(a) A competitive market is presumed to exist unless the Commissioner, after a hearing, issues an order stating that a reasonable degree of competition does not exist in the market. Such order shall expire no later than 1 year after issue.
(b) (1) In determining whether a reasonable degree of competition exists, the Commissioner shall consider the following factors:
a. The number of insurers actively engaged in providing coverage;
b. Market shares and changes in market shares;
c. Ease of entry;
d. Market concentration as measured by the Herfindahl-Hirschman Index;
e. Whether long-term profitability for insurers in the market is unreasonably high in relation to the risks being insured;
f. Whether long-term profitability for insurers in the market is reasonable in relation to industries of comparable business risk; and
g. Generally accepted and relevant tests relating to competitive market structure, market performance and market conduct.
(2) The workers’ compensation insurance market shall not be deemed noncompetitive if the market concentration of the 50 largest insurers satisfies the United States Department of Justice merger guidelines for an unconcentrated market.
(c) All determinations by the Commissioner shall be made on the basis of findings of fact and conclusions of law.
69 Del. Laws, c. 163, § 1; 70 Del. Laws, c. 172, § 10.
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