In this subtitle the following words have the meanings indicated. “Board of directors” or “board” means the governing body of a risk retention group elected by the shareholders or members of the risk retention group to establish policy, elect or appoint officers and committees, and make other governing decisions. “Completed operations liability” means liability arising out of the installation, maintenance, or repair of a product at a site that is not owned or controlled by: a person that performs that work; or a person that hires an independent contractor to perform that work. “Completed operations liability” includes liability for activities that are completed or abandoned before the date of the occurrence giving rise to the liability. “Director” means an individual designated in the articles of incorporation of a risk retention group, or designated, elected, or appointed by any other manner, name, or title to act as a director of the risk retention group. “Domicile” means, for the purpose of determining the state in which a purchasing group has its domicile: the state of incorporation of a purchasing group that is a corporation; or the state of the principal place of business of a purchasing group that is an unincorporated entity. “Hazardous financial condition” means the condition of a risk retention group in which, based on its present or reasonably anticipated financial condition, the risk retention group: is not yet financially impaired or insolvent; but is unlikely to be able to: meet obligations to policyholders with respect to known claims and reasonably anticipated claims; or pay other obligations in the normal course of business. “Immediate family member” means an individual’s: spouse; child; child’s spouse; parent; spouse’s parent; sibling; or sibling’s spouse. “Insurance” means primary insurance, excess insurance, reinsurance, surplus lines insurance, and any other arrangement for shifting and distributing risk that is determined to be insurance under the laws of the State. “Liability” means legal liability for damages, including costs of defense, legal costs and fees, and other claims expenses, because of injuries to persons, damage to their property, or other damage or loss to those persons, resulting from or arising out of: a business, whether profit or nonprofit, trade, products, services, including professional services, premises, or operations; or an activity of a state or local government, or an agency or political subdivision of a state or local government. “Liability” does not include: personal risk liability, which is liability for damages because of injury to a person, damage to property, or other damage or loss resulting from personal, familial, or household responsibilities or activities; or the liability of an employer with respect to its employees other than legal liability under the federal Employers’ Liability Act. “Plan of operation or feasibility study” means an analysis that presents the expected activities and results of a risk retention group including, at a minimum: information sufficient to verify that the members of the risk retention group are engaged in businesses or activities that are similar or related with respect to the liability to which the members are exposed by virtue of related, similar, or common business, trade, products, services, premises, or operations; for each state in which the risk retention group intends to operate, the coverages, deductibles, coverage limits, rates, and rating classification systems for each line of insurance that the risk retention group intends to offer; historical and expected loss experience of the proposed members and national experience of similar exposures, to the extent this experience is reasonably available; pro forma financial statements and projections; appropriate opinions by a qualified, independent casualty actuary, including a determination of minimum premium or participation levels required to begin operations and to prevent a hazardous financial condition; identification of management, underwriting and claims procedures, marketing methods, managerial oversight methods, investment policies, and reinsurance agreements; identification of each state in which the risk retention group has obtained or sought to obtain a charter and license, and a description of its status in each state identified; and any other matters required by the commissioner of the state in which the risk retention group is chartered for liability insurance companies authorized by the insurance laws of that state. “Product liability” means liability for damages because of personal injury, death, emotional harm, consequential economic damage, or property damage, including damages resulting from the loss of use of the property, arising out of the manufacture, design, importation, distribution, packaging, labeling, lease, or sale of a product. “Product liability” does not include the liability of a person for damages if the product involved was in the possession of the person when the incident giving rise to the claim occurred. “Purchasing group” means a group that: has as a purpose the purchase of liability insurance on a group basis; purchases liability insurance only for its group members and only to cover the similar or related liability exposure of the group members; is composed of members engaged in businesses or activities that are similar or related with respect to the liability to which the members are exposed by virtue of related, similar, or common