In the Matter of the Liquidation of Scottish RE (U.S.) Inc.

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

IN THE MATTER OF THE LIQUIDATION ) C.A. No. 2019-0175-JTL
OF SCOTTISH RE (U.S.), INC. )

OPINION REGARDING CLAIMS PROCEDURES

Date Submitted: July 21, 2025
Date Decided: November 28, 2025

GianClaudio Finizio, BAYARD, P.A., Wilmington, Delaware; James J. Black, III,
Jeffrey B. Miceli, Mark W. Drasnin, BLACK & GRENGROSS, PC, Philadelphia,
Pennsylvania; Counsel for The Honorable Trinidad Navarro, Receiver for Scottish RE
(U.S.), Inc.

Ricardo Palacio, Catherine A. Gaul, ASHBY & GEDDES, P.A., Wilmington,
Delaware; Eric A. Haab, FOLEY & LARDNER LLP, Chicago, Illinois; Matthew D.
Lee, FOLEY & LARDNER LLP, Madison, Wisconsin; Counsel for Sun Life Assurance
Company of Canada and Sun Life and Health Insurance Company (U.S.), Protective
Life Insurance Company, Protective Life and Annuity Insurance Company, West Coast
Life Insurance Company, MONY Life Insurance Company, American General Life
Insurance Company, and The United States Life Insurance Company in the City of
New York.

Joseph B. Cicero, CHIPMAN BROWN CICERO & COLE, LLP, Wilmington,
Delaware; Suman Chakraborty, MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND
POPEO, P.C., New York, New York; Counsel for Berkshire Hathaway Life Insurance
Company of Nebraska.

Joseph B. Cicero, CHIPMAN BROWN CICERO & COLE, LLP, Wilmington,
Delaware; John S. Pruitt, EVERSHEDS SUTHERLAND (US) LLP, New York, New
York; Counsel for Ameritas Life Insurance Corp., Ameritas Life Insurance Corp. of
New York, Augustar Life Insurance Company (f/k/a Ohio National Life Insurance
Company), Augustar Life & Annuity Company (f/k/a Ohio National Life Assurance
Corporation), Pacific Life Insurance Company, Pacific Life and Annuity Company,
Columbus Life Insurance Company, Integrity Life Insurance Company, and Security
Benefit Life Insurance Company.

Joseph B. Cicero, CHIPMAN BROWN CICERO & COLE, LLP, Wilmington,
Delaware; Deirdre G. Johnson, MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND
POPEO, P.C., Washington, D.C.; Counsel for Nationwide Life Insurance Company
and Nationwide Life and Annuity Insurance Company.
John C. Phillips, Jr., David A. Bilson, PHILLIPS, MCLAUGHLIN & HALL, P.A.,
Wilmington, Delaware; Cynthia J. Borrelli, BRESSLER, AMERY & ROSS, P.C.,
Florham Park, New York; Counsel for Hannover Life Reassurance Company of
America and Security Life of Denver Insurance Company.

John L. Reed, Peter H. Kyle, Michael A. Carbonara, Jr., DLA PIPER LLP (U.S.),
Wilmington, Delaware; Stephen W. Schwab, DLA PIPER LLP (U.S.), Chicago,
Illinois; Counsel for SCOR Global Life Americas Reinsurance Company, SCOR Global
Life Reinsurance Company of Delaware, and SCOR Global Life USA Reinsurance
Company, SCOR SE, SCOR Global Life SE (Deutschland) AG, SCOR
Rucksversicherung (Deutschland) AG, and Toa Reinsurance Company, Limited of
Tokyo, Japan.

Kevin J. Mangan, WOMBLE BOND DICKINSON (US) LLP, Wilmington, Delaware;
Kevin P. Griffith, FAEGRE DRINKER BIDDLE & REATH LLP, Indianapolis,
Indiana; Counsel for Brighthouse Life Insurance Company, Brighthouse Life
Insurance Company of NY, Genworth Life Insurance Company, Genworth Life and
Annuity Insurance Company, Genworth Life Insurance Company of New York, United
of Omaha Life Insurance Company, Companion Life Insurance Company, New York
Life Insurance and Annuity Corporation, SBLI USA Life Insurance Company, Inc.,
S. USA Life Insurance Company, Inc., Shenandoah Life Insurance Company, North
American Company for Life and Health Insurance, Midland National Life Insurance
Company, Athene Annuity and Life Company, and Athene Annuity & Life Assurance
Company of New York.

Kevin J. Mangan, WOMBLE BOND DICKINSON (US) LLP, Wilmington, Delaware;
Counsel for The Guardian Life Insurance Company of America, United Heritage Life
Insurance Company, The Savings Bank Mutual Life Insurance Company of
Massachusetts, USAA Life Insurance Company, and USAA Life Insurance Company
of New York.

Gary W. Lipkin, Devan A. McCarrie, Allison M. Neff, SAUL EWING ARNSTEIN &
LEHR, LLP, Wilmington, Delaware; Ira J. Belcove, Teresa Snider, PORTER
WRIGHT MORRIS & ARTHUR LLP, Chicago, Illinois; Counsel for Lincoln National
Life Insurance Company, Lincoln Life and Annuity Company of New York, and First
Penn Pacific Life Insurance Company.

Travis S. Hunter, RICHARDS, LAYTON & FINGER, P.A., Wilmington, Delaware;
Ana M. Alfonso, O’MELVENY & MYERS, LLP, New York, New York; Counsel for
Transamerica Life Insurance Company.
Travis S. Hunter, RICHARDS, LAYTON & FINGER, P.A., Wilmington, Delaware;
Richard Mancino, WILLKIE FARR & GALLAGHER LLP, New York, New York;
Counsel for Everlake Life Insurance Company (f/k/a Allstate Life Insurance
Company).

Joseph C. Schoell, FAEGRE DRINKER BIDDLE & REATH LLP, Wilmington,
Delaware; Counsel for Banner Life Insurance Company, National Benefit Life
Insurance Company, Police and Fireman’s Insurance Association, and Kansas City
Life Insurance Company.

Joseph C. Schoell, FAEGRE DRINKER BIDDLE & REATH LLP, Wilmington,
Delaware; Kevin P. Griffith, FAEGRE DRINKER BIDDLE & REATH LLP,
Indianapolis, Indiana; Counsel for RGA Reinsurance Company and Beneficial Life
Insurance Company.

Kelly A. Green, Jason Z. Miller, SMITH, KATZENSTEIN & JENKINS LLP,
Wilmington, Delaware; Carl Micarelli, DEBEVOISE & PLIMPTON LLP, New York,
New York; Counsel for Employers Reassurance Corporation, The Prudential
Insurance Company of America, Metropolitan Life Insurance Company, and
Metropolitan Tower Life Insurance Company.

Jennifer R. Hoover, Noelle B. Torrice, BENESCH, FRIEDLANDER, COPLAN &
ARONOFF LLP, Wilmington, Delaware; Thomas D. Cunningham, SIDLEY AUSTIN
LLP, Chicago, Illinois; Counsel for Jackson National Life Insurance Company.

Jennifer R. Hoover, Noelle B. Torrice, BENESCH, FRIEDLANDER, COPLAN &
ARONOFF LLP, Wilmington, Delaware; Counsel for Lincoln Benefit Life Company
and United Life Insurance Company.

Joelle E. Polesky, STRADLEY RONON STEVENS & YOUNG LLP, Wilmington,
Delaware; Jeffrey D. Grossman, STRADLEY RONON STEVENS & YOUNG LLP,
Philadelphia, Pennsylvania; Counsel for American Council of Life Insurers.

Jody C. Barillare, MORGAN LEWIS & BOCKIUS LLP, Wilmington, Delaware;
Counsel for Columbian Mutual Life Insurance Company.

LASTER, V.C.
Scottish Re (U.S.), Inc. (“SRUS” or the “Company”) is an insolvent insurer. The

Insurance Commissioner of the State of Delaware (the “Commissioner”) obtained an

order placing the Company in liquidation under the Delaware Uniform Insurance

Liquidation Act (“DUILA”). The Commissioner is serving as receiver and conducting

the liquidation.

The Commissioner seeks court approval for procedures to govern a claims

process. Various stakeholders objected to aspects of the procedures (the “Objectors”).1

A threshold question involves the standard of review that the court applies

when determining whether to adopt the procedures. This decision holds that the

procedures must both comply with law (principally DUILA) and otherwise not

constitute an abuse of discretion.

Another question is the standard of review for considering the Commissioner’s

claim recommendations. Under the proposed procedures, the Commissioner will

evaluate each claim in the first instance and make a recommendation on the outcome.

A party dissatisfied with the Commissioner’s recommendation can seek review from

the court. This decision holds that as to any issue involving legal compliance, the

court will review the Commissioner’s recommendation de novo. As to any issue

requiring the exercise of judgment or the weighing of evidence, the court will review

the Commissioner’s recommendation under an abuse of discretion standard.

1 Not every objector advances every objection, but for simplicity, this decision

refers to the Objectors collectively.
Under the proposed procedures, the Commissioner will solicit information from

each claimant, then send each claimant an initial assessment of the value of its claim.

A claimant may accept that value or formally file a claim. The Objectors say this

approach violates the order of operations under DUILA because they should file their

claims before anything else happens. This decision holds that the Commissioner’s

approach does not violate DUILA and is not an abuse of the Commissioner’s

discretion.

The Objectors also challenge the methodology the Commissioner proposes to

use when making its assessments. This decision holds that the Commissioner’s

methodology does not inherently constitute an abuse of discretion. This decision

defers determining what methodology should apply to particular claims until the

Commissioner has made recommendations where the methodology is disputed.

The Objectors complain that the proposed claims procedures do not

contemplate arbitrating claims under contracts that contain mandator arbitration

provisions. This decision holds that DUILA does not require the Commissioner to

arbitrate a claim simply because the Company entered into a contract with an

arbitration provision. Delaware’s regulatory scheme takes precedence. A claimant

who believes a claim should be arbitrated may ask the court to lift the antisuit

injunctions barring litigation or arbitration outside of the liquidation process. The

court will do so only when resolving a claim outside the liquidation process comports

with DUILA and its policy goals.

2
The Objections also complain about access to information. They want to be able

to obtain plenary discovery from the Commissioner. But the special nature of the

claims proceeding does not accommodate plenary discovery. The claims procedures

contain an appropriate mechanism for obtaining information from the Commissioner.

The Objectors also challenge a procedure that would allow the Commissioner

to reject a claim if the Commissioner requests information and the claimant fails to

provide it. That procedure is neither contrary to law nor an abuse of discretion, but

the Commissioner must properly exercise discretion when applying it.

The last two objections concern the Company’s reinsurers. They complain that

the procedures do not comply with contractual provisions that require the

Commissioner to give them notice of any claims the Company receives, followed by

an opportunity to investigate the claims and interpose defenses the Commissioner

has not raised. Under Delaware law, those provisions do not bind the Commissioner.

Regardless, the Commissioner has committed to give reasonable notice of claims,

permit the reinsures to investigate at their own expense, and allow them to raise

additional defenses by objection after the Commissioner submits a recommendation

to the court. That is all the reinsurers would be entitled to even if Delaware law

validated the provisions at issue. The objection is therefore overruled.

The reinsurers last ask the court to modify the proposed procedures so that

their contracts with the Company terminated on the same date as the Company’s

contracts with its ceding insurers. The Commissioner has declined to set a

termination date. That decision is not contrary to law, nor is it an abuse of discretion.

3
I. FACTUAL BACKGROUND

The facts are drawn from materials submitted in connection with various

motions and objections, plus other filings on the docket.

A. The Company

The Company is a Delaware corporation that the Commissioner licensed to sell

life and health insurance. The Company was incorporated in 1977 and has its

headquarters in Charlotte, North Carolina.

The Company is a wholly owned subsidiary of Scottish Holdings, Inc., also a

Delaware corporation. That entity in turn is a wholly owned subsidiary of Scottish

Annuity & Life Insurance Company (Cayman) Ltd. (“SALIC”), a Cayman Islands

company. SALIC is a wholly owned subsidiary of Scottish Re Group Limited (“SR

Parent”), also a Cayman Islands company. The Company thus served as an operating

entity within a corporate group headed by SR Parent. At one point, the Company was

qualified or accredited as a reinsurer in thirty-three states.

The Company operated strictly as a reinsurer. That means it did not sell

insurance policies to customers, and it did not have policyholders. Instead, the

Company entered into reinsurance agreements with primary insurers, who

themselves sold insurance to policyholders. Under a reinsurance agreement, the

reinsurer agrees to pay a portion of the losses suffered by the primary insurer on

identified policies in return for a premium paid by the primary insurer. In the

language of the insurance trade, the primary insurers are called cedents, because

they cede a portion of the premium associated with their reinsured policies in

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exchange for the reinsurer’s commitment to pay the ceding insurer for a portion of its

losses. The ceding primary insurer remains liable to its insureds for the losses they

suffer, regardless of whether the reinsurer pays the share of the losses that it

committed contractually to pay.

Coinsurance is a form of reinsurance in which the reinsurer takes on a

proportionate share of all risks and cash flows associated with the ceded policies,

subject to limited exceptions. The reinsurer thus receives a share of the premium paid

by the insured to the primary insurer, and the reinsurer uses the premium to

establish reserves for its share of the losses. Typically, the primary insurer is entitled

to deduct certain fees and expenses, and the reinsurer is obligated to pay an

allowance to the primary insurer for a share of the expenses involved in acquiring

and maintaining the policy.

The Company sold three lines of coinsurance: Accident and Health, Annuity,

and Life.

• The Accident and Health coinsurance business involved health insurance
products, mostly long-term disability insurance.

• The Annuity coinsurance business involved life insurance products that pay
periodic income benefits for a specified time period or over the course of the
annuitant’s lifetime.

• The Life coinsurance business involved traditional life insurance products.

In addition to these lines of coinsurance, the Company offered Yearly Renewable

Term Reinsurance (“YRT Reinsurance”). Through that product, the Company

reinsured term life policies under an arrangement where the Company assumed the

risk of loss, but the primary insurer did not cede any of its reserves. Instead, the

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ceding insurer paid the Company an annual premium that varied with the risk and

ages of the insureds.

In addition to its reinsurance relationships with cedents, the Company entered

into retrocession agreements with other reinsurers, known as retrocessionaires. Each

retrocession agreement is a further reinsurance agreement in which the

retrocessionaire acts as reinsurer and the Company acts as a cedent, referred to in

this context as a retrocedent. Under a retrocession agreement, the retrocessionaire

agrees to pay a portion of the losses suffered by the Company on its reinsurance

obligations to the cedents. In return, the retrocessionaire receives a premium from

the Company, typically calculated as a portion of the premium that the Company

received from the cedent.

B. The Company Suffers Financial Difficulties.

In 2008, the Company stopped writing new business. It notified its cedents that

it would no longer accept additional reinsurance risks under its reinsurance

agreements. From that point on, the Company’s business consisted of fulfilling its

then-existing rights and obligations under its reinsurance and retrocession

agreements. In the language of the insurance trade, the Company went into run-off.

In 2018, the Company’s parent companies filed for bankruptcy. SR Parent

commenced voluntary winding-up proceedings in the Cayman Islands and Bermuda.

Scottish Holdings and SALIC filed a jointly administered Chapter 11 proceeding in

the United States Bankruptcy Court of the District of Delaware. Before those filings,

the parent companies supported the Company financially, including through a

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reinsurance agreement. With the parent companies entering bankruptcy, the

Company’s financial picture worsened.

Delaware law requires that an insurer file financial statements with the

Commissioner. After the Company failed to file its financial statement for 2018, the

Company agreed to be placed under the Commissioner’s regulatory supervision.

C. The Rehabilitation Order

By early 2019, the Commissioner had determined that the Company was in

financial distress. The principal cause was losses associated with YRT Reinsurance,

together with the inability of the Company’s parent entities to meet their reinsurance

obligations.

On March 1, 2019, the Commissioner petitioned for a receivership to

rehabilitate the Company. The Company’s management and board of directors agreed

that rehabilitation was in the Company’s best interest. Because the Company

consented, a hearing was unnecessary. By order dated March 6, 2019, this court

placed the Company into receivership and appointed the Commissioner as statutory

receiver for purposes of rehabilitating it.

D. The Liquidation Order

After extensive efforts at rehabilitation, the Commissioner moved on July 14,

2023, for an order converting the receivership into a liquidation. The Company’s

management and board of directors agreed that liquidation was in the best interests

of the Company. Because the Company consented to the liquidation, a hearing on the

motion was unnecessary. By order dated July 18, 2023, the court converted the

7
rehabilitation into a liquidation and confirmed the Commissioner’s continuing status

as statutory receiver, now for purposes of liquidating the Company (the “Liquidation

Order”).2

Among other things, the Liquidation Order imposed a series of antisuit

injunctions (the “Antisuit Injunctions”). They state:

17. All persons and entities that have notice of these
proceedings or of this Order are hereby prohibited from instituting or
further prosecuting any action at law or in equity, including but not
limited to any arbitration or mediation, or other proceedings against the
Commissioner as Receiver, the Deputy Receiver(s), or the Designees in
connection with their duties as such, or from obtaining preferences,
judgments, attachments, or other like liens or encumbrances, or
foreclosing upon or making any levy against SRUS or the Assets, or
exercising any right adverse to the right of SRUS to or in the Assets, or
in any way interfering with the Receiver, the Deputy Receiver(s), or the
Designees either in their possession and control of the Assets or in the
discharge of their duties hereunder.

18. All persons and entities are hereby enjoined and restrained
from asserting any claim against SRUS, the Assets, the Commissioner
as Receiver of SRUS, the Deputy Receiver(s), or the Designees in
connection with their duties as such, except insofar as such claims are
brought in the liquidation proceedings of SRUS.

19. All persons or entities that have notice of these proceedings
or of this Order are hereby enjoined and restrained from asserting
claims for refunds of premium resulting from the cancellation of
agreements of reinsurance issued by SRUS except insofar as such claims
are brought in the liquidation proceedings of SRUS.3

The Antisuit Injunctions remain in place.

2 Dkt. 799.

3 Id. ¶¶ 17–19.

8
The Liquidation Order fixed the rights and liabilities between the Company

and its cedents as of September 30, 2023, and provided that any reinsurance

agreements with the cedents would terminate no later than that date.4 The

Liquidation Order did not fix a termination date for reinsurance agreements with

retrocessionaires.

E. The Motions

On March 25 and 26, 2024, the Commissioner filed two motions. The first

asked the court to approve procedures to govern how the cedents would submit

reinsurance claims for amounts owed under their reinsurance agreements based on

circumstances occurring on or before September 30, 2023.5 The second asked the court

to approve procedures to govern how claimants would submit other claims (the “Other

Claims Procedures”).6

Three weeks later, on April 17, 2024, the Commissioner filed a third motion.

This time the Commissioner asked the court to approval a set of dispute resolution

procedures (the “Dispute Procedures”).7

Two months after that, on June 17, 2024, the Commissioner filed a fourth

motion. This time the Commissioner asked the court to approve what the

4 Id. ¶¶ 20(a), 21(b).

5 Dkt. 847.

6 Dkt. 846.

7 Dkt. 853

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Commissioner called final determination procedures (the “Final Determination

Procedures”).8

F. The Objections

The Commissioner sought—and the court granted—orders requiring

interested parties to come forward with objections to the proposed procedures. There

were many, resulting in a series of extensions as the Commissioner and the Objectors

sought to work through their disputes. The Objectors identified the issues that were

not resolved, and the Commissioner filed a consolidated reply in support of the

Motions.

The parties continued to negotiate, and on October 15, 2024, the Commissioner

filed an acknowledgement of the representations made in an effort to resolve or defer

additional objections.9 On October 25, 2025, the Objectors filed a statement of open

issues and asked for supplemental briefing. The court granted that request.

After briefing, the Commissioner filed a letter identifying twenty-four

objections still at issue. The Commissioner proposed to defer some of the objections

to a later point in the proceedings. The Objectors disagreed and wanted their

objections addressed now.

The Commissioner also took the position the parties had resolved certain

objections, but the Commissioner did not file updated versions of the procedures. The

8 Dkt. 921.

9 Dkt. 964.

10
Objectors want the Commissioner to file updated procedures reflecting his

concessions.

II. LEGAL ANALYSIS

The Commissioner asks the court to adopt its proposed procedures. The

Objectors press at least twenty-four objections, although some overlap.

