Chapter 15 RIP

Insurer insolvency

The law requires insurers to be sufficiently capitalized. Insolvency means any impairment of minimum "paid-in capital" or "capital paid-in" required of an insurer for the classes of insurance, which it transacts. This means that there is an inability for a company to meet its financial obligations when they are due. An insurer cannot escape the condition of insolvency just by being able to provide for its liabilities and reinsure outstanding risks. An insurer must not only provide for all its liabilities, but must also possess minimum paid-in capital requirements. The Paid-in Capital requirements are as follows: For foreign mutual insurers without outstanding capital stock, the value of its assets that is in excess of all expenses, taxes, indebtedness and reinsurance as provided by law. The paid-in capital of available cash assets must amount to at least $200,000. For domestic insurers, the value of its assets that are in excess of the sum of its liabilities for losses reported, expenses, taxes, and all other indebtedness or the aggregate par value of its issued shares of stock, including treasury shares, whichever is lower. For the purpose of computing paid-in capital or capital paid-in, shares of stock are not taken as liabilities. Examination of Insurers - The Commissioner conducts examinations on every domestic insurer in this state not less frequently than every 5 years. Rehabilitation and Liquidation - Regardless of the regulations and controls, a few insurers find themselves in financial difficulty. When this happens, the Commissioner will step in and attempt to help the insurer become solvent again. Conservation of Insurers The Commissioner may file an application with the superior court, and the court may issue an order for the Commissioner to become Conservator of either a financially impaired or insolvent insurer, and be vested with its assets, books, records, property and conduct business, if any of the following conditions exist: The person or entity has refused to submit books, papers, accounts, or affairs. The person has neglected or refused to observe an order of the Commissioner to make good any deficiency in its capital or reserve. The person is found, after an examination, to be in a hazardous financial condition. That any officer or attorney in fact has embezzled, sequestered, or wrongfully diverted any of the assets of the person. That a domestic insurer does not comply with the requirements for a Certificate of Authority, or its Certificate of Authority has been revoked. Summary Seizure - If it appears to the Commissioner that irreparable loss and injury to the property and business of any person engaged in the insurance business has occurred or is about to occur unless acting immediately, the Commissioner will, without notice and before applying for a court order, take possession of the property, business, books, records and accounts and retain possession subject to the issuance of the court order. It is a misdemeanor to refuse to deliver books, records, or assets to the Commissioner after a seizure order has been issued in an insolvency proceeding. This is punishable by a fine of up to $1,000 and/or imprisonment for up to 1 year. Liquidation - If it is not prudent to proceed as a conservator, the Commissioner may apply to the court and after a full hearing the court may order the winding up and of the insolvent insurer with the Commissioner as liquidator.

Exemption

A licensee will not be required to comply with the CE requirements if the licensee submits proof satisfactory to the Commissioner that the licensee has been in good standing for 30 continuous years in California and is 70 years of age or older. In addition to the continuing education requirements, a licensee may also need to complete specified product training requirements.

Disclosure of Policy Effective Date

A life agent, property and casualty broker-agent must provide at the time of application or receipt of premium the effective date of coverage, if known, or the circumstances under which coverage will be effective if there exists conditions precedent to coverage. This applies to all personal lines coverages, such as private passenger auto, homeowner and renter insurance, personal liability, and individual disability and health insurance.

Nonresident Agent

A person who does not reside in California but is licensed to represent an admitted insurer in this state.

Transacting Without a License

Any person who acts, offers to act, or assumes to act in a capacity for which a license is required without holding a license is guilty of a misdemeanor, punishable by a fine of up to $50,000 and/or 1 year in jail. A person cannot transact business in any class of insurance without first being admitted as an agent for that class.

Life Settlement Broker

Under California law, a Life Settlement Broker is exclusively the representative of the policyowner who seeks to sell his interest in the policy. The Life Settlement Broker must be a licensed Life-Only agent for more than 1 year or have completed a 15-hour course in life settlements. A Life Settlement Broker must file an application and post a $10,000 surety bond. As a fiduciary, the Broker must disclose all purchase offers received to the policyowner.

Sexual orientation and underwriting

An insurer cannot consider sexual orientation in its underwriting criteria or use marital status, living arrangements, occupation, sex, beneficiary designation or Zip Code to determine whether to require a test for the presence of HIV.

File and REcord Documentation

Every licensee's claim files are subject to examination by the Commissioner at all times. Claims files are required to contain all documents, notes and work papers, including copies of all correspondence, which reasonably pertain to each claim in such detail that pertinent events and the dates of the events can be reconstructed, and the licensee's actions pertaining to the claim can be determined. Insurers are required to maintain claim data so that it is accessible, legible, and retrievable for examination, and must be able to provide the claim number, line of coverage, date of loss, date of acceptance, date of payment, date of denial or closing without payment. This data must be available for all open and closed files for the current year, and the 4 preceding years. Licensees must also record the date the licensee received, transmitted, or mailed every material and relevant document in the file, or otherwise processed anything relevant to a claim.

Arson Reporting database

The Arson Information Reporting System permits insurers, law enforcement agencies, fire investigative agencies, and district attorneys to deposit arson case information in a common database within the Department of Justice. The purpose of the database is to identify patterns by claimants engaged in arson and to prevent insurance fraud by arson.

Examination

Upon completing the required prelicensing education requirements, the applicant must pass a state licensing exam. The license exam must be passed within 12 months of the date of completion of the applicable prelicensing course.

California Annuity Suitability Education Requirements

A life-only agent who sells annuity products to individual consumers must complete an initial 8-hour training course prior to soliciting for sales. Agents must complete 4 hours of subsequent training every 2 years prior to license renewal.

Resident Agent

A person who resides in California and is licensed to represent an admitted insurer in this state.

Denial of License Application, Revocation of a License without a Hearing

Been convicted of a felony by judge or jury Been convicted of a misdemeanor relating to insurance law by judge or jury Had a previous application for a professional, occupational, or vocational license denied for cause by any licensing authority, within 5 years of the date of the filing of the application

Fraudulent Claims

The Fraudulent Claims section of the Code enables the Commissioner and Department of Insurance to more effectively investigate and discover insurance fraud and to halt fraudulent activities. Insurance fraud is particularly problematic in automobile, workers' compensation and health insurance. Any insurer who provides a form to file a claim against it must include the following statement on the form: "For your protection, California law requires the following to appear on this form: Any person who knowingly presents a false or fraudulent claim for the payment of a loss is guilty of a crime and may be subject to fines and confinement in state prison." If an insured signs a false claim form, the insured may be guilty of perjury.

