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2006 SESSION
Be it enacted by the General Assembly of Virginia:
1. That § 38.2-1315.1 of the Code of Virginia is amended and reenacted as follows:
§ 38.2-1315.1. Actuarial statements of opinion, reports, memoranda, and summaries.
A. Effective December 31, 2004, and except as otherwise provided by this section or Article 3 (§ 38.2-3126 et seq.) of Chapter 31 of this title, every insurer doing business in the Commonwealth shall annually submit an actuarial opinion that has been prepared by an appointed actuary and that satisfies at a minimum the standards set forth in the appropriate National Association of Insurance Commissioners (NAIC) annual statement instructions.
B. Every insurer domiciled in the Commonwealth that is required
to submit an actuarial opinion pursuant to subsection A of this section or §
38.2-3127.1 shall annually submit a an actuarial opinion
summary of opinion or issues, also written by the insurer's appointed
actuary, and. Every insurer domiciled in the Commonwealth that is
required to submit an actuarial opinion pursuant to subsection A of this
section or § 38.2-3127.1, at the request of the Commission, shall submit
underlying work papers and an actuarial report or memorandum that satisfies the
minimum standards set forth in the appropriate NAIC annual statement
instructions and complies with all additional standards or requirements
established by statute or by the Commission in accordance with the provisions
of this section or Article 3 (§ 38.2-3126 et seq.) of Chapter 31 of this title.
A company licensed but not domiciled in the Commonwealth shall provide such
summary, work papers, report, and memorandum upon request of the Commission.
Any summary, work papers, report, or memorandum filed in accordance with the
appropriate NAIC annual statement instructions shall be considered as a
document supporting the actuarial opinion required by subsection A of this
section or § 38.2-3127.1.
C. If the insurer fails to provide supporting work papers or a required report or memorandum at the request of the Commission, or the Commission determines that the work papers or report or memorandum are unacceptable, the Commission may engage a qualified actuary at the expense of the insurer to review the opinion and the basis for the opinion and to prepare supporting work papers, or a report or memorandum.
D. The appointed actuary shall not be liable for damages to any person, other than the insurer and the Commission for any act, error, omission, decision, or conduct with respect to the actuary's opinion, except in cases of fraud or willful misconduct on the part of the actuary.
E. An actuarial opinion provided with the annual statement in accordance with the appropriate NAIC annual statement instructions shall be open to public inspection in accordance with § 38.2-1306.
F. Documents, materials, or other information in the
possession or control of the Commission that are considered an actuarial
report, work papers, a an actuarial opinion summary of opinion
or issues, or an actuarial opinion report or memorandum provided in support
of the opinion, and any other material provided by the insurer to the
Commission in connection with the report, work papers, or summary, shall be
confidential by law and privileged, shall not be subject to inspection or
review by the general public, shall not be subject to subpoena, and shall not
be subject to discovery or admissible in evidence in any private civil action.
However, this provision shall not be construed to limit the Commission's authority
to release the documents to any actuarial board established for counseling or
discipline so long as the material is required for the purpose of professional
disciplinary proceedings and such board establishes procedures satisfactory to
the Commission for preserving the confidentiality of the documents. Moreover,
the Commission is authorized to use the documents, materials, or other
information in furtherance of any regulatory or legal action brought as part of
the Commission's official duties.
1. Neither the Commission nor any person who received documents, materials, or other information while acting under the authority of the Commission shall be permitted or required to testify in any private civil action concerning any confidential documents, materials, or information subject to this subsection.
2. In order to assist in the performance of the Commission's duties under this section, the Commission:
a. May share documents, material, or other information, including the confidential and privileged documents, materials, or information subject to this subsection, with other state, federal, and international regulatory agencies, with the NAIC, its affiliates, or subsidiaries, and with state, federal, and international law enforcement authorities, provided that the recipient agrees to maintain the confidentiality and privileged status of the document, material, or other information.
b. May receive documents, materials, or information, including otherwise confidential and privileged documents, materials, or information, from the NAIC, its affiliates, or subsidiaries and from regulatory and law-enforcement officials of other foreign or domestic jurisdictions, and shall maintain as confidential or privileged any document, material, or information received with notice or the understanding that it is confidential or privileged under the laws of the jurisdiction that is the source of the document, material, or information.
G. The Commission may waive or modify submission requirements for a foreign insurer that has been exempted by its domiciliary commissioner from filing an actuarial opinion under a substantially similar law in its state of domicile. The Commission may modify requirements in any year for an insurer that makes application, with good cause shown, for exemption due to the nature of business written or the size and volume of business activity, or because the insurer is under supervision or an order of conservation, or if the imposition of an annual filing requirement would create a financial hardship.