Many of the objections reflect uncertainty created by Delaware’s continuing

reliance on an outdated insurance statute. Under the McCarran-Ferguson Act, the

reorganization or liquidation of an insurance company does not take place under the

federal bankruptcy code.10 It takes place almost entirely in state courts and as a

matter of state law.11

Three iterations of model legislation have sought to promote consistency across

jurisdictions. The first-generation statute was the Uniform Insurers Liquidation Act

(the “Uniform Act”), promulgated in 1939 by the National Conference of

Commissioners on Uniform State Laws (“NCCUSL”) with the assistance of the

American Bar Association, the National Association of Insurance Commissioners

10 15 U.S.C. § 1012(a) (“The business of insurance, and every person engaged

therein, shall be subject to the laws of the several Sates which relate to the regulation
or taxation of such business.”).

11 See Cohen v. State ex rel. Stewart, 89 A.3d 65, 72 (Del. 2014).

11
(“NAIC”), the insurance departments of several states, and other qualified experts.12

As many as thirty-two jurisdictions adopted the Uniform Act in some form.13

In 1953, Delaware adopted the Uniform Act by enacting DUILA.14 NCCUSL

withdrew the Uniform Act in 1981, citing its obsolescence.15 Forty-four years later,

Delaware continues to rely on its version of the Uniform Act, notwithstanding the

Uniform Act’s obsolescence.16

12 See Commissioner’s Prefatory Note, Uniform Insurers Liquidation Act, 9B

Unif. L. Annotated 284, 286 (1966).

13 Lac D’Amiante du Quebec, Ltee. v. Am. Home Assurance Co., 864 F.2d 1033,

1039 (3d Cir. 1988).

14 See 18 Del. C. § 5920 (1953) (declaring that the provisions being enacted

“constitute and may be referred to as the Uniform Insurers Liquidation Act”).

15 [13 Part II] Unif. L. Annotated 126 (2002) (“The Uniform Insurers
Liquidation Act (1939) was withdrawn from recommendation for enactment by the
National Conference of Commissioners on Uniform States Laws in 1981 due to it
being obsolete.”); see Nat’l Ass’n of Ins. Comm’rs, Receivers’ Handbook for Insurance
Company Insolvencies, at 280 n.15 (2024) [hereinafter Receivers’ Handbook] (“Note
that the [Uniform Act] was withdrawn from recommendation for enactment by the
National Conference of Commissioners on Uniform State Laws in 1981 due to it being
obsolete.”). At the time it was withdrawn, thirty states had insurance statutes that
were substantially similar to the Uniform Act. Nat’l Conf. of Comm’rs on U.S. Laws,
Handbook of the National Conference of Commissioners on United States Laws and
Proceedings of the Annual Conference Meeting in Its Eighty-Ninth Year 481 (1982)
(listing the states that had adopted the Uniform Act by 1980).

16 Delaware is not alone. Twenty-two other states still use at least parts of the

Uniform Act. See Nat’l Ass’n of Ins. Comm’rs, Insurer Receivership Model Act State
Page Key, at ST-555-2 (2021), available at
https://content.naic.org/sites/default/files/model-law-state-page-555.pdf [hereinafter
IRMA State Page Key].

12
The second-generation statute is the Insurers Rehabilitation and Liquidation

Model Act (the “Model Act”), promulgated in 1968 by the NAIC and based largely on

the Wisconsin Insurers Liquidation Act.17 The Model Act carried over much of the

Uniform Act’s terminology,18 but made changes to clarify and improve on the

predecessor statute.19 Over thirty states plus the District of Columbia and Puerto

Rico have enacted components of the Model Act.20 Delaware has not.

17 See Mary Cannon Veed, Cutting the Gordian Knot: Long-Tail Claims in

Insurance Insolvencies, 34 Tort & Ins. L.J. 167, 174 (1998) (identifying the Wisconsin
Insurer’s Liquidation Act as the template for the Model Act); David A. Skeel, Jr., The
Law and Finance of Bank and Insurance Insolvency Regulation, 76 Tex. L. Rev. 723,
731 (1998) (same). The NAIC amended the Model Act several times over the years.
See Receivers’ Handbook, supra, at 280.

18 Receivers’ Handbook, supra, at 283 (“Ten sections (54–63) of the Model Act

adopt much of the [Uniform Act], as well as its policy objective: centralization of
delinquency proceedings in the domiciliary jurisdiction.”); accord Stephen W. Schwab
et al., Cross-Border Insurance Insolvencies: The Search for a Forum Concursus, 12 U.
Pa. J. Int’l. Bus. L. 303, 325 (1991) (explaining that the Model Act adopts “much of
the basic terminology and procedure of the [Uniform Act], as well as the same
universalist policy objective: centralization of delinquency proceedings in the
domiciliary jurisdiction”).

19 See id., supra, at 325 (“Differences between the two statutes derive from the

NAIC’s efforts to clarify and improve [Uniform Act] provisions.”); Eric P. Berg, Note,
Injunctions Barring Suit Against Insolvent Insurance Companies: State Cooperation
Through Tit-for-Tat Strategy, 57 Rutgers L. Rev. 1377, 1379, 1384 (2005) (describing
the Model Act as “more detailed” and “more comprehensive” than the Uniform Act
but as providing “a framework supporting the same policies”).

20 See IRMA State Page Key, supra.

13
The third-generation act is the Insurer Receivership Model Act (“IRMA”),

promulgated in 2005 by the NAIC as an updated version of the Model Act.21 Only two

states—Texas and Utah—have adopted IRMA in its entirety.22 Several other states

have adopted parts of IRMA.23

There are important distinctions between the three generations of statutes.24

Most notably for present purposes, the Model Act and IRMA contain more detailed

provisions and offer more guidance for receivers, interested parties, and courts. By

not updating its statute and persisting with DUILA, Delaware continues to use a gap-

ridden scheme that the promulgating authority declared obsolete over four decades

ago.

The lack of a current statute has consequences. When overseeing liquidation

proceedings, the court must grapple all too often with questions that DUILA either

does not address or fails to answer clearly. The parties and the court then must do

21 Receivers’ Handbook, supra, at 285.

22 IRMA State Page Key, supra; see Tex. Ins. Code Ann. § 443.001; Utah Code

Ann. § 31A-27a-101.

23 IRMA State Page Key, supra; see Ariz. Rev. Stat. Ann. § 20-637; Me. Stat. tit.

24-a § 4387; Mo. Rev. Stat. § 375.1198; Nev. Rev. Stat. § 696B.280 (providing that
Nevada’s version of the Uniform Act “shall be so interpreted as to effectuate the
general purpose to make uniform the laws of those states which enact the Uniform
Insurers Liquidation Act or the Insurer Receivership Model Act.” (emphasis added));
Tenn. Code Ann. § 56-9-338. While Delaware has generally not adopted IRMA, it has
followed a several other states in adopting a version of IRMA’s section on “Qualified
Financial Contracts.” 18 Del. C. § 5933.

24 See Receivers’ Handbook, supra, at 280–86 (providing examples).

14
what they have done here: search for hints in the statutory language, draw inferences

from other statutory schemes, survey the law of other jurisdictions, consult articles

and treatises, and consider competing public policies, all in an effort to divine a rule

that a modern statute could supply.25

If Delaware had a current insurance statute, then those resources could be

devoted to other tasks. Insurance receivership proceedings would be more efficient

and predictable for everyone.

Without a current statute, it is tempting to interpret DUILA to reach the result

that the Model Act or IRMA would specify. But the language of the Model Act and

IRMA sometimes suggest that those statutes sought to move away from the outcome

that a court applying the Uniform Act would reach or to alter an otherwise applicable

common law rule. To routinely interpret DUILA to achieve the result that a modern

statute contemplates would constitute judicial legislating.

It is hard to understand why Delaware would hold fast to a statutory scheme

that became obsolete four decades ago, but that is the choice that the General

Assembly has made. Of course, the General Assembly is busy, and insurance

liquidation is not the sexiest of topics. There also may be a political economy story.

The Commissioner would be the natural champion for a new statute, but an obsolete

25 As part of that effort, my clerks and I have developed two tables, which this

decision includes as appendices. Appendix A identifies the extent to which a state has
adopted the Uniform Act, the Model Act, or IRMA. Appendix B compares DUILA with
statutes in other jurisdictions. May they help litigants and jurists with future
disputes under DUILA.

15
statute that says little imposes few constraints, giving the Commissioner wide

latitude. Insurance companies would benefit from greater clarity, but operating

companies would have to see value in lobbying for an updated insolvency statute. The

statutory improvements would only benefit insurers who became insolvent or

regularly participated in insolvencies. For a solvent company to devote resources to

improving Delaware’s insolvency regime could send mixed signals about its own

viability or exposure, and solvent companies have better places to invest their

resources. That leaves potential claimants, but guarantee associations generally

cover policyholders, and contractual claimants likely face meaningful losses no

matter what statute governs.

With no constituency incentivized to take action, DUILA persists. To the many

who complain about long opinions, consider statutory reform.

A. The Standard Of Review For Adopting Liquidation Procedures

The first issue for decision is the proper standard of review for evaluating the

proposed procedures. If the court uses a deferential standard, then the Commissioner

will receive the benefit of the doubt. If the court uses a plenary standard, then the

court will determine what the procedures will be.

In an earlier decision in this proceeding, the court observed that “[b]lack letter

authorities generally state that an abuse of discretion standard applies when a court

16
reviews the decision of an insurance commissioner acting as a receiver for a

delinquent insurer.”26 Treatises say similar things.27

To refer to delinquency proceedings in general, however, is something of an

oversimplification. DUILA contemplates four types of delinquency proceedings:

conservatorships, rehabilitations, reorganizations, and liquidations.28 DUILA does

not define any of these terms, but they have well understood meanings.

• In a conservatorship, also called regulatory supervision, the Commissioner
takes possession of the delinquent insurer to preserve the status quo while the
receiver evaluates the Company’s financial status.29

26 In re Scot. Re (U.S.), Inc., 273 A.3d 277, 293 (Del. Ch. 2022).

27 See 1 Couch on Ins. § 5:35 (3d ed.), Westlaw (database updated June 2025)

(“The state has an important and vital interest in the liquidation of an insolvent
insurance company. The only restriction on the exercise of this power is that the
state’s action shall be reasonably related to the public interest and shall not be
arbitrary or improperly discriminatory.”); id. § 5:37 (“The commissioner as liquidator
of an insolvent insurance company is a state officer performing official duties and acts
on behalf of the state, and must administer the affairs of the company for the benefit
of the creditors, policyholders, and general public. In so doing, the commissioner is
afforded very broad judgment and discretion in the performance of duties.” (footnotes
omitted)); Kristen J. Brown & Stephen Pate, Regulatory Framework, in 9 New
Appleman on Insurance Law § 98.01[6] (Library ed. 2021) (“Courts reviewing
receivership orders and subsequent orders implementing the receivership order most
often apply an abuse of discretion standard in reviewing the insurance
commissioner’s actions.”).

28 18 Del. C. § 5901(3) (“‘Delinquency proceeding’ means any proceeding
commenced against an insurer pursuant to this chapter for the purpose of liquidating,
rehabilitating, reorganizing or conserving such insurer.”).

29 See Stephen W. Schwab et al., Onset of an Offset Revolution: The Application

of Set-Offs in Insurance Insolvencies, 95 Dick. L. Rev. 449, 451 n.3 (1991) [hereinafter
Offset Revolution]; see Couch on Ins., supra, § 5:18 (“A conservatorship proceeding
contemplates, not the liquidation of the company involved, but a conservation of the

17
• In a rehabilitation, the Commissioner seeks to remedy the problems that led
to the delinquency proceeding so as to preserve the business of the delinquent
insurer and allow it to emerge from receivership as a going concern.30

assets and business of the company over the period of stress by the commissioner who
thereafter yields the control and direction to the regular officers of the company.”
(citing Pac. Rim Mech. Contrs., Inc. v. Aon Risk Ins. Servs. W., Inc., 138 Cal. Rptr. 3d
294 (Cal. Ct. App. 2012)); Receivers’ Handbook, supra, at 12 (“An order of conservation
is designed to give the regulator an opportunity to determine the course of action that
should be taken with respect to the troubled insurer.”); Patrick H. Cantilo et al.,
Purposes of Rehabilitation and Distinguishing It from Other Proceedings, in New
Appleman on Insurance Law, supra, § 100.01[4] (“The conservator aims to effectively
run the company and resolve the insurer’s impairments, followed by a rehabilitation
if conservatorship proves unsuccessful, and then liquidation if rehabilitation efforts
fail.”).

30 In the language of the statue, the Commissioner is charged with taking steps

“toward removal of the causes and conditions which have made rehabilitation
necessary.” 18 Del. C. § 5910(a). See generally Howard M. Berg, Fundamentals of
Insurance Insolvency Laws, [38 No. 7] Prac. Law. 45, 47 (1992) (“In rehabilitation the
aim is to restructure the insurer to make it a viable business entity. The
rehabilitator’s primary purpose is to determine whether the company is in a condition
that makes rehabilitating or reorganizing the insurer a reality.”); Receivers’
Handbook, supra, at 12 (“Rehabilitation can be used as a mechanism to remedy an
insurer’s problems, to run off its liabilities to avoid liquidation, or to prepare the
insurer for liquidation.”); id. at 586 (“Rehabilitation is the most stringent resolution
proceeding short of Liquidation. Rehabilitation is designed to generate a
Rehabilitation plan that will either correct the difficulties that led to the insurer
being placed in receivership and restore the company’s financial condition to sound
basis or transition the company’s policyholder liabilities to financially sound insurers.
The Rehabilitator may determine the company cannot be rehabilitated. If that is the
determination, then a petition for Liquidation will be filed with the court.”); Offset
Revolution, supra, at 451 n.3 (“‘Rehabilitation’ has been defined as the ‘preservation,
whenever possible, of the business of an insurance company threatened with
insolvency.’” (quoting People ex rel. Schact v. Main Ins. Co., 448 N.E.2d 950, 952 (Ill.
App. Div. 1983))); Francine Semaya & William K. Broudy, A Primer on Insurance
Receiverships, 40 Brief 22, 28 (2010) (“The rehabilitator manages the insurer’s affairs
for an indefinite time period, until the company can be returned to its prior
management, or perhaps new management, or it is placed in liquidation. The primary
purpose of rehabilitation is the preservation of the insurer.” (footnotes omitted));

18
• In a reorganization, the Commissioner proceeds in a manner similar to a
rehabilitation, but with the additional connotation of a material restructuring
of the delinquent insurer, such as a change in its lines of business or capital
structure.31

• In a liquidation, the Commissioner winds up the business of the delinquent
insurer, marshals its assets, and makes payments to its claimants, including
a liquidating distribution to equity holders, if sufficient funds are available.
The delinquent insurer does not continue as a going concern.32

Skeel, supra, at 732 (“As the names suggest, rehabilitation proceedings are designed
to stabilize and rehabilitate a troubled insurer . . . .”).

31 Compare 18 Del. C. §§ 5901(2)–(3), 5902(d) with 11 U.S.C. §§ 1121–1129

(discussing reorganizations under the Bankruptcy Code). The term is also used in
corporate law, where it can likewise cover a lot of ground and is ultimately
ambiguous. See, e.g., Stream TV Networks, Inc. v. SeeCubic, Inc., 279 A.3d 323, 346–
47 (Del. 2022) (discussing sales of corporate assets under 8 Del. C. § 271 “made for
the purpose of reorganization and continuance of the business in another corporation
rather than for the purpose of liquidation” (quoting Henry Winthrop
Ballantine, Ballantine on Corporations § 282, at 668 (1946))); Hariton v. Arco Elecs.,
Inc., 188 A.2d 123, 125 (1963) (addressing validity of privately negotiated corporate
reorganization plan). Because a rehabilitation can encompass similar territory, there
does not appear to be much of a role for the separate concept to play.

32 See Michael F. Aylward & Paul M. Hummer, When Insurers Go Belly Up:

Implications for Insurers, Policyholders and Guaranty Funds, 70 Def. Couns. J. 448,
450 (2003) (“Liquidation of a domestic insurer involves taking possession of the
property of an insurer, being vested by operation of law with title to all property,
contracts and rights of action of the insurer, and giving notice to all creditors to
present their claims.”); Berg, Fundamentals, supra, at 46 (“In liquidation the
commissioner takes title to the insurer’s property and gathers the insurer’s assets to
liquidate them and pay the insurer’s creditors.”); Receivers’ Handbook, supra, at 76
(“For the insurer in liquidation, the objectives are to identify and marshal the assets
of the insurer; identify and evaluate liabilities and determine the appropriate class
of each creditor in accordance with the domiciliary state’s priority of distribution
statute; and liquidate the insurer in a manner that minimizes the cost to
policyholders, state guaranty funds, and other creditors.”); Offset Revolution, supra,
at 451–52 n.3 (“‘Liquidation’ precludes the transaction of further business by the
company and results in a final distribution of its assets.”); Semaya & Broudy, supra,

19
In each type of proceeding, the Commissioner must make discretionary

decisions. Because conservatorships, rehabilitations, and reorganizations involve the

insurer continuing to operate, the need for discretion is obvious, and many authorities

explain that a court will review the Commissioner’s judgments under an abuse of

discretion standard.33

at 28 (“The liquidator’s role is to wind up the insurer’s affairs in a comprehensive and
efficient manner.”).

33 See, e.g., In re Exec. Life Ins. Co., 38 Cal. Rptr. 2d 453, 460 (Cal. Ct. App.

1995) (reviewing challenge to approval of rehabilitation plan and noting that “[t]he
trial court reviews the Commissioner’s actions under the abuse of discretion
standard”); Ky. Cent. Life Ins. Co. v. Stephens, 897 S.W.2d 583, 588 (Ky. 1995) (“The
trial court’s primary role is a supervisory one and the standard of the court’s review
of the rehabilitator’s actions is one of abuse of discretion. Under the special statutory
proceedings, the Commissioner is granted administrative discretion in the context of
the insolvency/delinquency proceedings and the burden of proof is upon those
contesting the Commissioner’s actions.”); Mills v. Fla. Asset Fin. Corp., 818 N.Y.S.2d
333, 334 (N.Y. App. Div. 2006) (“The courts will generally defer to the rehabilitator’s
business judgment and disapprove the rehabilitator’s actions only when they are
shown to be arbitrary, capricious or an abuse of discretion”); Foster v. Mut. Fire,
Marine & Inland Ins. Co., 614 A.2d 1086, 1091 (Pa. 1992) (“[T]he involvement of the
judicial process is limited to the safeguarding of the plan from any potential abuse of
the Rehabilitator’s discretion.”); Kueckelhan v. Fed. Old Line Ins. Co. (Mut.), 444 P.2d
667, 674 (Wash. 1968) (reinstating an insurance commissioner as rehabilitator and
noting that the commissioner is “required to follow the statutory mandates and to use
reasonable discretion in the rehabilitation of a seized company, with abuses of
discretion to be checked by the judiciary”); In re Ambac Assurance Corp., 841 N.W.2d
482, 495 (Wis. Ct. App. 2013) (“When reviewing the circuit court’s decision to approve
the rehabilitation plan, we will uphold the determinations made by the rehabilitator
unless the rehabilitator abused his or her discretion.”); 43 Am. Jur. 2d Insurance §
89, Westlaw (database updated November 2025) (“Courts will generally defer to the
business judgment of the rehabilitator and will disapprove the rehabilitator’s actions
only when they are shown to be arbitrary, capricious, or an abuse of discretion.”); 44
C.J.S. Insurance § 271, Westlaw (database updated May 2025) (“The conduct and
disposition of proceedings for the conservation or rehabilitation of an insurance
company are generally subject to judicial review under a deferential standard of

20
A liquidation might be viewed as different because it is a more structured

proceeding that involves marshalling assets and paying claims in order of priority.

But that process involves many discretionary decisions. Obvious examples include

how to wind down the insurer’s business, what assets to sell, what claims to pursue,

when and how to take those steps, and how best to protect policyholders, creditors,

and the public interest.

Plus insurers differ. They pursue different business models, focus on different

market niches, issue different types of policies, and capitalize themselves in different

ways. To adopt a shopworn phrase, there is “no single blueprint” for liquidating an

insurance company.34 The Commissioner must exercise discretion when carrying out

a liquidation, just as in other delinquency proceedings.

The need for discretion extends to the plan for conducting it, including the

procedures to be followed. Non-Delaware authorities unsurprisingly contemplate that

a court will review a receiver’s liquidation plan for abuse of discretion.35

abuse of discretion.”); Couch on Ins., supra, § 5:22 (“The conservator has broad
discretion to structure a plan of rehabilitation.”).