Alteration of Disability Application

No alteration of a written application for a disability policy can be made by any person other than the applicant without written consent. Any alteration made without consent by an officer or employee of the insurer is considered an act by the insurer and is a misdemeanor.

Identification of applicant's Race or Birthplace Discrim pract

No application for insurance used in determining the insurability of the applicant can require the applicant's race, color, national origin, ancestry or sexual orientation. The applicant's birthplace can be used only for purposes of identifying the applicant and not to discriminate against the applicant.

Reporting of administrative actions and criminal convictions

All licensees and applicants for licenses issued by the CDI Producer Licensing Bureau are required to report any administrative actions or criminal convictions to CDI within 30 days of the final disposition of the matter. This requirement applies to both California resident and non-resident licensees and applicants. Background information that must be reported includes any of the following: Misdemeanor or felony conviction Filing of felony criminal charges in state or federal court Administrative action regarding a professional or occupational license Licensee's discharge or attempt to discharge in a personal or organizational bankruptcy proceeding an obligation regarding any insurance premiums or fiduciary funds owed to any company, including a premium finance company, or managing general agent Admission (or judicial finding or determination) of fraud, misappropriation or conversion of funds, misrepresentation, or breach of fiduciary duty

Appointments

Before a licensed agent may transact insurance, the agent must first be appointed by an admitted insurer or a licensed agency which has a marketing agreement with one or more insurers. The insurer or authorized representative must file a Notice of Appointment with the Commissioner. The appointment becomes effective the date the notice is signed. A property or casualty broker or agent may file a Notice of Appointment on behalf of a solicitor. An agent may be appointed by an unlimited number of insurers, and appointments remain in effect until: Cancellation or expiration of the license The filing of a notice of termination by the appointing insurer Upon termination of all appointments, a permanent license will not be cancelled but will become inactive. An agent's license remains in active status as long as renewal fees are paid, continuing education requirements have been met, and at least one active Notice of Appointment is on file with the Commissioner.

Inactive License

If renewal fees are paid and continuing education requirements are satisfied, but the agent has no active Notice of Appointment on file with the Commissioner, the license will be placed on inactive status. A license may be continued on inactive status as long as renewal fees are paid and continuing education requirements are satisfied. An inactive license will immediately be restored to active status upon submission of an Action Notice of Appointment. As long as an agent's license is inactive, the agent is prohibited from transacting insurance in any manner. A licensee who is unable to pay renewal fees or complete continuing education due to military service will be allowed to complete the renewal requirements upon termination of military service and will not have to pay a renewal penalty.

Prelicensing education

Prelicensing education is a requirement to obtaining an agent or broker license in California. The requirements include: Applicants for a life and health agent or a property and casualty broker/agent license must complete 40 hours of approved instruction and 12 hours of Ethics and Code. Applicants for a life-only agent, accident and health only agent, property-only or casualty only broker/agent each require 20 hours of approved instruction and 12 hours of Ethics and Code. Applicants for the Personal Lines Broker-Agent License must complete 20 hours of a pre-licensing course and the 12-hour pre-licensing Code and ethics course. A new California resident who holds a current resident license from another state and completed equivalent pre-licensing in that state will be exempt from the 40 hour requirement but must complete 12 hours of Ethics and Code. Pre-licensing education requirements shall not apply to a life and health agent who is limited by the terms of a written agreement with the insurer to transact only specific life policies or annuities having an initial face amount of $20,000 or less that are designated by the purchaser for the payment of funeral or burial expense.

Solicitors

An Insurance Solicitor is employed to aid a property and casualty broker-agent acting as an insurance agent or insurance broker in transacting insurance other than life, disability, or health. Note: There is no such license as "Life Solicitor or Health Solicitor" Only life licensees may transact life and disability insurance, according to their individual licensing.

Expired License

An application for renewal of an expired license without retesting may be filed after the expiration date until the same month and day of the next succeeding year, providing the delinquent fee for that year is paid. The Commissioner has continuing authority to act against a former agent whose license has been surrendered or expired for up to 5 years.

Continuing Education Requirements

An individual licensed as a life-only or accident and health agent and also licensed as a property or casualty broker-agent, or an individual licensed as a property or casualty broker/agent must complete a minimum of 24 hours of instruction (including 3 hours of Ethics) prior to renewal of the license every 2 years. The courses, programs of instruction, or seminars must be approved by the Commissioner for the types of licenses held. Agents who complete more than the minimum required hours will have excess hours rolled over to the next license term. Life-Only and Accident and Health Agents may only receive credit for CE courses in the Life and Health category. Agents who are also licensed for Property or Casualty insurance may take any combination of courses in Life, Health, or Property and Casualty that total 24 hours or more (including and required courses).

Physical or mental impairment

An individual or group life, annuity, or disability insurer may not refuse to insure, or refuse to continue to insure, or limit the amount, extent, or kind of coverage available to an individual, or charge a different rate for the same coverage solely because of a physical or mental impairment, except where the refusal, limitation or rate differential is based on sound actuarial principles or is related to actual and reasonably anticipated experience. "Physical or mental impairment" is any physical, sensory, or mental impairment which substantially limits one or more of that person's major life activities.

original license appointment

An insurer filing a notice of appointment for an original license for an applicant declares that the applicant is of good reputation and worthy of the license.

Restricted License

As a disciplinary measure when a violation of the Insurance Code would justify suspension, revocation or denial of license, the Commissioner may revoke the permanent license and issue a restricted license. A restricted license requires the agent to comply with all laws, and complete all CE requirements and license renewals on time for up to four years. The agent must request restoration of the permanent license once the terms of the restricted license have been completed. A restricted license may be suspended or revoked without hearing or cause.

License number required on documents

Every licensee shall prominently affix, type, or have printed on business cards, price quotations and printed advertisements in this state, his/her license number in type the same size as that indicated for address or telephone number. Any person found to have violated this requirement shall be subject to a fine in the amount of $200 for the first offense; $500 for the second offense; and $1,000 for the third and any subsequent offense.

office location

Every resident property and casualty broker/agent must maintain a principal office in this state for the transaction of business. The office address must be specified on all license and renewal applications.

