|
|
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 |
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 |