34 See Barkan v. Amsted Indus., Inc., 567 A.2d 1279, 1286 (Del. 1989).

35 See Angoff v. Holland-Am. Ins. Co. Tr., 937 S.W.2d 213, 217 (Mo. Ct. App.

1996) (noting that “[a] receiver has broad discretion in conducting and managing a
liquidation” in review of a challenge to approval of liquidation plan’); 43 Am. Jur. 2d
Insurance § 94, Westlaw (database updated May 2025) (“A receiver or liquidator has
broad discretion in conducting and managing the liquidation of an insolvent
insurance company under the supervision of the courts so long as their acts are
reasonably related to the public interest and are not arbitrary or improperly
discriminatory.” (footnotes omitted)); 44 C.J.S. Insurance § 249, Westlaw (database

21
A deferential standard is warranted for other reasons as well. They include

(i) the Commissioner’s status as an elected public official charged with exercising the

authority conferred by the Insurance Code and other statues, (ii) the specialized

nature of the insurance industry, (iii) the complexities of regulating insurers, (iv) the

expertise that the Commissioner and the Department of Insurance develop over time,

(v) the fact that the Commissioner assumes operational control of the business and

affairs of the delinquent insurer and must make judgment-laden decisions regarding

its operations, and (vi) the fact that, in contrast to the Commissioner’s direct

involvement with the insolvent insurer, the court acts in an oversight role.36

But stating that an abuse of discretion standard applies is not the same as

operationalizing it. In an earlier decision in this proceeding, the court explained what

the Commissioner must do to receive deference.37 The same principles apply here.

updated May 2025) (noting that the insurance commissioner “has broad discretionary
and equitable powers relating to the supervision, rehabilitation, and liquidation of
insurance companies, subject to judicial review only for abuse of discretion” (footnote
omitted)); Couch on Ins., supra, § 5:37 (“The commissioner as liquidator of an
insolvent insurance company is a state officer performing official duties and acts on
behalf of the state, and must administer the affairs of the company for the benefit of
the creditors, policyholders, and general public. In so doing, the commissioner is
afforded very broad judgment and discretion in the performance of duties.” (footnotes
omitted)).

36 See Scot. Re, 273 A.3d at 294; see also Ambac, 841 N.W.2d at 495 (citing

similar factors in support of abuse of discretion standard).

37 See Scot. Re, 273 A.3d at 295–97.

22
First, the Commissioner must make out a prima facie case for the requested

relief. To establish a prima facie case, the Commissioner must identify a source of

authority, articulate a rationale for the requested relief, and create a factual record

that supports the proffered rationale. Once the Commissioner has made that

showing, the burden shifts to the objecting party to show that (i) the Commissioner

lacked authority to make the decision or that the decision does not otherwise comply

with applicable law, (ii) the Commissioner’s rationale does not have substantial

evidentiary support, or (iii) the decision is an abuse of discretion.38

When evaluating the Commissioner’s decision, the reviewing court will first

consider whether the decision complies with positive law.39 Positive law includes the

United States Constitution, federal statutes, federal regulations, the state

constitution, state statutes, state regulations, and common law. Although Delaware

law traditionally treated this dimension of the analysis as part of the abuse of

38 Id. at 297.

39 See Exec. Life, 38 Cal. Rptr. 2d at 460 (noting that under the abuse of
discretion standard, a court must evaluate whether the decision “is “contrary to
specific statute”); Callon Petroleum Co. v. Superintendent of Ins. of State, 863
N.Y.S.2d 92, 94 (N.Y. App. Div. 2008) (reversing decision of insurance commissioner
under abuse of discretion statute where commissioner failed to comply with statutory
requirement); In re Frontier Ins. Co., 945 N.Y.S.2d 866, 870 (N.Y. Sup. Ct. 2012)
(evaluating “the threshold question” of whether insurance commissioner’s decision
regarding classification of claims violated a state statute); Old Line, 444 P.2d at 675
(reversing trial court’s rejection of plan where there was “nothing arbitrary,
capricious, unreasonable or unlawful with the approach adopted by the
[c]ommissioner” (emphasis added)); Ambac, 841 N.W.2d at 494 (analyzing whether
commissioner actions were “arbitrary, capricious or an abuse of discretion” (quoting
Mills, 818 N.Y.S.2d at 334)).

23
discretion standard, the precedents make clear that the court does not defer to the

Commissioner’s legal interpretation. Making that determination is “the

responsibility of the courts.”40 Rather than rolling this step into the abuse of

discretion standard itself, it makes sense to treat it as a threshold inquiry.

The next step in the analysis is to examine the Commissioner’s rationale to

determine whether it has substantial support in the record that the Commissioner

submitted.41 The court must consider the reasons the Commissioner identified and

the record the Commissioner created to support those reasons. The court looks only

for the existence of reasons, the existence of a supporting record, and the presence of

substantial evidence to support the commissioner’s reasons.42 A lack of reasons, a

40 Pub. Water Supply Co. v. DiPasquale, 735 A.2d 378, 382 (Del. 1999). That

said, a court “may accord due weight, but not defer, to an agency interpretation of a
statue administered by it.” Id. (footnote omitted). A court also may give appropriate
deference to an agency’s interpretation of its own rules or regulations. Id. What a
court applying Delaware law cannot do is defer to the agency’s interpretation “merely
because it is rational or not clearly erroneous.” Id. at 383.

41 See Exec. Life, 38 Cal. Rptr. 2d at 460 (noting that under the abuse of
discretion standard, a court asks “was the action arbitrary, i.e. unsupported by a
rational basis”); Foster, 614 A.2d at 1092 (noting that the process of review includes
“determining . . . whether sufficient competent evidence exists to support the exercise
of discretion”); Koken v. Fid. Mut. Life Ins. Co., 803 A.2d 807, 812 (Pa. Commw. Ct.
2002) (noting that an administrative agency “abuses its discretion when its findings
of fact are not supported by substantial evidence” (internal quotation marks
omitted)); Old Line, 444 P.2d at 675 (reversing trial court’s rejection of plan where
commissioner provided expert testimony to support it); Ambac, 841 N.W.2d at 497
(affirming trial court’s approval of insurance commissioner’s decision where trial
court received testimony which “established that the commissioner appropriately
exercised its discretion”).

42 See Scot. Re, 273 A.3d at 297.

24
lack of substantial evidence to support those reasons, or the absence of any

relationship between the two indicates an ill-considered, unsupported decision that

is arbitrary and capricious.43

If the Commissioner has provided a rationale that has substantial evidentiary

support, then the court defers to the Commissioner’s judgment. At that stage, “it is

not the function of the courts to reassess the determinations of fact and public policy

made by the [Commissioner].”44 At that point in the process, the objecting party bears

the burden of showing arbitrary conduct, such as a scenario where the

Commissioner’s evidence or rationale plainly and obviously conflict with the

Commissioner’s decision.45

The court will apply this standard when evaluating the Commissioner’s

proposed procedures.

B. The Standard Of Review For Claim Recommendations

The next question is what standard of review the court should apply to the

Commissioner’s claim recommendations. The proposed Final Determination

43See id.; cf. Tate v. Miles, 503 A.2d 187, 191 (Del. 1986) (using similar
approach when reviewing zoning decision).

44 Foster, 614 A.2d at 1091; see Mills, 818 N.Y.S.2d at 334 (noting that courts

will “disapprove the rehabilitator’s actions only when they are shown to be arbitrary,
capricious or an abuse of discretion”); Old Line, 444 P.2d at 675 (reversing trial court’s
rejection of plan where there was “nothing arbitrary, capricious, unreasonable, or
unlawful with the approach adopted by the [c]ommissioner”).

45 See Stephens, 897 S.W.2d at 588 (“[T]he burden of proof is upon those
contesting the [c]ommissioner’s actions.”).

25
Procedures call for applying an abuse of discretion standard to the Commissioner’s

recommendations on priority class and claim value. The Objectors want the court to

conduct a form of de novo review.

1. Is The Standard Of Review Question Ripe?

Several Objectors argue that the standard of review question is not yet ripe.

They suggest that the question cannot be answered in the abstract because “the

circumstances of each claim recommendation dispute—which is fact intensive and

contract specific—are unknown.”46

“A ripeness determination requires a common sense assessment of whether the

interests of the party seeking immediate relief outweigh the concerns of the court in

postponing review until the question arises in some more concrete and final form.”47

A dispute is ripe if “litigation sooner or later appears to be unavoidable” and “the

material facts are static.”48 Conversely, the court may not deem a dispute ripe where

“future events may obviate the need” for the court to decide the issue.49

Determining what standard of review will apply is a question that the court

will have to answer eventually. The issue presents a pure question of law that does

46 Dkt. 985, at 13.

47 XL Specialty Ins. Co. v. WMI Liquidating Tr., 93 A.3d 1208, 1217 (Del. 2014)

(internal quotation marks omitted).

48 Id.

49 Id. at 1218.

26
not require further factual development. While the nuances of each claim may differ,

the standard of review will not. The time to decide that issue is now.

2. Abuse of Discretion Or De Novo Review?

In an earlier decision in this proceeding, the court observed that “[b]lack letter

authorities generally state that an abuse of discretion standard applies when a court

reviews the decision of an insurance commissioner acting as a receiver for a

delinquent insurer.”50 By extension, the court applied an abuse of discretion standard

to a “one-off issue like the request to make the Pre-Plan Payments that is not part of

a broader rehabilitation plan.”51 Similar reasoning justifies applying a deferential

standard of review to a claim recommendation.

a. Public Policy And The Commissioner’s Role

As discussed above, many factors favor reviewing the Commissioner’s decisions

for abuse of discretion.52 The Objectors argue that while those factors warrant a

deferential standard for a rehabilitation plan, they do not support a deferential

standard for a claim recommendation.53 They say the Commissioner wears two hats

when conducting a liquidation: one as an insurance regulator and another as the

50 Scot. Re, 273 A.3d at 293.

51 Id. at 294.

52 See Part A, supra; accord Scot. Re, 273 A.3d at 294 (listing factors).

53 See Dkt. 985, at 4–5, 9.

27
representative of the delinquent insurer.54 They say when the Commission makes a

claim recommendation, he acts on behalf of the delinquent insurer and as a

contractual counterparty to the claimant.55 They say that in that capacity, the

Commissioner “stands in the shoes” of the delinquent insurer and “has no greater

contract rights than the company would have had.”56 They conclude that the court

should rule on disputes between a claimant and the Commissioner when standing in

the shoes of a delinquent insurer just as it would if the claimant and the insurer were

litigating the dispute outside of the claims process. In that setting, the insurer would

not receive the benefit of an abuse of discretion standard for its positions. The

Objectors say the Commissioner should not get that benefit either.

The Objector’s two-hats analogy gets it almost right. DUILA contemplates that

the Commissioner serves in two roles, and the first is as the state’s chief insurance

regulator. The other, however, is as the receiver for the delinquent insurance

company.57 And although the Commissioner generally stands in the delinquent

insurer’s shoes when acting as receiver,58 “that general principle has limitations, and

54 Id. at 4.

55 See id. at 5.

56 Dkt. 941 ¶ 4; Dkt. 985, at 4.

57 See 18 Del. C. § 5913.

58 See, e.g., In re Rehab. of Manhattan Re-Ins. Co., 2011 WL 4553582, at *7–9

(Del. Ch. Oct. 4, 2011); Commw. ex. rel. Sheppard v. Cent. Penn Nat’l Bank, 375 A.2d
874, 877 (Pa. Commw. Ct. 1977); In re Liquidation of Union Indem. Ins. Co. of N.Y.,

28
it does not allow private parties to trump the statutory provisions and public policies

of the domiciliary state, such as the public policy of centralizing proceedings in the

domiciliary jurisdiction and the statutory provisions that implement that policy.”59

Those public policy considerations apply when the Commissioner makes a

claim recommendation, just as when the Commissioner designs a rehabilitation plan

or proposes liquidation procedures. The same more specific factors that warrant

reviewing the Commissioner’s decisions under an abuse of discretion standard also

continue to apply.

First, when making a recommendation on a claim, the Commissioner operates

“as an elected public official charged with exercising the authority conferred by the

Insurance Code and other statutes.”60 Conceiving of the Commissioner as only a

counterparty ignores the public dimension of his role. Under DUILA, only the

Commissioner can serve as receiver; a private party cannot.61 When making a claim

recommendation, the Commissioner acts on behalf of all of the delinquent insurer’s

stakeholders, including policyholders, creditors, and the public generally. The

674 N.E.2d 313, 320–21 (“The general rule is that a liquidator of an insurance
company ‘stands in the shoes’ of the insolvent, gaining no greater rights than the
insolvent had.” (cleaned up)); Ario v. Ingram Micro, Inc., 600 Pa. 305, 311 n.2 (Pa.
2009).

59 In re Liquidation of Freestone Ins. Co., 143 A.3d 1234, 1260–61 (Del. Ch.

2016).

60 Scot. Re, 273 A.3d at 294; see 18 Del. C. § 5917(c).

61 See 18 Del. C. §§ 5905, 5906, 5913.

29
Commissioner must also consider the precedential force of his conduct and

determinations for future delinquency proceedings and the soundness of insurers

operating under the auspices of Delaware law. The “characteristics of the liquidator’s

public-protection role” make the Commissioner more than merely a substitute for the

insurer as contractual counterparty.62 Rather than conceiving of the Commissioner’s

receiver role as purely public or purely private, the better view is that “the

Commissioner functions in a hybrid status, part public and part private, when he or

she oversees the liquidation of an insolvent insurer.”63

Like a contractual counterparty, the Commissioner must decide whether to

dispute or resolve a claim. But when making that determination, the Commissioner

must weigh factors that go beyond what a private party would consider. The

Commissioner must take into account Delaware’s statutory priority scheme.64 He

must consider the interests of all stakeholders, including the public. And he must

strive to fulfill the policy goal of the Uniform Act by seeking to achieve “the orderly,

expeditious, and equitable resolution of all claims against the insolvent insurer.”65

The Commissioner’s broader public policy charge favors deferential review.

62 See Taylor v. Ernst & Young, L.L.P., 958 N.E.2d 1203, 1211–13 (Ohio 2011).

63 In re Liquidation of Integrity Ins. Co., 754 A.2d 1177, 1186 (N.J. 2000)

64 See Freestone, 143 A.3d at 1245.

65 Cohen, 89 A.3d at 94; see Couch on Ins., supra, § 5:36 (“One of the purposes

of the Uniform Insurers Liquidation Act (UILA) is to provide for a uniform, orderly,

30
Second, a deferential standard of review is warranted because the “specialized

nature of the insurance industry,” “the complexities of regulating insurers,” and “the

expertise that the Commissioner and the Department of Insurance develop over time”

remain relevant during the claims process in liquidation.66 The Commissioner and

his deputies draw on their expertise when they assess and value claims. While it is

true that, “in the normal course, a dispute over coverage, the amount of a covered

claim or the premium due would be adjudicated by a court or arbitrator, not the

insurance company,”67 that pre-delinquency reality does not diminish the

Commissioner’s comparative advantage in the claims process given his specialized

experience and expertise. As the Freestone decision recognized, “the receiver is in the

best position to assess and account for all the assets and liabilities of the insurance

company for the sake of its creditors and policyholders.”68 This reality warrants some

degree of deference to the Commissioner’s claim recommendations.

Third, the statutory structure of the claims process supports an abuse of

discretion standard. Section 5917 governs the handling of claims and provides in part:

(b) All claims filed in this State shall be filed with the receiver, whether
domiciliary or ancillary, in this State on or before the last date for filing
as specified in this chapter.

and equitable method of making and processing claims against financially troubled
insurers . . . .”).

66 See Scot. Re, 273 A.3d at 294.

67 Dkt. 985, at 9.

68 Freestone, 143 A.3d at 1248.

31
(c) Within 10 days of the receipt of any claim or within such further
period as the court may fix for good cause shown, the receiver shall report
the claim to the court, specifying in such report the receiver’s
recommendation with respect to the action to be taken thereon. Upon
receipt of such report, the court shall fix a time for hearing the claim
and shall direct that the claimant or the receiver, as the court shall
specify, shall give such notice as the court shall determine to such
persons as shall appear to the court to be interested therein. All such
notices shall specify the time and place of the hearing and shall concisely
state the amount and nature of the claim, the priorities asserted, if any,
and the recommendation of the receiver with reference thereto.

(d) At the hearing, all persons interested shall be entitled to appear and
the court shall enter an order allowing, allowing in part, or disallowing
the claim. Any such order shall be deemed to be an appealable order. 69

This section is one of “[m]ultiple features of the Uniform Act” that “evidence the

importance of centralizing the liquidation of an insurer under the control of the chief

insurance regulator in the domiciliary jurisdiction.”70

The statutory structure “places the chief insurance regulator at the center of

the Claims Process, which establishes a mechanism for filing, processing, and paying

claims in accordance with a statutory prioritization scheme.”71

Notably, the statute does not contemplate that the court will resolve the
claims in the first instance. Instead, the statute envisions that the initial
step is for the Commissioner to make a recommendation regarding the
claim; only then does the court entertain the claim and rule on it.72

69 18 Del. C. § 5917(b)–(d) (emphasis added).

70 Freestone, 143 A.3d at 1244.

71 Id. at 1245.

72 Id. at 1245–46.

32
While the statute does not specify what standard of review the court should apply to

the Commissioner’s recommendations, the Commissioner’s central role in assessing

claims and making an initial determination supports using a deferential standard.

Fourth, the nature of the determinations the Commissioner makes in the

claims process supports some level of deference. When conducting a liquidation, the

Commission assumes control of the business and affairs of the delinquent insurer and

“must make judgment-laden decisions” to evaluate liabilities and wind up the

insurer’s affairs in a comprehensive and efficient manner.73 “[I]n contrast to the

Commissioner’s direct involvement with the delinquent insurer, the court acts in an

oversight role” in the claims process.74 Because of the tradeoffs between discretion

and accountability, a party sitting in an oversight role should generally apply some

level of deference when reviewing a frontline decision maker’s calls.

[Accountability mechanisms] must be capable of correcting errors but
should not be such as to destroy the genuine values of authority. Clearly,
a sufficiently strict and continuous organ of [accountability] can easily
amount to a denial of authority. If every decision of A is to be reviewed
by B, then all we have really is a shift in the locus of authority from A
to B and hence no solution to the original problem.75

73 Scot. Re, 273 A.2d at 294.

74 Id.

75 Kenneth J. Arrow, The Limits of Organization 78 (1974).

33
The solution is to grant the frontline decisionmaker a zone of operations where a

degree of deference prevails.76

Fifth, some level of deference is warranted because valuation is a judgment-

laden exercise. “It is trite but true to observe that valuation is as much of art as

science.”77 Valuing claims requires both the use of traditional damages concepts and

the challenges of assigning values to contingent outcomes. The actual figures will be

fuzzy, and the Commissioner is best positioned to make those judgments in the first

instance.

Given the Commissioner’s central role in the claims process and the necessity

of exercising judgment, this court has previously reviewed the Commissioners’ claim

recommendations under an abuse of discretion standard. Throughout the Indemnity

Insurance liquidation, the court applied that standard of review. 78 The Objectors

76 See generally Stephen M. Bainbridge, Director Primacy in Corporate
Takeovers: Preliminary Reflections, 55 Stan. L. Rev. 791, 806–07, 815 (2002) (using
Arrow’s theory to explain importance of courts applying deferential review to board
decisions).

77 In re Scot. Re, 274 A.3d 1019, 1024 n.1 (Del. Ch. 2022).

78 See In re Indem. Ins. Corp., RRG, 2023 WL 646709, at *1 & n.6 (Del. Ch.

Jan. 25, 2023) (ORDER) (citing Scot. Re, 273 A.3d at 293); In re Indem. Ins. Corp.
RRG, 2023 WL 2914201, at *1 (Del. Ch. Apr. 11, 2023) (ORDER) (same); In re Indem.
Ins. Corp. RRG, 2023 WL 4761820, at *1 (Del. Ch. July 25, 2023) (ORDER) (same);
In re Indem. Ins. Corp. RRG, 2023 WL 8084341, at *1 (Del. Ch. Nov. 20, 2023)
(ORDER) (same); In re Indem. Ins. Corp., RRG, 2024 WL 838687, at *1 (Del. Ch. Feb.
27, 2024) (ORDER) (same); In re Indem. Ins. Corp., RRG, 2024 WL 4371722, at *1
(Del. Ch. Oct. 1, 2024) (ORDER) (same); In re Indem. Ins. Corp., RRG, 2024 WL
4680427, at *1 (Del. Ch. Nov. 4, 2024) (ORDER) (same).

