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Code of Virginia
Title 38.2. Insurance
Chapter 15. Rehabilitation and Liquidation of Insurers
10/21/2021

Chapter 15. Rehabilitation and Liquidation of Insurers.

§ 38.2-1500. Scope of chapter.

This chapter shall, except as otherwise stated, apply to every insurer transacting, attempting to transact, or representing itself as transacting an insurance business in this Commonwealth, or which is in the process of organization as an insurer.

1952, c. 317, § 38.1-126; 1986, c. 562.

§ 38.2-1501. Definitions.

As used in this chapter:

"Actual direct compensatory damages" does not include punitive damages, damages for lost profit or lost opportunity, or damages for pain and suffering, but does include normal and reasonable costs of cover or other reasonable measures of damages utilized in the derivatives, securities, or other market for the contract and agreement claims.

"Association" means the Virginia Property and Casualty Insurance Guaranty Association created by Chapter 16 (§ 38.2-1600 et seq.) or the Virginia Life, Accident and Sickness Insurance Guaranty Association created by Chapter 17 (§ 38.2-1700 et seq.) or any person performing a similar function in another state.

"Commodity contract" means:

1. A contract for the purchase or sale of a commodity for future delivery on, or subject to the rules of, a board of trade or contract market under the Commodity Exchange Act (7 U.S.C. § 1 et seq.) or a board of trade outside the United States;

2. An agreement that is subject to regulation under § 19 of the Commodity Exchange Act (7 U.S.C. § 1 et seq.) and that is commonly known to the commodities trade as a margin account, margin contract, leverage account, or leverage contract;

3. An agreement or transaction that is subject to regulation under § 4c(b) of the Commodity Exchange Act (7 U.S.C. § 1 et seq.) and that is commonly known to the commodities trade as a commodity option;

4. Any combination of the agreements or transactions referred to in this definition; or

5. Any option to enter into an agreement or transaction referred to in this definition.

"Contractual right" as used in § 38.2-1522 includes any right set forth in a rule or bylaw of a derivatives clearing organization as defined in the Commodity Exchange Act, a multilateral clearing organization as defined in the Federal Deposit Insurance Corporation Improvement Act of 1991, a national securities exchange, a national securities association, a securities clearing agency, a contract market designated under the Commodity Exchange Act, a derivatives transaction execution facility registered under the Commodities Exchange Act, or a board of trade as defined in the Commodity Exchange Act, or in a resolution of the governing board thereof and any right, whether or not evidenced in writing, arising under statutory or common law, under law merchant, or by reason of normal business practice.

"Delinquency proceeding" means any proceeding commenced against an insurance company for the purpose of liquidating, rehabilitating, reorganizing, or conserving an insurer.

"Forward contract," "repurchase agreement," "securities contract," and "swap agreement" have the meanings set forth with respect thereto in 12 U.S.C. § 1821(e)(8)(D), as amended.

"Insolvent" means (i) the condition of an insurer that has liabilities in excess of assets or (ii) the inability of an insurer to pay its obligations as they become due in the usual course of business.

"Netting agreement" means:

1. A contract or agreement, including terms and conditions incorporated by reference in it, including a master agreement, which master agreement, together with all schedules, confirmations, definitions, and addenda to it and transactions under any of them, shall be treated as one netting agreement, that documents one or more transactions between the parties to the agreement for or involving one or more qualified financial contracts and that provides for the netting, liquidation, setoff, termination, acceleration, or close-out, under or in connection with one or more qualified financial contracts or present or future payment or delivery obligations or payment or delivery entitlements under it, including liquidation or close-out values relating to those obligations or entitlements, among the parties to the netting agreement;

2. Any master agreement or bridge agreement for one or more master agreements described in subdivision 1 of this definition; or

3. Any security agreement or arrangement or other credit enhancement or guarantee or reimbursement obligation related to any contract or agreement described in subdivision 1 or 2 of this definition, provided that any contract or agreement described in subdivision 1 or 2 of this definition relating to agreements or transactions that are not qualified financial contracts shall be deemed to be a netting agreement only with respect to those agreements or transactions that are qualified financial contracts.

