33-28-105. Formation of captive insurance companies. (1) A captive insurance company must be formed or organized as a business entity as provided in this chapter.
     (2) An association captive insurance company or an industrial insured captive insurance company may be:
     (a) incorporated as a stock insurer with its capital divided into shares and held by the stockholders;
     (b) incorporated as a mutual insurer without capital stock, the governing body of which is elected by the members of its association or associations; or
     (c) organized as a reciprocal insurer under Title 33, chapter 5.
     (3) A captive insurance company incorporated or organized in this state may not have less than three incorporators, at least one of whom must be a resident of this state.
     (4) (a) In the case of a captive insurance company formed as a business entity and before the organizational documents are transmitted to the secretary of state, the organizers shall file a copy of the proposed organizational documents and a petition with the commissioner requesting the commissioner to issue a certificate that finds that the establishment and maintenance of the proposed business entity will promote the general good of the state. In reviewing the petition, the commissioner shall consider:
     (i) the character, reputation, financial standing, and purposes of the organizers;
     (ii) the character, reputation, financial responsibility, insurance experience, and business qualifications of any officers and directors; and
     (iii) any other factors that the commissioner considers appropriate.
     (b) If the commissioner does not issue a certificate or finds that the proposed organizational documents of the captive insurance company do not meet the requirements of the applicable laws, including but not limited to 33-2-112, the commissioner shall refuse to approve the draft of the organizational documents and shall return the draft to the proposed organizers, together with a written statement explaining the refusal.
     (c) If the commissioner issues a certificate and approves the draft organizational documents, the commissioner shall forward the certificate and an approved draft of organizational documents to the proposed organizers. The organizers shall prepare two sets of the approved organizational documents and shall file one set with the secretary of state as required by the applicable law and one set with the commissioner.
     (5) The capital stock of a captive insurance company incorporated as a stock insurer may be authorized with no par value.
     (6) (a) At least one of the members of the board of directors of a captive insurance company must be a resident of this state.
     (b) In the case of a captive insurance company formed as a limited liability company, at least one of the managers must be a resident of the state.
     (c) In case of a reciprocal insurer, at least one of the members of the subscribers' advisory committee must be a resident of the state.
     (7) (a) A captive insurance company formed as a corporation or another business entity has the privileges and is subject to the provisions of general corporation law or the laws governing other business entities, as well as the applicable provisions contained in this chapter.
     (b) In the event of conflict between the provisions of general corporation law or the laws governing other business entities and this chapter, the provisions of this chapter control.
     (8) (a) With respect to a captive insurance company formed as a reciprocal insurer, the organizers shall petition and request that the commissioner issue a certificate that finds that the establishment and maintenance of the proposed association will promote the general good of the state. In reviewing the petition, the commissioner shall consider:
     (i) the character, reputation, financial standing, and purposes of the organizers;
     (ii) the character, reputation, financial responsibility, insurance experience, and business qualifications of the attorney-in-fact; and
     (iii) any other factors that the commissioner considers appropriate.
     (b) The commissioner may either approve the petition and issue the certificate or reject the petition in a written statement of the reasons for the rejection.
     (c) (i) A captive insurance company formed as a reciprocal insurer has the privileges and is subject to the provisions of Title 33, chapter 5, in addition to the applicable provisions of this chapter. If there is a conflict between Title 33, chapter 5, and this chapter, the provisions of this chapter control.
     (ii) The subscribers' agreement or other organizing document of a captive insurance company formed as a reciprocal insurer may authorize a quorum of a subscribers' advisory committee to consist of at least one-third of the number of its members.
     (d) A captive risk retention group has the privileges and is subject to the provisions of Title 33, chapter 11, and this chapter. If there is a conflict between Title 33, chapter 11, and this chapter, the provisions of this chapter prevail.
     (9) Except as provided in 33-28-306, the provisions of Title 33, chapter 3, pertaining to mergers, consolidations, conversions, mutualizations, and voluntary dissolutions apply in determining the procedures to be followed by captive insurance companies in carrying out any of those transactions.
     (10) (a) With respect to a branch captive insurance company, the foreign captive insurance company shall petition and request that the commissioner issue a certificate that finds that, after considering the character, reputation, financial responsibility, insurance experience, and business qualifications of the officers and directors of the foreign captive insurance company, the licensing and maintenance of the branch operation will promote the general good of the state. The foreign captive insurance company shall apply to the secretary of state for a certificate of authority to transact business in this state after the commissioner's certificate is issued.
     (b) A branch captive insurance company established pursuant to the provisions of this chapter to write in this state only insurance or reinsurance of the employee benefit business of its parent and affiliated companies is subject to provisions of the Employee Retirement Income Security Act of 1974, 29 U.S.C. 1001, et seq. In addition to the general provisions of this chapter, the provisions of this section apply to branch captive insurance companies.
     (c) A branch captive insurance company may not do any insurance business in this state unless it maintains the principal place of business for its branch operations in this state.

     History: En. Sec. 5, Ch. 298, L. 2001; amd. Sec. 11, Ch. 383, L. 2003; amd. Sec. 1, Ch. 205, L. 2005; amd. Sec. 38, Ch. 469, L. 2005; amd. Sec. 6, Ch. 518, L. 2007.