Fraudulent Acts

Fraudulent acts include filing a false claim for loss or injury, filing the same claim for loss or injury with multiple insurers with the intent to defraud, and knowingly participating in an auto collision or other vehicular accident with the intent to present a false or fraudulent claim. The type of insurance fraud which is most prevalent in California concerns Workers' Compensation. Workers' Compensation fraud can arise from both the claims of employees and the acts of employers. Employees who misrepresent their injuries, their ability to work or perform activities of daily living, or recovery status commit fraud. Employers who misreport payroll, pay employees in unreported cash for their regular or overtime wages, privately pay for or discourage workers from seeking treatment following a legitimate injury, or deny employees treatment by threatening to terminate their employment also commit Workers' Compensation fraud

Free Insurance

No insurer or agent may participate in any plan to offer or effect any kind of insurance or annuities in this state as an inducement to the purchase or rental by the public of any property, real or personal or mixed, or services, without any separate charge to the insured for such insurance, nor can any agent, broker, or solicitor arrange the sale of any such insurance. The Commissioner may suspend or revoke a license or certificate of authority of anyone willfully violating this provision not to exceed 1 year.

Insurance in connection with sales or loans

No person engaged in the business of financing the purchase of real or personal property may require the purchaser of that property to obtain insurance for that property through a particular agent or broker. A lender cannot refuse to accept insurance provided by an acceptable insurer on the grounds that the insurance provides more coverage than is required. No person making a loan on the security of real property is allowed to use information contained in a fire or casualty policy for the purpose of soliciting such coverage if the borrower has filed a signed statement with the lender that such information may not be used. The Commissioner, after a hearing, may issue a Cease and Desist Order to any person who has, in more than one transaction, violated this section. The violation of the Cease and Desist Order is a misdemeanor.

California Code of Regulations

The Insurance Code does not always define how the laws are enforced. The Commissioner enforces the Code by writing and adopting Regulations that specify the manner of enforcement or provide details on how the code is to be administered. The various Regulations enacted by the Commissioner are found in the California Code of Regulations (CCRs). The Commissioner's regulations are first proposed and published in draft form, then undergo a series of public hearings, and following final adoption, are reviewed by the Office of Administrative Law (OAL). After passing review by the OAL, the regulations are passed on to the Secretary of State, who is responsible for maintaining the CCRs. The Commissioner has authority to enact Emergency Regulations without having to follow the normal public hearing process, subject to OAL review and judicial appeal by any person directly impacted by such emergency regulations after they have become effective. The Commissioner's regulations cover all aspects of the business of insurance. Among others, the Regulations include topics such as: Criteria the Commissioner may use to deny an application for an insurance license Fictitious business name approval for insurance producers Bail transactions Insurance for motor vehicles as required by the Vehicle Code Surplus lines of insurance The sale of insurance products in connection with loans or the sale of real or personal property Premium financing and the compensation a person may derive from it Recordkeeping by Agents, Agencies, and Insurers

Fraud protection

The Insurance Department's Fraud Division enforces the provisions prohibiting fraudulent claims. Every admitted insurer must maintain a Special Investigations Unit for the purpose of detecting and investigating fraudulent claims. Insurers are required to notify the local district attorney's office and Fraud Division within 60 days if they have knowledge of actual or suspected fraud.

Ethical Conduct

The essential principles of Ethics in the insurance industry are: Place the customer's interest first Know your job and continue to increase your level of competence Identify customers' needs and recommend products and services that meet those needs Accurately and truthfully represent products and services Use simple language that the layman can understand Stay in touch with customers and conduct periodic coverage reviews Protect your confidential relationship with your client Keep informed of and obey all insurance laws and regulations Provide exemplary service to your clients Avoid unfair or inaccurate remarks about the competition Agents have a responsibility to represent and market insurance products in an ethical and professional manner. This requires knowledge of insurance products and knowing the customer's needs in order to make suitable recommendations.

Aiding a non-admitted insurer to transact

The following are considered misdemeanors with regard to a non-admitted insurer, except when performed by a surplus lines broker: Transacting insurance business in the state as an agent for a non-admitted insurer Advertising as a non-admitted insurer in this state Assisting a non-admitted insurer to transact business in this state A penalty of $500 along with a fine of $100 per month for each month the violation continues will be assessed those found in violation.

Noncompliance

Whenever the Commissioner may have good cause to believe that any property and casualty broker/agent has failed to keep or maintain the records required, the Commissioner may issue an order requiring the licensee to establish and complete those records within 60 days from the date of the order. Notice of the order may be given by certified mail addressed to the office of the licensee. Failure of the licensee to comply with the order within the time specified will be grounds for the suspension or revocation of the license or licenses of the licensee.

Administrators

An administrator is any person who collects any charges or premium from, or who adjusts or settles claims on, residents of this state in connection with life, health or annuity insurance coverage and must hold a Certificate of Registration as an administrator issued by the Commissioner. An administrator must have a written agreement with an insurer. A copy of the agreement must be kept for 5 years after the agreement has ended.

Exemption from Insurance Licensing Requirements

The following are exempt from insurance licensing requirements: Full-time salaried employees of a title insurer Salaried solicitors or agents of a mortgage insurer who receives no commission An officer of an insurer

Broker

A broker is someone who for compensation transacts insurance on behalf of another person, but not an insurer. There are no brokers for life or health insurance in California. All life licensees are agents when transacting life or disability insurance, regardless of the language the insurance company may use in its agency agreements, advertising, or other communication.

Standards for prompt, fair, and equitable settlements

It is an unfair practice for any insurer to discriminate in the investigation or settlement of a claim on the basis of a person's age, race, gender, income, religion, language, sexual orientation, ancestry, national origin, physical disability, or upon the territory of the property or person. Unless the insurer requires additional information to determine liability for a loss, the insurer is generally expected to either affirm or deny a claim within 40 days of notice of the loss. This time limit does not apply to disability income or health insurance. When a claim cannot be resolved within 40 days, the claimant must be notified of this fact and, as discussed previously, the insurer must continue to communicate the status of the claim no less often than every 30 days. When the insurer approves the claim, in whole or in part, and when necessary, upon receipt of a properly executed release, the insurer is required to make payment to the claimant or an assignee, or take action to perform its claim obligation within 30 days. Disability income insurance claims payments must be made at least once every 30 days until the insurer's obligation to pay claims has ended.