business, trade, products, services, premises, or operations; and has its domicile in a state. “Risk retention group” means a corporation or other limited liability association: that is formed under the laws of a state, Bermuda, or the Cayman Islands; the primary activity of which consists of assuming and spreading all or part of the liability exposure of its group members; that is organized for the primary purpose of conducting the activity described in item (2) of this subsection; that: is chartered and licensed as a liability insurance company and authorized to engage in the insurance business under the laws of a state; or on or before December 31, 1984, was chartered or licensed and authorized to engage in the insurance business under the laws of Bermuda or the Cayman Islands and, on or before December 31, 1984, had certified to the insurance commissioner of at least one state that it satisfied the capitalization requirements of that state; and has been engaged in business continuously since January 1, 1985 and only for the purpose of continuing to provide insurance to cover product liability or completed operations liability; that does not exclude a person from membership in the group solely to provide for members of the group a competitive advantage over that person; that: has as its members only persons that have an ownership interest in the group and has as its owners only persons that are members of the group and are provided insurance by the group; or has as its sole owner an organization that: has as its members only persons that are members of the group; and has as its owners only persons that are members of the group and are provided insurance by the group; the members of which are engaged in businesses or activities that are similar or related with respect to the liability to which the members are exposed by virtue of related, similar, or common business, trade, products, services, premises, or operations; the activities of which do not include the provision of insurance other than: liability insurance for assuming and spreading all or part of the liability of its group members; and reinsurance with respect to the liability of another risk retention group, or a member of the other risk retention group, that is engaged in businesses or activities so that the risk retention group or member meets the requirement of item (7) of this subsection of membership in the risk retention group that provides the reinsurance; and the name of which includes the phrase “risk retention group”. Except as provided in paragraph (2) of this subsection, “state” means a state of the United States or the District of Columbia. When capitalized, “State” means Maryland.

A risk retention group that seeks to be chartered in the State: shall be chartered and licensed as a liability insurance company in conformance with all insurance laws and regulations of the State; and except as otherwise provided in this subtitle, shall comply with: all the laws, regulations, and requirements applicable to insurers chartered and licensed in the State; and the requirements of § 25–103 of this subtitle, to the extent that those requirements are not a limitation on the laws, regulations, or requirements of the State. Before a risk retention group may offer insurance in a state, the risk retention group shall submit a plan of operation or feasibility study to the Commissioner for approval. Within 10 days after a change to an item of the plan of operation or feasibility study, the risk retention group shall submit to the Commissioner an appropriate revision of the plan of operation or feasibility study. A risk retention group may not offer additional lines of liability insurance in this State or in another state until a revision of the plan of operation or feasibility study is approved by the Commissioner. When a risk retention group files an application for charter, the risk retention group shall provide to the Commissioner the following information: the name of the risk retention group; the identity of the initial members of the risk retention group; the identity of the individuals who organized the risk retention group, or who will provide administrative services or otherwise influence or control the activities of the risk retention group; the amount and nature of initial capitalization; the coverages to be afforded; and the states in which the risk retention group intends to operate. On receipt of the information required by subsection (c) of this section, the Commissioner shall forward the information to the National Association of Insurance Commissioners. Providing notification to the National Association of Insurance Commissioners is in addition to and may not be sufficient to satisfy the other requirements of this subtitle. The board of directors of the risk retention group shall have a majority of independent directors. If the risk retention group is a reciprocal: the attorney–in–fact shall be required to adhere to the same standards regarding independence of operation and governance that are imposed on the risk retention group’s board of directors or subscribers advisory committee; and to the extent permissible under State law, service providers of a reciprocal risk retention group: shall contract with the risk retention group; and may not contract with the attorney–in–fact. A director qualifies as independent when the board of directors affirmatively determines that the director has no material relationship with the risk retention group. A person