Virginia Law

The purposes of this chapter are:

1. To assure stability in the property insurance market of this Commonwealth;

2. To assure the availability of basic property insurance for qualified property;

3. To encourage maximum use of the voluntary insurance market provided by licensed insurers in obtaining basic property insurance; and

4. To provide for the equitable distribution among licensed insurers of the responsibility for insuring qualified property for which basic property insurance cannot be obtained through the voluntary insurance market.

1968, c. 559, § 38.1-746; 1986, c. 562.

As used in this chapter:

"Basic property insurance" means insurance against direct loss to any property caused by perils defined and limited in the standard fire policy prescribed in §§ 38.2-2101 through 38.2-2112, and in the extended coverage endorsement approved by the Commission pursuant to § 38.2-2117 and such additional lines of insurance and forms of coverage as may be recommended by the governing body of the residual market facility and approved by the Commission.

"Inspection service" means any organization designated or approved by the Commission to determine the insurability and conditions of the properties for which basic property insurance is sought.

"Net direct premiums written" means gross direct premiums written in this Commonwealth on all policies of basic property insurance and the basic property insurance component of multi-peril policies less (i) all return premiums on those policies, (ii) dividends paid or credited to policyholders, and (iii) the unused or unabsorbed portions of premium deposits.

"Qualified property" means all real property and all tangible personal property at a fixed location in this Commonwealth, whether or not the property is subject to exposure from an external hazard located on property that is neither owned nor controlled by the prospective insured, and whether or not the property is subject to exposure from riot hazard, where the property:

1. Is not used for manufacturing purposes;

2. Complies with applicable state laws and regulations and local building codes and ordinances;

3. Is not commonly owned or controlled, or combinable for rating purposes, with property insured for similar coverages elsewhere; and

4. Has characteristics of ownership, condition or occupancy that do not violate any public policy.

"Residual market facility" means any organization approved by the Commission to equitably distribute the responsibility to provide basic property insurance on qualified property among insurers licensed to write basic property insurance or other insurance containing a basic property insurance component.

1968, c. 559, § 38.1-747; 1980, c. 156; 1982, c. 664; 1986, c. 562; 1987, c. 520; 1995, c. 119.

A. A residual market facility shall be established and maintained by all insurers licensed to write basic property insurance or other insurance containing a basic property insurance component. The plan of operation of the residual market facility shall be subject to approval by the Commission.

B. The residual market facility shall be governed by a board of fifteen directors. Four directors shall be appointed by the Commissioner, two of whom shall be property and casualty insurance agents and two of whom shall be from the general public.

C. The residual market facility shall have the power to:

1. Employ or retain persons necessary to perform the duties of the residual market facility;

2. Acquire, hold, and dispose of real and personal property, or any interest in real and personal property;

3. Borrow funds necessary to effect the purposes of this chapter in accord with the plan of operation;

4. Negotiate and become a party to those contracts necessary to carry out the purposes of this chapter;

5. Indemnify any director or member of its governing body, officer, employee, or agent in the manner permitted by and subject to the limitations contained in Article 9 (§ 13.1-875 et seq.) of Chapter 10 of Title 13.1; and provide any other or further indemnity to any such person that may be authorized by the plan of operation except an indemnity against his gross negligence or willful misconduct, and purchase and maintain insurance in the manner permitted by § 13.1-882; and

6. Perform any other acts necessary or proper to carry out the purposes of this chapter.

D. The residual market facility shall not be deemed to be an insurer within the provisions of § 38.2-100.

1968, c. 559, § 38.1-748; 1973, c. 451, § 38.1-748.1; 1980, c. 156; 1982, c. 664; 1986, c. 562.

The rules, rates, policy forms, and endorsements of the residual market facility shall be subject to the Commission's approval prior to use.

1986, c. 562.

Any person having an insurable interest in real property and tangible personal property at a fixed location in this Commonwealth is entitled, upon request, to an inspection of the property by representatives of the residual market facility to determine whether the property is within the definition of qualified property. A copy of the inspection report shall be made available upon request to the applicant, his agent, or the insurer.

1968, c. 559, § 38.1-748; 1980, c. 156; 1982, c. 664; 1986, c. 562.

A. The residual market facility may employ other organizations to perform inspection services to determine whether property is within the definition of qualified property.

B. The plan of operation regarding the inspection service, the experience and qualifications of the organization proposed to conduct the inspection service, the manner and scope of the inspection, and the form of the inspection report shall be set forth by the residual market facility in a written report made to the Commission and shall be subject to approval by the Commission.

1968, c. 559, § 38.1-748; 1980, c. 156; 1982, c. 664; 1986, c. 562.

Service of any notice, proof of loss, legal process or other communication relating to the policy or any notice or order of the Commission shall be made upon the residual market facility by service upon the residual market facility's manager, or any duly appointed assistant manager.

1973, c. 451, § 38.1-748.1; 1986, c. 562.

If the Commission finds, after a reasonable period of time, that the residual market facility established by § 38.2-2702 is not creating a market that meets the purposes of this chapter, the Commission may order the implementation of §§ 38.2-2708 and 38.2-2709.

1968, c. 559, § 38.1-749; 1973, c. 451; 1986, c. 562.

A. After providing notice and opportunity to be heard and upon promulgation of an order by the Commission pursuant to § 38.2-2707, a joint underwriting association shall be created consisting of all insurers licensed to write basic property insurance or other insurance that contains a basic property insurance component in this Commonwealth, but excluding insurers exempted from rate regulation by subsection C of § 38.2-1902. Each insurer that is required to be a member of the joint underwriting association shall remain a member as a condition of its license to write basic property insurance and other insurance that contains a basic property insurance component in this Commonwealth.

