60-3351. Insurance compliance self-evaluative privilege.
60-3351
60-3351. Insurance compliance self-evaluativeprivilege.(a) Except as provided in K.S.A. 60-3352 and 60-3353, and amendmentsthereto, aninsurancecompliance self-evaluative audit document is privileged information and is notdiscoverable, oradmissible as evidence in any legal action in any civil, criminal oradministrative proceeding.The privilege created herein is a matter of substantive law of this state andis not merely aprocedural matter governing civil or criminal procedures in the courts of thisstate.
(b) If any insurance company, person, or entity performs or directs theperformance of aninsurance compliance audit, an officer, employee or agent involved with theinsurancecompliance audit, or any consultant who is hired for the purpose of performingthe insurancecompliance audit, may not be examined in any civil, criminal or administrativeproceeding as tothe insurance compliance audit or any insurance compliance self-evaluativeaudit document, asdefined in this section. This subsection (b) shall not apply if the privilegeset forth in subsection(a) of this section is determined under K.S.A. 60-3352 and 60-3353, andamendmentsthereto, not to apply.
(c) Any insurance company may voluntarily submit, in connection with anyexaminationconducted under chapter 40 of the Kansas Statutes Annotated, and amendmentsthereto, aninsurance compliance self-evaluative audit document to the commissioner as aconfidentialdocument in the same manner as provided in chapter 40 of the Kansas StatutesAnnotated, andamendments thereto, for documents required to be provided to the commissionerin the course ofan examination by the commissioner without waiving the privilege set forth inthis section towhich the insurance company would otherwise be entitled. Any provision inchapter 40 of theKansas Statutes Annotated, and amendments thereto, permitting the commissionerto makeconfidential documents public or to grant the national association of insurancecommissionersaccess to confidential documents shall not apply to the insurance complianceself-evaluativeaudit document voluntarily submitted by an insurance company. To the extentthat thecommissioner has the authority to compel the disclosure of an insurancecompliance self-evaluative audit document under other provisions of applicablelaw, any such report furnished tothe commissioner shall not be provided to any other persons or entities andshall be accorded thesame confidentiality and other protections as provided above for voluntarilysubmitteddocuments. Any use of an insurance compliance self-evaluative audit documentfurnished as aresult of a request of the commissioner under a claim of authority to compeldisclosure shall belimited to determining whether or not any disclosed defects in an insurers'policies andprocedures or inappropriate treatment of customers has been remedied or that an appropriate planfor their remedy is in place.
(1) Any insurance company's insurance compliance self-evaluative audit documentsubmitted to the commissioner shall remain subject to all applicable statutory or common lawprivileges including, but not limited to, the work product doctrine, attorney-client privilege, orthe subsequent remedial measures exclusion.
(2) Any compliance self-evaluative audit document so submitted and in thepossession ofthe commissioner shall remain the property of the insurance company and shallnot be subject toany disclosure or production under the Kansas open records act. The provisionof this paragraphshall expire on July 1, 2010, unless the legislature reenacts such provision.The provision of thisparagraph shall be reviewed by the legislature prior to July 1, 2010.
(d) Disclosure of an insurance compliance self-evaluative audit document to agovernmental agency, whether voluntary or pursuant to compulsion of law, shallnot constitute awaiver of the privilege set forth in subsection (a) with respect to any otherpersons or any othergovernmental agencies.Nothing in this actshall prohibit the division of post audit from having access to all insurancecompliance self-evaluative audit documents in the custody of thecommissioner.
History: L. 2005, ch. 148, § 1; July 1.