"Qualified financial contract" means any commodity contract, forward contract, repurchase agreement, securities contract, swap agreement, or any similar agreement that the Commission determines to be a qualified financial contract for the purposes of this chapter.

"Receiver" means the Commission or any person appointed to manage delinquency proceedings.

1952, c. 317, § 38.1-127; 1986, c. 562; 2011, c. 198; 2015, c. 710.

§ 38.2-1502. Jurisdiction and procedure.

The jurisdiction of delinquency proceedings shall be determined by general law, except that if the Commission files a delinquency proceeding application, it shall be filed with the Circuit Court of the City of Richmond. Unless otherwise provided, all delinquency proceedings shall be conducted as a suit in equity.

1952, c. 317, § 38.1-128; 1986, c. 562.

§ 38.2-1503. Grounds for delinquency proceedings commenced by Commission against domestic insurer.

Delinquency proceedings may be commenced by the Commission against any domestic insurer whenever the insurer:

1. Has been determined to be insolvent by the Commission;

2. Has refused to submit its books, papers, accounts, records, or affairs to the reasonable inspection of the Commission or its representative;

3. Has refused or failed to comply with any order of the Commission to make good within the time prescribed by law (i) any impairment of its minimum capital and surplus if the insurer is a stock insurer, (ii) any impairment of its minimum surplus if the insurer is other than a stock insurer, or (iii) membership requirements as set forth in § 38.2-2515 if the insurer is a mutual assessment property and casualty insurer and has had its license revoked;

4. Has transferred or attempted to transfer substantially its entire property, or has entered into any transaction which merges substantially its entire property or business, into the property or business of any other company without prior written approval of the Commission;

5. Has removed, attempted to remove, or is about to remove from this Commonwealth any material part of its property or business necessary for the continued conduct of its business if it endangers the interests of its policyholders, stockholders or members;

6. Has reinsured all or substantially all of its risks without prior written approval of the Commission;

7. Is found, after an examination, to be in a condition where any further transaction of business will be hazardous to its policyholders, creditors, members, subscribers, stockholders, or to the public;

8. Has willfully violated its charter or any law of this Commonwealth;

9. Has an officer, director or manager who has refused to be examined under oath concerning its affairs;

10. Has had any material part of its entire property sequestered in any other state or country;

11. Has not organized or completed its organization and obtained a license to transact the business of insurance in this Commonwealth within the period of time set by law; or

12. Has failed to pay a final judgment rendered against it in any state upon any insurance contract issued or assumed by it (i) within sixty days after the judgment has become final, (ii) within sixty days after time for taking an appeal has expired, or (iii) within sixty days after dismissal of an appeal before final determination, whichever date is the latest.

Code 1950, § 38-138; 1952, c. 317, § 38.1-129; 1986, c. 562.

§ 38.2-1504. Requirements when proceedings instituted by any person other than Commission.

A. No circuit court in this Commonwealth shall appoint a receiver for any domestic insurer on application of any person other than the Commission until:

1. The applicant has presented to the Commission a copy of a bill in equity for receivership and has given reasonable notice to the affected insurer that a copy of the bill has been presented to the Commission.

2. The affected insurer has been given ten days after the service of this notice to present to the Commission a copy of the answer that it proposes to file.

3. The Commission has investigated the merits of the application for receivership and has held a hearing on the results of the investigation. The Commission shall act within a reasonable period of time.

4. Within a reasonable time after completing its investigation, the Commission shall make a recommendation to the proper court regarding the appointment of the proposed receiver.

B. The court shall appoint or refuse to appoint the proposed receiver after considering the merits of the application for a receiver.

1952, c. 317, § 38.1-130; 1986, c. 562.

§ 38.2-1505. Commission may apply for receiver and for other relief; what orders court may enter.

