CHAPTER 185

FORMERLY

SENATE BILL NO. 181

AS AMENDED BY

SENATE AMENDMENT NO. 2

AN ACT TO AMEND CHAPTER 3, TITLE 18, DELAWARE CODE, RELATING TO THE OFFICE OF THE INSURANCE COMMISSIONER.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Chapter 3, Title 18, Delaware Code, by striking said Chapter in its entirety and by substituting in lieu thereof the following:

"CHAPTER 3. THE INSURANCE COMMISSIONER

§302. Commissioner: election' term.

(a) The Insurance Commissioner shall be the chief officer of the Insurance Department.

(b) 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.

(c) Subject to prior qualification by the oath required by §303 of this Chapter, the Commissioner shall assume office on the first Tuesday of January after election. The Commissioner shall hold office for the term for which elected and thereafter as provided by Article XV, §5, of the Constitution.

§303. Qat.

Before entering upon the duties of his or her office the Commissioner shall take and subscribe the oath or affirmation prescribed by Article XIV of the Constitution.

§304. Ras-sac-wall vacancy.

(a) The Commissioner may be removed from office for reasonable cause, as provided by Article III, §13, of the Constitution.

(b) A vacancy in the office of Commissioner shall be filled by appointment by the Governor, as provided in Article III, §9, of the Constitution.

§305. seal.

The Commissioner shall have a seal of office of a suitable design and bearing the words 'Insurance Commissioner of the State of Delaware.'

§306 Office: Insurance Commissioner Rectulatory Revolving Fund.

(a) The Department may operate 2 offices, the principal office in Dover and a branch office in Wilmington,

(b) There is hereby created within the office of the Insurance Commissioner a special fund to be designated as the Insurance Commissioner Regulatory Revolving Fund which shall be used in the operation of the office of the State Insurance Commissioner in the performance of the various functions and duties required of the office by law.

(c) All supervisory assessments, examination fees and any rate filing or form tiling fees paid by insurers and collected by the Commissioner pursuant to this Title shall be deposited in the State Treasury to the credit of said Insurance Commissioner Regulatory Revolving Fund to be used in the operation of the office as authorized by the General Assembly in its annual operating budget. All other fees and/or taxes collected by the Commissioner shall not be deposited in said Fund but shall be deposited in the General Fund of the State.

(d) Funds in the Insurance Commissioner Regulatory Revolving Fund shall be used by the Commissioner in the performance of his or her various functions and duties involved in the oversight of insurance companies as provided by law, subject to annual appropriations by the General Assembly for salaries- and other operating expenses of the office.

(e) The maximum unencumbered balance which shall remain in the Insurance Commissioner Regulatory Revolving Fund at the end of any fiscal year shall be $150,000; and any amount in excess thereof shall cause the insurance Commissioner to reduce assessments or fees collected in the next fiscal year by an amount sufficient to reduce the Regulatory Revolving Fund fiscal year-end balance back to or below $150,000.

§307. Deputy Commissioner.

(a) The Commissioner may appoint and may remove a Deputy. Before entering upon his or her duties the Deputy shall take and file the Constitutional oath of office.

(b) The Deputy may exercise such powers and discharge such duties as the Commissioner may authorize.

(c) The Deputy shall devote his or her full time to the Department, shall not engage in any other insurance-related activity for fee or compensation, and the State shall pay his or her salary at the rate provided by law in full compensation for all of his or her services.

§308. Staff.

(a) The Commissioner may appoint and fix the compensation of such examiners, clerks, technical and professional personnel, and other necessary assistants as conduct of his or her office may require and may revoke such appointments,

(b) The Commissioner may from time to time contract for and procure such additional and independent actuarial, rating, legal and other technical and professional services as he or she may require for discharge of his or her duties.

§309. Prohibited interest. rewards.

(a) The Commissioner, his or her Deputy, or any examiner, assistant, or employee of the Department, shall not be connected with the management of, nor have a material financial interest in, directly or indirectly, any insurer, insurance agency, or broker or insurance transaction, except as policy holder or claimant under a policy; except that as to matters wherein a conflict of interest does not exist on the part of any such individual, the Commissioner may employ or retain from time to time Insurance actuaries, examiners, accountants, attorneys or other technicians, who are independently practicing their profession even though from time to time they are similarly employed or retained by insurers or others.

