As Introduced

129th General Assembly
Regular Session
2011-2012
H. B. No. 564


Representative Hottinger 

Cosponsors: Representatives Terhar, Adams, J., DeVitis, Derickson, Hackett 



A BILL
To amend section 3905.14 of the Revised Code to 1
regulate certificates of insurance prepared or 2
issued as evidence of property or casualty 3
insurance coverage.4


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

       Section 1.  That section 3905.14 of the Revised Code be 5
amended to read as follows:6

       Sec. 3905.14.  (A) As used in sections 3905.14 to 3905.16 of 7
the Revised Code:8

       (1) "Insurance agent" includes a limited lines insurance 9
agent, surety bail bond agent, and surplus line broker.10

       (2) "Refusal to issue or renew" means the decision of the 11
superintendent of insurance not to process either the initial 12
application for a license as an agent or the renewal of such a 13
license.14

       (3) "Revocation" means the permanent termination of all 15
authority to hold any license as an agent in this state.16

       (4) "Surrender for cause" means the voluntary termination of 17
all authority to hold any license as an agent in this state, in 18
lieu of a revocation or suspension order.19

       (5) "Suspension" means the termination of all authority to 20
hold any license as an agent in this state, for either a specified 21
period of time or an indefinite period of time and under any terms 22
or conditions determined by the superintendent.23

       (B) The superintendent may suspend, revoke, or refuse to 24
issue or renew any license of an insurance agent, assess a civil 25
penalty, or impose any other sanction or sanctions authorized 26
under this chapter, for one or more of the following reasons:27

       (1) Providing incorrect, misleading, incomplete, or 28
materially untrue information in a license or appointment 29
application;30

       (2) Violating or failing to comply with any insurance law, 31
rule, subpoena, consent agreement, or order of the superintendent 32
or of the insurance authority of another state;33

       (3) Obtaining, maintaining, or attempting to obtain or 34
maintain a license through misrepresentation or fraud;35

       (4) Improperly withholding, misappropriating, or converting 36
any money or property received in the course of doing insurance 37
business;38

       (5) Intentionally misrepresenting the terms, benefits, value, 39
cost, or effective dates of any actual or proposed insurance 40
contract or application for insurance;41

       (6) Having been convicted of or pleaded guilty or no contest 42
to a felony regardless of whether a judgment of conviction has 43
been entered by the court;44

       (7) Having been convicted of or pleaded guilty or no contest 45
to a misdemeanor that involves the misuse or theft of money or 46
property belonging to another, fraud, forgery, dishonest acts, or 47
breach of a fiduciary duty, that is based on any act or omission 48
relating to the business of insurance, securities, or financial 49
services, or that involves moral turpitude regardless of whether a 50
judgment has been entered by the court;51

       (8) Having admitted to committing, or having been found to 52
have committed, any insurance unfair trade act or practice or 53
insurance fraud;54

       (9) Using fraudulent, coercive, or dishonest practices, or 55
demonstrating incompetence, untrustworthiness, or financial 56
irresponsibility, in the conduct of business in this state or 57
elsewhere;58

       (10) Having an insurance agent license, or its equivalent, 59
denied, suspended, or revoked in any other state, province, 60
district, or territory;61

       (11) Forging or causing the forgery of an application for 62
insurance or any document related to or used in an insurance 63
transaction;64

       (12) Improperly using notes, any other reference material, 65
equipment, or devices of any kind to complete an examination for 66
an insurance agent license;67

       (13) Knowingly accepting insurance business from an 68
individual who is not licensed;69

       (14) Failing to comply with any official invoice, notice, 70
assessment, or order directing payment of federal, state, or local 71
income tax, state or local sales tax, or workers' compensation 72
premiums;73

       (15) Failing to timely submit an application for insurance. 74
For purposes of division (B)(15) of this section, a submission is 75
considered timely if it occurs within the time period expressly 76
provided for by the insurer, or within seven days after the 77
insurance agent accepts a premium or an order to bind coverage 78
from a policyholder or applicant for insurance, whichever is 79
later.80

       (16) Failing to disclose to an applicant for insurance or 81
policyholder upon accepting a premium or an order to bind coverage 82
from the applicant or policyholder, that the person has not been 83
appointed by the insurer;84

       (17) Having any professional license or financial industry 85
regulatory authority registration suspended or revoked or having 86
been barred from participation in any industry;87

