidence. Relevant factors in making a determination under this Subsection (4)(f) include the following:
(i)
market shares;
(ii)
volatility of ranking of market leaders;
(iii)
number of competitors;
(iv)
concentration or trend of concentration in the industry; and
(v)
ease of entry and exit into the market.
(g)
An order may not be entered under Subsection (5) if:
(i)
the acquisition will yield substantial economies of scale or economies in resource use that cannot be feasibly achieved in any other way, and the public benefits that would arise from the economies exceed the public benefits that would arise from not lessening competition; or
(ii)
the acquisition will substantially increase the availability of insurance, and the public benefits of the increase exceed the public benefits that would arise from not lessening competition.
requiring an involved insurer to cease and desist from doing business in this state with respect to the line or lines of insurance involved in the violation; or
(ii)
denying the application of an acquired or acquiring insurer for a license to do business in this state.
(b)
The commissioner shall accompany an order issued under this Subsection (5) with a written decision of the commissioner setting forth findings of fact and conclusions of law.
(c)
An order pursuant to this section may not apply if the acquisition is not consummated.
(d)
A person who violates a cease and desist order of the commissioner under Subsection (5)(a)(i) and while the order is in effect may after notice and hearing and upon order of the commissioner be subject at the discretion of the commissioner to one or more of the following:
(i)
notwithstanding Section 31A-2-308, a monetary penalty of not more than $10,000 for every day of violation; or
(ii)
suspension or revocation of the person’s license.
(e)
An insurer or other person who fails to make any filing required by this section, and who fails to demonstrate a good faith effort to comply with a filing requirement, is subject to a fine of not more than $50,000 notwithstanding Section 31A-2-308.
