§ 22:1964 — Methods, acts, and practices which are defined as unfair or deceptive
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§1964. Methods, acts, and practices which are defined as unfair or deceptive The following are declared to be unfair methods of competition and unfair or deceptive acts or practices in the business of insurance:
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§1964. Methods, acts, and practices which are defined as unfair or deceptive
The following are declared to be unfair methods of competition and unfair or
deceptive acts or practices in the business of insurance:
(1) Misrepresentations and false advertising of insurance policies. Making, issuing,
circulating, or causing to be made, issued, or circulated any estimate, illustration, circular or
statement, sales presentation, omission, or comparison that does any of the following:
(a) Misrepresents the benefits, advantages, conditions, or terms of any policy issued
or to be issued.
(b) Misrepresents the dividends or share of the surplus to be received on any policy.
(c) Makes a false or misleading statement as to the dividends or share of surplus
previously paid on similar policies.
(d) Makes any misleading representation or any misrepresentation as to the financial
condition of any insurer, or as to the legal reserve system upon which any life insurer
operates.
(e) Misrepresents to any policyholder insured by any insurer for the purpose of
inducing or tending to induce such policyholder to lapse, forfeit, or surrender his insurance.
(f) Uses any name or title of any policy or class of policies misrepresenting the true
nature thereof.
(g) Makes a misrepresentation for the purpose of effecting a pledge or assignment
or effecting a loan against any policy.
(h) Misrepresents any policy as being shares of stock.
(2) False information and advertising generally. Making, publishing, disseminating,
circulating, or placing before the public, or causing, directly or indirectly, to be made,
published, disseminated, circulated, or placed before the public, in a newspaper, magazine
or other publication, or in the form of a notice, circular, pamphlet, letter or poster, or over
any radio or television station, or in any other way, an advertisement, announcement or
statement containing any assertion, representation or statement with respect to the business
of insurance or with respect to any person in the conduct of his insurance business, which is
untrue, deceptive or misleading.
(3) Defamation. Making, publishing, disseminating, or circulating, directly or
indirectly, or aiding, abetting or encouraging the making, publishing, disseminating or
circulating of any oral or written statement or any pamphlet, circular, article or literature
which is false, or maliciously critical of or derogatory to the financial condition of an insurer,
and which is calculated to injure any person engaged in the business of insurance.
(4) Boycott, coercion and intimidation. Entering into any agreement to commit or
by any concerted action committing any act of boycott, coercion or intimidation resulting or
tending to result in unreasonable restraint of, or a monopoly in, the business of insurance.
(5) False financial statements and false entries.
(a) Knowingly filing with any supervisory or other public official, or knowingly
making, publishing, disseminating, circulating, or delivering to any person, or placing before
the public, or knowingly causing directly or indirectly, to be made, published, disseminated,
circulated, delivered to any person, or placed before the public, any false material statement
of fact as to the financial condition of any insurer.
(b) Knowingly making any false entry of a material fact in any book, report, or
statement of any insurer or knowingly omitting to make a true entry of any material fact
pertaining to the business of such insurer in any book, report, or statement of such insurer,
or knowingly making any false material statement to any agent or examiner lawfully
appointed to examine into its condition or into any of its affairs, or any public official to
which such insurer is required by law to report, or which has authority by law to examine
into its condition or into any of its affairs.
(6) Stock operations and advisory board contract. Issuing or delivering or permitting
agents, officers, or employees to issue or deliver, agency company stock or other capital
stock, or benefit certificates or shares in any corporation, or securities or any special advisory
board contracts or other contracts of any kind promising returns and profits as an inducement
to insure.
(7) Unfair discrimination. (a) 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 of life annuity or in the dividends or other benefits payable
thereon, or in any other of the terms and conditions of such contract, if, in determining the
class, consideration may be given to the nature of the risk, plan of insurance, the actual or
expected expense of conducting the business, or any other relevant factor.