       (18) Having been subject to a cease and desist order or 88
permanent injunction related to mishandling of funds or breach of 89
fiduciary responsibilities or for unlicensed or unregistered 90
activities;91

       (19) Causing or permitting a policyholder or applicant for 92
insurance to designate the insurance agent or the insurance 93
agent's spouse, parent, child, or sibling as the beneficiary of a 94
policy or annuity sold by the insurance agent or of a policy or 95
annuity for which the agent, at any time, was designated as the 96
agent of record, unless the insurance agent or a relative of the 97
insurance agent is the insured or applicant;98

       (20) Causing or permitting a policyholder or applicant for 99
insurance to designate the insurance agent or the insurance 100
agent's spouse, parent, child, or sibling as the owner or 101
beneficiary of a trust funded, in whole or in part, by a policy or 102
annuity sold by the insurance agent or by a policy or annuity for 103
which the agent, at any time, was designated as the agent of 104
record, unless the insurance agent or a relative of the insurance 105
agent is the insured or applicant;106

       (21) Failing to provide a written response to the department 107
of insurance within twenty-one calendar days after receipt of any 108
written inquiry from the department, unless a reasonable extension 109
of time has been requested of, and granted by, the superintendent 110
or the superintendent's designee;111

       (22) Failing to appear to answer questions before the 112
superintendent after being notified in writing by the 113
superintendent of a scheduled interview, unless a reasonable 114
extension of time has been requested of, and granted by, the 115
superintendent or the superintendent's designee;116

       (23) Transferring or placing insurance with an insurer other 117
than the insurer expressly chosen by the applicant for insurance 118
or policyholder without the consent of the applicant or 119
policyholder or absent extenuating circumstances;120

       (24) Failing to inform a policyholder or applicant for 121
insurance of the identity of the insurer or insurers, or the 122
identity of any other insurance agent or licensee known to be 123
involved in procuring, placing, or continuing the insurance for 124
the policyholder or applicant, upon the binding of the coverage;125

       (25) In the case of an agent that is a business entity, 126
failing to report an individual licensee's violation to the 127
department when the violation was known or should have been known 128
by one or more of the partners, officers, managers, or members of 129
the business entity;130

       (26) Submitting or using a document in the conduct of the 131
business of insurance when the person knew or should have known 132
that the document contained a writing that was forged as defined 133
in section 2913.01 of the Revised Code;134

       (27) Misrepresenting the person's qualifications, status or 135
relationship to another person, agency, or entity, or using in any 136
way a professional designation that has not been conferred upon 137
the person by the appropriate accrediting organization;138

       (28) Obtaining a premium loan or policy surrender or causing 139
a premium loan or policy surrender to be made to or in the name of 140
an insured or policyholder without that person's knowledge and 141
written authorization;142

       (29) Using paper, software, or any other materials of or 143
provided by an insurer after the insurer has terminated the 144
authority of the licensee, if the use of such materials would 145
cause a reasonable person to believe that the licensee was acting 146
on behalf of or otherwise representing the insurer;147

       (30) Soliciting, procuring an application for, or placing, 148
either directly or indirectly, any insurance policy when the 149
person is not authorized under this chapter to engage in such 150
activity;151

       (31) Soliciting, selling, or negotiating any product or 152
service that offers benefits similar to insurance but is not 153
regulated by the superintendent, without fully disclosing, orally 154
and in writing, to the prospective purchaser that the product or 155
service is not insurance and is not regulated by the 156
superintendent;157

       (32) Failing to fulfill a refund obligation to a policyholder 158
or applicant in a timely manner. For purposes of division (B)(32) 159
of this section, a rebuttable presumption exists that a refund 160
obligation is not fulfilled in a timely manner unless it is 161
fulfilled within one of the following time periods:162

       (a) Thirty days after the date the policyholder, applicant, 163
or insurer takes or requests action resulting in a refund;164

       (b) Thirty days after the date of the insurer's refund check, 165
if the agent is expected to issue a portion of the total refund;166

       (c) Forty-five days after the date of the agent's statement 167
of account on which the refund first appears.168

       The presumption may be rebutted by proof that the 169
policyholder or applicant consented to the delay or agreed to 170
permit the agent to apply the refund to amounts due for other 171
coverages.172

       (33) With respect to a surety bail bond agent license, 173
rebating or offering to rebate, or unlawfully dividing or offering 174
to divide, any commission, premium, or fee;175