34
argue that the Indemnity Insurance orders are distinguishable because the claimants

there were policyholders, not sophisticated insurance companies, but that makes no

difference. The same statutory, policy, and efficiency considerations apply. Those

considerations also distinguish an insurance liquidation from a standard court-

ordered receivership, where the court appoints a private individual as receiver and a

default rule of de novo review applies.79

b. The Textual Arguments

In the face of powerful justifications for deferential review, the Objectors make

two textual arguments for de novo review. Neither is persuasive.

First, the Objectors argue that DUILA “uses broad, discretionary language to

describe the Receiver’s role” when the statute intends a deferential standard of

review.80 As an example, they point to Section 5910, titled “Order of rehabilitation,

termination.” Subsection (a) states:

An order to rehabilitate a domestic insurer shall direct the
Commissioner forthwith to take possession of the property of the insurer
and to conduct the business thereof and to take such steps toward
removal of the causes and conditions which have made rehabilitation
necessary as the court may direct.81

79 See In re Dissolution of Jeffco Mgmt., LLC, 2021 WL 3611788, at *5 (Del. Ch.

Aug. 16, 2021).

80 Dkt. 985, at 6.

81 18 Del. C. § 5910(a).

35
Turning to Section 5917, titled “Form of claim; notice; hearing,” they stress the

absence of similarly broad language. The Objectors assert that Section 5917 governs

claims processes in liquidations, and they argue that if broad language in Section

5910(a) supports deferential review for rehabilitations, the absence of broad language

in Section 5917 should call for plenary review in claims processes.

Contrary to the Objectors’ assertion, Section 5917 is not liquidation-specific. It

applies to claims in all types of delinquency proceedings.82 The better comparison is

to Section 5911, titled “Order of liquidation; domestic insurers; solvent insurer’s

assets.” It states:

An order to liquidate the business of a domestic insurer shall direct the
Commissioner forthwith to take possession of the property of the insurer,
to liquidate its business, to deal with the insurer’s property and business
in the Commissioner’s own name as Insurance Commissioner or in the
name of the insurer, as the court may direct, and to give notice to all
creditors who may have claims against the insurer to present such
claims.83

That language is just as broad as the rehabilitation order language in Section 5910.

The Objectors have drawn a false distinction between statutory sections. Just

as the breadth of Section 5910 warrants discretionary review in rehabilitations, so

too does the breadth of Section 5911 warrant discretionary review in liquidations.

Second, the Objectors point language in Section 5917 stating that “the receiver

shall report the claim to the court, specifying in such report the receiver’s

8218 Del. C. § 5917(a).

83 18 Del. C. § 5911(a) (emphasis added).

36
recommendation with respect to the action to be taken thereon.”84 Seizing on the

terms “report” and “recommendation,” the Objectors draw analogies to a magistrate

in Chancery’s “report” and a federal magistrate judge’s “report and recommendation.”

The Objectors argue that because a member of this court applies de novo review when

reviewing exceptions to a magistrate’s report and recommendation under DiGiacobbe

v. Sestak,85 this court must apply de novo review when reviewing the Commissioner’s

report and recommendation with respect to a claim.

Despite the use of similar words, the analogy is flawed. A magistrate lacks an

independent source of authority. As the DiGiacobbe court explained, “[t]he Delaware

Constitution restricts the exercise of judicial authority to those who are appointed by

the Governor and confirmed by the Senate. Since [magistrates] in the Court of

Chancery are appointed by the Chancellor, they may not exercise judicial

authority.”86 A magistrate’s authority flows from the judicial officer that appoints the

individual to that position, be that the Chancellor for Magistrates in Chancery or any

of the court’s constitutional judicial officers for special magistrates. Because the

magistrate’s authority flows from the appointing judicial officer, the magistrate’s

84 18 Del. C. § 5917(c) (emphasis added).

85 743 A.2d 180 (Del. 1999).

86 Id. at 182–83.

37
rulings have no effect (at least without party consent) until subjected to de novo

review by a constitutional judge.87

The Commissioner, by contrast, has independent sources of authority. By

statute, the Commissioner “shall be elected by the qualified electors of the State at a

general election for a term of 4 years and shall be commissioned by the Governor.” 88

The statute empowers the Commissioner to act as “the chief officer of the Insurance

Department”89 and to regulate a specialized industry.90 DUILA designates the

Commissioner as the only person who can serve as the receiver in a delinquency

proceeding.91 Because the Commissioner can draw on independent sources of

authority, the analogy to a magistrate fails.

Neither of the Objector’s textual arguments calls for applying a de novo

standard of review. If anything, the central role that DUILA affords the

Commissioner supports deferential review.

87 Id. at 184.

88 18 Del. C. § 301(b).

89 Id. § 301(a).

90 See, e.g., id. § 310 (identifying general powers and duties of Commissioner);

id. § 311 (empowering Commissioner to adopt rules and regulations); id. § 312
(empowering commissioner to issue orders).

91 See id. § 5913.

38
c. Decisions From Other Jurisdictions

As its name implies, DUILA is a uniform act that “shall be so interpreted and

construed as to effectuate its general purpose to make uniform the law of those states

that enact it.”92 Accordingly, “cases from other jurisdictions provide persuasive

guidance.”93 State courts in California and Washington have held that a deferential

standard of review applies to an insurance commissioner’s claim recommendation.

Alaska state courts apply de novo review. While the insurance codes in those states

are not identical to Delaware’s, each statutory scheme draws on the Uniform Act, so

its precedent warrants consideration.94

i. California

California applies an abuse of discretion standard, having confronted the issue

during liquidation proceedings involving Golden Eagle Insurance Corporation.

Several decisions from those proceedings addressed the standard of review.

Golden Eagle’s rehabilitation plan included a claims procedure that

contemplated the California Commissioner reviewing claims and making a

determination.95 By statute, if the commissioner rejected a claim, then “the claimant

92 Id. § 5920(b).

93 Cohen, 89 A.2d at 96.

94 See Cal. Ins. Code § 1064.12; Wash. Rev. Code § 48.99.010; Alaska Stat.

§ 21.78.200.

95 Garamendi v. Golden Eagle Ins. Co., 27 Cal. Rptr. 3d 239, 244–45 (Cal. Ct.

App. 2005).

39
may apply to the court in which the liquidation proceeding is pending for an order to

show cause why the claim should not be allowed.”96 Former employees asserted

employment-related claims against Golden Eagle, and the commissioner rejected

them as “without legal or factual merit.”97 The trial court affirmed the ruling as not

constituting an abuse of discretion, and the intermediate appellate court affirmed the

trial court’s ruling on appeal.98 The court noted that the California Insurance Code

“vests the commissioner with the responsibility for acting both as receiver or trustee

for the troubled insurer” and empowered the commissioner to handle the claims

process.99 The statute did not specify procedures for the commissioner to use when

evaluating claims, and a general expectation existed that “an informal process is

adequate.”100 The court concluded that when a trial court reviews a claim

determination, then the trial court “must affirm the actions of the commissioner as a

conservator unless they constitute an abuse of discretion.” 101 As support, the court

cited an earlier decision involving Golden Eagle, where the California Commissioner

had rejected a claim, despite the claimants’ possession of a default judgment in their

96 Id. at 248 (citing Cal. Ins. Code. § 1032).

97 Id. at 245.

98 Id. at 243.

99 Id. at 248–49 (internal quotation marks omitted).

100 Id. at 249.

101 Id.

40
favor, and the trial court affirmed the decision under an abuse of discretion

standard.102

The appellate court emphasized that the abuse of discretion standard was not

a blank check for the California Commissioner to act without restraint. The court

explained that the standard operated as follows:

Applying the abuse of discretion standard, a trial judge is required to
affirm the commissioner’s rejection of a claim unless:

(1) the commissioner did not fulfill his obligation to provide “a full and
fair determination” of the claim by, for example, failing to “conduct a
thorough investigation of the claim” . . . ;

(2) the commissioner’s decision to reject the claim was not supported by
substantial evidence . . . ; or

(3) the commissioner applied an improper legal standard or otherwise
based the determination on an error of law.103

The court held that the trial court properly applied that standard when affirming the

California Commissioner’s rejection of the claims.104

The Golden Eagle delinquency proceeding later transitioned into a liquidation.

During that phase, an attorney who represented an insured in a covered dispute filed

a claim against Golden Eagle for attorneys’ fees under the policy, and the California

Commission rejected the claim as untimely. The trial court affirmed the

102 Low v. Golden Eagle Ins. Co., 125 Cal. Rptr. 2d 155, 167 (Cal. Ct. App. 2002).

103 Garamendi, 27 Cal. Rptr. 3d at 250 (citations omitted; formatting modified).

104 Id. at 262.

41
determination, and the claimant appealed. California’s intermediate appellate court

held that the abuse of discretion standard continued to apply, stating:

The standard of review in this type of proceeding has been set out in
prior appellate decisions involving Golden Eagle’s
conservation/liquidation: “In these special proceedings for an insurer in
conservation, the actions of the Commissioner are subject to judicial
review, but not de novo review. The trial court reviews them under an
abuse of discretion standard, asking if the action was arbitrary, i.e.,
unsupported by a rational basis, contrary to specific statute or
discriminatory.”105

On the timeliness issue, the appellate court affirmed the trial court’s adoption of the

California Commissioner’s determination finding that “the court acted within its

discretion in denying Leaf’s application for an order to show cause.”106

ii. Washington

Washington applies an abuse of discretion standard, having confronted the

standard of review question in proceedings involving Cascade National Insurance

Company.107 On behalf of a bankrupt debtor, a bankruptcy trustee filed a claim in the

liquidation seeking to recovery $4.3 million in allegedly fraudulent transfers.108 The

105 See Ins. Comm’r of the State of Cal. v. Golden Eagle Ins. Co., 2013 WL

5779825, at *3 (quoting Low v. Golden Eagle Ins. Co., 2 Cal. Rptr. 3d 761, 770 (Cal.
Ct. App. 2003)). Rule 8.1115 of the California Rules of Court restricts citations to
unpublished opinions in California courts. This is not a California court, and this
Court does not have a similar rule. See Ct. Ch. R. 7(e).

106 Golden Eagle, 2013 WL 5779825, at *6.

107 See Kreidler v. Cascade Nat. Ins. Co., 321 P.3d 281, 287 (Wash. Ct. App.

2014).

108 Id. at 285.

42
Washington Commissioner, acting as receiver, denied the claim for lack of factual

support. The bankruptcy trustee sought an order from the trial court compelling the

Commissioner to produce discovery, but the Commissioner provided the materials

voluntarily. The Commissioner again denied the claim and petitioned the superior

court to confirm the determination. Applying an abuse of discretion standard, the

trial court affirmed the determination.

The trustee appealed, and the intermediate appellate court affirmed the trial

court’s decision. The court explained that “[i]n an insurance receivership action, the

trial court reviews the Receiver’s determinations under an abuse of discretion

standard.”109 Writing in 2014, the court drew that standard from Old Line, a 1968

decision from the Washington Supreme Court.110 In Old Line, the justices explained

the rationale for the abuse of discretion standard as follows

As the program of rehabilitation takes form and the steps unfold, the
trial court in its supervisory and reviewing role may not substitute its
judgment for that of the Commissioner, but may and should only
intervene or restrain when it is made to appear that the Commissioner
is manifestly abusing the authority and discretion vested in him and/or
is embarking upon a capricious, untenable or unlawful course.111

Citing the Washington analog to DUILA Section 5910, the Washington Supreme

Court reasoned that

109 Id. at 287.

110 Id. (citing Old Line, 444 P.2d at 674).

111 Old Line, 444 P.2d at 674.

43
the legislature, in its wisdom, in its reliance upon the presumed
expertise and experience of a duly elected and functioning state official,
and in the public interest, vested the Commissioner with a realistic and
effective control over the administration of the affairs and assets of an
insurer found to be in need of rehabilitation. The authority so vested
necessarily contemplates and embraces a considerable degree of
independent administrative judgment and discretion to be exercised by
the Commissioner if he is to carry out the responsibility and trust
imposed upon him.112

Cascade National applied the same standard to the Washington Commissioner’s

claim determination and cited the California authorities from the Golden Eagle

proceedings with approval.113 Applying that standard, the Cascade National court

affirmed the trial court decision.114

iii. Alaska

In contrast to California and Washington, Alaska courts review claim

determinations de novo.115 In liquidation proceedings for Pacific Marine Insurance

Company of Alaska, the Great Atlantic Insurance Company submitted a claim for

nearly $1.4 million in reinsurance. The Alaska insurance commissioner rejected the

claim as untimely, and the trial court upheld the decision under a deferential

112 Id. at 673.

113 Cascade Nat., 321 P.3d at 287.

114 Id. at 291.

115 See Williams v. Wainscott, 974 P.2d 975, 978–79 (Alaska 1999).

44
standard of review. The Alaska Supreme Court reversed, holding that de novo review

was required.116

In reaching that conclusion, the Alaska Supreme Court started from the

premise that a court applies a deferential standard of review when examining an

agency determination where the agency has conducted a hearing. The delinquency

statute, by contrast, did not require that the receiver conduct a hearing.117 The

justices also found it significant that the statute vested the superior court with

“exclusive original jurisdiction of delinquency proceedings,” rather than “appellate

jurisdiction.”118 The justices concluded that the receivers role resembled “that of a

personal representative in probate proceedings,” where the personal representative

marshalled the assets of the estate and could “allow or disallow a properly presented

claim,” but a claimant whose claim was disallowed could sue the personal

representative and obtain “a de novo hearing including, if requested, a jury trial.”119

The court reversed the trial court’s decision and remanded so that the court could

conduct a de novo review.120

iv. Evaluating The Precedent

116 Id. at 976.

117 Id. at 978.

118 Id. at 979.

119 Id.

120 Id. at 983.

45
With only three jurisdictions having addressed the standard of review

applicable to claim recommendations, a clear majority rule has not yet emerged.

California and Washington together nose out Alaska, but the narrow margin is hardly

persuasive on its own.

Instead, California and Washington offer the more persuasive precedent

because the reasoning in those decisions more closely resembles how Delaware courts

have approached the Commissioner’s authority. Those decisions take into account the

insurance commissioner’s independent authority, expertise, and central role in

receivership proceedings.

The Alaska decision, by contrast, analogizes the commissioner to a personal

representative, treating the commissioner as if she were simply a private citizen

handling a will dispute. The Alaska decision also relies heavily on the grant of

original jurisdiction to the trial court, but a grant of jurisdiction does not imply a

standard of review. When considering DUILA’s comparable grant of original

jurisdiction to the Court of Chancery, this court noted that that “the statute does not

contemplate that the court will resolve the claims in the first instance [and instead]

envisions that the initial step is for the Commissioner to make a recommendation

regarding the claim; only then does the court entertain the claim and rule on it.”121

The Alaska decision does not give any weight to the potential for de novo review to

121 Freestone, 143 A.3d at 1246.

46
undermine the insurance commissioner’s authority or interfere with the efficient

resolution of claims.

The California and Washington courts’ perspectives align more closely with

how Delaware approaches receivership proceedings. Their authorities addressing the

standard of review are therefore more persuasive.

d. Summarizing the Standard

The court will review the Commissioner’s claim recommendations for abuse of

discretion. The Commissioner to must articulate a rationale for its determination and

provide sufficient evidence to support that rationale. Once the Commissioner has

made that showing, the burden shifts to the claimant to show that the Commissioner

has abused his discretion.

C. Objections To The Other Claims Procedures

The next group of issues involves cedents’ objections to the Other Claims

Procedures and their use for handling cedents’ breach of contract claims arising from

the termination of their contracts with the Company under the Liquidation Order

(“Cedent Termination Claims”). The Objectors argue that the proposed procedures

violate DUILA because they contemplate that the Commissioner will provide a

valuation of the Cedent Termination Claims up front, before any cedent files a

claim.122 That objection is not well-taken.

The Other Claims Procedures contemplate the following process:

122 See Dkt. 909 ¶¶ 8–9.

47
• First, any cedent seeking to assert a Cedent Termination Claim must submit
to the Commissioner a “listing of the in-force policies covered under each treaty
ceded to SRUS as of 9/30/2023” along with affidavit of completeness and
accuracy.123

• Second, the Commissioner calculates the present value of future losses under
each terminated agreement using the Commissioner’s valuation methodology
and assumptions, then sends each claimant a proof of claim form identifying
the claim valuation.124

• Third, a cedent can either accept or dispute the Commissioner’s valuation. If
the cedent disputes the valuation, then the cedent can submit its own valuation
to the Commissioner along with backup supporting the alternative
valuation.125

• Fourth, the Commissioner evaluates the cedent’s valuation. The Commissioner
may request additional information from the claimant and may work with the
claimant to resolve the dispute.126

• Finally, the Commissioner issues a report on all claims and submits its
recommendations to the court.127

The Objectors argue that the first two steps in this process violate DUILA.

According to the Objectors, the first two steps violate DUILA because Section

5917 does not contemplate the Commissioner preparing an initial valuation. That

section has four subsections. The first describes what a claim must contain and states:

All claims against [the delinquent insurer] shall set forth in reasonable
detail the amount of the claim or the basis upon which such amount can

123 Dkt. 846, at Ex. 1 § 3.2.1.1.

124 Id. §§ 3.2.1.2–3.2.1.4.

125 Id. §§ 3.2.1.5–3.2.1.8; Dkt. 1024, at Ex. 1.

126 Id. §§ 3.2.3.1–3.2.3.3.

127Id. §§ 3.2.1.5, 3.2.3.2–3.2.3.3; see generally Dkt. 853, at Ex. 1 (Dispute
Procedures); Dkt. 921, at Ex. 1 (Final Determination Procedures).

48
be ascertained, the facts upon which the claim is based and the priorities
asserted, if any. All such claims shall be verified by the affidavit of the
claimant or someone authorized to act on the claimant’s behalf and
having knowledge of the facts and shall be supported by such documents
as may be material thereto.128

That section does not address the sequencing of the claims process or foreclose

preliminary steps, such as an initial valuation by the Commissioner.

The other subsections do not foreclose preliminary steps either. Section 5917(b)

states that “[a]ll claims filed in this State shall be filed with the receiver, whether

domiciliary or ancillary, in this State on or before the last date for filing as specified

in this chapter.”129 It imposes a deadline for claims. It does not limit what happens

before the deadline.

Section 5917(c) also sets s deadline, this time on the Commissioner. It states

that “[w]ithin 10 days of the receipt of any claim or within such further period as the

court may fix for good cause shown, the receiver shall report the claim to the court

. . . .”130 That section also provides that “[u]pon receipt of such report, the court shall

fix a time for hearing the claim and shall direct that the claimant or the receiver, as

the court shall specify, shall give such notice as the court shall determine to such

persons as shall appear to the court to be interested therein.”131 It concludes by

128 18 Del. C. § 5917(a).

129 Id. § 5917(b).

130 Id. § 5917(c).

131 Id.

49
stating that “[a]ll such notices shall specify the time and place of the hearing and

shall concisely state the amount and nature of the claim, the priorities asserted, if

any, and the recommendation of the receiver with reference thereto.”132 None of those

provisions limit pre-claim procedures either.

Last, Section 5917(d) states: “At the hearing, all persons interested shall be

entitled to appear and the court shall enter an order allowing, allowing in part, or

disallowing the claim. Any such order shall be deemed to be an appealable order.”133

That section also does not limit pre-claim procedures.

The Commissioner’s proposal to provide an initial estimate of claim values to

does not conflict any aspect of Section 5917. No one suggests that the Commissioner

could not engages in pre-claim discussions with potential claimants, exchange

informal estimates, or reach settlements. There is no reason to prevent the

Commissioner from formalizing an aspect of what could be an informal process.

The Commissioner’s proposal is also one this court approved previously. In the

liquidation of Indemnity Insurance Corporation, the court authorized a similar

process.134 Admittedly, the issue was not contested, but it also does not appear to

have resulted in any hardship. Outside of Delaware, courts in three states that apply

132 Id.

133 Id. § 5917(d)

134 See In re Liquidation of Indem. Ins. Corp., RRG, 2018 WL 6431747, at *6

(Del. Ch. Dec. 6, 2018) (citing 18 Del. C. § 5917).