(b) Making or permitting any unfair discrimination between individuals of the same
class involving essentially the same hazards in the amount of premium, policy fees, or rates
charged for any policy or contract of health or accident insurance or in the benefits payable
thereon, or in any of the terms or conditions of such contract, or in any other manner
whatever, if, in determining the class, consideration may be given to the nature of the risk,
plan of insurance, the actual or expected expense of conducting the business or any other
relevant factor.
(c) Violating the provisions of R.S. 22:34.
(d) Making or permitting any unfair discrimination between individuals or risks of
the same class and of essentially the same hazard by refusing to insure, refusing to renew,
cancelling, or limiting the amount of insurance coverage on a property or casualty risk solely
because of the geographic location of the risk, unless such action is a result of the application
of sound underwriting and actuarial principles related to actual or reasonably anticipated loss
experience.
(e) Making or permitting any unfair discrimination between individuals or risks of
the same class and of essentially the same hazards by refusing to insure, refusing to renew,
cancelling, or limiting the amount of insurance coverage on the residential property risk, or
the personal property contained therein, solely because of the age of the residential property.
(f) Refusing to insure, refusing to continue to insure, or limiting the amount of
coverage available to an individual solely because of the sex, marital status, race, religion,
or national origin of the individual. However, nothing in this Subsection shall prohibit an
insurer from taking marital status into account for the purpose of defining persons eligible
for dependent benefits. Nothing in this Section shall prohibit or limit the operation of
fraternal benefit societies.
(g) Terminating or modifying coverage, or refusing to issue or refusing to renew any
property or casualty policy solely because the applicant or insured or employee of either is
mentally or physically impaired, unless the applicant, insured, or employee is mentally and
physically incapable of operating an automobile and does not possess a valid operator's
license issued by the state. However, this Subsection shall not apply to accident health
insurance sold by a casualty insurer and shall not be interpreted to modify any other
provision of law relating to the termination, modification, issuance, or renewal of any
insurance policy or contract.
(h) Refusing to insure solely because another insurer has refused to write a policy or
has cancelled or has refused to renew an existing policy in which that person was the named
insured. Nothing in this Paragraph shall prevent the termination of an excess insurance
policy on account of the failure of the insured to maintain any required underlying insurance.
(i) With regard to automobile liability insurance, terminating or modifying coverage,
or refusing to issue or refusing to renew any policy solely because the applicant or insured
filed for bankruptcy. This Subparagraph shall not apply where the refusal to continue to
insure is based upon nonpayment of premium.
(j) Violating the provisions of R.S. 22:1284.1.
(8) Rebates. Except as otherwise expressly provided by law, knowingly permitting
or offering to make or making any contract of insurance including life insurance, life annuity
or health and accident insurance, or agreement as to such contract other than as plainly
expressed in the contract issued thereon, or paying or allowing, or giving or offering to pay,
allow, or give, directly or indirectly, as inducement to such insurance, or annuity, any rebate
of premiums payable on the contract, or any special favor or advantage in the dividends or
other benefits thereon, or any valuable consideration or inducement whatever not specified
in the contract; or giving, or selling, or purchasing or offering to give, sell, or purchase as
inducement to such insurance or annuity or in connection therewith, any stock, bonds, or
other securities of any insurer or other corporation, association, or partnership, or any
dividends or profits accrued thereon, or anything of value whatsoever not specified in the
contract.
(8.1) Nothing in Paragraph (7) or (8) of this Subsection shall be construed as
including within the definition of discrimination or rebates any of the following practices:
(a) Paying bonuses to policyholders or otherwise abating their premiums in whole
or in part out of surplus accumulated from nonparticipating insurance provided that any such
bonuses or abatement of premiums shall be fair and equitable to policyholders and for the
best interest of the insurer and its policyholders;
(b) In the case of life insurance policies issued on the industrial debit plan, making
allowance to policyholders who have paid premiums in advance or continuously for a
specified period made premium payment directly to an office of the insurer in an amount
which fairly represents the saving in collection expense;
(c) Readjustment of the rate of premium for a group insurance policy based on the
loss or expense experience thereunder, at the end of the first year or of any subsequent year
of insurance thereunder, which may be made retroactive only for such policy year;
(d) Agents accepting on their own responsibility, notes for the first premiums.