       (34) Using a license for the principal purpose of procuring, 176
receiving, or forwarding applications for insurance of any kind, 177
other than life, or soliciting, placing, or effecting such 178
insurance directly or indirectly upon or in connection with the 179
property of the licensee or that of relatives, employers, 180
employees, or that for which they or the licensee is an agent, 181
custodian, vendor, bailee, trustee, or payee;182

       (35) In the case of an insurance agent that is a business 183
entity, using a life license for the principal purpose of 184
soliciting or placing insurance on the lives of the business 185
entity's officers, employees, or shareholders, or on the lives of 186
relatives of such officers, employees, or shareholders, or on the 187
lives of persons for whom they, their relatives, or the business 188
entity is agent, custodian, vendor, bailee, trustee, or payee;189

       (36) Offering, selling, soliciting, or negotiating policies, 190
contracts, agreements, or applications for insurance, or annuities 191
providing fixed, variable, or fixed and variable benefits, or 192
contractual payments, for or on behalf of any insurer or multiple 193
employer welfare arrangement not authorized to transact business 194
in this state, or for or on behalf of any spurious, fictitious, 195
nonexistent, dissolved, inactive, liquidated or liquidating, or 196
bankrupt insurer or multiple employer welfare arrangement;197

       (37) In the case of a resident business entity, failing to be 198
qualified to do business in this state under Title XVII of the 199
Revised Code, failing to be in good standing with the secretary of 200
state, or failing to maintain a valid appointment of statutory 201
agent with the secretary of state;202

       (38) In the case of a nonresident agent, failing to maintain 203
licensure as an insurance agent in the agent's home state for the 204
lines of authority held in this state;205

       (39) Knowingly aiding and abetting another person or entity 206
in the violation of any insurance law of this state or the rules 207
adopted under it.208

       (40)(a) Providing, issuing, modifying, altering, or signing a 209
certificate of insurance that is on a form other than a standard 210
certificate of insurance form promulgated by the association for 211
cooperative operations research and development, the American 212
association of insurance services, the insurance services office, 213
or a nationally recognized insurance advisory organization that 214
has been designated or approved by the department of insurance, or 215
a form promulgated by the insurance company that has underwritten 216
the policy referenced in the certificate of insurance.217

       (b) A certificate of insurance is not a policy of insurance 218
and does not affirmatively or negatively amend, extend, or alter 219
the coverage afforded by the policy of which the certificate of 220
insurance provides evidence. A certificate of insurance shall not 221
confer to a certificate holder new or additional rights beyond 222
what the referenced policy of insurance expressly provides.223

       (c) No certificate of insurance shall contain references to 224
contracts, including construction or service contracts, other than 225
the referenced contract of insurance of which the certificate 226
provides evidence. Notwithstanding any requirement, term, or 227
condition of any contract or other document that a certificate of 228
insurance may be issued for or pertain to, the insurance afforded 229
by the policy of insurance referenced in the certificate is 230
subject only to all the terms, exclusions, and conditions of that 231
policy.232

       (d) A certificate holder shall have a legal right to notice 233
of cancellation, nonrenewal, or any material change, or any 234
similar notice concerning a policy of insurance only if the 235
certificate holder is named within the policy or any endorsement 236
to the policy and the policy or endorsement requires notice to be 237
provided to the certificate holder. The terms and conditions of 238
the notice, including the required timing of the notice, are 239
governed by the policy of insurance and cannot be altered by a 240
certificate of insurance.241

        (e) As used in division (B)(40) of this section:242

       (i) "Certificate of insurance" means a document or 243
instrument, regardless of how titled or described, that is 244
prepared or issued by an insurer or insurance agent licensed under 245
this chapter as evidence of property or casualty insurance 246
coverage. "Certificate of insurance" does not include a document 247
issued to an individual as evidence of purchasing coverage under a 248
master policy, or a policy of insurance, insurance binder, policy 249
endorsement, automobile identification card, or any document used 250
to provide proof of financial responsibility for purposes of 251
Chapter 4509. of the Revised Code. 252

       (ii) "Certificate holder" means any person, other than a 253
policyholder, that requests, obtains, or possesses a certificate 254
of insurance.255

       (C) Before denying, revoking, suspending, or refusing to 256
issue any license or imposing any penalty under this section, the 257
superintendent shall provide the licensee or applicant with notice 258
and an opportunity for hearing as provided in Chapter 119. of the 259
Revised Code, except as follows:260