A. Whenever the Commission finds that any of the grounds for rehabilitation or liquidation of a domestic insurer set out in § 38.2-1503 exist, it may apply to the Circuit Court of the City of Richmond for an order directing the insurer to show cause on or before a designated date (i) why a receiver other than the Commission should not be appointed for the insurer, (ii) why an order should not be entered authorizing the Commission, as a receiver, to proceed with the rehabilitation or liquidation of the insurer or (iii) why other appropriate steps authorized by this chapter should not be taken. The application and order may include any other relief as the nature of the case and the interests of the policyholders, creditors, stockholders, members of the insurer and of the public may require. A copy of the application and the order to show cause shall be served upon the insurer and shall constitute legal process. The State Treasurer shall be made a party to the proceeding.

B. On or after the return of the order to show cause, and after a full hearing, the court shall either deny the application, appoint a receiver for the insurer, authorize the Commission to proceed with the rehabilitation or liquidation of the insurer or to take any other appropriate proceedings as the Commission considers advisable.

Code 1950, §§ 38-138, 38-139; 1952, c. 317, § 38.1-131; 1986, c. 562.

§ 38.2-1506. Requirements when receiver appointed; disbursement of available assets to association, etc.

A. Whenever a receiver, other than the Commission, is appointed pursuant to § 38.2-1504 for any domestic insurer other than an insurer writing exclusively title, fidelity and surety, credit or ocean marine insurance, the receiver shall petition the court for approval of a plan to disburse the assets. This shall be completed within 120 days of a final determination by the Commission that the insurer is insolvent. After the application of an association for an insolvent insurer's available assets has been granted, the insolvent insurer's assets will be disbursed to any association entitled to them as they become available.

B. The plan shall include provisions for the receiver to take all the actions required by subsections B and C of § 38.2-1509.

C. Notice of the petition by the receiver to the court for approval of a plan to disburse an insurer's assets shall be given to the associations and the commissioners of insurance of the other states. This notice shall be deemed given when sent by certified mail at least thirty days before submission of the petition to the court. Action on the petition may be taken by the court or a judge of the court if the required notice has been given and the plan of the receiver contains the provisions set forth in this section.

1978, c. 696, § 38.1-131.1; 1986, c. 562.

§ 38.2-1507. Further procedure; injunction may be issued.

The court may issue an injunction restraining the insurer and its officers, directors, stockholders, members, trustees, agents, employees and all other persons from transacting any business of the insurer, and from transferring, removing or disposing of its property or business until a further order of the court. The injunction may be issued on or after the institution of any delinquency proceeding, except where the rehabilitation or liquidation of the insurer has been referred to the Commission. If the Commission is authorized to proceed with the rehabilitation or liquidation, it may issue injunctions or enter any other appropriate order for the protection of the insurer's policyholders and creditors and the preservation of its property.

Code 1950, § 38-139; 1952, c. 317, § 38.1-132; 1986, c. 562.

§ 38.2-1508. Powers of Commission when authorized to rehabilitate or liquidate companies.

Whenever the Commission is authorized to act as a receiver to rehabilitate or liquidate an insurer or to take any other authorized steps that it considers advisable in connection with the affairs of the insurer, it shall have all the power and authority of a court of record as provided in Article IX, Section 3 of the Constitution of Virginia. All further proceedings in connection with the rehabilitation or liquidation shall be conducted by the Commission without any control or supervision by the court to which the application was made. For the violation of any injunction or order issued under this chapter, the Commission shall have the same power to punish for contempt as a court. The Commission may deal with the property and affairs of the insurer in its own name or in the name of the insurer. The Commission shall be vested by law with the title to all of the property, contracts and rights of action of the insurer as of the date shown by the order of the court referred to in § 38.2-1507. The filing or recording of the order in any clerk's office in this Commonwealth shall give the same notice that a deed, bill of sale or other evidence of properly filed or recorded title have given.

Code 1950, § 38-140; 1952, c. 317, § 38.1-133; 1971, Ex. Sess., c. 1; 1986, c. 562; 1992, c. 468.

§ 38.2-1509. Powers of Commission when authorized to rehabilitate or liquidate insurers by court order; disbursement of available assets to an association, etc.

A. Whenever the Commission is authorized by order of the Circuit Court of the City of Richmond to rehabilitate or liquidate any domestic insurer other than an insurer writing exclusively title, fidelity and surety, credit or ocean marine insurance, the Commission shall disburse the assets as they become available to an association. Disbursal shall not be made until an application has been filed with the Commission by an association for an insolvent insurer's available assets.