Unfair Claim setllement practices

Knowingly committing any of the following acts is a violation of the Unfair Claim Settlement Practices: Misrepresenting to claimants pertinent facts or provisions in the insurance policy Failing to acknowledge and act promptly on claims Failing to adopt and implement reasonable standards for the prompt investigation of claims Failing to acknowledge claim coverage within a reasonable period of time after proof of loss requirements have been met by the insured Failing to attempt to promptly and fairly settle claims in which liability is clear Offering an insured substantially less than what a lawsuit would award Attempting to settle a claim for less than the amount to which the claimant believed he/she was entitled by reference to written or printed advertising material Attempting to settle a claim based on an application that was altered by the agent Failing to inform the insured or beneficiary, upon request, of the coverage under which payment has been made Failing to settle claims promptly under one portion of the policy in order to influence settlements under other portions of the policy Failing to provide a reasonable explanation for the denial of a claim Directly advising a claimant not to obtain the services of an attorney Misleading a claimant as to the applicable statute of limitations Canceling or refusing to renew a policy based on religious affiliation

Methods of reporting

To report information to CDI in writing, use the background change disclosure form available on the CDI website at www.insurance.ca.gov and select "Producer Background Information" under "Agents & Brokers." Additional information regarding this requirement, and the form, can be found by following the link or by typing "background change" in the search box on CDI's home page. Background changes also can be submitted electronically to the National Insurance Producer Registry (NIPR) Attachment Warehouse Reporting of Actions (ROA) at www.nipr.com by selecting "Reporting of Actions" under "Attachments Warehouse." Please include supporting documents such as a statement regarding the background change; certified court documents; administrative or disciplinary documents; or any other information relative to the change. If any of the changes in the background information involves an applicant or licensee who is listed as an endorsee on a business entity license, the licensee or applicant must also provide the notice of background change to any officer, director, or partner listed on that business entity license or application.

License renewal

All licenses renew every 2 years on the last day of the month in which the license was originally issued. A licensee who has applied to renew a license will be entitled to continue operating under the existing license for 60 days after its specified expiration date, or until notified by the Department that the renewal application is deficient, whichever comes first. The applicant must satisfy all license renewal requirements, including: The submission of the applicable renewal application and fee on or before the expiration date of the license The satisfaction of all required continuing education or training requirements This does not apply to any license that is suspended or revoked. A license may be renewed without examination within 12 months of its expiration date by payment of a penalty fee equal to 50% of the two-year license fee.

Suspension or Revocation

Any licensed agent who has committed any offense denounced by the Code may have his/her license suspended or revoked by the Commissioner. A license may be suspended for up to 3 years. A license suspended for more than 2 years will require the agent to retake the prelicensing course and pass the qualifying exam. A license which has been revoked may not be reinstated within 1 year of revocation. An agent is responsible for the actions of his/her employees, and if an agent permits an unlicensed employee to perform acts for which a license is required, the agent is subject to having his/her license suspended or revoked. An insurer who permits an agent to willfully violate the Code in a manner that could lead to suspension or revocation of the agent's license is subject to having its Certificate of Authority suspended or revoked.

Agents

In an insurance transaction, an agent represents the insurance company.

Life and Disability Analyst

A Life and Disability Insurance Analyst is a person who, for a fee, advises an insured, beneficiary or person who: Has any interest in a life or disability insurance contract or has questions regarding the rights in his/her contract Reviews clients' incomes, insurance and investments Makes recommendations An Analyst must have a written agreement signed in advance stating the service to be performed for a fee and the amount of the fee. The agreement must be retained for 3 years. A Life and Disability Analyst cannot be employed or paid by the insurer and must: Be a resident of the state of California and at least age 23 Have worked as a life licensee or employee of a licensee for 5 years Pass a written examination prepared by the Commissioner A person acting as an analyst without a proper license or after such license has been revoked is guilty of a misdemeanor and is subject to a maximum fine of $1,000 and imprisonment of up to 1 year or both. A Life Agent is authorized to be licensed as a Life and Disability Analyst. A Life and Disability Analyst may continue to be licensed as a Life-Only and/or Accident and Health Agent, subject to completion of continuing education requirements and payment of license fees.

Termination of License

A licensee may terminate his/her license by surrendering it to the Commissioner. If the license is in the possession of an employer or insurer, the agent may notify the Commissioner in writing of the intent to terminate the license and the inability to return the license. An individual license will automatically terminate: Immediately upon the death of the licensee If the license has not been renewed within 12 months following its expiration An organizational license will automatically terminate if there is: A change in the partnership underlying the license A change in the principal officers of a corporation or LLC No licensed principal associated with the organization In the event that an organizational license terminates, the organization may continue to transact insurance under the former license if a new application for an organizational license is submitted within 30 days. The license of an organization licensed as a property or casualty broker/agent or a life-only agent will become inoperative whenever any natural person named on the license is no longer associated with the licensee. The organization may continue to transact under the former license as long as an application for a new organizational license is submitted within 30 days of any such change.

Duties upon receipt of communication

Insurers (and other licensees) must respond in writing to an insured's or claimant's notice of loss within 15 days of receiving that notice orally or in writing. Agents who receive the first notice of a loss from an insured or claimant must immediately forward that information to the insurer. Upon receiving notice of claim, every insurer must immediately acknowledge the receipt of notice, provide necessary forms to the claimant and begin any necessary investigation. As long as a claim remains in process, and until it has been resolved by denying or affirming the claim, the insurer must communicate with the claimant no less often than every 30 days. Upon receiving any written or oral inquiry from the Department of Insurance concerning a claim, every licensee must respond to the Commissioner immediately within 21 calendar days of the receipt of the inquiry, furnishing a complete written response based on the facts as then known to the licensee. If additional time is required to provide the information requested, the initial response must indicate how much additional time is required.

