58-6A-1. Definition of terms.

Terms used in this chapter mean:

(1)    "Board of directors" or "board," the governing body of the risk retention group as elected by the shareholders or members to establish policy, elect or appoint officers and committees, and make other governing decisions;

(2)    "Completed operations liability," any liability arising out of the installation, maintenance, or repair of any product at a site which is not owned or controlled by:

(a)    Any person who performs installation, maintenance, or repair of any product; or

(b)    Any person who hires an independent contractor to perform installation, maintenance, or repair of any product; but includes liability for activities which are completed or abandoned before the date of the occurrence giving rise to the liability;

(3)    "Director," the insurance director of South Dakota or the commissioner, director, or superintendent of insurance in any other state;

(4)    "Director of the risk retention group," an individual designated in the articles of the risk retention group, or designated, elected, or appointed by any other manner, name, or title to act as a director;

(5)    "Domicile," for purposes of determining the state in which a purchasing group is domiciled:

(a)    For a corporation, the state in which the purchasing group is incorporated; and

(b)    For an unincorporated entity, the state of its principal place of business;

(6)    "Hazardous financial condition," based on its present or reasonably anticipated financial condition, a risk retention group, although not yet financially impaired or insolvent, which 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;

(7)    "Insurance," primary insurance, excess insurance, reinsurance, surplus lines insurance, and any other arrangement for shifting and distributing risk which is determined to be insurance under the laws of this state;

(8)    "Liability," legal liability for damages, including costs of defense, legal costs and fees, and other claims expenses because of injury to a person, damage to the person's property, or other damage or loss to any other person resulting from or arising out of any business, whether profit or nonprofit, trade, product, services, including professional services, premises or operations. It 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.);

(9)    "Personal risk liability," liability for damages because of injury to any person, damage to property, or other loss or damage resulting from any personal, family or household responsibilities or activities, rather than from responsibilities or activities referred to in subdivision (8);

(10)    "Plan of operation or a feasibility study," an analysis which presents the expected activities and results of a risk retention group including, at a minimum:

(a)    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 the group intends to offer;

(b)    Historical and expected loss experience of the proposed members and national experience of similar exposures to the extent that this experience is reasonably available;

(c)    Pro forma financial statements and projections;

(d)    Appropriate opinions by a qualified, independent casualty actuary, including a determination of minimum premium or participation levels required to commence operations and to prevent a hazardous financial condition;

(e)    Identification of management, underwriting procedures, managerial oversight methods, investment policies, and reinsurance agreements;

(f)    Information sufficient to verify that the risk retention group's members are engaged in businesses or activities similar or related with respect to the liability to which the members are exposed by virtue of any related, similar, or common business, trade, product, services, premises, or operations;

(g)    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; and

(h)    Other matters as may be prescribed by the director, supervisor, or commissioner of the state in which the risk retention group is chartered for liability insurance companies authorized by the insurance laws of that state;

(11)    "Product liability," liability for damages because of any personal injury, death, emotional harm, consequential economic damage, or property damage, including damages resulting from the loss of use of property, arising out of the manufacture, design, importation, distribution, packaging, labeling, lease, or sale of a product, but does not include the liability of any person for those damages if the product involved was in the possession of such a person when the incident giving rise to the claim occurred;

(12)    "Purchasing group," 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 subsection (c) herein;

(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;

(13)    "Risk retention group," any corporation or other limited liability association formed under the laws of any state, Bermuda, or the Cayman Islands:

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

(b)    Which is organized for the primary purpose of conducting the activity described under subsection (a);

(c)    Which is chartered and licensed as a liability insurance company and authorized to engage in the business of insurance under the laws of any state; or 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 director 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;

(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 has as its members only persons who have an ownership interest in the group and which has as its owners only persons who are members who are provided insurance by the risk retention group; or has as its sole member and sole owner an organization which is owned by persons who are provided insurance by the risk retention group;

(f)    Whose members are engaged in businesses or activities similar or related with respect to the liability of 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 liability insurance for assuming and spreading all or any portion of the liability of its group members; and reinsurance with respect to the liability of any other risk retention group or any members of such other group which is engaged in businesses or activities so that such group or member meets the requirement described in subsection (f) from membership in the risk retention group which provides such reinsurance; and

(h)    The name of which includes the term, risk retention group;

(14)    "Service provider," any auditor, accountant, actuary, investment advisor, lawyer, managing general underwriter, or any other party responsible for underwriting, determination of rates, collection of premiums, adjusting and settling a claim, or the preparation of a financial statement. The term, lawyer, in this definition does not include defense counsel retained by the risk retention group to defend claims, unless the amount of fees paid to the lawyer is material as referenced in § 58-6A-3.2;

(15)    "State," any state of the United States or the District of Columbia.

Source: SL 1987, ch 372, § 1; SL 2016, ch 232, § 2.