50
versions of the Uniform Act have allowed commissioners to address claims using

procedures that departed from the Objectors’ “claim first” structure.135

Because the Commissioner’s proposal does not violate DUILA, the issue

becomes whether the Commissioner has abused his discretion. The Commissioner’s

stated rationale for the proposal is “to expedite the resolution of claims and to identify

and resolve disputed issues,”136 consistent with DUILA’s goal of promoting the

“orderly, expeditious, and equitable resolution of all claims against the insolvent

insurer.”137 The Commissioner believes that a standardized process for the initial

valuation of Cedent Termination Claims will help identify and resolve undisputed

claims expeditiously and to move disputed claims through the dispute resolution

135 See State v. Arizona Pension Planning, 739 P.2d 1373, 1378 (Ariz. 1987)

(permitting commissioner to consolidate claims and pursue them on behalf of the
insureds); In re Liquidation of Integrity Ins. Co., 691 A.2d 898, 906 (N.J. Super. Ct.
Ch. Div. 1996) (permitting commissioner to verify claims on behalf of contingent
claimants); State ex rel. Crawford v. Indem. Underwriters Ins. Co., 943 P.2d 167, 170
(Okla. Civ. App. 1997) (permitting claims allowance procedures that required
claimants to provide a “written statement of material facts” with their objection after
the receiver’s claim recommendation and to make reference to “the supporting
documentation which the objecting party submitted to the Receiver with a proof of
claim”). Later New Jersey decisions reversed the trial court’s decision to allow
contingent claims to receive a distribution. See In re Liquidation of Integrity Ins. Co.,
935 A.2d 1184 (N.J. 2007); see also Veed, supra, at 182–84 (discussing trial court
decision’s conflict with statute). The later decisions did not disturb the trial court’s
ruling that the commissioner could present claims. See Integrity, 935 A.2d at 1190
n.2 (distinguishing treatment of contingent claims at proof of claim stage from
treatment at distribution stage).

136 Dkt. 956, at 8.

137 Cohen, 89 A.3d at 94.

51
process efficiently.138 As factual support, the Commissioner suppled affiliates from

the Deputy Receiver with responsibility for the Company and the Senior Actuarial

Executive in liquidation.139

The Commissioner has thus provided a coherent rationale and sufficient

evidentiary support. The burden therefore shifts to the Objectors to show that the

Commissioner’s proposal constitutes an abuse of his discretion.

The Objectors have not carried that burden. There may be scenarios where

claimants agree with or have not reason to dispute the Commissioner’s initial

valuation of their Cedent Termination Claims. There is no apparent prejudice from

the Commissioner’s proposed procedure. Claimants still have the opportunity to

decide whether to assert a Cedent Termination Claim and to present their own

valuation. Claimants remain free to use a different valuation methodology. This

process reflects a proper exercise of the Commissioner’s discretion.

D. Objections To The Valuation Methodology

The Objectors next contest the valuation methodology that the Commissioner’s

intends to use for Cedent Termination Claims. This objection likewise fails.

The Commissioner contemplates calculating the present value of future losses

using a Gross Premium Reserve Valuation (“GPV”) model. Generally speaking, this

approach calculates a present value of the future payments cedents could expect

138 See Dkt. 956, at 6–7.

139 See Dkt. 846, at Ex. 2; id. at Ex. 3.

52
under their agreements, less any offsets such as the premium owed.140 The

Commissioner supported the GPV methodology with a memorandum prepared by the

Senior Actuarial Executive for the Company’s Liquidation Estate.141

After the Objectors challenged the GPV methodology, they engaged in dialogue

with the Commissioner. One sticking point was whether the Commissioner would

disclose the model’s mortality assumptions. The Commissioner represented that the

model used a proprietary table from Hannover Life Reassurance Company of

America, but the Commissioner did not commit to providing the underlying

information. That led the Objectors to argue that the Commissioner proposed to use

a “black-box mortality model that will not be disclosed and therefore cannot be

evaluated.”142 The Objectors also objected that using the GPV method conflicted with

the termination of their reinsurance agreements.143

140 See Dkt. 1017, at 47.

141 Dkt. 846, Ex. 3 at Ex. A.

142 Dkt. 909 ¶ 17.

143 See Dkt. 909 ¶¶ 9, 17; Dkt. 911 ¶¶ 22–24; Dkt. 915 ¶ 3; Dkt. 916 ¶ 14.

Several secured creditors of the Copmany objected that the Commissioner’s proposed
procedures did not provide for cedents with claims secured by assets held in trust
accounts to withdraw those assets to satisfy their claims. See Dkt. 911 ¶¶ 2, 13–21
(Integrity Life Insurance Company); Dkt. 916 ¶¶ 1, 3–21 (Ohio National Life
Insurance Company); Dkt. 918 ¶ 9 (Nationwide Life Insurance Company and
Nationwide Life and Annuity Insurance Company). The Commissioner responded
that it had agreed to or was in the process of negotiating stipulations with all secured
cedents to allow them to withdraw undisputed amounts in trust accounts. See Dkt.
956 at 17–19. The court has granted several of the stipulated orders, including those
involving the cedents who initially raised the objections. See Dkt. 837; Dkt. 861; Dkt.

53
At this point, the Commissioner no longer seeks a ruling that the GPV method

will apply to all Cedent Termination Claims. The Commissioner proposes to address

the valuation methodology in connection with individual claims and believes that, in

most instances, the GPV method will not conflict with any contractual term. The

Commissioner also revised the Other Claims Procedures and proof of claim forms to

make clear that a claimant could use other methodologies and assumptions.144 The

Commissioner also reached a deal with Hannover that will allow the Commissioner

to share mortality table information.145

The court agrees with the Commissioner’s proposal to defer any disputes over

the valuation methodology until the claims process. As a general matter, however,

the court can hold now that regardless of whether the GPV model may be

inappropriate for a particular claim, using GPV model is not an abuse of discretion

in the abstract.

Different courts have approved a variety of valuation methodologies for claims

based on terminated insurance contracts. Most involve customer polices rather than

reinsurance treaties, but the principles transfer. The principal valuation approaches

936; Dkt. 937 (Nationwide); Dkt. 986 (Augustar Life Insurance Company f/k/a Ohio
National); Dkt. 993; Dkt. 997 (Integrity); Dkt. 999; Dkt. 1015. The Objectors did not
include this objection in their list of open issues or raise the objection at oral
argument. See Dkt. 969, at Ex. A.

144 See Dkt. 956, at 8, Ex. A, Ex. B; Dkt. 1017, at 48–51; Dkt. 1024, at Ex. 1.

145 See Dkt. 1001, at Ex. 1 § 2.1(e).

54
include (1) unearned or return premium, (2) replacement value, and (3) reserve value,

defined as the present value of the difference between future benefits payable and

the amount of future premiums due but for the insolvency.146

The GPV method is a version of the reserve value approach. Several state court

decisions have upheld the use of reserve-based approaches.147 While other valuation

approaches may be viable or justifiable, the Objectors have not demonstrated that

the Commissioner’s selection of the GPV method as a default method constitutes an

abuse of discretion.

A claimant may be able to demonstrate that using the GPV method for a

particular claim would be inappropriate. For example, if the Commissioner fails to

provide sufficient evidence to support its valuation for a claim, particularly if it turns

out the Commissioner’s approach conflicts with an applicable contractual provision,

then a claimant might have a basis to challenge its use. But using the method as a

default choice falls within the Commissioner’s discretion.

The Commissioner must file an updated version of the Other Claims

Procedures that reflect the changes to Section 3.2.1.8 and to the attached proof of

146 Couch on Ins., supra, § 6:1; see Veed, supra, at 175–84.

147 See Caminetti v. Manierre, 142 P.2d 741, 746–49 (Cal. 1943); Exec. Life, 38

Cal. Rptr. 2d at 460, 476–77; Comm’r of Ins. v. Mass. Acc. Co., 50 N.E.2d 801, 808
(Mass. 1943). A later Massachusetts case declined to extend Massachusetts Accident
in the context property and casualty insurance policy and rejected the reinsurers’
attempt to offset their liability with case reserves and incurred but not reported
(IBNR) reserves. In re Liquidation of Am. Mut. Liab. Ins. Co., 747 N.E.2d 1215, 1232
(Mass. 2001).

55
claim forms that the Commissioner filed.148 The court will approve the Other Claims

Procedures with those changes.

E. Arbitration

The Objectors next challenge the Dispute Procedures because they only

contemplate arbitration of claim disputes by agreement of the parties. 149 Some

Objectors contend that reinsurance or retrocession agreements with the Company

contain mandatory arbitration provisions.150 They argue that the Dispute Procedures

must allow for arbitration if an agreement with the Company would ordinarily

require arbitration. That objection is not well-taken.

The Dispute Procedures do not bar a claimant from seeking a court order

compelling arbitration. If a claimant wishes to rely on an arbitration provision and

the Commissioner does not agree, then the claimant can move to lift the Antisuit

Injunctions and compel arbitration. At present, the Antisuit Injunctions prohibit

“[a]ll persons and entities that have notice of these proceedings or of this Order . . .

from instituting or further prosecuting . . . any arbitration . . . against the

Commissioner as Receiver, the Deputy Receiver(s), or the Designees in connection

with their duties as such . . . .”151 They also enjoin and restrain “[a]ll persons and

148 See Dkt. 1024.

149 See Dkt. 853, at Ex. 1 § 6.2.1.

150 See Dkt. 902 ¶ 5; Dkt. 906 ¶ 3; Dkt. 908, at 3.

151 Dkt. 799 ¶ 17 (emphasis added).

56
entities . . . from asserting any claim against SRUS, the Assets, the Commissioner as

Receiver of SRUS, the Deputy Receiver(s), or the Designees in connection with their

duties as such, except insofar as such claims are brought in the liquidation

proceedings of SRUS.”152

1. No Right To Compel Arbitration

The Objectors argue that the court must enforce mandatory arbitration

provisions because the Commissioner steps into the shoes of the Company. Just as

that metaphor overstates matters for purposes of determining the standard of review

for claims determinations, it also overstates matters for purposes of mandatory

arbitration.

As a threshold matter, the arbitration provisions are not directly enforceable

against the Commissioner, because the Commissioner is not a party to the

agreements.153 The provisions also cannot “trump the statutory provisions and public

policies of the domiciliary state, such as the public policy of centralizing proceedings

in the domiciliary jurisdiction and the statutory provisions that implement that

152 Id. ¶ 18 (emphasis added).

153 See Taylor, 958 N.E.2d at 1211 (holding that liquidator was “not bound to

arbitration agreements entered into by the insolvent insurer as if she were the
signatory insurer” because liquidator “[did] not stand in the shoes as a mere successor
in interest of the insolvent insurer”); Freestone, 143 A.3d at 1260 (“[I]n my view, even
a mandatory forum selection provision would not automatically bind the
Commissioner when exercising the State of Delaware’s regulatory and police powers
under the Uniform Act.”).

57
policy.”154 The Objectors’ argument that the court must enforce their arbitration

provisions is incorrect as a matter of law.

2. The Freestone Analysis

Although a party cannot force the Commissioner to arbitrate, the court can lift

the Antisuit Injunctions and allow an arbitration to proceed. When making that

discretionary determination, the court weighs the Freestone factors.

When a party seeks to arbitrate a claim that otherwise would be part of the

claims process under DUILA, the party must make a particularly strong showing.

Given the statutory structure of the Uniform Act, its fundamental goal
of centralizing delinquency proceedings under the control of the chief
insurance regulator in the domiciliary jurisdiction, and the role of anti-
suit injunctions in serving that public policy, a strong presumption
exists that an existing anti-suit injunction should not be lifted to permit
a claimant to litigate against the insolvent insurer [outside of the claims
process].155

Permitting litigation elsewhere conflicts with DUILA’s statutory requirement that

claims “shall be filed with the receiver.”156 It also conflicts with this court’s oversight

role and the statutory command that “the receiver shall report the claim to the court,

154 Id. at 1260–61.

155 Id. at 1251–52; see Principal Growth Strategies, LLC v. AGH Parent LLC,

288 A.3d 1138 (Del. Ch. 2023) (granting motion to stay litigation in favor of ongoing
insurer delinquency proceeding in Pennsylvania).

156 18 Del. C. § 5917(b).

58
specifying in such report the receiver’s recommendation with respect to the action to

be taken thereon,” after which the court hears the claim.157

Freestone identified factors a court weighs when determining whether to allow

parties to litigate outside a claims process, including:

(1) The nature and extent of any connection between the foreign
litigation and the domestic liquidation proceeding . . . .

(2) The interests of judicial efficiency and litigant economy . . . .

(3) Whether the foreign litigation would prejudice the interests of the
Commissioner, other claimants, or other interested parties . . . .

(4) The balance of hardships . . . .158

While the weight given the factors may vary based on a claimant’s showing, the

relationship between a claims process and arbitration makes it quite unlikely that an

application to enforce an arbitration provision would succeed.

a. The Nature And Extent Of The Connection Between The
Claim And The Liquidation Proceeding

The first Freestone factor addresses the risk that litigation elsewhere “could

interfere with the liquidation proceeding.”159

The closer the connection is between the foreign litigation and the
domestic liquidation proceeding, the greater the likelihood of
interference. If the foreign litigation relates to a core function of the

157 Id.

158 Freestone, 143 A.3d at 1255–56.

159 Id. at 1256.

59
receivership, such as marshaling assets or assessing claims, then this
factor counsels against relief from an anti-suit injunction.160

By contrast, claims that “seek to impose liability on [the delinquent insurer] itself”

are “precisely the type of litigation that interferes with a delinquency proceeding.”161

“Even the prospect of forcing the Commissioner to expend time and resources

litigating elsewhere may be sufficient to cause this factor to weigh against relief,

because a central purpose of the Uniform Act is ‘to avoid dissipating a distressed

insurer’s assets by allowing it to be sued, and requiring it to defend, litigations

scattered in many jurisdictions throughout the country.’”162

In Freestone, this first factor weighed against lifting the anti-suit injunction

because the party seeking to litigate elsewhere had also filed claims notices.163

Because the claims would otherwise “be handled as part of the insurance liquidation

proceeding,” they “relate[d] directly to the insurance liquidation proceeding.”164 In

Manhattan Re, by contrast, the claim that would not otherwise have proceeded

through the claims process.165

160 Id. (emphasis added).

161 Principal Growth Strategies, 288 A.3d at 1160.

162 Freestone, 143 A.3d at 1256 (quoting Manhattan Re, 2011 WL 4553582, at

*3).

163 Id. at 1258.

164 Id.

165 See Manhattan Re, 2011 WL 4553582, at *2; Freestone, 143 A.3d at 1241

n.3, 1265.

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Here, the Objectors contemplate arbitrating the very claims that the claims

process otherwise would resolve. They ultimately seek to impose liability on the

Company’s estate, and conducting the arbitrations would force the Commissioner to

devote resources to litigating in the arbitral forum. The first Freestone factor

therefore weighs against arbitration.

b. The Interests Of Judicial Efficiency And Litigant
Economy

The second Freestone factor addresses “interests of judicial efficiency and

litigant economy.” This assessment involves several considerations:

a. Whether the foreign litigation can decide the issue more efficiently
and expeditiously than the domestic liquidation proceeding;

b. Whether a specialized tribunal has been established to hear the
particular cause of action and that tribunal has the expertise to hear
such cases;

c. How far the foreign litigation has progressed, and

d. Whether the foreign litigation will completely resolve the issue.166

These factors are unlikely to favor arbitration.

In Freestone, the second factor weighed against lifting the anti-suit injunction

because

the statutory liquidation proceeding is itself a specialized proceeding,
overseen by the domiciliary court, in which the chief insurance regulator
of the domiciliary state takes charge of the insurer’s affairs, marshals
its assets, and manages the Claims Process. The Claims Process itself
serves as an additional form of specialized proceeding that permits
classes of claims against an insolvent insurer to be resolved

166 Id. at 1255.

61
expeditiously, particularly when those categories of claims will not be
entitled to any distribution under the statutory priority scheme.167

Additionally, the foreign proceeding was “at an early stage,” and the party seeking to

lift the anti-suit injunction had not yet asserted its claims in that proceeding. 168

The balancing is similar for an arbitration. The Objectors have not identified

an arbitration clause that can decide claims more efficiently and expeditiously than

the claims process. The Objectors have not identified an arbitration clause that

contemplates a sophisticated tribunal of industry experts. The Objectors have not

identified an arbitration that is already underway. The Objectors also have not

identified an arbitration that would fully resolve a claim. At best, it would quantify

the claim, which then would be handed through the claims process. The second

Freestone factor generally weighs against arbitration.

c. Prejudice To The Interests Of The Commissioner, Other
Claimants, And Other Interested Parties

The third Freestone factor considers “the interests of the Commissioner, other

claimants, or other interested parties.”169 That factor takes into account:

a. Whether the foreign litigation is likely to result in a judgment that
will give rise to a claim entitled to a recovery in the domestic liquidation
proceeding given its priority under the Uniform Act;

b. The amount of the likely payment relative to the burden on the
insolvent domestic insurer, and

167 Id. at 1259.

168 Id. at 1260.

169 Id. at 1255.

62
c. Whether the claim that would result from the foreign judgment would
be subject to equitable subordination or other doctrines.170

In Freestone, the party seeking to lift the anti-suit injunction was unlikely to recover

on its claim because the claim remained contingent as of the bar date and, even if the

party succeeded in its separate litigation, the claim would fall into Class VI and be

unlikely to generate a recovery.171 Lifting the antisuit injunction therefore “would

force the Commissioner to re-purpose scarce resources that otherwise could fund

distributions to policyholders and other higher priority claimants,” which “weigh[ed]

heavily” against the motion.172

Manhattan Re, where the court directed the Commissioner to arbitrate,

involved different facts. There, only eight remaining policy claims against Manhattan

Re remained, so there was “no question that the remaining policyholders will be

protected, regardless of whether the dispute over the AMICO Fund is resolved

through arbitration or litigation in this Court”173 Likewise, allowing arbitration

would not prejudice the Commissioner because the dispute “did not actually involve

170 Id.

171 Id. at 1262.

172 Id.

173 Manhattan Re, 2011 WL 4553582, at *8; see Freestone, 143 A.3d at 1265

(recognizing that “permitting the arbitration to proceed did not present any risk that
funds would be diverted from higher priority claimants and conflict with the core
purposes of the Uniform Act” in Manhattan Re).

63
a claim against the estate.”174 Because the question involved whether and to what

degree a fund was an asset of the estate, the dispute was “logically prior to the claims

analysis and would have to be decided in any event, either by the court or someone

else.”175

Given the nature of the claims process, forcing the Commissioner to arbitrate

claims that otherwise would go through that process generally will prejudice the

Commissioner’s interests. Engaging in arbitrations “dissipates the distressed

insurer’s assets by necessitating expenditures of limited resources” and “diverts the

Commissioner’s attention from managing the insolvent insurer’s affairs, marshaling

its assets, and overseeing the Claims Process.”176 The third Freestone therefore

generally weighs against forcing the Commissioner to arbitrate.

In the context of a specific claim, the court would assess whether the

arbitration would be likely to result in a judgment that would be participate in a

recovery through the claims process given its relative priority. The court also would

assess amount of the likely payment relative to the burden on the insolvent domestic

insurer and whether the claim would be subject to equitable subordination or other

doctrines. To the extent those factors are pertinent, however, they operate to reduce

the likelihood that the court will lift the Antisuit Injunctions. Even in a setting where

174 Id.

175 Id.; see Manhattan Re, 2011 WL 4553582, at *8.

176 Freestone, 143 A.3d at 1251.

64
the claimant would participate, where the amount of the recovery is large, and where

the claim is not subject to equitable subordination or other defenses, the more

efficient course is to handle the claim through the claims process.

d. The Balance Of Hardships

The last Freestone factor considers “whether the party wishing to proceed with

foreign litigation has shown that the hardship it would suffer from not being able to

proceed considerably outweighs the hardship to the Commissioner and the insolvent

domestic insurer.”177 In Freestone, the proceeding with the foreign litigation “yield[ed]

no benefits, only costs” from the Commissioner’s perspective and “yield[ed] at best

intangible benefits” from the claimant’s perspective.178 “The analysis of the preceding

factors foreshadow[ed] the outcome of this one.”179

The same is the case for arbitrating claims that otherwise would be subject to

the claims process. The Commissioner suffers hardship from the cost and distraction

of piecemeal arbitrations, while the claimants risk hardship from not being able to

arbitrate. Absent unique circumstances, the balance of hardships is unlikely to be

dispositive.

177 Id. at 1255–56.

178 Id. at 1262–63.

179 Id. at 1262.

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3. Issue-Specific Applications

This decision has rejected the Objectors’ contention that the court must enforce

arbitration provisions even where that would conflict with the claims process. This

decision has also explained the framework the court will apply when evaluating case-

specific requests to lift the Antisuit Injunctions and pursue arbitration. Given the

possibility that a claimant could identify unique features of a contractual provision

or claim that could warrant a case-specific outcome, this decision does not rule out

mandatory arbitration entirely. But any claimant seeking claim-specific relief from

the Antisuit Injunctions must explain why the Freestone factors favor it.

F. Discovery And Information Requests

Another dispute concerns the Objectors ability to obtain information from the

Commissioner about their claims. The Objectors also dispute what consequences

should ensue if they fail to provide information that the Commissioner requests.