that is a direct or indirect owner of or subscriber in the risk retention group, as contemplated by 15 U.S.C. § 3901(a)(4)(e)(ii), the federal Liability Risk Retention Act, or that is an officer, a director, or an employee of the owner or insured, is considered to be independent unless some other position of the officer, director, or employee constitutes a material relationship. The risk retention group annually shall disclose the board’s determinations to the Commissioner. For purposes of this section, a person is deemed to have a material relationship with a risk retention group if any of the following receive, in any one 12–month period, compensation, payment, or any other item of value greater than or equal to the threshold value described in subparagraph (ii) of this paragraph: the person; a member of the person’s immediate family; any business with which the person is affiliated from the risk retention group; or a consultant or service provider to the risk retention group. The threshold value for determining whether receipt of compensation, payment, or any other item of value under subparagraph (i) of this paragraph demonstrates a material relationship is the greater of: 5% of the risk retention group’s gross written premium for the 12–month period; or 2% of its surplus, as measured at the end of any fiscal quarter falling in the 12–month period. In addition to the standard set under subparagraph (i) of this paragraph, the board of directors may determine that any other relationship of the person to the risk retention group is a material relationship. The person or immediate family member of the person is not independent until 1 year after the compensation, payment, or other item of value described in subparagraph (ii) of this paragraph received from the risk retention group falls below the applicable threshold. A director who is affiliated with or employed in a professional capacity by a present or former internal or external auditor of the risk retention group is not considered independent until 1 year after the end of the affiliation, employment, or auditing relationship. A director or an immediate family member of a director who is employed as an executive officer of another company where any of the risk retention group’s present executives serve on the board of directors is not considered independent until 1 year after the end of the service or the employment relationship. In this subsection, “service provider” includes: a captive manager; an auditor; an accountant; an actuary; an investment advisor; a lawyer other than defense counsel that the risk retention group retains to defend claims, unless the amount of fees paid to the lawyer is material under subsection (e)(4) of this section; and a managing general underwriter or other party responsible for underwriting, determining rates, collecting premium, adjusting and settling claims, or preparing financial statements. A material service provider contract with the risk retention group: may not have a term exceeding 5 years; shall require the issuance and renewal of the contract to be approved by a majority of the risk retention group’s independent directors; shall provide that the risk retention group’s board of directors shall have the right to terminate any service provider contract, audit contract, or actuarial contract at any time for cause after providing adequate notice as defined in the contract; and shall be deemed material if the amount to be paid for the contract is greater than or equal to the greater of: 5% of the risk retention group’s annual gross written premium; or 2% of its surplus. A risk retention group may not enter into a service provider contract that involves a relationship that is material under subsection (e)(4) of this section unless: the risk retention group notifies the Commissioner in writing of its intention to enter into the transaction at least 30 days before the transaction; and the Commissioner has not disapproved the transaction within that period. The risk retention group’s board of directors shall adopt a written policy in the plan of operation approved by the board that requires the board to: assure that all owners and insureds of the risk retention group receive evidence of ownership interest; develop a set of governance standards applicable to the risk retention group; oversee the evaluation of the risk retention group’s management, including the performance of the captive manager, managing general underwriter, or other party or parties responsible for underwriting, determining rates, collecting premium, adjusting or settling claims, or preparing financial statements; review and approve the amount to be paid for all material service providers; and review and approve, at least annually: the risk retention group’s goals and objectives relevant to the compensation of officers and service providers; the officers’ and service providers’ performance in light of those goals and objectives; and the continued engagement of the officers and material service providers. The risk retention group shall have an audit committee. The audit committee shall be composed of at least three board members who have been determined to be independent under subsection (e) of this section. The audit committee shall have a written charter that defines the committee’s purposes, including, at a minimum, to: assist board oversight of: the integrity of the financial statements; the compliance with legal and regulatory requirements; and the