(a) The Commissioner, his or her Deputy, or any examiner, assistant, employee or technician retained by the Department, shall not be given nor receive, directly or indirectly, any fee, compensation, loan, gift or other thing of value, in addition to the compensation and expense allowance provided by or pursuant to the law of this State, or by contract with the Commissioner, for any service rendered or to be rendered as such Commissioner, Deputy, examiner, assistant, employee, or technician, or in connection therewith.

(c) Subsection (a) above shall not be deemed to prohibit receipt by any such person of fully vested commissions or fully vested retirement benefits to which entitled by reason of services performed prior to becoming Commissioner or prior to employment by the Commissioner.

(d) This Section shall not be deemed to prohibit appointment and functioning of the Commissioner as process agent of insurers or of nonresident licensees as provided for in this Title.

§310. Delegation of powers: duties.

(a) The Commissioner may delegate to his or her Deputy, examiner or an employee of the Department, the exercise or discharge in the Commissioner's name of any power, duty or function, whether ministerial, discretionary or of whatever character vested in or imposed upon the Commissioner under this Title.

(b) The official act of any such person acting in the Commissioner's name and by his or her authority shall be deemed an official act of the Commissioner.

§311. General powers: duties

(a) The Commissioner shall enforce and execute the duties imposed by this Title.

(b) The Commissioner shall have the powers and authority expressly vested by or reasonably implied from this Title.

(c) With respect to enforcement of the payment of fees, charges and taxes, all the provisions of law conferring powers and duties upon the State Treasurer shall also apply to the Commissioner.

(d) The Commissioner shall have such additional rights, powers and duties as may be provided by other laws of this State.

§312. Rules and regulations; promulgation; violation

(a) The Commissioner may make reasonable rules and regulations necessary for, or as an aid to, the administration or effectuation of any provision of this Title. No such rule or regulation shall extend, modify or conflict with any law of this State or the reasonable implications thereof.

(b) The Commissioner shall adopt and promulgate rules and regulations in accordance with the procedures set forth in the State Administrative Procedures Act, Chapter 101, Title 29, Delaware Code.

(a) Willful violation of any such rule or regulation shall subject the violator to such suspension or revocation of certificate of authority or license, or to such administrative fine in lieu thereof, as may be applicable under this Title, for violation of the provision to which such rule or regulation relates; but, no penalty shall apply to any act done or omitted in good faith in conformity with any such rule or regulation, notwithstanding that such rule or regulation, after such act or omission, may be amended or rescinded or determined by judicial or other authority to be invalid for any reason.

§313. Orders. notices in general

(a) Orders and notices of the Commissioner shall be effective only when in writing signed by him or her or by his or her authority.

(b) Except as otherwise expressly provided by law as to particular orders, every order of the Commissioner shall state its effective date and shall concisely state:

(1) Its intent or purpose;

(2) The grounds on which based;

(3) The provisions of this Title pursuant to which action is taken or proposed to be taken; but failure to so designate a particular provision shall not deprive the Commissioner of the right to rely thereon except where expressly provided to the contrary.

(c) Except as may be provided as to particular procedures, an order or notice may be given by delivery to the person to be ordered or notified or by mailing it, postage prepaid, addressed to such person at his or her principal place of business or residence as last of record in the Department. The order or notice shall be deemed to have been given when deposited in a mail depository of the United States Post Office.

§314. Enforcement thro gh Attorney General

(a) The Commissioner, through the Attorney General of this State, may invoke the aid of the Superior Court, through proceedings instituted in any county of this State, to enforce any lawful order made or action taken by him or her. In such proceedings the Superior Court may make such orders, either preliminary or final, as it deems proper under the facts established before it.