B. The Commission shall disburse the assets of an insolvent insurer as they become available in the following manner:

1. Pay, after reserving for the payment of the costs and expenses of administration, according to the following priorities: (i) claims of secured creditors with a perfected security interest not voidable under § 38.2-1513 to the extent of the value of their security, (ii) claims of the associations for "covered claims" and "contractual obligations" as defined in §§ 38.2-1603 and 38.2-1701 and claims of other policyholders arising out of insurance contracts apportioned without preference, (iii) taxes owed to the United States and other debts owed to any person, including the United States, which by the laws of the United States are entitled to priority, (iv) wages entitled to priority as provided in § 38.2-1514, and (v) other creditors; and

2. Equitably allocate disbursements to each of the entitled associations; and

3. Secure an agreement from each of the entitled associations requiring the return to the Commission of any assets previously disbursed to the association required to pay claims entitled to priority in subdivision 1 of this subsection. No bond shall be required of any entitled association; and

4. Require a full report to be made by the association to the Commission accounting for all assets disbursed to the association, all disbursements made from these assets, any interest earned on these assets and any other matter as the Commission may require.

C. The Commission shall provide for disbursements to the association in an amount estimated at least equal to the claim payments made or to be made by the association for which the association could assert a claim against the Commission. In addition, the Commission shall provide that if the assets available for disbursement do not equal or exceed the amount of claim payments made or to be made by the associations, then disbursements shall be in the amount of available assets.

D. The Commission shall notify the affected associations and the commissioners of insurance in the other states of any disbursement made according to this section. The notice shall be deemed given when sent by certified mail at least thirty days prior to disbursement.

1978, c. 696, § 38.1-133.1; 1979, c. 385; 1986, c. 562; 1996, c. 81.

§ 38.2-1510. Commission may appoint assistants in connection with rehabilitation or liquidation.

The Commission shall have power to appoint one or more special deputies as its agent and to employ the counsel, clerks, and assistants considered necessary to efficiently conduct the rehabilitation or liquidation. The Commission may delegate to its agent any of its powers which are necessary to carry out the rehabilitation or liquidation. The compensation of the special deputy commissioners, counsel, clerks and assistants, and all expenses relating to the rehabilitation or liquidation of any insurer shall be set by the Commission and upon certification by the Commission be paid out of the insurer's assets.

Code 1950, § 38-141; 1952, c. 317, § 38.1-134; 1986, c. 562.

§ 38.2-1511. Borrowing on pledge of assets.

For the purpose of facilitating the delinquency proceeding of an insurer, the Commission, or a receiver other than the Commission with the approval of the court, may borrow money and execute, acknowledge, and deliver notes or other evidences of indebtedness and secure the repayment by mortgage, pledge, assignment, transfer in trust, or hypothecation of any or all of the property, real, personal or mixed, of the insurer. The Commission, or a receiver other than the Commission with the approval of the court, shall have power to take any action necessary and proper to consummate any loans and to provide for repayment. No note or other evidence of indebtedness made or executed by the receiver shall impose upon the receiver any liability except with respect to the assets and other property of the insurer.

1952, c. 317, § 38.1-135; 1986, c. 562.

§ 38.2-1512. Rights and liabilities fixed upon liquidation.

The rights and liabilities of an insurer and of its creditors, policyholders, stockholders, members, and all other persons interested in the property and assets of the insurer, shall be fixed as of the date of the entry of the order directing the liquidation of the insurer unless otherwise provided by law. The rights of claimants holding contingent claims on that date shall be determined by this chapter.

1952, c. 317, § 38.1-136; 1986, c. 562.

§ 38.2-1513. Voidable transfers.

A. Any transfer of or lien upon the property of an insurer that is made or created within four months before the institution of delinquency proceedings under this chapter shall be voidable if (i) done with the intent of giving or enabling any creditor to obtain a greater percentage of payment of the debt than any other creditor of the same class and (ii) the creditor accepting the transfer has reasonable cause to believe that a preference will occur.