qualifications, independence, and performance of the independent auditor and actuary; discuss the annual audited financial statements and quarterly financial statements with management; discuss the annual audited financial statements with its independent auditor and, if advisable, discuss its quarterly financial statements with its independent auditor; discuss policies with respect to risk assessment and risk management; meet separately and periodically, either directly or through a designated representative of the committee, with management and independent auditors; review with the independent auditor any audit problems or difficulties and management’s response; set clear hiring policies of the risk retention group as to the hiring of employees or former employees of the independent auditor; require the external auditor to rotate the lead or coordinating audit partner having primary responsibility for the risk retention group’s audit as well as the audit partner responsible for reviewing that audit so that neither individual performs audit services for more than 5 consecutive fiscal years; and report regularly to the board of directors. A nonindependent board member may participate in the activities of the audit committee if invited by the members of the audit committee but may not be a member of the audit committee. Notwithstanding paragraph (1) of this subsection, the Commissioner may waive the requirement to establish an audit committee composed of independent board members if the risk retention group is able to demonstrate to the Commissioner that: it is impracticable to do so; and the risk retention group’s board of directors itself is otherwise able to accomplish the purposes of an audit committee as described in paragraph (3) of this subsection. The board of directors shall adopt governance standards. The governance standards shall include: a process by which the directors are elected by the owners or insureds; director qualification standards; director responsibilities; director access to management and, as necessary and appropriate, independent advisors; director compensation; director orientation and continuing education; the policies and procedures that are followed for management succession; and the policies and procedures that are followed for annual performance evaluation of the board. The board of directors shall disclose the governance standards: by electronic means, which may include posting on the risk retention group’s website, or other reasonable means; and on the request of members and insureds. The board of directors shall adopt a code of business conduct and ethics for directors, officers, and employees. The code of business conduct and ethics shall include provisions that address: conflicts of interest; matters covered under the corporate opportunities doctrine; confidentiality; fair dealing; protection and proper use of risk retention group assets; compliance with all applicable laws, rules, and regulations; and the reporting of any illegal or unethical behavior that affects the operation of the risk retention group. The board of directors shall disclose the code of business conduct and ethics: by electronic means, which may include posting on the risk retention group’s website, or other reasonable means; and on the request of members and insureds. Any waiver of the code of business conduct and ethics for any director or executive officer shall promptly be disclosed to the board of directors. The captive manager and the president or chief executive officer of the risk retention group shall promptly notify the Commissioner in writing if either becomes aware of any material noncompliance with any of the governance standards required under subsections (e) through (j) of this section.

A risk retention group that is chartered and licensed in a state other than this State and that seeks to do business as a risk retention group in this State shall comply with the requirements of this section. Before a risk retention group offers insurance in this State, the risk retention group shall submit to the Commissioner: a statement that identifies: the state or states in which the risk retention group is chartered and licensed as a liability insurance company; the date of chartering and licensing; the principal place of business of the risk retention group; and any other information, including information on membership of the risk retention group, that the Commissioner requires to verify that the risk retention group qualifies as a risk retention group, as defined in § 25–101 of this subtitle; subject to paragraphs (2) and (3) of this subsection, a copy of the plan of operation or feasibility study of the risk retention group and any revisions of the plan of operation or feasibility study submitted to the state in which the risk retention group is chartered and licensed; a statement of registration that designates the Commissioner as its agent for service of legal process; a copy of the financial statement of the risk retention group that: was submitted to the state in which the risk retention group is chartered and licensed; is certified by an independent certified public accountant; and contains a statement of opinion on loss and loss adjustment expense reserves made by a member of the American Academy of Actuaries or a qualified loss reserve specialist; a copy of each examination of the risk retention group that is certified by the Commissioner or other public official that conducts the examination; on request of