(b) If the Commissioner has reason to believe that any person has violated this Title or any other law applicable to insurance operations, for which criminal prosecution is provided, and, in his or her opinion, would be in order, he or she shall give the information relative thereto to the Attorney General. The Attorney General shall promptly institute such action or proceedings against such person as in his or her opinion the information may require or justify.

(c) The Attorney General upon request of the Commissioner is authorized to proceed in the courts of any other state or in any federal court or agency to enforce an order or decision of any court proceeding or in any administrative proceeding before the Commissioner.

§315. Records: inspection: destruction.

(a) The Commissioner shall carefully preserve in the Department and in permanent form all papers and records relating to the business of the Department and shall hand the same over to his or her successor in office.

(b) Except where he or she deems the same to be prejudicial to the public interest, the Commissioner shall permit inspection of the papers, records and filings in the Department by persons found by him or her to have an identified and proper interest therein.

(c) The Commissioner may destroy unneeded or obsolete records and filings in the Department in accordance with provisions and procedures applicable to administrative agencies of this State in general.

(d) Nothing in this Title shall prohibit the storage of documents and records by use of electronic means or media.

§316. Official documents. certified copies: use as evidence.

Any instrument duly executed by the Commissioner, and authenticated by his or her seal of office, shall be received in evidence in the courts of this State, and copies of papers and records in the Department so authenticated shall be received as evidence with the same effect as the originals.

§317. interstate cooperation.

(a) The Commissioner shall communicate, on request of the insurance supervisory official of any state, province or country, any information which it is his or her duty by law to ascertain respecting authorized insurers.

(b) The Commissioner may be a member of the National Association of Insurance Commissioners or any successor organization and may participate in and support other cooperative activities of public officials having supervision of the business of insurance.

§318. Investigations authorized

In addition to examinations and investigations expressly authorized, the Commissioner may conduct such investigations of insurance matters as he or she may deem proper, upon reasonable cause, to determine whether any person has violated this Title or to secure information useful in the lawful administration of any such provision. Except as otherwise provided in this Title, the cost of such investigations shall be borne by the State.

§319. Examination of insurers.

(a) The Commissioner or any of his or her examiners may conduct an examination under this section of any company as often as the Commissioner in his or her sole discretion deems appropriate, but shall at a minimum, conduct an examination of every insurer licensed in this state but not less frequently than every 5 years. In scheduling and determining the nature, scope, and frequency of the examinations, the Commissioner shall consider such matters as the results of financial statement analyses and ratios, changes in management or ownership, actuarial opinions, reports or independent certified public accountants and other criteria as set forth in the Examiner's Handbook adopted by the National Association of Insurance Commissioners and in effect when the Commissioner exercises discretion under this section. Examination of an alien insurer shall be limited to its insurance transactions, assets, trust deposits, and affairs in the United States except as otherwise required by the Commissioner.

(a) The Commissioner shall examine, in like manner, each Insurer applying for an initial certificate of authority to transact insurance in this State.

(b) In lieu of making his or her own examination, the Commissioner may accept, in his or her discretion, a full report of the last recent examination of a foreign or alien insurer, certified to by the insurance supervisory official of another state.

(c) As far as practical, the examination of a foreign or alien insurer shall be made In cooperation with the insurance supervisory officials of other states in which the insurer transacts business.

(d) In lieu of an examination under this Section of any foreign or alien insurer licensed in this State, the Commissioner may accept an examination report on such company as prepared by the insurance department for the company's state of domicile or port-of-entry state, so long as:

(1) The insurance department, at the time of the examination, was accredited under the National Association of Insurance Commissioners' Financial Regulation Standards and Accreditation Program; or

(2) The examination is performed under the supervision of an accredited Insurance department, or with the participation of 1 or more examiners, who are employed by such an accredited state insurance department, and who, after a review of the examination work papers and report, state under oath that the examination was performed in a manner consistent with the standards and procedures required by their insurance department.

§320 Examination of agents,promoters and others.