B. Every director, officer, employee, stockholder, member, subscriber, and other person acting on behalf of an insurer who is involved in any act described in subsection A of this section, and every person receiving property of an insurer as a result of this act, shall be personally liable and held accountable to the receiver.

C. A receiver in any proceeding under this chapter may avoid any transfer of or lien upon the property of an insurer that any creditor, stockholder, subscriber or member of the insurer might have avoided. The receiver may also recover the transferred property unless the person was a valid holder for value before the date of the institution of delinquency proceedings under this chapter. The property or its value may be recovered from anyone who has received it except as a valid holder for value as specified in this subsection.

1952, c. 317, § 38.1-137; 1986, c. 562.

§ 38.2-1514. Priority of claims for wages.

Before the payment of any other debt or claim, other than those for which a higher priority is established in § 38.2-1509, compensation shall be paid to employees other than officers of an insurer for services rendered within three months before the commencement of the delinquency proceedings. The payment shall not exceed $1,000 for each employee. At the discretion of the Commission, or a receiver other than the Commission with the approval of the court, payment may be made as soon as practicable. This priority shall be superior to any other similar priority authorized by law regarding wages or compensation of the employees.

Nothing in this section shall prohibit a receiver from allocating sufficient funds to cover the expenses of administration.

1952, c. 317, § 38.1-138; 1986, c. 562; 1996, c. 81.

§ 38.2-1515. Mutual debts or credits, how treated.

A. In all cases of mutual debts or mutual credits between the insurer and another person in connection with any action or proceeding under this chapter, the credits and debts shall be set off and the balance only shall be allowed or paid, except as provided in subsection B of this section.

B. No offset shall be allowed in favor of any person where:

1. The obligation of the insurer to the person would not entitle him at the date of the entry of any rehabilitation or liquidation order to share as a claimant in the assets of the insurer;

2. The obligation of the insurer to the person was purchased by or transferred to the person with a view of its being used as an offset; or

3. The obligation of the person is to pay (i) an assessment levied against the members of a mutual insurer or the subscribers of a reciprocal insurer, or (ii) a balance upon a subscription to the capital stock of a stock insurer.

1952, c. 317, § 38.1-139; 1986, c. 562.

§ 38.2-1516. Receivers to file reports, etc., with Commission.

Each receiver appointed in delinquency proceedings shall file with the Commission annually a report of the affairs of the insurer in the form prescribed by the Commission. Each receiver shall file with the Commission copies of all reports, petitions, court orders, and other pertinent papers dealing with the delinquency proceeding.

Code 1950, § 38-142; 1952, c. 317, § 38.1-140; 1986, c. 562.

§ 38.2-1517. What included in annual report of Commission.

The Commission shall include in its annual report the names of all insurers against which delinquency proceedings are pending under this chapter, and the names and addresses of any receivers of the insurers. The report shall show whether or not the insurers have resumed business or have been liquidated, and shall contain any other matter that will inform the policyholders, creditors, stockholders, members and the public of the current status of the proceeding regarding each insurer.

Code 1950, § 38-142; 1952, c. 317, § 38.1-141; 1986, c. 562.

§ 38.2-1518. Rehabilitation or mutualization of companies.

If at any time the Commission acting as the receiver finds that it is in the best interests of the policyholders and creditors of a delinquent insurer that it be rehabilitated or mutualized, the Commission shall prepare a plan of rehabilitation or mutualization. If at any time a receiver, other than the Commission, of a delinquent insurer reports to the court that it is in the best interests of the policyholders and creditors of the insurer that it be rehabilitated or mutualized, the receiver shall submit a plan of rehabilitation or mutualization to the court for its approval. The plan may include a provision imposing liens upon the net equities of policyholders of the insurer, and in the case of life insurers, a provision imposing a moratorium upon the loan or cash surrender values of the policies for whatever period of time is necessary. A hearing on the plan shall be held and notice of the hearing given in a manner prescribed by either the Commission or the court. After the hearing, the plan may be approved, disapproved, or modified by the Commission or the court.

Code 1950, § 38-139; 1952, c. 317, § 38.1-142; 1986, c. 562.