1. The Claimants’ Right To Information

The Objectors contend that the proposed Dispute Procedures do not provide a

sufficient opportunity for them to obtain information. They propose that discovery

“shall be available to … all creditors and is to be conducted in accordance with the

rules of procedure applicable in the State of Delaware.”180

In lieu of discovery, the Dispute Procedures currently contemplate the

following exchanges of information.

180 Dkt. 909 ¶ 22(c).

66
• First, “[t]o the extent not already provided, the claimant will provide the
Receiver with every document that the claimant intends to rely on in support
of its position for each Component Claim Group.”181

• Next, the Receiver will “provide the claimant with the information that the
Receiver intends to rely on in support of its position for each Component Claim
Group.”182

• Finally, the claimant may seek additional information from the Commissioner
but “has the burden to demonstrate, with specificity, that the information
being sought is (a) relevant and necessary for the evaluation of the dispute and
(b) why obtaining the information from the Receiver is the least burdensome
method for the claimant to obtain the information being sought.”183

The Objectors view those procedures as imbalanced and unfair.184

As a threshold matter, the Dispute Procedures foreclosure of discovery is not

contrary to law. DUILA does not contemplate Rule 26 discovery. The claims process

is not a plenary litigation where full-bore discovery makes sense. It is a specialized

procedure, conducted by the Commissioner, that is designed to resolve claims in an

orderly, efficient, and equitable manner.

This court has held that claimants do not have a right to plenary discovery in

a claims process. In Indemnity Insurance, a claimant objected to the Commissioner’s

claim procedures because they “lacked an opportunity to conduct discovery.”185 The

181 Dkt. 853, at Ex. 1 § 4.2.1.

182 Id. § 4.2.2.

183 Id. § 4.2.3.

184 See Dkt. 909 ¶ 27.

185 In re Indem. Ins. Corp., RRG, 2020 WL 4795385, at *1 (Del. Ch. Aug. 17,

2020).

67
court approved the procedures as consistent with DUILA, noting that DUILA does

not contemplate discovery.186 Courts in other states have reached similar

conclusions.187

The question then becomes whether the Commissioner’s proposed information-

sharing procedures constitute an abuse of discretion. The Objectors have failed to

make the necessary showing.

The Dispute Procedures contemplate initially that the Commissioner provide

the information on which he intends to rely to support his recommendation. The

Dispute Procedures also permit a claimant to seek additional information by showing

that the information they seek is “relevant and necessary for the evaluation of the

dispute” and “why obtaining the information from the Receiver is the least

burdensome method for the claimant to obtain the information being sought.”188

186 Id. (citing, inter alia, 18 Del C. § 5917).

187 See Fewell v. Pickens, 57 S.W.3d 144, 149–50 (Ark. 2001) (stating that the

“Rules of Civil Procedure, which contain guidelines and rules for the discovery
process, do not apply in receivership proceedings” and that the trial court has
“discretion in limiting the scope and timing of discovery” in liquidation proceedings);
Integrity, 754 A.2d at 1186 (N.J. 2000) (holding that an insurance commissioner
“functions in a hybrid status, part public and part private, when he or she oversees
the liquidation of an insolvent insurer,” which distinguished the case from “an
ordinary discovery issue between private citizens in which all relevant evidence is
presumed to be discoverable” and “negates the presumption in favor of discovery” that
otherwise would exist); Cascade Nat., 321 P.3d at 290–91 (affirming denial of motion
to compel, holding that Washington’s “statutory scheme for administering proofs of
claim requires claimants to produce evidence to support their own claim; it does not,
however, provide a process for obtaining discovery from the Receiver”).

188 Dkt. 853, at Ex. 1 § 4.2.3.

68
Those procedures are consistent with DUILA’s the goals of protecting insurer’s assets

against unnecessary dissipation and promoting the orderly, expeditious, and

equitable resolution of claims.

The Objectors worry that the Commissioner will take unreasonable positions

when rejecting their requests for information. That is not a basis for rejecting the

Dispute Procedures as a whole. The Commissioner cannot abuse his discretion when

denying requests for additional information. If he does, a claimant can seek relief

from the court.

2. The Commissioner’s Information Requests

The Objectors contend that the proposed Dispute Procedures authorize the

Commissioner to request information in connection with a claim dispute and provide

that “[f]ailure to provide information requested by the Receiver is grounds for the

claim to be denied” (an “Informational Denial”).189 The Objectors ask the court to

overrule the allowance for Informational Denials.

An Informational Denial is not contrary to law. The insurance statutes in some

states expressly authorize Informational Denials.190 DUILA does not, but it also does

189 Id. § 3.2.4.

190 See, e.g., Alaska Stat. § 21.78.170(e) (“A claim need not be considered or

allowed if it does not contain all the information in (a) of this section that might be
applicable. The receiver may require that a prescribed form be used and may require
that other information and documents be included.”); Okla. Stat. tit. 36, § 1918(A)
(“Claimant shall, in the time and manner set forth by the receiver, fully comply with
any and all requests by the receiver for claimant to provide information or evidence

69
not forbid them. DUILA implicitly contemplates Informational Denials by requiring

that a claim “set forth in reasonable detail the amount of the claim or the basis upon

which such amount can be ascertained, the facts upon which the claim is based and

the priorities asserted, if any,” be verified by affidavit, and “be supported by such

documents as may be material thereto.”191 The informational conditions to a valid

claim imply that the Commissioner can deny a non-compliant claim.

Because an Informational Denial is not contrary to law, the question becomes

whether the Commissioner has abused his discretion by proposing it. The Objectors

have not shown that including the claim-denial provision constitutes an abuse of

discretion.

To authorize Informational Denials does not mean the Commissioner can deny

a claim arbitrarily. If the Commissioner does, then a claimant can challenge that

decision.

G. The Retrocessionaire Objections

The next two objections come from Objectors who are retrocessionaires.

Neither warrants relief.

supplementary to that required in this article, including, but not limited to, testimony
under oath, affidavits, and depositions.”).

191 18 Del. C. § 5917(a).

70
1. The Retrocessionaires’ Notice, Investigation, And Interposition
Rights

Several retrocessionaires cite provisions that purport to require that the

Commissioner notify them of claims against the Company, allow them to investigate

the claims at their expense, and authorize them to interpose defenses to the claims

that the Commissioner has not raised. They object that the Final Determination

Procedures do not expressly recognize those rights. The objection is denied. The rights

in question cannot bind the Commissioner, but in any event, the Commissioner has

committed to apply the Final Determination Procedures to accommodate what the

retrocessionaires wish to do.

Thankfully, the retrocessionaires have not deluged the court with all of their

agreements. The parties instead agree that a typical provision states:

[I]n the event of such insolvency, the liquidator, receiver or statutory
successor of [the Company] will give written notice of a pending claim
against [the Company] on the reinsured policy. It will do so within a
reasonable time after the claim is filed in the insolvency proceedings.
During the pendency of such a claim, the RETROCESSIONAIRE may
investigate the claim and may, at its own expense, interpose any defense
or defenses which it may deem available to [the Company], its
liquidator, receiver or statutory successor, in the proceedings where the
claim is to be adjudicated.192

The provision thus only comes into play in the event of insolvency, and only purports

to bind the government official acting as liquidator, receiver or statutory successor of

192 Dkt. 903 ¶ 14.

71
the Company. It is not a provision that applies to the Company in the ordinary course

of business.

DUILA does not contain language expressly authorizing or expressly

prohibiting provisions of this sort. But without express statutory authorization,

parties cannot include springing provisions in their private agreements that would

bind a state regulator to obligations that apply only when the state regulator assumes

control of the regulated entity. As with an arbitration provision, a contractual

provision that purports to bind the Commissioner is not directly enforceable against

the Commissioner, who is not a party to the agreements. This is also not a provision

where the parties can argue that the Commissioner stands in the shoes of the

Company, because the provision only springs into existence after insolvency when the

Commissioner takes action.

Private counterparties also cannot override statutory mandates. Under

DUILA, the Commissioner controls the claims process, evaluates claims, and

determines what defenses to raise.193 Permitting a contractual counterparty to force

the Commissioner to assert defenses would impermissibly interfere with the

Commissioner’s ability to achieve the orderly, expeditious, and equitable resolution

of claims. Private counterparties also cannot bind the court, and the springing notice

193 See 18 Del. C. § 5917(c) (“[T]he receiver shall report the claim to the court,

specifying in such report the receiver’’s recommendation with respect to the action to
be taken thereon.”).

72
requirement in a private agreement cannot override DUILA’s mandatory provision

empowering the court to determine the extent to which notice is required.194

Unlike Delaware, some state statutes authorize these provisions. For example,

California’s Insurance Code states:

The reinsurance contract may provide that the conservator, liquidator,
or statutory successor of a ceding insurer shall give written notice of the
pendency of a claim against the ceding insurer indicating the policy or
bond reinsured, within a reasonable time after such claim is filed and
the reinsurer may interpose, at its own expense, in the proceeding in
which the claim is to be adjudicated, any defense or defenses which it
may deem available to the ceding insurer or its conservator, liquidator,
or statutory successor.195

Where statutes authorize those provisions, courts generally enforce them.196

The fact that some states have taken the trouble to expressly authorize those

provisions suggests that the absence of authorization carries significance. It would

represent a major privatization of government authority to permit private parties to

impose obligations on the Commissioner that he must follow when conducting a

194 See id. (“Upon receipt of such report, the court shall fix a time for hearing

the claim and shall direct that the claimant or the receiver, as the court shall specify,
shall give such notice as the court shall determine to such persons as shall appear to
the court to be interested therein.”).

195 Cal. Ins. Code § 922.2(a)(2); see also Ala. Code § 27-5B-18; 215 Ill. Comp.

Stat. 5/173.4; N.Y. Ins. Law § 1308(a)(3); S.D. Codified Laws § 58-14-4.2.

196 See Keehn v. Excess Ins. Co. of America, 129 F.2d 503 (C.C.A. 7th Cir. 1942)

(applying Illinois law and affirming lower court’s decision that failure to give notice
of a claim barred the insolvent insurer’s receiver from recovering on a claim against
the reinsurer); In re Liquidation of Midland Ins. Co., 856 N.Y.S.2d 498, 2008 WL
151786, at *20 (N.Y. Sup. Ct. 2008) (TABLE), aff’d, 929 N.Y.S.2d 116 (N.Y. App. Div.
2011).

73
statutory delinquency proceeding. There would be no reason to stop at notice

requirements, investigation opportunities, or interposition rights. Parties could

simply lay out in their agreements what the Commissioner would have to do. If

Delaware law is to take that step, the General Assembly must authorize it.

The Commissioner has nevertheless represented that he will provide

reasonable notice of pending claims. He has also represented that the Final

Determination Procedures do not prevent retrocessionaires from conducting their

own independent claim investigations. And he has represented that the

retrocessionaires can raise their own defenses by objecting to claim recommendations

that the Commissioner presents to the court. At present, however, the Final

Determination Procedures are not clear on these points. They state only that “[t]he

Court may, by Order, on its own accord or upon request of an interested person, alter

any Procedure for a final hearing with notice to the Receiver and the Claimant(s)

involved in such final hearing.”197 The Commissioner must update the Final

Determination Procedures to make those commitments express.

Those procedures give the retrocessionaires everything they would be entitled

to under a regime that specifically authorized the provisions in question. New York

law authorizes the provisions, and its approach offers guidance. In Midland, the court

explained that notice and interposition provisions conferred “discrete rights that

neither give rise to, nor should be confused with, an all-encompassing right to be

197 Dkt. 921, at Ex. 1 § 4.2.

74
involved in the [Commissioner’s] internal process of adjusting claims.”198 The court

reasoned that

[i]f a reinsurer interposes a defense while the [Commissioner] is
adjusting a claim, adjudicating the defense would interfere with and
interrupt the [Commissioner’s] process of allowing, disallowing, or
settling claims. The [Commissioner] would have to devote significant
time, personnel, and expense evaluating the defenses that the reinsurer
seeks to interpose. In a situation where a claim involves several
reinsurers, each interposing different defenses, the [Commissioner]
would find himself in the unmanageable position of either having to
assert the defenses interposed by every reinsurer, or having to choose
defenses over a reinsurer’s protest.199

But the trial court also explained that it would be too late if the reinsurer could not

interpose a defense until after the court ruled on the Commissioner’s

recommendation, because raising the defense at that would undercut the finality of

judgments.200 The court concluded that “the only logical approach is to permit . . .

reinsurers to exercise their contractual interposition rights after the Liquidator has

allowed a claim, but prior to the Court’s approval of a claim.”201

The Commissioner has already committed to a Midland-style regime. The

Commissioner has agreed to provide reasonable notice to the retrocessionaires and

acknowledges that they can conduct their own investigations at their own expense.

198 Midland, 2008 WL 151786, at *20.

199 Id. at *24–25.

200 Id. at *25.

201 Id.

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The Commissioner also recognizes that “if the receiver doesn’t give a [notice] and the

retro believes that it’s been prejudiced by that, then they certainly have the ability to

raise that in defense to a claim that the receiver eventually brings to recover

reinsurance.”202 Once the Commissioner makes a recommendation on a claim and

submits it to the court, a retrocessionaire with rights under an interposition provision

can assert additional defenses by filing an objection to the claim.203 The

retrocessionaire may brief its objection, and the court will rule on it as part of the

claims process.

Because the Final Determination Procedures give the retrocessionaires

everything they could receive even if DUILA authorized their notice, investigation,

and interposition provisions, the objection is overruled.

2. A Termination Date For Retrocessionaire Reinsurance
Agreements

The retrocessionaires’ other objection seeks a specific termination date for

their reinsurance agreements. They complain that the Commissioner intends to leave

their agreements in place. That objection is overruled.

The Liquidation Order fixed the rights and liabilities between the Company

and its cedents and imposed an outside date when any reinsurance agreements

between the Company and its cedents would terminate. The Liquidation Order did

202 Dkt. 1017, at 57.

203 Dkt. 921, at Ex. 1 § 4.2; Dkt. 989, at 23.

76
not do the same for the retrocessionaires. Instead, it allowed the Commissioner to

“terminate, cancel, or rescind any reinsurance contract with a retrocessionaire of

SRUS . . . that is contrary to the best interests of the receivership.”204 The Liquidation

Order completed that, “[p]ursuant to 18 Del. C. §5924, the rights and liabilities

between SRUS and its retrocessionaires shall be fixed as of a date to be later

determined by the Court upon application by the Receiver.”205

The retrocessionaires ask the court to determine that their agreements with

the Company necessarily terminated at the same time as the underlying cedent

contracts. They claim Delaware law does not allow the court to set different dates for

the liabilities of different creditors. They rely on Section 5924 of DUILA, which states:

The rights and liabilities of the insurer and of its creditors,
policyholders, stockholders, members, subscribers and all other persons
interested in its estate shall, unless otherwise directed by the court, be
fixed as of the date on which the order directing the liquidation of the
insurer is filed in the office of the clerk of the court which made the
order, subject to the provisions of this chapter with respect to the rights
of claimants holding contingent claims.206

The retrocessionaires argue that this section permits the court to set a liquidation

date for all creditors that is different from the date of the liquidation order but does

not authorize different liquidation dates for different creditors.

204 Dkt. 799 ¶ 20(b).

205 Id. ¶ 21(a).

206 18 Del. C. § 5924.

77
Section 5924 does not say what the retrocessionaires think it does. The statute

establishes a default date for fixing rights and liabilities equal to “the date on which

the order directing the liquidation of the insurer is filed.” That date applies “unless

otherwise directed by the court.” The statute says nothing about what the court can

do when it otherwise directs. The statute does not limit the court to a single date,

although it also does it expressly authorize multiple dates.

No Delaware court has addressed this issue, and case law from other

jurisdictions is sparse. The retrocessionaires cite cases from Oklahoma, but they do

not address the “unless otherwise directed by the court” language.207 In Empire State,

a decision predating the Uniform Act, the New York Court of Appeals cautioned that

the phrase “unless otherwise directed by the court” was not intended to make it

“discretionary with the court to classify and reclassify the claims against the

insolvent estate.”208 To avoid favoring or impairing different classes of claims, New

York Court of Appeals provided that any date the court picked “shall apply equally to

all who have claims against the insolvent estate.”209

207 See Joplin Corp. v. State ex rel. Grimes, 570 P.2d 1161, 1164 (Okla. 1977)

(considering situation in which “[t]he trial court found all assets and liabilities of
Community were determined at the date of the order of liquidation”); see also Roush
v. Nat’l Old Line Ins. Co., 453 F. Supp. 247, 253 (W.D. Okla. 1978) (referencing
statutes as fixing rights and liabilities as of the date of the liquidation order).

208 In re Empire State Sur. Co., 108 N.E. 825, 828 (N.Y. 1915).

209 Id. at 829.

78
Although the Uniform Act takes a more flexible approach to the liquidation

process that could envision different dates for different types of claims, the reasoning

in Empire State suggests that a presumption should exist against setting different

dates for different classes of claims against the estate. Empire State does not address

the possibility of setting different dates for (1) claims against the estate by its debtors

and (2) claims by the estate against its creditors. The retrocessionaires objection to

their agreements remaining in force falls into the latter bucket, not the former.

DUILA does not expressly forbid setting a termination date for claims against

the Company while allowing the Company to keep its contracts with its

retrocessionaires in place. The question therefore becomes whether doing so

constitutes an abuse of discretion.

The decision not to set a termination date for the retrocessionaire reinsurance

agreements serves a rational purpose. Imposing a bar date for claims against the

estate enables the Commissioner to determine the total allowed liabilities that the

estate faces. The Commissioner needs to understand the estate’s exposure so he can

seek coverage from the insolvent insurer’s reinsurers—here, the retrocessionaires—

when marshalling the estate’s assets. Keeping the retrocessionaire’s reinsurance

agreements in place enables the Commissioner to assert claims against the

retrocessionaire under those agreements. They agreed to provide reinsurance

coverage to the Company, and their agreements are assets of the estate.

Keeping the retrocessionaire agreements in place is not unfair to the

retrocessionaires. They committed to provide coverage, and it is always possible that

79
an insurer can become insolvent and enter liquidation. They are not facing an

unexpected scenario. They simply must perform under the terms of their agreements.

The retrocessionaires make one valid point. They fear a situation where they

must submit a claim for unpaid premiums as part of the proof of claim process, yet

will not know how much to seek because their agreements may continue in force

through an unspecified date. Whether that issue ripens depends on whether and

when the Commissioner stops paying premium, and whether any premium owed can

be offset against a portion of the liabilities the retrocessionaires would otherwise owe

on their contracts.

So long as the Commissioner continues to pay premium under the reinsurance

agreements with the retrocessionaires, those agreements remain in effect. If the

Company stops paying premium, but the retrocessionaires face claims under the

agreements, then the unpaid premium can be deducted from the amounts otherwise

due. The only setting in which an issue arises would be if the Company stopped

paying premium and the premium due exceeded the Company’s claims under the

agreements. In that setting, the court could treat the retrocessionaire reinsurance

agreement as terminated when the Company stopped paying premium, and the

retrocessionaire would not be harmed. If there are other, more nuanced settings that

present themselves, the court can deal with them in due course.

It is not an abuse of discretion for the Commissioner to decline to set a date

when the Company’s reinsurance agreements with the retrocessionaires terminate.

The objection is overruled.

80
H. Administrative Expenses

The last issue involves administrative expenses. Some objectors complain that

the Commissioner failed to seek court approval before paying administrative

expenses.210 The Commissioner has mooted this objection by agreeing to submit

administrative expenses for approval in connection with his annual accountings.211

He submitted the expenses in question for approval, and after no one objected, the

court approved them.212

III. CONCLUSION

The Commissioner’s motions are granted. The objections are overruled. Within

thirty days, the Commissioner must file updated versions of the procedures consistent

with this decision.

210 See Dkt. 909 ¶ 31 & n.5.

211 See Dkt. 1019 ¶ 9 (“Because there are no State Guaranty Associations
involved in the SRUS liquidation proceedings, who typically reviews such expenses
on a periodic basis in conjunction with early access petitions, the Receiver agrees to
submit for approval the expenses incurred and identified in the annual accountings
filed with the Court at or about the time when the accounting in which they are
contained is filed with the Court.”).