For the purpose of ascertaining compliance with law or relationships and transactions between any such person and any insurer or proposed insurer, the Commissioner may examine, as often as he or she deems advisable, the accounts, records, documents and transactions pertaining to or affecting insurance affairs or proposed insurance affairs of:

(1) Any insurance agent, solicitor, broker, general agent, adjuster, insurer representative or person holding himself or herself out as any of the foregoing;

(2) Any person having a contract under which he or she enjoys In fact the exclusive or dominant right to manage or control an insurer;

(3) Any person holding the shares of voting stock or the policyholder proxies of a domestic Insurer for the purpose of controlling the management thereof, as voting trustee or otherwise;

(4) Any person in this State, who is engaged in, or proposing to be engaged in, holding himself or herself out as engaging, proposing, or assisting in the promotion, formation, or financing of an insurer, insurance holding corporation, corporation, or other group, to finance an insurer or the production of its business.

§321. Conduct of examination: access to records: correction.

(a) The Commissioner shall conduct each examination in an expeditious, fair, and impartial manner. Upon determining that an examination should be conducted, the Commissioner or his or her designee shall issue an examination warrant appointing 1 or more examiners to perform the examination and instructing them as to the scope of the examination. In conducting the examination, the examiner shall observe those guidelines and procedures set forth in the Examiner's Handbook adopted by the National Association of Insurance Commissioners. The Commissioner may also employ such other guidelines or procedures as the Commissioner may deem appropriate.

(b) Upon any such examination the Commissioner or examiner may examine, under oath, any officer, agent or other individual believed to have material information regarding the affairs under examination.

(c) Every person being examined, his or her officers, attorneys, employees, agents and representatives, shall make freely available to the Commissioner, or his or her examiners, the accounts, records, documents, files, information, assets and matters of such person, in his or her possession or control, relating to the subject of the examination and shall facilitate the examination.

(d) If the Commissioner or examiner finds any accounts or records to be inadequate or inadequately kept or posted, he or she may employ experts to reconstruct, rewrite, post or balance them at the expense of the person being examined if such person has failed to maintain, complete, or correct, such records or accounting, after the Commissioner or examiner has given him or her written notice and a reasonable opportunity to do so.

(e) Neither the Commissioner, nor any examiner, shall remove any record, account, document, file or other property of the person being examined from the offices or place of such person, except with the written consent of such person in advance of such removal or pursuant to an order of court duly obtained. This provision shall not be deemed to affect the making and removal of copies or abstracts of any such record, account, document or file.

§322. Examination report.

(a) The Commissioner or his or her examiner shall make a full and true written report of every such examination made by him or her and shall therein certify under oath the report and findings.

(b) The report shall contain only information appearing upon the books, records, documents and papers of, or relating to, the person or affairs being examined or ascertained from testimony of individuals under oath concerning the affairs of such person, together with such conclusions and recommendations as may reasonably be warranted by such information.

(b) No later than 60 days following the completion of the examination, the examiner in charge shall file with the Department a verified written report of examination under oath. Upon receipt of the verified report, the Department shall transmit the report to the company examined, together with a notice which shall afford the company examined a reasonable opportunity of not more than 30 days to make a written submission or rebuttal with respects to any matters contained in the examination report. If the company so requests in writing within such 30-day period, the Commissioner shall grant a hearing as to the report and shall not file the report until after the hearing and after such modifications have been made therein as the Commissioner deems proper.

(c) The Commissioner shall furnish a copy of the report to the person examined not less than 20 days prior to filing the same in the Department and may, in his or her discretion, also furnish a copy of the report to each member of the examinee's board of directors if the person examined is a corporation. If such person so requests in writing within such 20 day period, the Commissioner shall grant a hearing as to the report and shall not so file the report until after the hearing and after such modifications have been made therein as the Commissioner deems proper.

(d) The report when so filed shall be admissible in any action or proceeding brought by the Commissioner against the person examined or against its officers, employees, or agents. In any such action or proceeding, the Commissioner or his or her examiners may, however, at any time testify and offer proper evidence as to information secured or matters discovered during the course of the examination, whether or not a written report of the examination has been either made, furnished, or filed with the Department.

(e) The Commissioner may withhold from public inspection any examination or investigation report for so long as he or she deems such withholding to be necessary for the protection of the person examined against unwarranted injury or to be in the public interest.