California Long-term Care Education Requirements

Newly licensed agents who intend to market Long-Term Care insurance must complete an 8-hour course in Long-Term Care insurance in each of their first 4 years of licensing (two terms). After 4 years of licensing, the 8-hour LTCI course must only be completed once each license term prior to license renewal. Agents who intend to market California Partnership LTC policies must complete an additional 8-hour course in Partnership LTC each license term (the first course must be completed before marketing any Partnership policies). Long-term care training is also required when an agent is transacting accelerated death benefits or riders that require services to the chronically ill insured, such as a long-term care rider. Insurers are required to ensure that agents offering, marketing, or selling accelerated death benefits are able to describe the difference between benefits provided under an accelerated death benefit and benefits provided by long-term care insurance. Agents must be able to make the following distinctions between the two benefits: Benefit eligibility criteria Whether an elimination period applies and a description of the elimination period How benefits paid out if not needed How benefits are paid if needed Restrictions on benefit amounts Tax treatment on benefits and premiums Income and death benefit consideration

Penalties

The Commissioner has the power to investigate the affairs of any person engaged in the business of insurance to determine whether such person has been or is engaged in any unfair method of competition or unfair or deceptive act or prohibited practice. If it is believed the person has violated a trade practice, the Commissioner will issue a statement of charges, a statement of potential liability for civil penalties, a show cause order as to why a cease and desist should not be issued, and a 30-day notice of a hearing. If the charges are justified, a civil penalty not to exceed $5,000 for each act will be assessed. If the violation is willful, the maximum penalty is $10,000 for each act. A cease and desist order will be placed requiring the individual to refrain from engaging in the prohibited acts. Violation of a cease and desist order imposes a penalty of up to $5,000 per violation or a maximum penalty of $55,000 if the violation is willful. Subsequent violations will lead to suspension or revocation of a license.

Recordkeeping Requirements

The Commissioner will specify the manner and type of records to be maintained by those licensees acting as insurance agents and brokers and the location where the records must be kept. Life and Disability insurance agents must maintain records in their place of business for at least 5 years and must be open to inspection or examination by the Commissioner at all times. Original (or certified copies) must be delivered to the Commissioner within 30 days of request. Records must be kept by agents for at least 5 years following actual policy delivery, or 5 years from the date of application if no policy is issued. The records must include names, dates, amounts and policy numbers of each transaction. The records are composed of all of the following: The original application for each policy sold in this state A record of insurance policies issued and premiums received Production records indicating the policies sold by each agent in the past 5 years Record of commissions paid and to whom Records identifying any agent other than the agent on the application who handled any portion of an insurance transaction and who was not compensated Correspondence or written solicitations sent to a prospective insured Correspondence or notices of termination or nonrenewal of a policy The written comparison of benefits, limitations and exclusions of the existing policy to the proposed new coverage Correspondence between the policyholder or prospect and the agent or insurer Outline of coverage or disclosure statement Correspondence of any person acting on behalf of the policyholder or prospect and the agent or insurer In the case of broker-agents who have authority to maintain trust accounts for the collection and distribution of premiums for property & casualty insurance, bank records, including periodic statements of an account supplied by the bank, records of all deposits, cancelled checks, and records of withdrawals, must be maintained at all times.

Unfair trade practices

The Unfair Trade Practices defines unfair and deceptive acts and unfair methods of competition. These practices apply to all persons engaged in the business of insurance. The following trade practices are considered unfair or deceptive and are prohibited: Misrepresentation - Making, issuing, or circulating any estimate, illustration, circular, or statement misrepresenting the terms of any policy issued; using any name or title misrepresenting the true nature of any policy or class of policies; misrepresenting the financial condition of any insurer; or making any misrepresentation to a policyholder insured by any company for the purpose of inducing the policyholder to lapse, forfeit, or surrender a policy. Twisting - A form of misrepresentation involving replacement of existing insurance which induces a person to lapse, forfeit, or surrender an existing policy, based on an unfair comparison of features or concealment of material disadvantages of a proposed policy. Rebating - Returning a portion of the agent's commission or anything of value to an insured as an inducement to buy insurance. It is illegal for life and health insurance agents to rebate. Defamation - Making or disseminating before the public in any newspaper, publication, or advertising device, any statement containing any assertion, representation, or statement with respect to the business of insurance, or with respect to any person in the conduct of insurance business, which is untrue, deceptive, or misleading. Boycott, Coercion or Intimidation - Entering into any agreement that would result in an unreasonable restraint of, or monopoly in the business of insurance. False Financial Statements - Filing with any supervisory or other public official any false statement of financial condition of an insurer with intent to deceive. False Entries - Making any false entry in any book, report, or statement of any insurer with intent to deceive any public official to whom the insurer is required by law to report, or who has authority by law to examine its condition or into any of its affairs, or omitting to make a true entry of any material fact pertaining to the business of the insurer in any book, report, or statement of the insurer. Unfair Discrimination - Making or permitting any unfair discrimination between individuals of the same class and equal expectation of life in the rates charged for any contract of life insurance or life annuity, in the dividends or other benefits payable, or in any other of the terms and conditions of the contract. Advertising of California Insurance Guarantee Association - Making or disseminating in any publication or other advertising device a statement that a named insured or specified insurers are members of the California Insurance Guarantee Association and are insured against insolvency. All admitted insurers are required to be covered under the association, therefore, advertising membership is not permitted. Deceptive Advertising - Advertising insurance that an insurer will not sell. An intentional violation is considered a misdemeanor punishable by a fine of up to $10,000. This does not prohibit an insurer from advertising insurance products it is licensed to sell in this state where the product is not available as long as the unavailability is disclosed. This does not apply to advertisements by an insurer where the advertisements are broadcast and originate from outside this state. This also does not apply to any insurer that refuses to sell a policy of insurance on the basis of its underwriting guidelines.

Life Licensee

A Life-only agent is a person authorized to transact insurance coverage on human lives including endowments and annuities. An Accident and Health agent is a person authorized to transact coverage for sickness and bodily injury, including disability income. A Life-Only Agent who is not also licensed as an Accident and Health Agent may transact certain disability benefits as riders to life or annuity contracts, such as disability income or long-term care, subject to any specific continuing education requirements.