212 Dkt. 1027.

81
APPENDIX A: State Insurer Receivership Statutes Reference Guide

State UILA IRLMA IRMA
AL Ala. Code § 27-32-22
AK Alaska Stat. § 21.78.100 [Alaska Stat. §§ 21.78.010–
21.78.330]213
AZ Ariz. Rev. Stat. Ann. § 20- Ariz. Rev. Stat. Ann. §§ 20-
631 611–20-650214
AR Ark. Code. Ann. § 23-68-101
CA Cal. Ins. Code § 1064.12215
CO Colo. Rev. Stat. §§ 10-3-401–
10-3-559
CT Conn. Gen. Stat. § 38a-903
DE 18 Del. C. § 5920
DC D.C. Code §§ 31-1301–31-
1357
FL Fla. Stat. §§ 631.011– [See footnote below]
631.201216
GA Ga. Code. Ann. § 33-37-1
HI Haw. Rev. Stat. 431:15-101217

213 Alaska has expressly adopted the Uniform Act, but modified several of its

provisions. Other provisions go beyond the Uniform Act to add further detail. The
IRMA State Page Key lists Alaska as having adopted a previous version of the NAIC
model act, which appears to refer to the IRLMA. See
https://content.naic.org/sites/default/files/model-law-state-page-555.pdf (“State Page
Key”) at ST-555-2.

214 Arizona has expressly adopted the Uniform Act, but it has also adopted

portions of IRMA, such as a provision addressing Qualified Financial Contracts. See
Ariz. Rev. Stat. Ann. § 20-637.

215 Cal. Ins. Code § 1064.12 refers to the “Uniform Insurers Rehabilitation Act”

rather than “Uniform Insurers Liquidation Act.”

216 Florida has adopted many Uniform Act provisions, often in modified form.

Florida has also adopted many bespoke provisions. Somewhat confusingly, Florida
refers to its law as the “Insurers Rehabilitation and Liquidation Act,” reminiscent of
IRLMA even though Florida’s statute does not track IRLMA closely.

217Haw. Rev. Stat. 431:15-101 titles Hawaii’s statute the “Insurers
Supervision, Rehabilitation and Liquidation Act.”
State UILA IRLMA IRMA
ID Idaho Code § XX-XXXXXXX
IL 215 Ill. Comp. Stat.
5/221.13219
IN Ind. Code §§ 27-9-1-1–27-9-4-
10
IA Iowa Code § 507C.1220
KS Kan. Stat. Ann. § XX-XXXXXXX
KY Ky. Rev. Stat. Ann. § 304.33-
010
LA La. Stat. Ann. § 22:2038
ME Me. Stat. tit. 24-a § 4363 Me. Stat. tit. 24-a §§ 4351–
4407222
MD Md. Code Ann. Ins. § 9-202
MA Mass Gen. Laws ch. 175
§§ 180A–180L ¾223
MI Mich. Comp. Laws §§
500.8101–500.8159
MN Minn. Stat. § 60B.01
MS Miss. Code Ann. § 83-24-1

218 Idaho Code § 41-3301 titles Idaho’s statute the “Idaho Insurers Supervision,

Rehabilitation, and Liquidation Act.”

219The Illinois statute refers to the “Uniform Reciprocal Liquidation Act”
rather that the “Uniform Insurers Liquidation Act.”

220Iowa Code § 507C.1 titles Iowa’s statute the “Insurers Supervision,
Rehabilitation, and Liquidation Act.”

221 Kan. Stat. Ann. § 40-3605 titles Kansas’s statute the “insurers supervision,

rehabilitation and liquidation act.”

222 Maine has expressly adopted the Uniform Act, but it has also adopted
portions of IRMA. See State Page Key at ST-555-4. For example, Maine has adopted
a provision based on IRMA’s section on “Qualified Financial Contracts.” See Me. Stat.
tit. 24-a § 4387.

223 Massachusetts has not expressly adopted the Uniform Act but has adopted

a number of parallel provisions, along with modifications and other bespoke
provisions.

2
State UILA IRLMA IRMA
MO Mo. Rev. Stat. § 375.950224 Mo. Rev. Stat. §§ 375.1150– Mo. Rev. Stat. §§
375.1246225 375.1150–375.1246226
MT Mont. Code. Ann. § 32-2-
1301227
NE Neb. Rev. Stat. §XX-XXXXXXX

224 Missouri’s version of the Uniform Act only applies to proceedings instituted

before August 28, 1991. See Mo. Rev. Stat. § 375.950(2).

225 Missouri statute Sections 375.1150 to 375.1246 constitute the “Insurers

Supervision, Rehabilitation and Liquidation Act.” See Mo. Rev. Stat. § 375.1150.

226 The State Page Key indicates that Missouri has adopted portions of IRMA.

See Page Key at ST-555-4. For example, Missouri has adopted a provision based on
IRMA’s section on “Setoffs.” See Mo. Rev. Stat. § 375.1198.

227Mont. Code. Ann. § 32-2-1301 titles Montana’s statute the “Insurers
Supervision, Rehabilitation, and Liquidation Act.”

228 Neb. Rev. Stat. §44-4801 titles Nebraska’s statute the “Nebraska Insurers

Supervision, Rehabilitation, and Liquidation Act.”

3
State UILA IRLMA IRMA
NV Nev. Rev. Stat. § [Nev. Rev. Stat. §§ 696B.010– Nev. Rev. Stat. §
696B.280229 696B.570]230 696B.280231
NH N.H. Rev. Stat. Ann. § 402-C:1
NJ N.J. Stat. Ann. § 17:30C-23 N.J. Stat. Ann. § 17B:32-31
(for life and health insurers)232
NM N.M. Stat. Ann. § 59A-41-17
NY N.Y. Ins. Law § 7408

229 In 2007, Nevada amended Nev. Rev. Stat. § 696B.330 (formerly nearly
identical to 18 Del. C. § 5917) to provide, among other changes, that claims “must be
filed in the manner and form established by the receiver.” In 2019, Nevada amended
Nev. Rev. Stat. § 696B.280 to provide that its version of the Uniform Act “shall be so
interpreted as to effectuate the general purpose to make uniform the laws of those
states which enact the Uniform Insurers Liquidation Act or the Insurer Receivership
Model Act.” Nev. Rev. Stat. § 696B.280(3) (emphasis added). The only other changes
to the statute included amending the definition of “reciprocal state” to include states
“in which in substance and effect the provisions of the Uniform Insurers Liquidation
Act or the Insurer Receivership Model Act are in force” and adding new Sections
696B.332 and 696B.334 on reporting and filing requirements of the receiver and
guaranty associations. Nev. Rev. Stat. § 696B.150 (emphasis added); id. §§ 696B.332,
696B.334.

230 Nevada has expressly adopted the Uniform Act, but it has other statutory

provisions that add further detail to the delinquency process. The State Page Key
lists Nevada as having adopted a previous version of the NAIC model act, which
appears to refer to the IRLMA.

231 See note above regarding the limited reference to IRMA in the Nevada

statute.

232The New Jersey Senate Commerce Committee Statement from 1992
provides as follows:

This bill, the “Life and Health Insurers Rehabilitation and Liquidation Act,”
provides a detailed framework under which life and health insurers may be
rehabilitated or liquidated. The rehabilitation and liquidation schemes under
this bill apply not only to commercial life and health insurers but to fraternal
benefit societies, mutual benefit associations, hospital service corporations,
medical service corporations, health service corporations, dental service
corporations, dental plan organizations and health maintenance
organizations. The current rehabilitation and liquidation procedures
applicable to these various entities are repealed under the bill.

4
State UILA IRLMA IRMA
NC N.C. Gen. Stat. §§ 58-30-1–
58-30-310
ND N.D. Cent. Code §§ 26.1-
06.1-01–26.1-06.1-59
OH Ohio Rev. Code. Ann. §§
3903.01–3903.59233
OK Okla. Stat. tit. 36, § 1921 [Okla. Stat. tit. 36, §§ 1901– Okla. Stat. tit. 36, § 1922235
1938]234
OR Or. Rev. Stat §§ 734.014, [Or. Rev. Stat. §§ 734.014–
734.026, 734.110, 734.120, 734.440]237
734.130, 734.210–
734.320236
PA 40 Pa. Cons. Stat. §§ 221.1–
221.63
PR P.R. Laws Ann. tit. 26, §§
4001–4054
RI 27 R.I. Gen. Laws § 27-14.4- 27 R.I. Gen. Laws § 27-14.3-1
1238
SC S.C. Code Ann. § 38-27-10

233 Ohio Rev. Code. Ann. § 3903.02 titles Ohio’s statute the “insurers
supervision, rehabilitation, and liquidation act.”

234 Oklahoma has expressly adopted the Uniform Act, but it has other statutory

provisions that add further detail to the rehabilitation and liquidation requirements.
The State Page Key lists Oklahoma as having adopted a previous version of the NAIC
model act, which appears to refer to the IRLMA.

235 The State Page Key identifies Okla. Stat. tit. 36, § 1922 as having adopted

“portions” of IRMA.

236 The chapter of Oregon’s insurance code on Rehabilitation, Liquidation and

Conservation of Insurers does not expressly reference the Uniform Act, but many of
its provisions track the Uniform Act and were adopted before IRLMA. See Or. Rev.
Stat §§ 734.014, 734.026, 734.110, 734.120, 734.130, 734.210–734.320.

237 Oregon has provisions that go beyond the Uniform Act and add further

detail to the delinquency process requirements. The State Page Key lists Oregon as
having adopted a previous version of the NAIC model act, which appears to refer to
the IRLMA.

238 Rhode Island has adopted much of the Uniform Act and IRLMA.

5
State UILA IRLMA IRMA
SD S.D. Codified Laws § 58-29B-
1239
TN Tenn. Code Ann. § 56-9-101 Tenn. Code Ann. §§ 56-9-
101–56-9-511240
TX Tex. Ins. Code Ann.
§ 443.001
UT Utah Code Ann. § 31A-
27a-101
VT Vt. Stat. Ann. tit. 8, §§ 7031–
7100
VI V.I. Code Ann. tit. 22, §
1261
VA N/A241
WA Wash. Rev. Code § [Wash Rev. Code §§
48.99.010 48.31.010–48.31.435]242
WV W. Va. Code § 33-10-21 [W. Va. Code §§ 33-10-1–33-
10-41]243

239 S.D. Codified Laws § 58-29B-1 titles South Carolina’s statute the “Insurers

Supervision, Rehabilitation, and Liquidation Act.”

240 While Tennessee has adopted the IRLMA, it has also adopted portions of

IRMA. See State Page Key at ST-555-6. For example, Tennessee has adopted a
version of the IRMA section on “Qualified Financial Contracts.” Tenn. Code Ann. §
56-9-338.

241 Virginia’s statutory Chapter on Rehabilitation and Liquidation of Insurers

does not appear to adopt any of the uniform or model acts. Most notably, it provides
for the possibility that the court can appoint someone other than the Commission as
the receiver. See Va. Code Ann. § 38.2-1504.

242 Washington has adopted many provisions governing rehabilitation,
liquidation, and supervision of insurers that go beyond the Uniform Act’s definition
of “insurer.” See Wash Rev. Code § 48.31.020. Some of these provisions parallel
language from the IRLMA; others are bespoke. See, e.g., Wash. Rev. Code § 48.31.030
(describing grounds for rehabilitation, including language that appears in Section 16
of IRLMA). The State Page Key lists Washington as having adopted a previous
version of the NAIC model act, which appears to refer to the IRLMA.

243 West Virginia has expressly adopted the Uniform Act, but it has other

statutory provisions that go further. The State Page Key lists West Virginia as having

6
State UILA IRLMA IRMA
WI Wis. Stat. § 645.01
WY Wyo. Stat. Ann. § 26-28-119

adopted a previous version of the NAIC model act, which appears to refer to the
IRLMA.

7
APPENDIX B: A Comparison of DUILA With Other State Statutes

DUILA Description Analogs UILA State Alternatives
§
§ 5901 Definitions of Ala. Code § 27-32-1 Cal. Ins. Code § 1064.01(f) (more
(2)– “Insurer,” Alaska Stat. § 21.78.330 detailed definition of “Reciprocal state”
(13) “Delinquency Ariz. Rev. Stat. Ann. § than DUILA)
proceeding,” 20-611 Mass Gen. Laws ch. 175 § 180A (more
“State,” “Foreign Ark. Code. Ann. § 23-68- detailed definition of “Reciprocal state”
country,” 102 than DUILA)
“Domiciliary Cal. Ins. Code § Nev. Rev. Stat. § 696B.150 (“Reciprocal
state,” “Ancillary 1064.1(a)–(e), (g)–(k) state” includes states with IRMA
state,” Fla. Stat. § 631.011(2), provisions in force)
“Reciprocal (6), (7), (10), (15), (18), N.J. Stat. Ann. § 17:30C-1(b)–(k) (lacks
state,” “General (20)–(23) definitions of “State” and “Foreign
assets,” 215 Ill. Comp. Stat. country”)
“Preferred claim,” 5/221.1 N.M. Stat. Ann. §§ 59A-41-3–59A-41-13
“Special deposit La. Stat. Ann. § 22:2038 (lacks definition of “State”)
claim,” “Secured Me. Stat. tit. 24-a § 4353 N.Y. Ins. Law § 7408(b) (lacks definition
claim,” and Md. Code Ann. Ins. § 9- of “State”)
“Receiver” 201244 Or. Rev. Stat § 734.014 (lacks definitions
Mass Gen. Laws ch. 175 of “State,” “Domiciliary state,” “Ancillary
§ 180A state,” and “Preferred claim”)
Mo. Rev. Stat. § 27 R.I. Gen. Laws § 27-14.4-2(5)
375.950245 (expressly excluding unearned
Nev. Rev. Stat. §§ premiums from definition of “General
696B.030–696B.040, assets”)
696B.060–696B.090,
696B.120–696B.180
N.J. Stat. Ann. § 17:30C-
1
N.M. Stat. Ann. §§ 59A-
41-3–59A-41-4, 59A-41-

244 The Maryland statute’s definitions generally track those in 18 Del. C. § 5901

but have several differences. For example, DUILA’s definition of “domiciliary state”
is more detailed.

245 Missouri’s Uniform Act only applies to proceedings instituted before August

28, 1991. See Mo. Rev. Stat. § 375.950(2).

8
DUILA Description Analogs UILA State Alternatives
§
6–59A-41-9, 59A-41-12–
59A-41-13246
N.Y. Ins. Law § 7408
Okla. Stat. tit. 36, §
1901
Or. Rev. Stat §§
734.014(1)–(4), (6)–(9),
734.026
27 R.I. Gen. Laws § 27-
14.4-2
V.I. Code Ann. tit. 22, §
1261
Wash. Rev. Code
§ 48.99.010
W. Va. Code § 33-10-1
Wyo. Stat. Ann. § 26-28-
101

246 According to N.M. Stat. Ann. § 59A-41-17, the definitions in N.M. Stat. Ann.

§§ 59A-41-3–59A-41-13 are not part of New Mexico’s version of the Uniform Act.

9
§ 5902 Jurisdiction; Ala. Code § 27-32-3 Alaska Stat. § 21.78.010 (no analog to 18
venue; change of Alaska Stat. Del. C. § 5902 (b)–(c))
venue; § 21.78.010(a)–(c) Ariz. Rev. Stat. Ann. § 20-612 (no analog
exclusiveness of Ariz. Rev. Stat. Ann. § to 18 Del. C. § 5902(c))
remedy; appeal 20-612(A)–(D) Ark. Code. Ann. § 23-68-101 (no analog
Ark. Code. Ann. § 23-68- to 18 Del. C. § 5902(c))
103(a)–(d) Cal. Ins. Code §§ 1064.1–1064.13 (no
Fla. Stat. § 631.021(1)– analog to 18 Del. C. § 5902)
(4) Fla. Stat. § 631.021(3) (contains
Me. Stat. tit. 24-a § 4354 additional language not present in 18
Md. Code Ann. Ins. §§ 9- Del. C. § 5902(d) analog)
204, 9-209(a)247 Fla. Stat. § 631.021(5)–(7) (no DUILA
Nev. Rev. Stat. § analog)
696B.190248 215 Ill. Comp. Stat. 5/221.1–5/221.13 (no
N.J. Stat. Ann. §§ analog to 18 Del. C. § 5902)
17:30C-2–17:30C-3249 La. Stat. Ann. §§ 22:2038–22:2044 (no
Okla. Stat. tit. 36, analog to 18 Del. C. § 5902)
§ 1902(A), (G)–(H)250 Md. Code Ann. Ins. § 9-209(c) (“venue of
Or. Rev. Stat §§ 734.110, all delinquency proceedings is in
734.120 Baltimore City”; no analog to 18 Del. C.
W. Va. Code § 33-10- § 5902(c), (e))
2(a)–(d)251 Mass Gen. Laws ch. 175 §§ 180A–180L ¾
Wyo. Stat. Ann. § 26-28- (no analog to 18 Del. C. § 5902)
102252 Mo. Rev. Stat. §§ 375.950–375.990 (no
analogy to 18 Del. C. § 5902)
N.J. Stat. Ann. §§ 17:30C-2–17:30C-3 (no
analog to 18 Del. C. § 5902(b)–(c), (e))
N.M. Stat. Ann. §§ 59A-41-17–59A-41-23
(no analog to 18 Del. C. § 5902)
N.Y. Ins. Law § 7421 (no analog to 18 Del.
C. § 5902(a)–(b), (d)–(e); change of venue
provision allows for removal at
superintendent’s discretion)
Okla. Stat. tit. 36, § 1902(B)–(E) (no
DUILA analog; express provision
preserving contractual arbitration rights)
Okla. Stat. tit. 36, § 1902(F) (“venue of all
delinquency proceedings . . . shall be in
Oklahoma County”; no analog to 18 Del.
C. § 5902(c))
Wash. Rev. Code §§ 48.99.010–
48.99.080 (no analog to 18 Del. C. §
5902)
W. Va. Code § 33-10-2(e) (allows removal
of principal office of insurer to Kanawha
County and then transfer of proceedings
there; differs from 18 Del. C. § 5902(c))

10
247 Md. Code Ann. Ins. §§ 9-204, 9-209(a) generally parallel 18 Del. C. § 5902(a),

(d). According to Md. Code Ann. Ins. § 9-202(a), these sections are not part of
Maryland’s version of the Uniform Act.

248 According to Nev. Rev. Stat. § 696B.280, Nev. Stat. § 696B.190 is not part

of Nevada’s version of the Uniform Act.

249 According to N.J. Stat. Ann. § 17:30C-23(a), N.J. Stat. Ann. §§ 17:30C-2–

17:30C-3 are not part of New Jersey’s version of the Uniform Act.

250 According to Okla. Stat. tit. 36, § 1921(A), Okla. Stat. tit. 36, § 1902 is not

part of Oklahoma’s version of the Uniform Act.

251 According to W. Va. Code § 33-10-21(a), W. Va. Code § 33-10-2 is not part of

West Virginia’s version of the Uniform Act.

252 According to Wyo. Stat. Ann. § 26-28-119(a), Wyo. Stat. Ann. § 26-28-102 is

not part of Wyoming’s version of the Uniform Act.

11
DUILA Description Analogs UILA State Alternatives
§
§ 5903 Commencement Ala. Code § 27-32-4 Alaska Stat. § 21.78.020(a), (c)–(f) (no
of delinquency Alaska Stat. § DUILA analog)
proceedings by 21.78.020(b) Ariz. Rev. Stat. Ann. § 20-613(B)–(C) (no
Commissioner Ariz. Rev. Stat. Ann. § DUILA analog)
20-613(A) Cal. Ins. Code §§ 1064.1–1064.13 (no
Ariz. Rev. Stat. Ann. § analog to 18 Del. C. § 5903)
20-631 Fla. Stat. § 631.031(1), (3), (4) (no DUILA
Ark. Code. Ann. § 23-68- analog)
104 215 Ill. Comp. Stat. 5/221.1–5/221.13 (no
Fla. Stat. § 631.031(2) analog to 18 Del. C. § 5903)
Md. Code Ann. Ins. § 9- La. Stat. Ann. §§ 22:2038–22:2044 (no
210253 analog to 18 Del. C. § 5903)
N.J. Stat. Ann. § 17:30C- Me. Stat. tit. 24-a §§ 4363–4369 (no
4(a), (d) direct analog to 18 Del. C. § 5903)
N.Y. Ins. Law § 7417254 Mass Gen. Laws ch. 175 §§ 180A–180L ¾
Okla. Stat. tit. 36, § (no analog to 18 Del. C. § 5903)
1903 Mo. Rev. Stat. §§ 375.950–375.990 (no
Or. Rev. Stat §§ analogy to 18 Del. C. § 5903)
734.130(1), (4) Nev. Rev. Stat. § 696B.250255
Wyo. Stat. Ann. § 26-28- N.J. Stat. Ann. § 17:30C-4(c) (no DUILA
103 analog)
N.M. Stat. Ann. §§ 59A-41-17–59A-41-23
(no analog to 18 Del. C. § 5903)
Or. Rev. Stat §§ 734.130(2)–(3), (5) (no
DUILA analog; adds more detail)
Wash. Rev. Code §§ 48.99.010–
48.99.080 (no analog to 18 Del. C. §
5903)
W. Va. Code § 33-10-4a (different and
more detailed provision governing
commencement of proceeding)
§ 5913 Conduct of Ala. Code § 27-32-15 Ariz. Rev. Stat. Ann. § 20-624 (no analog
delinquent Alaska Stat. § 21.78.130 to 18 Del. C. § 5913(f))
proceedings Ariz. Rev. Stat. Ann. § Fla. Stat. § 631.141(3), (7)–(9), (10)(b)–
20-624(A)–(E) (13) (no DUILA analog)

253 Md. Code Ann. Ins. § 9-210 generally parallels 18 Del. C. § 5903. According

to Md. Code Ann. Ins. § 9-202(a), this section is not part of Maryland’s version of the
Uniform Act.