       (1)(a) Any notice of opportunity for hearing, the hearing 261
officer's findings and recommendations, or the superintendent's 262
order shall be served by certified mail at the last known address 263
of the licensee or applicant. Service shall be evidenced by return 264
receipt signed by any person.265

       For purposes of this section, the "last known address" is the 266
residential address of a licensee or applicant, or the 267
principal-place-of-business address of a business entity, that is 268
contained in the licensing records of the department.269

       (b) If the certified mail envelope is returned with an 270
endorsement showing that service was refused, or that the envelope 271
was unclaimed, the notice and all subsequent notices required by 272
Chapter 119. of the Revised Code may be served by ordinary mail to 273
the last known address of the licensee or applicant. The mailing 274
shall be evidenced by a certificate of mailing. Service is deemed 275
complete as of the date of such certificate provided that the 276
ordinary mail envelope is not returned by the postal authorities 277
with an endorsement showing failure of delivery. The time period 278
in which to request a hearing, as provided in Chapter 119. of the 279
Revised Code, begins to run on the date of mailing.280

       (c) If service by ordinary mail fails, the superintendent may 281
cause a summary of the substantive provisions of the notice to be 282
published once a week for three consecutive weeks in a newspaper 283
of general circulation in the county where the last known place of 284
residence or business of the party is located. The notice is 285
considered served on the date of the third publication.286

       (d) Any notice required to be served under Chapter 119. of 287
the Revised Code shall also be served upon the party's attorney by 288
ordinary mail if the attorney has entered an appearance in the 289
matter.290

       (e) The superintendent may, at any time, perfect service on a 291
party by personal delivery of the notice by an employee of the 292
department.293

       (f) Notices regarding the scheduling of hearings and all 294
other matters not described in division (C)(1)(a) of this section 295
shall be sent by ordinary mail to the party and to the party's 296
attorney.297

       (2) Any subpoena for the appearance of a witness or the 298
production of documents or other evidence at a hearing, or for the 299
purpose of taking testimony for use at a hearing, shall be served 300
by certified mail, return receipt requested, by an attorney or by 301
an employee of the department designated by the superintendent. 302
Such subpoenas shall be enforced in the manner provided in section 303
119.09 of the Revised Code. Nothing in this section shall be 304
construed as limiting the superintendent's other statutory powers 305
to issue subpoenas.306

       (D) If the superintendent determines that a violation 307
described in this section has occurred, the superintendent may 308
take one or more of the following actions:309

       (1) Assess a civil penalty in an amount not exceeding 310
twenty-five thousand dollars per violation;311

       (2) Assess administrative costs to cover the expenses 312
incurred by the department in the administrative action, including 313
costs incurred in the investigation and hearing processes. Any 314
costs collected shall be paid into the state treasury to the 315
credit of the department of insurance operating fund created in 316
section 3901.021 of the Revised Code.317

       (3) Suspend all of the person's licenses for all lines of 318
insurance for either a specified period of time or an indefinite 319
period of time and under such terms and conditions as the 320
superintendent may determine;321

       (4) Permanently revoke all of the person's licenses for all 322
lines of insurance;323

       (5) Refuse to issue a license;324

       (6) Refuse to renew a license;325

       (7) Prohibit the person from being employed in any capacity 326
in the business of insurance and from having any financial 327
interest in any insurance agency, company, surety bail bond 328
business, or third-party administrator in this state. The 329
superintendent may, in the superintendent's discretion, determine 330
the nature, conditions, and duration of such restrictions.331

       (8) Order corrective actions in lieu of or in addition to the 332
other penalties listed in division (D) of this section. Such an 333
order may provide for the suspension of civil penalties, license 334
revocation, license suspension, or refusal to issue or renew a 335
license if the licensee complies with the terms and conditions of 336
the corrective action order.337

       (9) Accept a surrender for cause offered by the licensee, 338
which shall be for at least five years and shall prohibit the 339
licensee from seeking any license authorized under this chapter 340
during that time period. A surrender for cause shall be in lieu of 341
revocation or suspension and may include a corrective action order 342
as provided in division (D)(8) of this section.343

       (E) The superintendent may consider the following factors in 344
denying a license, imposing suspensions, revocations, fines, or 345
other penalties, and issuing orders under this section:346

       (1) Whether the person acted in good faith;347

       (2) Whether the person made restitution for any pecuniary 348
losses suffered by other persons as a result of the person's 349
actions;350

       (3) The actual harm or potential for harm to others;351

       (4) The degree of trust placed in the person by, and the 352
vulnerability of, persons who were or could have been adversely 353
affected by the person's actions;354