§ 38.2-1519. Termination of rehabilitation; when liquidation may be entered.

A. If either the Commission or the court determines that the purposes of the rehabilitation proceeding have been accomplished and that the insurer can safely and properly resume possession of its property and the conduct of its business, an order may be entered terminating the rehabilitation proceeding and permitting the insurer to resume possession of its property and the management and conduct of its affairs. The order shall not be entered until a full hearing is held, subject to proper notice given in the manner prescribed by the Commission or the court.

B. If at any time it appears to either the Commission or the court that further efforts to rehabilitate the insurer would be useless, an order of liquidation may be entered.

Code 1950, § 38-139; 1952, c. 317, § 38.1-143; 1986, c. 562.

§ 38.2-1520. Liquidation of alien insurers.

Proceedings in liquidation of the business of the United States branch of an alien insurer having trusteed assets in this Commonwealth may be instituted and conducted in the manner prescribed in this chapter for domestic insurers. However, only the assets of the business of the United States branch shall be included in the proceedings.

1952, c. 317, § 38.1-144; 1986, c. 562.

§ 38.2-1521. Conservation of assets of foreign or alien insurer; when liquidation may be entered.

A. Proceedings against a foreign or alien insurer for the conservation of the insurer's assets within this Commonwealth may be instituted and conducted in the manner prescribed in this chapter for delinquency proceedings against a domestic insurer on any one or more of the applicable grounds specified in § 38.2-1503. The order of conservation shall direct the receiver to take possession of the assets of the insurer within this Commonwealth and conserve the assets for the benefit of its policyholders and for any other purpose as the nature of the cause and the interests of its policyholders, creditors, members, stockholders or the public require.

B. If the laws of any other state or country provide for the conservation, liquidation and distribution of a foreign or alien insurer's assets to creditors, policyholders, and other entitled persons, then the receiver appointed in this Commonwealth to conserve the foreign or alien insurer's assets within this Commonwealth may proceed to liquidate the business of the insurer in this Commonwealth and distribute the assets to those entitled to them. In all other cases the rights, powers, and duties of the Commission or the receiver with respect to the assets of a foreign or alien insurer shall be ancillary to the rights, powers, and duties imposed upon any receiver or other person in charge of the property, business, and affairs of the insurer in its domiciliary state or country.

1952, c. 317, § 38.1-145; 1986, c. 562.

§ 38.2-1522. Qualified financial contracts.

A. Notwithstanding any other provision of this chapter, including any other provision of this chapter permitting the modification of contracts, or other state law, no person shall be stayed or prohibited from exercising:

1. A contractual right to cause the termination, liquidation, acceleration, or close-out of obligations under or in connection with any netting agreement or qualified financial contract with an insurer because of:

a. The insolvency, financial condition, or default of the insurer at any time, provided that the right is enforceable under applicable law other than this chapter; or

b. The commencement of a delinquency proceeding under this chapter;

2. Any right under a pledge, security, collateral, reimbursement, or guarantee agreement or arrangement or any other similar arrangement, or other credit enhancement relating to one or more netting agreements or qualified financial contracts;

3. Subject to subdivision B 2 of § 38.2-1515, any right to set off or net out any termination value, payment amount, or other transfer obligation arising under or in connection with one or more qualified financial contracts where the counterparty or its guarantor is organized under the laws of the United States or a state or a foreign jurisdiction approved by the Securities Valuation Office of the National Association of Insurance Commissioners as eligible for netting; or

4. A right to claim damages if a counterparty to a master netting agreement or a qualified financial contract with an insurer subject to a proceeding under this chapter terminates, liquidates, closes out, or accelerates the agreement or contract, which damages shall be measured as of the date or dates of termination, liquidation, close-out, or acceleration. The amount of a claim for damages shall be actual direct compensatory damages calculated in accordance with subsection F.