254 According to N.Y. Ins. Law § 7408, N.Y. Ins. Law § 7417 is not part of New

York’s version of the Uniform Act.

12
DUILA Description Analogs UILA State Alternatives
§
against domestic Ark. Code. Ann. § 23-68- 215 Ill. Comp. Stat. 5/221.1–5/221.13 (no
and alien insurers 113 analog to 18 Del. C. § 5913)
Cal. Ins. Code § La. Stat. Ann. §§ 22:2038–22:2044 (no
1064.2256 analog to 18 Del. C. § 5913)
Fla. Stat. § 631.141(1)– Me. Stat. tit. 24-a § 4364(7) (no DUILA
(2), (4)–(6), (10)(a) analog)
Me. Stat. tit. 24-a Mass Gen. Laws ch. 175 §§ 180B–180C
§ 4364(1)–(6) (similar topic to 18 Del. C. § 5913 but
Md. Code Ann. Ins. §§ 9- different language and approach)
207(a), 9-218(a)–(d) Nev. Stat. § 696B.290(7) (no DUILA
Mo. Rev. Stat. § 375.954 analog)
Nev. Stat. § N.M. Stat. Ann. §§ 59A-41-18(D)–(E) (no
696B.290(1)–(6) DUILA analog)
N.J. Stat. Ann. §§ N.Y. Ins. Law § 7409(d) (no DUILA analog)
17:30C-15, 17:30C-17 Okla. Stat. tit. 36, § 1914(A)–(F)(2)–(3) (no
N.M. Stat. Ann. § 59A- DUILA analog)
41-18(A)–(C) Or. Rev. Stat §§ 734.210(2)–(3),
N.Y. Ins. Law § 7409(a)– 734.220(2) (no DUILA analog or different;
(c) different approach to topics covered in
Okla. Stat. tit. 36, 18 Del. C. § 5913(b)–(c))
§ 1914(A)–(F)(1) V.I. Code Ann. tit. 22, § 1262 (no analog
Or. Rev. Stat §§ to 18 Del. C. § 5913(f))
734.210(1), (4), W. Va. Code § 33-10-14(f)–(g) (adds more
734.220(1), 734.230257 detail concerning compensation and
27 R.I. Gen. Laws §§ 27- role of special deputies not present in 18
14.4-3–27-14.4-5 Del. C. § 5913(f))
V.I. Code Ann. tit. 22, §
1262

255 Nev. Stat. § 696B.250 covers similar substance to 18 Del. C. § 5903 but

differs somewhat in language and approach. According to Nev. Rev. Stat. § 696B.280,
Nev. Stat. § 696B.250 is not part of Nevada’s version of the Uniform Act.

256 Cal. Ins. Code § 1064.2 generally tracks 18 Del. C. § 5913. But the California

statute adds language providing that the receiver shall conduct the business of the
insurer or take steps for the purpose of liquidating, rehabilitating, reorganizing, or
conserving the affairs of the insurer “in accordance with those procedures that the
receiver may petition the court to establish.” Cal. Ins. Code § 1064.2(c).

257 Or. Rev. Stat § 734.230 contains language not present in the Delaware

analog.

13
DUILA Description Analogs UILA State Alternatives
§
Wash. Rev. Code
§ 48.99.020
W. Va. Code § 33-10-14
Wyo. Stat. Ann. § 26-28-
112
§ 5914 Conduct of Ala. Code § 27-32-16 Cal. Ins. Code § 1064.3(c) (no DUILA
delinquency Alaska Stat. § 21.78.140 analog)
proceedings Ariz. Rev. Stat. Ann. § Fla. Stat. § 631.152(1)(c), (4) (no DUILA
against foreign 20-625 analog)
insurers Ark. Code. Ann. § 23-68- Mass Gen. Laws ch. 175 § 180E (first
115 paragraph diverges from 18 Del. C. §
Cal. Ins. Code §§ 5914(a))
1064.3(a)–(b), 1064.10 Mo. Rev. Stat. § 375.958 (petition by 10+
Fla. Stat. § state residents not included as basis for
631.152(1)(a)–(b), (2)– ancillary receivership as in 18 Del. C. §
(3) 5914(a)(2))
215 Ill. Comp. Stat.
5/221.2258
La. Stat. Ann. § 22:2039
Me. Stat. tit. 24-a § 4365
Md. Code Ann. Ins. § 9-
219
Mass Gen. Laws ch. 175
§ 180E (second and
third paragraphs)
Mo. Rev. Stat. §§
375.958, 375.986
Nev. Stat. § 696B.300
N.J. Stat. Ann. § 17:30C-
16
N.M. Stat. Ann. § 59A-
41-19
N.Y. Ins. Law § 7410
Okla. Stat. tit. 36, §
1915
Or. Rev. Stat §§ 734.240,
734.250
27 R.I. Gen. Laws §§ 27-
14.4-6, 27-14.4-7, 27-
14.4-17

258 215 Ill. Comp. Stat. 5/221.2 differs in form from 18 Del. C. § 5914 but
generally tracks its substance.

14
DUILA Description Analogs UILA State Alternatives
§
V.I. Code Ann. tit. 22, §
1263
Wash. Rev. Code
§ 48.99.030
W. Va. Code § 33-10-15
Wyo. Stat. Ann. § 26-28-
113
§ 5915 Claims of Ala. Code § 27-32-17
nonresidents Alaska Stat. § 21.78.150
against domestic Ariz. Rev. Stat. Ann. §
insurers 20-626
Ark. Code. Ann. § 23-68-
116
Cal. Ins. Code § 1064.4
Fla. Stat. § 631.161259
215 Ill. Comp. Stat.
5/221.3
La. Stat. Ann. § 22:2040
Me. Stat. tit. 24-a §
4366260
Md. Code Ann. Ins. § 9-
226(f)
Mass Gen. Laws ch. 175
§ 180F (first three
paragraphs)
Mo. Rev. Stat. § 375.962
Nev. Stat. § 696B.310
N.J. Stat. Ann. § 17:30C-
18
N.M. Stat. Ann. § 59A-
41-20
N.Y. Ins. Law § 7412

259 Fla. Stat. § 631.161(1) generally tracks 18 Del. C. § 5915. But the Florida

statute adds language providing that “claimants residing in foreign countries or in
states which are not reciprocal must file claims in this state.” Fla. Stat. § 631.161(1)
(emphasis added). Fla. Stat. § 631.161 also refers to a “liquidation proceeding,” while
the Delaware analog refers to a “delinquency proceeding.”

260 Me. Stat. tit. 24-a § 4366(1) specifies that “claimants residing in foreign

countries or in states not reciprocal states must file claims in this State.” This
language does not appear in 18 Del. C. § 5915(a).

15
DUILA Description Analogs UILA State Alternatives
§
Okla. Stat. tit. 36, §
1916
Or. Rev. Stat § 734.260
27 R.I. Gen. Laws §§ 27-
14.4-8–27-14.4-9
V.I. Code Ann. tit. 22, §
1264
Wash. Rev. Code
§ 48.99.040
W. Va. Code § 33-10-16
Wyo. Stat. Ann. § 26-28-
114
§ 5916 Claims against Ala. Code § 27-32-18 Fla. Stat. § 631.171(1)–(3) (diverging from
foreign insurers Alaska Stat. § 21.78.160 DUILA, in order for claimants to have the
Ariz. Rev. Stat. Ann. § option to file claims with the ancillary
20-627 receiver, the Florida receiver must have
Ark. Code. Ann. § 23-68- issued a notice to file claims pursuant to
117 Fla. Stat. § 631.181(3))
Cal. Ins. Code § 1064.5 Me. Stat. tit. 24-a § 4367(3) (no DUILA
Fla. Stat. § 631.171(1)– analog)
(2), (4)261
215 Ill. Comp. Stat.
5/221.4
La. Stat. Ann. § 22:2041
Me. Stat. tit. 24-a
§ 4367(1)–(2)
Md. Code Ann. Ins. § 9-
226(g)
Mass Gen. Laws ch. 175
§ 180I
Mo. Rev. Stat. § 375.966
Nev. Stat. § 696B.320
N.J. Stat. Ann. § 17:30C-
19
N.M. Stat. Ann. § 59A-
41-21
N.Y. Ins. Law § 7412
Okla. Stat. tit. 36, §
1917
Or. Rev. Stat § 734.270

261 Fla. Stat. § 631.171 refers to a “liquidation proceeding,” while 18 Del. C. §

5916 refers to a “delinquency proceeding.”

16
DUILA Description Analogs UILA State Alternatives
§
27 R.I. Gen. Laws §§ 27-
14.4-10–27-14.4-11
V.I. Code Ann. tit. 22, §
1265
Wash. Rev. Code
§ 48.99.050
W. Va. Code § 33-10-17
Wyo. Stat. Ann. § 26-28-
115
§ 5917 Form of claim; Ala. Code § 27-32-19 Alaska Stat. § 21.78.170(c)–(h)
filing of claim Alaska Stat. (subsections (c)–(h) diverge from DUILA,
with receiver; § 21.78.170(a)–(b) including by providing for different
report of claim to Ariz. Rev. Stat. Ann. § process for contested claims)
court with 20-628 Cal. Ins. Code §§ 1064.1–1064.13 (no
receiver’s Ark. Code. Ann. § 23-68- analog to 18 Del. C. § 5917)
recommendation; 118 Fla. Stat. §§ 631.181–631.182 (detailed
notice; hearing Me. Stat. tit. 24-a § 4368 provisions governing proof of claim
Md. Code Ann. Ins. § 9- process that differ significantly from 18
226(b)–(e)262 Del. C. § 5917)
Nev. Stat. § 215 Ill. Comp. Stat. 5/221.1–5/221.13 (no
696B.330(1)–(2) analog to 18 Del. C. § 5917)
N.J. Stat. Ann. § 17:30C- La. Stat. Ann. §§ 22:2038–22:2044 (no
20 analog to 18 Del. C. § 5917)
Okla. Stat. tit. 36, § Mass Gen. Laws ch. 175 §§ 180A–180L ¾
1918 (no analog to 18 Del. C. § 5917)
Or. Rev. Stat § 734.280 Mo. Rev. Stat. §§ 375.950–375.990 (no
W. Va. Code § 33-10- analog to 18 Del. C. § 5917)
18(c), (f) Nev. Stat. § 696B.330(3)–(9) (subsections
Wyo. Stat. Ann. § 26-28- (3)–(9) diverge from DUILA, including by
116 providing for different process for
contested claims; hearings may be
conducted by master or referee in first
instance; amended in 2007 to provide
that claims “must be filed in the manner
and form established by the receiver”
(among other changes))

262 Md. Code Ann. Ins. § 9-226(b)–(e) generally parallels 18 Del. C. § 5917,

except that the Maryland version expressly provides that “[e]ach claimant shall set
forth in reasonable detail,” differing from the passive voice in the DUILA version. Md.
Code Ann. Ins. § 9-226(b)(1) (emphasis added). According to Md. Code Ann. Ins. § 9-
202(a), Md. Code Ann. Ins. § 9-226(b)–(e) are not part of Maryland’s Uniform Insurers
Liquidation Act.

17
DUILA Description Analogs UILA State Alternatives
§
N.M. Stat. Ann. §§ 59A-41-17–59A-41-23
(no analog to 18 Del. C. § 5917)
N.Y. Ins. Law §§ 7408–7415 (no analog to
18 Del. C. § 5917)
Okla. Stat. tit. 36, § 1918(A) (adds
provision requiring claimants to comply
with receiver’s information requests)
V.I. Code Ann. tit. 22, §§ 1261–1268 (no
analog to 18 Del. C. § 5917)
Wash. Rev. Code §§ 48.99.010–
48.99.080 (no analog to 18 Del. C. §
5917)
W. Va. Code § 33-10-18(a), (b), (d), (e)
(additional language regarding required
filings with claims; different process for
contested claims)
§ 5918 Priority of certain Ala. Code § 27-32- Ala. Code § 27-32-20 (no analog to 18
claims 20(a)–(d) Del. C. § 5918(e))
Alaska Stat. Alaska Stat. § 21.78.180(d)–(e)
§ 31.78.180(a)–(c) (subsections (d)–(e) diverge from DUILA)
Ariz. Rev. Stat. Ann. Ariz. Rev. Stat. Ann. § 20-629 (A), (D), (F)
§ 20-629(A), (B)–(E) (somewhat different priority schedule
Ark. Code. Ann. § 23-68- than DUILA)
119(1)–(4) Ark. Code. Ann. § 23-68-119 (no analog
Cal. Ins. Code §§ to 18 Del. C. § 5918(e))
1064.6–1064.8 Cal. Ins. Code §§ 1064.6–1064.8 (no
Fla. Stat. § 631.191(1)– analog to 18 Del. C. § 5918(e))
(2)(a) Fla. Stat. § 631.191(2)(b)–(h) (no DUILA
215 Ill. Comp. Stat. analog)
5/221.5–5/221.7 Fla. Stat. § 631.271 (priority scheme
La. Stat. Ann. § 22:2042 differs somewhat from analogs in 18 Del.
Md. Code Ann. Ins. § 9- C. § 5918(a), (e); no analog to 18 Del. C.
227(e)–(f), (h)–(i) § 5918(b))
Mass Gen. Laws ch. 175 215 Ill. Comp. Stat. 5/221.5–5/221.7 (no
§§ 180F, 180J, 180K analog to 18 Del. C. § 5918(e))
Mo. Rev. Stat. §§ La. Stat. Ann. § 22:2042(E) (no DUILA
375.970, 375.974, analog; no analog to 18 Del. C. § 5918(e))
375.978 Me. Stat. tit. 24-a §§ 4363–4369 (no
N.J. Stat. Ann. § 17:30C- analog to 18 Del. C. § 5918)263
21

263 Maine has not adopted the Uniform Act priority scheme; it has separate

provisions governing priorities. See Me. Stat. tit. 24-a § 4379.

18
DUILA Description Analogs UILA State Alternatives
§
N.M. Stat. Ann. § 59A- Md. Code Ann. Ins. § 9-227(g) (no DUILA
41-22 analog; no analog to 18 Del. C. § 5918(e))
N.Y. Ins. Law § 7413 Mass Gen. Laws ch. 175 § 180F
Okla. Stat. tit. 36, § (parallels topic of 18 Del. C. § 5918(e)
1919 but differs somewhat in language and
Or. Rev. Stat §§ approach)
734.290–734.310 Mo. Rev. Stat. §§ 375.970, 375.974,
27 R.I. Gen. Laws §§ 27- 375.978 (no analogy to 18 Del. C. §
14.4-12–27-14.4-15 5918(e))
V.I. Code Ann. tit. 22, § Nev. Stat. §§ 696B.290–696B.340 (no
1266 analog to 18 Del. C. § 5918)
Wash. Rev. Code N.J. Stat. Ann. § 17:30C-21 (no analog to
§ 48.99.060 18 Del. C. § 5918(e))
W. Va. Code §§ 33-10- N.M. Stat. Ann. § 59A-41-22(E) (no DUILA
19, 33-10-19a analog; subrogated claims of guarantee
Wyo. Stat. Ann. § 26-28- fund preferred over unsecured creditor
117 claims; no analog to 18 Del. C. § 5918(e))
N.Y. Ins. Law § 7413 (no analog to 18 Del.
C. § 5918(e))
Okla. Stat. tit. 36, § 1919 (no analog to 18
Del. C. § 5918(e))
27 R.I. Gen. Laws § 27-14.4-20 (priority of
distribution scheme differs from 18 Del.
C. § 5918(e))
V.I. Code Ann. tit. 22, § 1266(a) (first
sentence differs from 18 Del. C. §
5918(a) given territory status; no analog
to 18 Del. C. § 5918(b), (e))
Wash. Rev. Code § 48.99.060 (no analog
to 18 Del. C. § 5918(e))
W. Va. Code § 33-10-19a (priority scheme
generally tracks 18 Del. C. § 5918(e) but
differs somewhat in wording and
approach)
Wyo. Stat. Ann. § 26-28-119 (no analog to
18 Del. C. § 5918(e))
§ 5919 Attachment and Ala. Code § 27-32-21 Ariz. Rev. Stat. Ann. § 20-630(B) (no
garnishment of Alaska Stat. § 21.78.190 DUILA analog)
assets Ariz. Rev. Stat. Ann. §
20-630(A)
Ark. Code. Ann. § 23-68-
120
Cal. Ins. Code § 1064.9
Fla. Stat. § 631.201

19
DUILA Description Analogs UILA State Alternatives
§
215 Ill. Comp. Stat.
5/221.9264
La. Stat. Ann. § 22:2043
Me. Stat. tit. 24-a § 4369
Md. Code Ann. Ins. § 9-
220
Mass Gen. Laws ch. 175
§ 180F (penultimate
paragraph)
Mo. Rev. Stat. § 375.982
Nev. Stat. § 696B.340
N.J. Stat. Ann. § 17:30C-
22
N.M. Stat. Ann. § 59A-
41-23
N.Y. Ins. Law § 7414
Okla. Stat. tit. 36, §
1920
Or. Rev. Stat § 734.320
27 R.I. Gen. Laws § 27-
14.4-16
V.I. Code Ann. tit. 22, §
1267
Wash. Rev. Code
§ 48.99.070
W. Va. Code § 33-10-20
Wyo. Stat. Ann. § 26-28-
118
§ 5920 UILA title and Ala. Code § 27-32-22 Cal. Ins. Code § 1064.12(c)–(d) (no
interpretive Alaska Stat. § 21.78.200 DUILA analog)
guidance to Ariz. Rev. Stat. Ann. § Fla. Stat. §§ 631.001–631.401 (Florida
effectuate 20-631 labels its statute the “Insurers
purpose of Ark. Code. Ann. § 23-68- Rehabilitation and Liquidation Act” and
uniform law 101 has adopted several provisions based on
Cal. Ins. Code the IRLMA).
§ 1064.12(a)–(b) Me. Stat. tit. 24-a § 4363(2) (no DUILA
analog)

264 215 Ill. Comp. Stat. 5/221.9 parallels the first sentence of 18 Del. C. § 5919

but lacks the second sentence regarding voiding liens obtained within 4 months
before the commencement of the delinquency proceeding.

20
DUILA Description Analogs UILA State Alternatives
§
215 Ill. Comp. Stat. Mass Gen. Laws ch. 175 §§ 180A–180L ¾
5/221.13265 (no analog to 18 Del. C. § 5920; no
La. Stat. Ann. § 22:2044 express adoption of Uniform Act)
Me. Stat. tit. 24-a Nev. Rev. Stat. § 696B.280266
§ 4363(1), (3)
Md. Code Ann. Ins. § 9-
202
Mo. Rev. Stat. § 375.990
N.J. Stat. Ann. § 17:30C-
23
N.M. Stat. Ann. § 59A-
41-17
N.Y. Ins. Law §§ 7408,
7415
Okla. Stat. tit. 36, §
1921
27 R.I. Gen. Laws § 27-
14.4-23
V.I. Code Ann. tit. 22, §
1268
Wash. Rev. Code
§ 48.99.080
W. Va. Code § 33-10-21
Wyo. Stat. Ann. § 26-28-
119

265 215 Ill. Comp. Stat. 5/221.10 provides additional detail about the purpose

and construction of the Illinois statute beyond the common Uniform Act language.

266 In 2019, Nevada amended Nev. Rev. Stat. § 696B.280 to provide that the

provisions of its version of the Uniform Act “shall be so interpreted as to effectuate
the general purpose to make uniform the laws of those states which enact the
Uniform Insurers Liquidation Act or the Insurer Receivership Model Act.” Nev. Rev.
Stat. § 696B.280(3) (emphasis added).

21