(1) Mutual debts or mutual credits whether arising out of one or more contracts between the insurer and another person in connection with any action or proceeding under the Nebraska Insurers Supervision, Rehabilitation, and Liquidation Act shall be set off and the balance only shall be allowed or paid except as provided in subsections
(2) and
(3) of this section and in section 44-4833.
(2) No setoff shall be allowed in favor of any person when: (a) The obligation of the insurer to the person would not at the date of the filing of a petition for rehabilitation or liquidation entitle the person to share as a claimant in the assets of the insurer; (b) The obligation of the insurer to the person was purchased by or transferred to the person with a view to its being used as a setoff; (c) The obligation of the insurer is owed to an affiliate of such person or any other entity or association other than the person; (d) The obligation of the person is owed to an affiliate of the insurer or any other entity or association other than the insurer; (e) The obligation of the person is to pay an assessment levied against the members or subscribers of the insurer, is to pay a balance upon a subscription to the capital stock of the insurer, or is in any other way in the nature of a capital contribution; or (f) The obligations between the person and the insurer arise out of transactions by which either the person or the insurer has assumed risks and obligations from the other party and then has ceded back to that party substantially the same risks and obligations. Notwithstanding the provisions of this subdivision, the rehabilitator or liquidator may permit setoffs if in his or her discretion a setoff is appropriate because of specific circumstances relating to a transaction.
(3) The rehabilitator or liquidator shall provide persons with accounting statements identifying debts which are currently due and payable. When a person owes to the insurer amounts which are currently due and payable, against which the person asserts setoff of mutual credits which may become due and payable from the insurer in the future, the person shall promptly pay to the rehabilitator or liquidator the amounts currently due and payable, except that, notwithstanding section 44-4842, the rehabilitator or liquidator shall promptly and fully refund, to the extent of the person's prior payments, any mutual credits that become due and payable to the person by the insurer.
(4) The provisions of subdivision (2)(f) and subsection
(3) of this section shall apply to all contracts entered into, renewed, extended, or amended on or after October 1, 1995, and to debts or credits arising from any business written after such date pursuant to any such contract. For purposes of this subsection, any change in the terms of or consideration for any such contract shall be deemed an amendment of the contract.