(f) All working papers, recorded information, documents and copies thereof produced by, obtained by, or disclosed to the Commissioner or any other person in the course of an examination made under this chapter shall be given confidential treatment and are not subject to subpoena and may not be made public by the Commissioner or any other person except to insurance departments of any state or country, or to law enforcement officials of this or any other state or agency of the federal government at any time, so long as such agency or office receiving the report or matters relating thereto agrees in writing to hold it confidential and in a manner consistent with this section, unless the prior written consent of the company to which it pertains has been obtained.

§323. Examination expense

(a) The expense of examination of an Insurer or of any person referred to in §320(2) of this Title (management or control of an insurer under contract) or §320(4) of this Title (promoters, etc.) shall be borne by the person examined. Such expense shall include only the reasonable and proper expenses of the Commissioner, and his or her examiners and assistants, including expert assistance, and a reasonable per diem as to such examiners and assistants as necessarily incurred in the examination.

(b) Such person examined shall promptly pay the examination expense upon presentation by the Commissioner, or his or her examiner, of a reasonably detailed written account thereof.

§324. Administrative procedures: hearings in general.

(a) The Commissioner may hold a hearing without request by others for any purpose within the scope of this Title.

(b) The Commissioner shall hold a hearing:

(1) If required by any other provision of this Title; or

(2) Upon written application for a hearing by a person aggrieved by any act, threatened act, or failure of the Commissioner to act, or by any report, rule, regulation or order of the Commissioner (other than an order for the holding of a hearing, or order on a hearing, or pursuant to such order, of which hearing such person had notice). Any such application must be filed in the Department within 90 days after such person knew or reasonably should have known of such act, threatened act, failure, report, rule, regulation or order, unless a different period is provided for by other laws applicable to the particular matter and, in which case, such other law shall govern.

(c) Any such application for a hearing shall briefly state the respects in which the applicant is so aggrieved, together with the grounds to be relied upon as a basis for the relief to be sought at the hearing.

(d) If the Commissioner finds that the application is made in good faith, that the applicant would be so aggrieved if his or her grounds are established, and that such grounds otherwise justify the hearing, the Commissioner shall hold the hearing within 30 days after filing of the application unless postponed by mutual consent. Failure to hold the hearing upon application of a person entitled, as hereinabove provided, shall constitute a denial of the relief sought and shall be the equivalent of a final order of the Commissioner on hearing for the purpose of an appeal under §329 of this Title.

(e) Pending the hearing and decision, the Commissioner may suspend or postpone the effective date of his or her previous action.

(f) To the extent that it does not conflict with the provisions of this Chapter, the Administrative Procedures Act, Chapter 101, Title 29, Delaware Code, shall govern all aspects of the Department's administrative proceedings, including, but not limited to the following:

(1) Notice of hearing;

(2) Conduct of hearing;

(3) Ex parte consultations;

(4) Proposed Order;

(5) Record retention; and

(6) Decision and final order.

§325. Notice of hearinq

(a) Except where a longer period is expressly provided in this Title, the Commissioner shall give written notice of the hearing to all parties not less than 20 days in advance.

If any such hearing is to be held for consideration of rules and regulations of the Commissioner or of other matters which, under subsection (a) above, would otherwise require separate notices to more than 30 persons, in lieu of other notice the Commissioner may give notice of the hearing by publication in a newspaper of general circulation in this State, at least once each week during the 4 weeks immediately preceding the week in which the hearing is to be held; except that, the Commissioner shall mail such notice to all persons who have requested the same in writing in advance and have paid to the Commissioner the reasonable amount fixed by him or her to cover the cost thereof.

§326. Conduct of hearing.

(a) The Commissioner may hold a hearing in Dover or any other place of convenience to parties and witnesses as the Commissioner determines. The Commissioner, or his or her designee, shall preside at the hearing and shall expedite the hearing and all procedures involved therein.

§327. Witnesses and documentary evidence

(a) As to the subject of any examination, investigation or hearing being conducted by him or her, the Commissioner may subpoena witnesses and administer oaths or affirmations, and examine any individual under oath, or take depositions, and by subpoena duces fecum may require the production of documentary and other evidence. Any delegation by the Commissioner of power of subpoena shall be in writing.