the Commissioner, a copy of any information or document that relates to an outside audit performed with respect to the risk retention group; and any other information that the Commissioner requires in order to verify the continuing qualification of the risk retention group as a risk retention group, as defined in § 25–101 of this subtitle. Subsection (b)(1)(ii) of this section does not apply to a line or classification of liability insurance that: was defined in the Product Liability Risk Retention Act of 1981 on or before October 26, 1986; and was offered on or before October 26, 1986 by a risk retention group that had been chartered and operating for not less than 3 years on or before October 26, 1986. The risk retention group shall submit a copy of any material revision to its plan of operation or feasibility study equivalent to that required by § 25–102 of this subtitle within 30 days after the date of the approval of the revision by the commissioner of its chartering state or, if that approval is not required, within 30 days after filing. The Commissioner shall determine the filing fee for the statement of registration required by subsection (b)(1)(iii) of this section. All premiums paid in this State to risk retention groups chartered in another state for coverages are subject to taxation at the same rate and are subject to the same interest, fines, and penalties for nonpayment as are foreign admitted insurers. Each risk retention group subject to this subsection is liable for the payment of premium taxes and taxes on premiums of direct business for risks resident or located in the State. On or before March 1 of each year, each risk retention group shall report all premiums paid to it for risks resident or located in the State. If the risk retention group fails to pay the specified taxes, the taxes shall be paid by each of the risk retention group’s members whose risks are resident or located in the State. Each risk retention group, and each agent or representative of a risk retention group, shall comply with Title 27, Subtitle 3 of this article. Each risk retention group, and each agent or representative of a risk retention group, shall comply with all applicable insurance laws of the State regarding deceptive, false, or fraudulent acts or practices. The Commissioner may seek from a court an injunction regarding deceptive, false, or fraudulent acts or practices. A risk retention group shall submit to an examination by the Commissioner to determine its financial condition if the insurance commissioner of the jurisdiction in which the risk retention group is chartered and licensed has not initiated an examination or does not initiate an examination within 60 days after a request by the Commissioner. Each examination shall be coordinated to avoid unjustified repetition and conducted in an expeditious manner and in accordance with the National Association of Insurance Commissioners’ Examiner Handbook. Each application form for insurance from a risk retention group and each policy issued by a risk retention group for or on behalf of a resident of the State shall contain, in 10 point type on the front page and the declaration page, the following notice: “Notice This policy is issued by your risk retention group. Your risk retention group may not be subject to all of the insurance laws and regulations of your state. State insurance insolvency guaranty funds are not available for your risk retention group.” A risk retention group may not solicit or sell insurance to a person that is not eligible for membership in the risk retention group. A risk retention group that is in a hazardous financial condition or is financially impaired may not solicit or sell insurance, or operate as a risk retention group. Unless a risk retention group is comprised entirely of insurance companies, the risk retention group may not conduct business in this State if an insurance company is directly or indirectly a member or owner of the risk retention group. A risk retention group may not offer coverage that is prohibited by this article or declared unlawful by the Supreme Court of Maryland. If there has been a finding of financial impairment after an examination under subsection (f) of this section, a risk retention group that is not chartered in the State and that is doing business in the State shall comply with a lawful order issued in a voluntary dissolution proceeding or in a delinquency proceeding commenced by an insurance commissioner of a state.

A risk retention group may not join or contribute financially to an insurance insolvency guaranty fund or similar mechanism in the State. A risk retention group and its insureds may not receive a benefit from an insurance insolvency guaranty fund or similar mechanism for claims arising out of the operations of the risk retention group. When a purchasing group obtains insurance that covers the risks of its members from an unauthorized insurer or from a risk retention group, the risks, whether resident or located, may not be covered by an insurance insolvency guaranty fund or similar mechanism in the State. When a purchasing group obtains insurance that covers the risks of its members from an authorized insurer, only risks resident or located in the State shall be covered by the Property and Casualty Insurance Guaranty Corporation under Title 9, Subtitle 3 of this article.

A policy issued to a risk retention group or a member of that risk retention group may not be required to be countersigned.