B. The joint underwriting association shall, pursuant to this chapter and the plan of operation, have the power to (i) cause its members to issue policies of basic property insurance on qualified property to applicants; (ii) assume reinsurance on qualified property from members; and (iii) cede reinsurance.

C. 1. Within ninety days following the effective date of the order of the Commission, the joint underwriting association shall submit to the Commission for its review a proposed plan of operation consistent with this chapter. The plan of operation shall provide for economical, fair and nondiscriminatory administration and for the prompt and efficient provision of basic property insurance to promote orderly community development. The plan of operation shall include, but not be limited to, (i) preliminary assessment of all members for initial expenses necessary to commence operations, (ii) establishment of necessary facilities, (iii) management of the joint underwriting association, (iv) assessment of members to defray losses and expenses, (v) commission arrangements, (vi) reasonable underwriting standards and limits of liability, (vii) acceptance and cession of reinsurance, and (viii) procedures for determining amounts of insurance to be provided.

2. The plan of operation shall be subject to approval by the Commission after consultation with affected individuals and organizations, and shall take effect ten days after its approval. If the Commission disapproves all or any part of the proposed plan of operation, the joint underwriting association shall within thirty days submit for review an appropriately revised plan of operation. If the joint underwriting association fails to submit a revised plan, or if the revised plan is unacceptable, the Commission shall promulgate whatever plan of operation it deems necessary to carry out the purposes of this chapter.

3. The joint underwriting association may, on its own initiative or at the request of the Commission, amend the plan of operation. Any amendment to the plan of operation shall be subject to the Commission's approval.

1968, c. 559, § 38.1-750; 1973, c. 504; 1986, c. 562.

A. Any member of the joint underwriting association may cede to the association basic property insurance written on qualified property, to the extent and on the terms and conditions set forth in the plan of operation.

B. All members of the joint underwriting association shall participate in its writings, expenses, profits and losses, or in any categories thereof that may be separately established by the joint underwriting association, in the proportion that the net direct premiums written by each member during the preceding calendar year bear to the aggregate net direct premiums written in this Commonwealth by all members of the joint underwriting association during the preceding calendar year, but excluding (i) premiums on property used for manufacturing purposes, and (ii) that portion of premiums attributable to the operation of the joint underwriting association.

C. The joint underwriting association shall be governed by a board of fifteen directors. Four directors shall be appointed by the Commissioner, two of whom shall be property and casualty insurance agents and two of whom shall be from the general public. The remaining eleven directors shall be elected annually by a cumulative vote of the joint underwriting association's members, whose votes shall be weighted in accordance with each member's premiums written during the preceding calendar year. The first board shall be elected at a meeting of the members or their authorized representatives, which shall be held within thirty days after approval of the plan of operation as provided in § 38.2-2708.

1968, c. 559, § 38.1-751; 1982, c. 665; 1986, c. 562.

The residual market facility, any inspection service, and any joint underwriting association shall at all times be subject to the supervision and regulation of the Commission. The Commission, or any person designated by it, shall have the power:

1. To visit and examine the operations of the residual market facility, any inspection service, and any joint underwriting association;

2. To examine directors, officers, agents, employees, or any other person having knowledge of those operations;

3. To summon and qualify witnesses under oath and, pursuant to these powers, to have free access to all books, records, files, papers and documents that relate to those operations; and

4. To require that the association file annually a financial report that is approved by the board of directors and prepared in a form prescribed by the Commission. Unless the Commission provides otherwise, the report shall be filed within 120 days after the end of each fiscal year and shall be for the preceding twelve months.

1968, c. 559, § 38.1-752; 1986, c. 562; 1995, c. 60.

A. There shall be no liability on the part of, and no cause of action shall arise against any insurer, any inspection service, the residual market facility, the joint underwriting association, or their directors, governing committee members, officers, agents or employees, or the Commission or its authorized representatives, for any action taken by them in good faith in the performance of their powers and duties under this chapter, nor for any inspections undertaken or statements made by them (i) in any reports and communications concerning the property insured or to be insured, (ii) at the time of the hearings conducted in connection with the property insured or to be insured, or (iii) in the findings required by this chapter.

B. The reports and communications of an inspection bureau service, the residual market facility, and the joint underwriting association shall not be public documents.

1968, c. 559, § 38.1-753; 1985, c. 401; 1986, c. 562.

Any person aggrieved by any action or decision of an inspection service, the residual market facility, or the joint underwriting association may appeal to the Commission within thirty days from the action or the decision. The Commission shall provide the aggrieved person and the inspection service, the residual market facility, or the joint underwriting association an opportunity to be heard on not less than ten days' written notice. The Commission shall then issue an order (i) approving the action or decision, (ii) disapproving the action or decision, or (iii) directing the inspection service, the residual market facility or the joint underwriting association to reinspect the property, or place the application or cause it to be placed pursuant to its plan of operation, whichever is appropriate.

1968, c. 559, § 38.1-754; 1986, c. 562.

If the General Assembly repeals this chapter, (i) the obligations incurred by the residual market facility and the joint underwriting association and policies issued by either organization or by their members shall not be impaired by the repeal, and (ii) the residual market facility and joint underwriting association shall be continued until they have fully performed their respective outstanding obligations.

1970, c. 45, § 38.1-755.1; 1986, c. 562.