376.748. Liquidation, recovery of distributions, when, exceptions, limitations.
Liquidation, recovery of distributions, when, exceptions, limitations.
376.748. 1. If an order for liquidation or rehabilitationof an insurer domiciled in this state has been entered, thereceiver appointed under such order shall have a right torecover on behalf of the insurer, from any affiliate thatcontrolled it, the amount of distributions, other than stockdividends paid by the insurer on its capital stock, made at anytime during the five years preceding the petition forliquidation or rehabilitation subject to the limitations ofsubsections 2 through 4 of this section.
2. No such distribution shall be recoverable if the insurershows that when paid the distribution was lawful and reasonable,and that the insurer did not know and could not reasonably haveknown that the distribution might adversely affect the abilityof the insurer to fulfill its contractual obligations.
3. Any person who was an affiliate that controlled theinsurer at the time the distributions were paid shall be liableup to the amount of distributions he received. Any person whowas an affiliate that controlled the insurer at the time thedistributions were declared shall be liable up to the amount ofdistributions he would have received if they had been paidimmediately. If two or more persons are liable with respect tothe same distributions, they shall be jointly and severallyliable.
4. The maximum amount recoverable under this section shallbe the amount needed in excess of all other available assets ofthe insolvent insurer to pay the contractual obligations of theinsolvent insurer.
5. If any person liable under subsection 3 of this sectionis insolvent, all its affiliates that controlled it at the timethe distribution was paid shall be jointly and severally liablefor any resulting deficiency in the amount recovered from theinsolvent affiliate.
(L. 1988 S.B. 430 § 29)