44-2407.

Association; duties; powers; enumerated; settlement, release, compromise, or waiver; effect on association.

(1) The association shall:

(a) Allocate claims paid and expenses incurred among the three accounts separately and assess member insurers separately for each account in the amounts necessary to pay (i) the obligations of the association under section 44-2406, (ii) the expenses of handling covered claims, (iii) the cost of examinations under sections 44-2412 and 44-2413, and (iv) other expenses authorized by the Nebraska Property and Liability Insurance Guaranty Association Act. The assessments of each member insurer shall be in the proportion that the net direct written premiums of such member insurer, on the basis of the insurance in the account involved, bears to the net direct written premiums of all member insurers for the same period and in the same account for the calendar year preceding the date of the assessment. The association may make an assessment for the purpose of meeting administrative costs and other general expenses not related to a particular impaired insurer, not to exceed fifty dollars per member insurer in any one year. Each member insurer shall be notified of the assessment not later than thirty days before it is due. Except for such administrative assessment, no member insurer may be assessed in any year, on any account, an amount greater than one percent of that member insurer's net direct written premiums for the preceding calendar year on the kinds of insurance in the account. The association may defer, in whole or in part, the assessment of any member insurer if the assessment would cause the member insurer's financial statement to reflect amounts of capital or surplus less than the minimum required for a certificate of authority by any jurisdiction in which the member insurer is authorized to transact business as an insurer. Deferred assessments shall be paid when such payment will not reduce capital or surplus below such required minimum amounts. Such deferred assessments, when paid, shall be refunded to those member insurers that received larger assessments by virtue of such deferment or, in the discretion of any such insurer, credited against future assessments. No member insurer may pay a dividend to shareholders or policyholders while such insurer has an unpaid deferred assessment;

(b) Handle claims through its employees or through one or more insurers or other persons designated by the association as a servicing facility, except that the designation of a servicing facility shall be subject to the approval of the director and such designation may be declined by a member insurer;

(c) Reimburse any servicing facility for obligations of the association paid by the facility and for expenses incurred by the facility while handling claims on behalf of the association and such other expenses of the association as are authorized by the Nebraska Property and Liability Insurance Guaranty Association Act;

(d) Issue to each insurer paying an assessment under this section, a certificate of contribution in appropriate form and terms as prescribed by the director for the amount paid. All outstanding certificates shall be of equal dignity and priority without reference to amounts or dates of issue. The insurer may offset against its premium and related retaliatory tax liability to this state, pursuant to sections 44-150 and 77-908, accrued with respect to business transacted in such year, an amount equal to twenty percent of the original face amount of the certificate of contribution, beginning with the first calendar year after the year of issuance through the fifth calendar year after the year of issuance. If the association recovers any sum representing amounts previously written off by member insurers and offset against premium and related retaliatory taxes imposed by sections 44-150 and 77-908, such recovered sum shall be paid by the association to the director who shall handle such funds in the same manner as provided in Chapter 77, article 9;

(e) Be deemed the insolvent insurer to the extent of the association's obligation for covered claims and to such extent shall have all rights, duties, and obligations of the insolvent insurer, subject to the limitations provided in the act, as if the insurer had not become insolvent, with the exception that the liquidator shall retain the sole right to recover any reinsurance proceeds. The association's rights under this section include, but are not limited to, the right to pursue and retain salvage and subrogation recoveries on paid covered claim obligations to the extent paid by the guaranty fund;

(f) Have access to impaired or insolvent insurer records. The rehabilitator or liquidator of an impaired or insolvent insurer shall permit access by the association or its authorized representatives, and by any similar organization in another state or its authorized representatives, to the impaired or insolvent insurer's records which are necessary for the association or similar organization in carrying out its functions with regard to covered claims. In addition, the rehabilitator or liquidator shall provide the association or its representative or similar organization with copies of such records upon the request and at the expense of the association or similar organization. In providing the information set forth in this subdivision, the association or its authorized representatives and the rehabilitator or liquidator of an impaired or insolvent insurer shall execute such agreements as are necessary to preserve the confidentiality of the information provided; and

(g) Have the right to review and contest settlements, releases, compromises, waivers, and judgments to which the insolvent insurer or its insureds were parties prior to the entry of the order of liquidation. In an action to enforce settlements, releases, and judgments to which the insolvent insurer or its insureds were parties prior to the entry of the order of liquidation, the association shall have the right to assert the following defenses described in subsections (2) through (5) of this section, in addition to the defenses available to the insurer.

(2) The association is not bound by a settlement, release, compromise, or waiver executed by an insured or the insurer, or any judgment entered against an insured or the insurer by consent or through failure to exhaust all appeals, if the settlement, release, compromise, waiver, or judgment was (a) executed, or entered into, within one hundred twenty days prior to the entry of an order of liquidation, and the insured or the insurer did not use reasonable care when it entered into the settlement, release, compromise, waiver, or judgment, or did not pursue all reasonable appeals of an adverse judgment or (b) executed by or taken against an insured or the insurer based on default, fraud, collusion, or the insurer's failure to defend.

(3) If a court of competent jurisdiction finds that the association is not bound by a settlement, release, compromise, waiver, or judgment for the reason described in subdivision (2)(a) or (b) of this section, the settlement, release, compromise, waiver, or judgment shall be set aside, and the association shall be permitted to defend any covered claim on the merits. The settlement, release, compromise, waiver, or judgment shall not be considered as evidence of liability or damages in connection with any claim brought against the association or any other party.

(4) The association shall have the right to assert any statutory defenses or rights of offset against any settlement, release, compromise, or waiver executed by an insured or the insurer, or any judgment taken against the insured or the insurer.

(5) As to any covered claims arising from a judgment under any decision, verdict, or finding based on default of the insolvent insurer or its failure to defend, the association, either on its own behalf or on behalf of the insured, may apply to have the judgment, order, decision, verdict, or finding set aside by the same court or administrator that entered the judgment, order, decision, verdict, or finding and shall be permitted to defend the claim on the merits.

(6) The association may:

(a) Appear in, defend, and appeal any action;

(b) Employ or retain such persons as are necessary to handle claims, provide covered policy benefits and services, and appoint and direct other service providers for covered services;

(c) Borrow funds necessary to effect the purposes of the Nebraska Property and Liability Insurance Guaranty Association Act in accord with the plan of operation;

(d) Sue or be sued, and such power to sue shall include the power and right to intervene as a party before any court that has jurisdiction over an insolvent insurer as defined by such act;

(e) Negotiate and become a party to such contracts as are necessary to carry out the purpose of such act;

(f) Perform such other acts as are necessary or proper to effectuate the purpose of such act; and

(g) Bring any action against any third-party administrator, agent, attorney, or other representative of the insolvent insurer to obtain custody and control of all files, records, and electronic data related to an insolvent insurer that is appropriate or necessary for the association, or a similar organization in another state, to carry out duties under such act.