Denial of License Application, Suspension, or Revocation

The Code identifies a variety of reasons for which a license application may be denied following a hearing into the allegations of the Commissioner. These same reasons may be used as the basis for suspending or revoking an agent's license after it has been issued, or if the applicant: Is not properly qualified to perform the duties of a person holding the license applied for Does not intend actively and in good faith to carry on as a business with the general public the transactions which would be permitted by the issuance of the license applied for Is not of good business reputation Is lacking in integrity Has been refused a professional, occupational or vocational license or had such a license suspended or revoked by any licensing authority for reasons that should preclude the granting of the license applied for Seeks the license for the purpose of avoiding or preventing the operation or enforcement of the insurance laws of this state Has knowingly or willfully made a misstatement in an application to the Commissioner for a license, or in a document filed in support of such an application, or has made a false statement in testimony given under oath before the Commissioner or any other person acting in his stead Has previously engaged in a fraudulent practice or act or has conducted any business in a dishonest manner Has shown incompetency or untrustworthiness in the conduct of any business, or has by commission of a wrongful act or practice in the course of any business exposed the public or those dealing with him to the danger of loss Has knowingly misrepresented the terms or effect of an insurance policy or contract Has failed to perform a duty expressly enjoined upon him by a provision of this Code or has committed an act expressly forbidden by such a provision Has been convicted of a: Felony Misdemeanor denounced by this Code or other laws regulating insurance Public offense having as one of its necessary elements a fraudulent act or an act of dishonesty in acceptance, custody or payment of money or property Has aided or abetted any person in an act or omission which would constitute grounds for the suspension, revocation or refusal of a license or certificate issued under this Code to the person aided or abetted Has permitted any person in his employ to violate any provision of this Code Has violated any provision of law relating to conduct of business which could lawfully be done only under authority conferred by such license Has submitted to the Commissioner a false or fraudulent certificate of prelicensing or continuing education

Code and Ethics

Ethics is a code of conduct based upon an accepted standard of right and wrong. It specifies and explains what is and is not acceptable in regards to behaviors or practices. The California Insurance Code and the California Code of Regulations identify many illegal and unethical practices. However, these are NOT a complete guide to ethical behavior for all situations. Insurance agents have a responsibility to be aware of the insurance laws and requirements designed to protect consumers.

Life Agent Solicitation Prior to Appointment

A licensed life agent may present a proposal for insurance to a prospective policyholder on behalf of a life insurer for which the life agent is not specifically appointed. If the insurer issues the policy, the insurer has 14 days from when the application for life insurance was submitted to file a notice of Appointment with the Commissioner. If the insurer requires all its life agents to represent only that insurer or a group of affiliated insurers of which that insurer is a member, or to submit risks prior to submitting them to other insurers, then a licensed life agent who is not specifically appointed for a particular life insurer may not solicit insurance with that insurer.

Genetic characteristics and disability traits

Admitted insurers issuing disability insurance for hospital, medical, or surgical expenses cannot refuse to accept an application, refuse to issue, cancel, renew, charge a higher rate or premium, or place a limitation on insurance on the basis of a person's genetic characteristics. This includes any scientifically or medically identifiable gene or chromosome that is known to cause a disease or disorder that is presently not associated with any symptoms of any disease or disorder. There can be no discrimination in the fees or commissions of agents or brokers writing or renewing disability insurance on the basis of a person's genetic characteristics.

Errors and Omissions Insurance

Agents have a duty to carefully determine the insured's needs and suitability. Failing to meet these needs when making a recommendation can affect the insured's coverage or leave them without coverage due to the agent's neglect. The agent can be held legally responsible for neglect, errors, or omissions when making customer recommendations. E&O insurance is used for the purpose of protecting an agent from this legal liability and provides coverage for legal defense and settlement costs up to a limit. Errors and Omissions insurance is usually offered with a minimum limit of liability of $1 million. Policies usually include a significant retention (or deductible) of $2,500 or $5,000. Most E&O policies are issued on a "claims made" basis, meaning the policy covers claims which arise while the policy is in force, and usually requires continuous coverage from the time of the claim to the time of adjudication. A "tail" provision may be added to cover acts which occurred prior to the inception of the policy. E&O policies also provide limited protection for the negligent acts of an agent's unlicensed employees. But E&O policies never provide coverage for fraud, illegal activities, or criminal acts of the agent or an employee, nor does it provide protection for liability or casualty losses which are normally covered by a commercial liability policy, such as personal injury, property damage, or torts such as libel and slander. Misuse of client funds is also excluded.

Insurance Claims Analysis Bureau

Collects and compiles information and data from members or subscribers concerning insurance claims Disseminates information to members or subscribers relating to insurance claims for the purpose of preventing and suppressing insurance fraud Promotes training and education to further insurer investigation, suppression, and prosecution of insurance fraud Provides to the Commissioner all California data and information contained in the records of the insurance claims analysis bureau to further the prevention and prosecution of insurance fraud

Display of license

Every license to act as a property and casualty broker-agent must be prominently displayed in the licensee's office.

Failure or refusal to accept an application discrim practice

No admitted insurer can fail to accept an application or cancel insurance under conditions less favorable to the insured, except for reasons that apply to all persons of the same marital status, gender, race, color, religion, national origin or sexual orientation. No admitted insurer can fail to accept an application or cancel insurance under conditions less favorable to the insured, except for reasons that apply to all persons of the same marital status, gender, race, color, religion, national origin or sexual orientation.

License qualifications and requirements: Application

Once an application for license is filed, the Commissioner may make an investigation and require the filing of supplementary documents necessary to determine whether the prerequisites for licensing have been met. The application for a license may not be submitted prior to successfully passing the required exam(s), and is only submitted electronically through the Department of Insurance website.

Cease and Desist Orders

Persons who transact insurance without being appropriately licensed may be issued a cease and desist order, carrying administrative penalties of up to $5,000 per day for each day a violation occurred, as well as a fine of up to 5 times the amount of money received by the unlicensed person for acting in a capacity which requires a license. The Commissioner also has authority to issue cease and desist orders relative to unfair acts and practices enumerated in the Code. Committing any act considered an unfair method of competition or an unfair act or practice recognized by the Code may result in an administrative fine of $5,000 for each such act, up to $10,000 per act when determined to be a "willful" violation or committed with such frequency that it may be considered a "general business practice" of the person. If a person is issued a cease and desist order, failure to cease the prohibited act may result in a $5,000 fine, or up to $55,000 for willful violation.