Except as otherwise provided in paragraphs (2) and (3) of this subsection, a purchasing group is subject to all applicable laws of the State. A purchasing group that meets the criteria established under the federal Liability Risk Retention Amendments of 1986 is exempt from any law of the State that relates to the creation of groups for the purchase of insurance, prohibition of group purchasing, or any law that would discriminate against a purchasing group or its members. An insurer is exempt from any law of the State that prohibits providing or offering to provide to a purchasing group or its members advantages based on their loss and expense experience that are not afforded to other persons with respect to rates, policy forms, coverages, or other matters. Before doing business in the State, a purchasing group shall furnish notice to the Commissioner. The notice shall include: the state in which the purchasing group has its domicile; the lines and classifications of liability insurance that the purchasing group intends to purchase; the identity of all states in which the purchasing group intends to do business; the insurance company from which the purchasing group intends to purchase liability insurance and the domicile of that company; the method by which and any person through whom liability insurance will be offered to purchasing group members whose risks are resident or located in the State; the principal place of business of the purchasing group; and any other information that the Commissioner requires to verify that the purchasing group qualifies as a purchasing group, as defined in § 25-101 of this subtitle. Within 10 days of a change in an item set forth in paragraph (2) of this subsection, the purchasing group shall notify the Commissioner of the change in writing. A purchasing group shall provide to the Commissioner a statement of registration that designates the Commissioner as its agent for service of legal process. The Commissioner shall determine the filing fee for the statement of registration required by paragraph (1) of this subsection. The requirements of paragraph (1) of this subsection do not apply to a purchasing group that: had its domicile on or before March 31, 1986 in a state; and has its domicile on or after October 27, 1986 in a state; on or before October 26, 1986, purchased insurance from an insurer licensed in a state; and on or after October 27, 1986, purchased insurance from an insurer licensed in a state; was a purchasing group under the requirements of the Product Liability Risk Retention Act of 1981 on or before October 26, 1986; and only purchases insurance that was authorized under the Product Liability Risk Retention Act of 1981, as in effect on or before October 26, 1986. Unless the purchase is effected through a licensed insurance producer acting under the surplus lines insurance laws and regulations of a state, a purchasing group may not purchase insurance from a risk retention group that is not chartered in that state or from an insurer not authorized in the state in which the purchasing group is located. A purchasing group that obtains liability insurance from an unauthorized insurer or from a risk retention group shall inform each member of the purchasing group that has a risk resident or located in this State that: the risk is not protected by the Property and Casualty Insurance Guaranty Corporation; and the risk retention group or unauthorized insurer may not be subject to all insurance laws and regulations of the State. A purchasing group may not purchase insurance coverage that provides for a deductible or self-insured retention applicable to the purchasing group as a whole. Notwithstanding subparagraph (i) of this paragraph, a purchasing group may purchase insurance coverage that provides for a deductible or self-insured retention applicable to individual members. Taxes on premiums paid for coverage of risks resident or located in the State by a purchasing group or member of the purchasing group shall be imposed in accordance with Title 6 of this article. If the taxes imposed by Title 6 of this article are not paid by the insurer, then the taxes shall be paid by the purchasing group. If the purchasing group fails to pay the specified taxes, the taxes shall be paid by each of the purchasing group’s members whose risks are resident or located in the State.

A person must obtain a license from the Commissioner before the person acts or offers to act as an insurance producer for a risk retention group or purchasing group that solicits members, sells insurance coverage, purchases coverage for its members that are located in the State, or otherwise does business in the State. Each insurance producer acting on behalf of a risk retention group or purchasing group shall keep a complete and separate record of all policies procured from or on behalf of the risk retention group or purchasing group. The records required by paragraph (1) of this subsection shall be open to inspection by the Commissioner in accordance with § 2-206 of this article. The records required by paragraph (1) of this subsection shall include: the limits of liability; the policy period; the effective date of the policy; the name of the insurer that issued the policy; the gross premium charged; the name of the purchasing group that purchased the policy, if applicable; and the amount of any return premiums.

The Commissioner may exercise any powers granted by this article to enforce the laws of the State if the powers are not specifically preempted by the federal Product Liability Risk Retention Act of 1981 as amended by the risk retention amendments of 1986. The Commissioner may adopt regulations relating to risk retention groups to carry out this subtitle.

On a finding that a risk retention group is in a hazardous financial condition or is financially impaired, an order issued by a District Court of the United States that enjoins the risk retention group from soliciting or selling insurance or operating in a state, in all states, or in a territory or possession of the United States is enforceable in the courts of this State.

A risk retention group that violates any provision of this subtitle is subject to fines and penalties applicable to licensed insurers generally, including revocation of its license and the right to do business in the State.

This subtitle is the Maryland Risk Retention Act.