B. Upon termination of a netting agreement or qualified financial contract, the net or settlement amount, if any, owed by a nondefaulting party to an insurer against which an application has been filed under this chapter shall be transferred to or on the order of the receiver for the insurer, even if the insurer is the defaulting party, notwithstanding any walkaway clause in the netting agreement or qualified financial contract. For purposes of this subsection, "walkaway clause" means a provision in a netting agreement or a qualified financial contract that, after calculation of a value of a party's position or an amount due to or from one of the parties in accordance with its terms upon termination, liquidation, or acceleration of the netting agreement or qualified financial contract, either does not create a payment obligation of a party or extinguishes a payment obligation of a party in whole or in part solely because of the party's status as a nondefaulting party. Any limited two-way payment or first method provision in a netting agreement or qualified financial contract with an insurer that has defaulted shall be deemed to be a full two-way payment or second method provision as against the defaulting insurer. Any such property or amount shall, except to the extent it is subject to one or more secondary liens or encumbrances, or rights of netting or setoff, be a general asset of the insurer.

C. In making any transfer of a netting agreement or qualified financial contract of an insurer subject to a proceeding under this chapter, the receiver shall either:

1. Transfer to one party, other than an insurer subject to a delinquency proceeding under this chapter, all netting agreements and qualified financial contracts between a counterparty or any affiliate of the counterparty and the insurer that is the subject of the proceeding, including:

a. All rights and obligations of each party under each netting agreement and qualified financial contract; and

b. All property, including any guarantees or other credit enhancement, securing any claims of each party under each netting agreement and qualified financial contract; or

2. Transfer none of the netting agreements, qualified financial contracts, rights, obligations, or property referred to in subdivision 1, with respect to the counterparty and any affiliate of the counterparty.

D. If a receiver of an insurer subject to a delinquency proceeding makes a transfer of one or more netting agreements or qualified financial contracts, then the receiver shall use its best efforts to notify any person who is party to the netting agreements or qualified financial contracts of the transfer by 12:00 noon, the receiver's local time, on the business day following the transfer. For purposes of this section, "business day" means a day other than a Saturday, Sunday, or any day on which either the New York Stock Exchange or the Federal Reserve Bank of New York is closed.

E. Notwithstanding any other provision of this chapter, including § 38.2-1513, a receiver may not avoid a transfer of money or other property arising under or in connection with a netting agreement or qualified financial contract, or any pledge, security, collateral, or guarantee agreement or any other similar security arrangement or credit support document relating to a netting agreement or qualified financial contract, that is made before the commencement of a delinquency proceeding under this chapter. However, a transfer may be avoided under § 38.2-1513 if the transfer was made with actual intent to hinder, delay, or defraud the insurer, a receiver appointed for the insurer, or existing or future creditors.

F. In exercising the receiver's rights of disaffirmance or repudiation with respect to any netting agreement or qualified financial contract to which an insurer is a party, the receiver for the insurer shall either:

1. Disaffirm or repudiate all netting agreements and qualified financial contracts between a counterparty or any affiliate of the counterparty and the insurer that is the subject of the proceeding; or

2. Disaffirm or repudiate none of the netting agreements and qualified financial contracts referred to in subdivision 1, with respect to the person or any affiliate of the person.

G. Notwithstanding any other provision of this chapter, provided the receiver disaffirms or repudiates a netting agreement or qualified financial contract within a reasonable period after the commencement of a delinquency proceeding, any claim of a counterparty against the estate arising from the receiver's disaffirmance or repudiation of a netting agreement or qualified financial contract that has not been previously affirmed in the liquidation or immediately preceding rehabilitation shall be determined and shall be allowed or disallowed as if the claim had arisen before the date of the filing of the petition for liquidation or, if a rehabilitation is converted to a delinquency proceeding, as if the claim had arisen before the date of the filing of the petition for rehabilitation. The amount of the claim shall be the actual direct compensatory damages determined as of the date of the disaffirmance or repudiation of the netting agreement or qualified financial contract.

H. The provisions of this section shall not apply to persons who are affiliates of the insurer that is the subject of the proceeding.

I. All rights of counterparties under this chapter shall apply to netting agreements and qualified financial contracts entered into on behalf of the general account and any separate account if the assets of such separate account are available only to counterparties to netting agreements and qualified financial contracts and entered into on behalf of such separate account.

2011, c. 198.