Definitions

Claimant - Any person who asserts a right of recovery under a surety bond or insurance policy. Notice of Legal Action - Notice of an action begun against the insurer with respect to a claim, or against the insured by the insurer, or against the principal under a bond, and includes any proceeding arbitration. Proof of Claim - Any evidence or documentation the insurer has obtained providing any evidence of the claim and reasonably supports the magnitude or the amount of the claimed loss.

Covered Claims

Covered claims include the obligations of an insolvent insurer and are the benefits the association may become liable. The life and annuity payments from the association cannot exceed the lesser of: 80% of the contractual obligations for which the insurer is liable $300,000 in life insurance benefits per life and not more than $100,000 in net cash surrender or withdrawal values $250,000 in present value of an annuity per life including surrender or withdrawal values The association is not liable for more than $300,000 in total for the life of one individual or $5 million in benefits for any owner of multiple policies. The health insurance payments from the association cannot exceed the lesser of the contractual obligations for which the insurer is liable or $200,000 in health care benefits. Coverage includes long-term care and other disability and disability income insurance, and accidental death and dismemberment policies.

Fictitious Agency Names

Every individual and organization licensee and every applicant for a license must file with the Commissioner in writing the true name of the individual or organization and all fictitious names under which business will be conducted and, after licensing, must file with the Commissioner any change in or discontinuance of such names. The Commissioner may, in writing, disapprove the use of any true or fictitious name (other than the bona fide natural name of an individual) if the name: Interferes with a name already filed by another licensee May mislead the public Infers that the licensee will engage in activities not permitted under licenses held Implies that the licensee is an underwriter, though the licensee can use the designations of Chartered Life Underwriter or Chartered Property and Casualty Underwriter when entitled

Temporary Authority

Upon written notification to the Department of Insurance, in the event of the incapacity or death of an agent, the conservator, administrator, or executor of the agent's estate may be permitted to wind down the affairs of the agent, including receiving commissions for new business submitted by the agent prior to incapacitation or death, and any renewal commissions to which the agent would be entitled by virtue of the agent's contract with the insurer(s). An unlicensed person may also be approved to handle the affairs of an agent on active military service, but may not transact new business in that agent's name.

Automobile losses

Every insurer must report covered automobiles involved in theft and salvage total losses, including the vehicle identification number and any other information as may be required, to the National Automobile Theft Bureau or a similar central organization engaged in automobile loss prevention. Prior to the payment of total theft losses, insurers must comply with verification procedures in accordance with regulations adopted by the Commissioner.

Disclosure of genetics test results

It is a violation to negligently disclose results without written authorization of a test for a genetic characteristic to any third party that provides identifying characteristics of the person to whom the test results apply. Such negligent disclosure results in a civil penalty up to $1,000 with a maximum $5,000 for willful disclosure. Negligent willful disclosure that results in economic, bodily, or emotional harm is a misdemeanor punishable by a $10,000 fine.

Internet Advertisements

All Internet advertisements directed to California insurance consumers must include the agent's California insurance license number in addition to the agent's principal place of business. Nonresident agents must clearly indicate their state of resident licensing. A person will be deemed to be transacting insurance when the person advertises on the Internet, and does any of the following: Provides an insurance premium quote to a California resident Accepts an application for coverage from a California resident Communicates with a California resident regarding one or more terms of an agreement to provide insurance on an insurance policy

Change of Address

All licensees are required to provide the Commissioner with a home address, business address, mailing address, and a valid e-mail address. In the event any or all of these addresses change, the change must be reported immediately to the Commissioner. Address changes are submitted electronically on the CDI website.

Penalties discrimination

Any insurer who knowingly violates these practices will be assessed a civil penalty in the amount of $1,000-$5,000, plus any court costs.

Professional organizations

Professional insurance organizations also have goals to enhance the competence and professional standard of conduct of its members who agree to uphold and be bound by the organization's Code of Ethics. For example, such organizations include: Chartered Life Underwriter (CLU), Chartered Property and Casualty Underwriter (CPCU), Independent Insurance Agents of California (IIAC), National Association of Life Underwriters (NALU), National Association of Health Underwriters (NAHU), National Association of Insurance and Financial Advisors (NAIFA) These organizations encourage members to place the consumer's interest above their own, adhere to the laws and regulation of the state, complete continuing education, and educate the public about insurance.

Recordkeeping and Examination of Records by the Commissioner

The Commissioner has authority to conduct examinations of an agent or insurer's books and records at any time. Upon receiving a request for records, insurers and/or agents must deliver the records to the Commissioner within 30 days. If the requested files cannot be immediately furnished, on request the agent will be given an additional 60 days to provide the information. Failure to maintain the required files may result in administrative sanctions including fines and suspension or revocation of a person's license. Most administrative sanctions can only be issued following a public hearing into the conduct of the agent. A notice of hearing must be provided to the agent not less than 45 days in advance of the scheduled hearing, and must be accompanied by a pleading that informs the agent of the violations alleged, as well as the possible sanctions that may be applied. There are also civil penalties enumerated for persons who furnish false information to the Commissioner not to exceed $100,000 per violation, as well as a $5,000 penalty for every 30-day period during which the person fails to comply with a request, or up to $10,000 if the person willfully refuses to deliver requested information, up to a maximum of $100,000.