       (5) Whether the person was the subject of any previous 355
administrative actions by the superintendent;356

       (6) The number of individuals adversely affected by the 357
person's acts or omissions;358

       (7) Whether the person voluntarily reported the violation, 359
and the extent of the person's cooperation and acceptance of 360
responsibility;361

       (8) Whether the person obstructed or impeded, or attempted to 362
obstruct or impede, the superintendent's investigation;363

       (9) The person's efforts to conceal the misconduct;364

       (10) Remedial efforts to prevent future violations;365

       (11) If the person was convicted of a criminal offense, the 366
nature of the offense, whether the conviction was based on acts or 367
omissions taken under any professional license, whether the 368
offense involved the breach of a fiduciary duty, the amount of 369
time that has passed, and the person's activities subsequent to 370
the conviction;371

       (12) Such other factors as the superintendent determines to 372
be appropriate under the circumstances.373

       (F)(1) A violation described in division (B)(1), (2), (3), 374
(4), (5), (6), (7), (8), (9), (10), (11), (12), (13), (14), (16), 375
(17), (18), (19), (20), (22), (23), (24), (25), (26), (27), (28), 376
(29), (30), (31), (32), (33), (34), (35), and (36) of this section 377
is a class A offense for which the superintendent may impose any 378
penalty set forth in division (D) of this section.379

       (2) A violation described in division (B)(15) or (21) of this 380
section, or a failure to comply with section 3905.061, 3905.071, 381
or 3905.22 of the Revised Code, is a class B offense for which the 382
superintendent may impose any penalty set forth in division 383
(D)(1), (2), (8), or (9) of this section.384

       (3) If the superintendent determines that a violation 385
described in division (B)(36) of this section has occurred, the 386
superintendent shall impose a minimum of a two-year suspension on 387
all of the person's licenses for all lines of insurance.388

       (G) If a violation described in this section has caused, is 389
causing, or is about to cause substantial and material harm, the 390
superintendent may issue an order requiring that person to cease 391
and desist from engaging in the violation. Notice of the order 392
shall be mailed by certified mail, return receipt requested, or 393
served in any other manner provided for in this section, 394
immediately after its issuance to the person subject to the order 395
and to all persons known to be involved in the violation. The 396
superintendent may thereafter publicize or otherwise make known to 397
all interested parties that the order has been issued.398

       The notice shall specify the particular act, omission, 399
practice, or transaction that is subject to the cease-and-desist 400
order and shall set a date, not more than fifteen days after the 401
date of the order, for a hearing on the continuation or revocation 402
of the order. The person shall comply with the order immediately 403
upon receipt of notice of the order.404

       The superintendent may, upon the application of a party and 405
for good cause shown, continue the hearing. Chapter 119. of the 406
Revised Code applies to such hearings to the extent that that 407
chapter does not conflict with the procedures set forth in this 408
section. The superintendent shall, within fifteen days after 409
objections are submitted to the hearing officer's report and 410
recommendation, issue a final order either confirming or revoking 411
the cease-and-desist order. The final order may be appealed as 412
provided under section 119.12 of the Revised Code.413

       The remedy under this division is cumulative and concurrent 414
with the other remedies available under this section.415

       (H) If the superintendent has reasonable cause to believe 416
that an order issued under this section has been violated in whole 417
or in part, the superintendent may request the attorney general to 418
commence and prosecute any appropriate action or proceeding in the 419
name of the state against such person.420

       The court may, in an action brought pursuant to this 421
division, impose any of the following:422

       (1) For each violation, a civil penalty of not more than 423
twenty-five thousand dollars;424

       (2) Injunctive relief;425

       (3) Restitution;426

       (4) Any other appropriate relief.427

       (I) With respect to a surety bail bond agent license:428

       (1) Upon the suspension or revocation of a license, or the 429
eligibility of a surety bail bond agent to hold a license, the 430
superintendent likewise may suspend or revoke the license or 431
eligibility of any surety bail bond agent who is employed by or 432
associated with that agent and who knowingly was a party to the 433
act that resulted in the suspension or revocation.434

       (2) The superintendent may revoke a license as a surety bail 435
bond agent if the licensee is adjudged bankrupt.436

       (J) Nothing in this section shall be construed to create or 437
imply a private cause of action against an agent or insurer.438

       Section 2. That existing section 3905.14 of the Revised Code 439
is hereby repealed.440