(a) Witness fees and mileage, if claimed, shall be allowed the same as for testimony in a Superior Court. Witness fees, mileage and the actual expense necessarily incurred in securing attendance of witnesses and their testimony shall be itemized and shall be a part of the examination expense to be paid by the person being examined, where payment of examination expense by such person is otherwise provided for in this Title, or paid by the person as to whom such proceedings, other than as part of an examination, are held if, in such proceedings, such person is found to have been in violation of the law, or by the person, if other than the Commissioner, at whose request the hearing is held.

(b) Subpoenas of witnesses shall be served in the same manner and at the same cost as if issued by a Superior Court. If any individual fails to obey a subpoena issued and served hereunder with respect to any matter or evidence concerning which he or she may be lawfully interrogated or required to produce for examination, upon application of the Commissioner, the Superior Court, in any county in which is pending the proceeding at which such individual is so required to appear, or the Superior Court in the county in which such individual resides, may issue an order requiring the individual to comply with the subpoena and to appear and testify or produce the evidence subpoenaed; and, any failure to obey such order of the Court may be punished by the Court as a contempt thereof.

(c) Any person knowingly giving false testimony under oath or making a false affirmation as to any matter material to any such examination, investigation or hearing, upon conviction thereof, shall be guilty of perjury.

§328. Testimony compelled: immunity.

(a) If any individual asks to be excused from attending or testifying or from producing any books, papers, records, contracts, correspondence or other documents in connection with any examination, hearing or investigation being conducted by the Commissioner, or his or her examiner, on the ground that the testimony or evidence required of him or her may tend to incriminate him or her, or subject him or her to a penalty or forfeiture, and shall be directed, by the Attorney General, to give such testimony or produce such evidence, he or she must nonetheless comply with such direction; but, he or she shall not thereafter be prosecuted or subjected to any penalty or forfeiture for, or on account of, any transaction, matter or thing concerning which he or she may have so testified or produced evidence; and, no testimony so given or evidence produced shall be received against him or her upon any criminal action, investigation or proceeding; except, however, that no such Individual so testifying shall be exempt from prosecution or punishment for any perjury committed by him or her in such testimony; and, the testimony or evidence so given or produced shall be

admissible against him or her upon any criminal action, investigation or proceeding concerning such perjury, nor shall such individual be exempt from the refusal, suspension or revocation of any license, permission or authority conferred, or to be conferred, pursuant to this Title.

(b) Any such individual may execute, acknowledge and file in the office of the Commissioner and of the Attorney General a statement expressly waiving such immunity or privilege in respect to any transaction, matter or thing specified in such statement; and, thereupon, the testimony of such individual or such evidence in relation to such transaction, matter or thing may be received or produced before any judge or justice, court, tribunal, grand jury or otherwise; and, if so received or produced, such individual shall not be entitled to any immunity or privileges on account of any testimony he or she may so give or evidence so produced.

§329. Appeal from the Commissioner.

(a) Except as to matters arising under Chapter 25 of this Title (Rates and Rating Organizations), an appeal from the Commissioner shall be taken only from an order on hearing or as to a matter on which the Commissioner has refused or failed to hold a hearing after application therefor, or issue an order on hearing as required by §324 of this Title.

(b) Any person, who was a party to such hearing or whose pecuniary interests are directly and immediately affected by any such refusal or failure, and who is aggrieved by such order, refusal or failure, may appeal from such order or as to any such matter within 60 days after:

(1) The order on hearing has been mailed or delivered to the persons entitled to receive the same or given by last publication thereof where delivery by publication is permitted; or

(2) The Commissioner has refused or failed to make his or her order on hearing as required under §324 of this Title; or

(3) The Commissioner has refused or failed to grant or hold a hearing as required under §324 of this Title.

(c) The appeal shall be granted as a matter of right and shall be taken to the Superior Court in any county in this State.

