§ 3901. Definitions

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(a)As used in this chapter—

(1)“insurance” means primary insurance, excess insurance, reinsurance, surplus lines insurance, and any other arrangement for shifting and distributing risk which is determined to be insurance under applicable State or Federal law;

(2)“liability”—

(A)means legal liability for damages (including costs of defense, legal costs and fees, and other claims expenses) because of injuries to other persons, damage to their property, or other damage or loss to such other persons resulting from or arising out of—

(i)any business (whether profit or nonprofit), trade, product, services (including professional services), premises, or operations, or

(ii)any activity of any State or local government, or any agency or political subdivision thereof; and

(B)does not include personal risk liability and an employer’s liability with respect to its employees other than legal liability under the Federal Employers’ Liability Act (45 U.S.C. 51 et seq.);

(3)“personal risk liability” means liability for damages because of injury to any person, damage to property, or other loss or damage resulting from any personal, familial, or household responsibilities or activities, rather than from responsibilities or activities referred to in paragraphs (2)(A) and (2)(B);

(4)“risk retention group” means any corporation or other limited liability association—

(A)whose primary activity consists of assuming, and spreading all, or any portion, of the liability exposure of its group members;

(B)which is organized for the primary purpose of conducting the activity described under subparagraph (A);

(C)which—

(i)is chartered or licensed as a liability insurance company under the laws of a State and authorized to engage in the business of insurance under the laws of such State; or

(ii)before January 1, 1985, was chartered or licensed and authorized to engage in the business of insurance under the laws of Bermuda or the Cayman Islands and, before such date, had certified to the insurance commissioner of at least one State that it satisfied the capitalization requirements of such State, except that any such group shall be considered to be a risk retention group only if it has been engaged in business continuously since such date and only for the purpose of continuing to provide insurance to cover product liability or completed operations liability (as such terms were defined in this section before October 27, 1986);

(D)which does not exclude any person from membership in the group solely to provide for members of such a group a competitive advantage over such a person;

(E)which—

(i)has as its owners only persons who comprise the membership of the risk retention group and who are provided insurance by such group; or

(ii)has as its sole owner an organization which has as—

(I)its members only persons who comprise the membership of the risk retention group; and

(II)its owners only persons who comprise the membership of the risk retention group and who are provided insurance by such group;

(F)whose members are engaged in businesses or activities similar or related with respect to the liability to which such members are exposed by virtue of any related, similar, or common business, trade, product, services, premises, or operations;

(G)whose activities do not include the provision of insurance other than—

(i)liability insurance for assuming and spreading all or any portion of the similar or related liability exposure of its group members; and

(ii)reinsurance with respect to the similar or related liability exposure of any other risk retention group (or any member of such other group) which is engaged in businesses or activities so that such group (or member) meets the requirement described in subparagraph

(F)for membership in the risk retention group which provides such reinsurance; and

(H)the name of which includes the phrase “Risk Retention Group”.1

(5)“purchasing group” means any group which—

(A)has as one of its purposes the purchase of liability insurance on a group basis;

(B)purchases such insurance only for its group members and only to cover their similar or related liability exposure, as described in subparagraph (C);

(C)is composed of members whose businesses or activities are similar or related with respect to the liability to which members are exposed by virtue of any related, similar, or common business, trade, product, services, premises, or operations; and

(D)is domiciled in any State;

(6)“State” means any State of the United States or the District of Columbia; and

(7)“hazardous financial condition” means that, based on its present or reasonably anticipated financial condition, a risk retention group is unlikely to be able—

(A)to meet obligations to policyholders with respect to known claims and reasonably anticipated claims; or

(B)to pay other obligations in the normal course of business.

(b)Nothing in this chapter shall be construed to affect either the tort law or the law governing the interpretation of insurance contracts of any State, and the definitions of liability, personal risk liability, and insurance under any State law shall not be applied for the purposes of this chapter, including recognition or qualification of risk retention groups or purchasing groups.

(Pub. L. 97–45, § 2, Sept. 25, 1981, 95 Stat. 949; Pub. L. 98–193, Dec. 1, 1983, 97 Stat. 1344; Pub. L. 99–563, §§ 3, 4, 12(b), Oct. 27, 1986, 100 Stat. 3170, 3171, 3177.)

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