The california insurance code

The Insurance Code is the set of statutes enacted by the state legislature which regulate the business of insurance in California. The Commissioner does not have the authority to change the Insurance Code; only the state legislature has the authority to write or amend the Insurance Code. The Department of Insurance and the Insurance Commissioner are a primary source of consumer protection activities in California, and the general purpose of the Code is defined by the four broad "powers" conferred on the Commissioner and the Department of Insurance: Prevent insurer insolvency and prevent fraud in the conduct of the insurance business or by individuals. Insure that policies are reasonably priced and widely available in most lines of insurance. Establish procedures that guide the operation of insurance companies, and the activities of agents, brokers, and other licensees. Provide the authority needed by the Insurance Commissioner to oversee insurance agents and companies. Statutory Definitions The Insurance Code provides specific definitions for various persons, organizations, and the activities they conduct. Shall/May As used in this Code the word "shall" is mandatory and the word "may" is permissive, unless otherwise apparent from the context. Natural Person A living human being (as opposed to a business entity). Mailing as Proof of Notice Any notice required to be given to an insured may be mailed, postage paid, and addressed to the policyowner, insured, claimant, or beneficiary to be notified at his/her last known address of record. The written notice may also be provided by electronic transmission if each party has agreed. The affidavit of the person who mails or transmits electronically the notice, stating the facts, is sufficient (prima facie) evidence that the notice was mailed. The policyowner is responsible for notifying the insurer of address changes including any change of email address. Insurer/Insured The person who undertakes to indemnify another by insurance is the insurer, and the person indemnified is the insured. Any person capable of making a contract may be an insurer, subject to the restrictions imposed by this Code. Any person, except a public enemy, may be insured. Insurance Agent A person authorized, by and on behalf of an insurer, to transact all classes of insurance other than life, disability, or health insurance, on behalf of an admitted insurance company. Representations A representation may be altered or withdrawn before the insurance is effected, but not afterwards. An applicant for insurance may correct a misrepresentation prior to the issuance of a policy. Once a policy is issued, and until a policy becomes incontestable, a material misrepresentation in the application may result in denial of a claim and/or rescission of the contract by the insurer. A representation is false when the facts fail to correspond with its assertions or stipulations. If a representation is false in a material point, whether affirmative or promissory, the injured party is entitled to rescind the contract from the time the representation becomes false. Concealment Neglecting to communicate information that a party knows and ought to communicate, whether intentional or not. Rescission Rescission is the termination of a contract from the beginning as if it had never existed. An insurer is entitled by law to rescind a policy in the case of: Intentional or unintentional concealment of information material to the risk being insured An intentional and fraudulent omission of matters proving the falsity of a warranty Material misrepresentation Violation of a warranty

The insurance commissioner

The Insurance Commissioner is elected by the people and may serve up to two 4-year terms. The Commissioner's term runs concurrently with that of the Governor, and in the event a Commissioner does not complete a term of office, the Governor is authorized to appoint a new Commissioner (with legislative confirmation) to serve the remainder of the term. Insurance Commissioner's Duties and Responsibilities File and keep all books and papers as required by law Issue Certificates of Authority to companies that meet the requirements of state law Issue, refuse, revoke or suspend licenses or Certificates of Authority Regulate the internal affairs of the Department of Insurance Aid in the interpretation of any state insurance law Make sure that insurer rates are adequate, not excessive, or unfairly discriminatory—but the Commissioner does not set rates Structure and control insolvency procedures Inquire into all violations of insurance laws in this state Subpoena witnesses/documents for testimony on any insurance-related matter The Commissioner does have the authority to revise or create rules and regulations (after public notice and hearings) as necessary to help carry out the intent of the Code.

Agent vs. Broker vs. Solicitor

The duties and responsibilities of a licensee will vary depending on the type of license held. The following requirements apply: A solicitor cannot be employed by more than one property and casualty broker/agent at the same time. An insurance solicitor cannot at the same time act as either an agent or broker. Agents and brokers cannot act as solicitors at the same time. An insurance agent cannot act as a broker for any insurer by which the agent is actively appointed.

Insurance Company Regulation

Regulation of admitted and non-admitted insurers An admitted insurer is one that has complied with the laws of this state to become authorized to transact insurance. An admitted insurer has been issued a Certificate of Authority from the State of California. Admitted insurers are also known as "standard" insurers because they sell policies for the standard market, which covers average or better than average risks. When risks are too high for the standard market, they must be covered by other types of policies, such as surplus lines or assigned risk. A non-admitted insurer is not authorized to transact insurance in this state and has not been issued a Certificate of Authority. Excess and Surplus lines insurance for risks that are too high for the standard market can be placed through a non-admitted insurer. An Excess and Surplus lines insurer writes standard coverage in a state where the insurer is unlicensed. Some risks can be placed only with non-admitted insurers. Such risks include: Shipowner interest, international maritime transportation Marine builder's risks, dry docks Aircraft or spacecraft insurance Property or operations of railroads engaged in interstate commerce These risks may only be placed by a special lines surplus lines broker. A special lines surplus lines broker is subject to the same fees and requirements. If a person is licensed as both an insurance broker and special lines surplus broker, only one fee can be collected. A licensed surplus line broker may accept business from any other originating licensee duly licensed for the type(s) of insurance involved, and may compensate those licensees. A surplus lines broker may not: Issue a binder or any other evidence of coverage without the prior written approval of the insurer Place auto insurance with a non-admitted insurer unless the applicant has first been rejected by the standard market and the California Automobile Assigned Risk Plan (CAARP) Each surplus lines broker must ensure that a diligent search is made among admitted insurers actually writing the particular type of insurance in this state before procuring the coverage from a non-admitted insurer. Within 60 days of placing the coverage with a non-admitted insurer, the broker must file a report with the Commissioner detailing the efforts made in trying to place the coverage with an admitted insurer. Potential Consumer Consequences Consumers should be aware of the following potential consequences of being issued a policy by a non-admitted insurer: Non-admitted insurers are not subject to the financial solvency regulation and enforcement that applies to California licensed insurers. Non-admitted insurers do not participate in any of the insurance guaranty funds created by California law, and therefore, these funds will not pay the insured's claims, or protect the insured's assets if the insurer becomes insolvent and is unable to make payments as promised. Certificate of Authority A person cannot transact any class of insurance business in this state without first being admitted or authorized by securing a Certificate of Authority from the Commissioner. The certificate will be issued once the applicant meets the necessary qualifications. The penalty for unlawfully acting as an insurer without a Certificate of Authority is imprisonment (state or county jail) not to exceed 1 year, and/or a fine not to exceed $100,000

Penalties for fraud

Violators may be subject to imprisonment in the county jail for 1 year, or state prison for 2, 3, or 5 years and/or a fine of up to $50,000 or double the value of the fraud, whichever is greater. If the violator has a prior felony conviction of the same offense, there will be an additional 2-year sentence for each prior conviction. Insurers, employees or agents are not subject to civil liability for libel, slander, or any other tort by virtue of providing any of the following without malice: Information or reports relating to the suspected fraudulent insurance transaction furnished to law enforcement officials or other persons subject to the California Insurance Code Information or reports required by the Commissioner