(d) The appeal shall be taken by filing in the Court a verified petition stating the grounds upon which the review is sought, together with a bond with good and sufficient sureties to be approved by the Court, conditioned to pay all costs which may be assessed against the appellant or petitioner in such proceedings, and by serving a copy of the petition upon the Commissioner. If the appeal is from the Commissioner's order on hearing, the petitioner shall also deliver to the Commissioner a sufficient number of copies of the petition and the Commissioner shall mail or otherwise furnish a copy thereof to the other parties to the hearing to the same extent as a copy of the Commissioner's order is required to be furnished to the hearing parties under §324 of this Title.

(e) Upon receiving the petition for review, the Commissioner shall cause to be prepared an official record certified by him or her which shall contain a copy of all proceedings and orders of the Commissioner appealed from and the transcript of testimony and evidence or summary record thereof. Within 30 days after the petition is served upon him or her the Commissioner shall file such official record with the Court in which the appeal is pending.

(f) Upon filing of the petition for review, the Court shall have full jurisdiction of the proceeding. Such filing shall not stay the enforcement of the Commissioner's order or action appealed from unless so stayed by order of the Court.

(g) If the appeal is from the Commissioner's order on hearing, the review of the Court shall be limited to matters shown by the Commissioner's official record; otherwise, the review shall be de novo. The Court shall have the power, by preliminary order, to settle questions concerning the completeness and accuracy of the Commissioner's official record.

(h) In its discretion the Court may remand the case to the Commissioner for further proceedings in accordance with the Court's directions; or, in advance of judgment and upon a sufficient showing, the Court may remand the case to the Commissioner for the purpose of taking additional testimony or other proceedings.

(g) From the judgment of the Superior Court, either the Commissioner or other party to the appeal may appeal directly to the Supreme Court of the State in the same manner as is provided in civil cases.

§330. Administrative penalty

(a) Notwithstanding any other provisions of this Title or any regulation implementing said Title, the Commissioner, upon a finding after notice and hearing conducted in accordance with the provisions of this Chapter, that any person, insurer or insurance holding company has violated any provision of this Title or any regulation implementing said Title, may impose or order an administrative penalty in an amount of money that is reasonable and appropriate in view of the facts and circumstances surrounding the violation. In determining what the amount of penalty shall be, the Commissioner may take into consideration such matters as the nature of the violation, the amount of loss resulting from the violator's conduct, the intent of the violator, the damages caused by the violation, any efforts made by the violator to correct the violation and prevent a reoccurrence, and the recommendations of any hearing officer. In no event shall the administrative penalty per violation exceed $15,000 for those licensed under Chapter 17 of this Title, and $50,000 per violation for Insurance companies, insurance holding companies, and all other persons licensed under this Title.

(a) Any administrative penalty imposed pursuant to this Section may be in addition to any penalty, fine or sentence ordered by a court in any civil or criminal proceeding.

(b) Any penalty that may be imposed or ordered by the Commissioner after the hearing shall be paid to the State Treasurer for deposit in the General Fund."

§331. Immunity from Liability.

(a) No cause of action shall arise nor shall any liability be imposed against the Commissioner, the Commissioners authorized representatives, or any. examiner appointed by the Commissioner for any statements made or conduct performed in good faith while carrying out the provisions of this chapter.

(b) No cause of action shall arise nor shall any liability be Imposed against any person for the act of communicating or delivering information or data to the Commissioner or the Commissioner's authorized representative or examiner pursuant to an examination made under this chapter, if such an act of communication or delivery was performed in good faith and without fraudulent intent or intent to deceive.

(c) This section does not abrogate or modify in any way any common law or statutory privilege or immunity heretofore enjoyed by any person identified In subsection (a) of this section.

(d) A person identified in subsection (a) of this section shall be entitled to an award of attorney's fees and costs if they are the prevailing party in a civil cause of action for libel, slander, or any other relevant tort arising out of their activities in carrying out the provisions of this chapter and the party bringing the action was not substantially

Justified in doing so. For purposes of this section a proceeding is 'substantially justified' if it had a reasonable basis in law or in fact at the time that it was initiated."

Approved July 10, 1995