(9) Requiring as a condition precedent to lending money upon the security of a
mortgage on movable or immovable property that the borrower negotiate any policy of
insurance covering such property through a particular insurance producer or producers,
company or companies, or type of company or types of companies. However, this Paragraph
shall not prevent the exercise by any mortgagee of his right to approve the insurer selected
by the borrower on a reasonable non-discriminatory basis related to the solvency of the
company and its ability to service the policy. The mortgagee may require that the amount
of insurance be at least in an amount to protect the amount of the loan on a type of policy
furnishing reasonable protection to the mortgagee in a form selected by the borrower which
may include additional coverages not inuring to the benefit of the mortgagee and reasonably
associated or connected with the property which is the subject of the loan or mortgage. Any
lender either directly or indirectly requiring a borrower to furnish insurance upon such
property shall be subject to the conditions and prohibitions of this Paragraph.
(10) "Tying", which shall mean the following:
(a) The requirement by a health and accident agent or group health and accident
insurer, individual health and accident insurer, or health maintenance organization, as a
condition to the offer or sale of a health benefit plan to a group or individual insured, that
such insured purchase any other insurance policy.
(b) Tying of a purchase of a health and life insurance policy or policies to another
insurance product. "Tying" is the requirement by any small employer health insurance carrier
or individual health insurance carrier, as a condition to the offer or sale of a health benefit
plan, health maintenance organization, or prepaid limited health care service plan to a small
employer, as defined by this Code, or to an individual, that such employer or individual
purchase any other insurance product.
(c) "Tying" does not include the joint sale of group life and group health coverages
or the joint sale of group life, group health, and any other employee benefit plan.
(11) No person, as defined in R.S. 22:46(12), shall directly or indirectly participate
in any plan to offer or effect any kind or kinds of life or health insurance and annuities as an
inducement to or in connection with the purchase by the public of any goods, securities,
commodities, services, or subscriptions to periodicals. This Paragraph shall not apply to
such insurance, written in connection with an indebtedness, one of the purposes of which is
to pay the indebtedness in case of the death or disability of the debtor. Nor shall this
Paragraph apply to the sale by life insurance producers, or by life insurance companies of
equity products, including equities, mutual funds, shares of investment companies, variable
annuities, and including face amount certificates of regulated investment companies under
offerings registered with the Federal Securities and Exchange Commission.
(12) Any violation of any prohibitory law of this state.
(13) Committing a fraudulent insurance act as defined in R.S. 22:1923.
(14) Unfair claims settlement practices. Committing or performing with such
frequency as to indicate a general business practice any of the following:
(a) Misrepresenting pertinent facts or insurance policy provisions relating to
coverages at issue.
(b) Failing to acknowledge and act reasonably promptly upon communications with
respect to claims arising under insurance policies.
(c) Failing to adopt and implement reasonable standards for the prompt investigation
of claims arising under insurance policies.
(d) Refusing to pay claims without conducting a reasonable investigation based upon
all available information.
(e) Failing to affirm or deny coverage of claims within a reasonable time after proof
of loss statements have been completed.
(f) Not attempting in good faith to effectuate prompt, fair, and equitable settlements
of claims in which liability has become reasonably clear.
(g) Compelling insureds to institute litigation to recover amounts due under an
insurance policy by offering substantially less than the amounts ultimately recovered in
actions brought by such insureds.
(h) Attempting to settle a claim for less than the amount to which a reasonable man
would have believed he was entitled by reference to written or printed advertising material
accompanying or made part of an application.
(i) Attempting to settle claims on the basis of an application which was altered
without notice to, or knowledge or consent of, the insured.
(j) Making claims payments to insureds or beneficiaries not accompanied by
statement setting forth the coverage under which the payments are being made.
(k) Making known to insureds or claimants a policy of appealing from arbitration
awards in favor of insureds or claimants for the purpose of compelling them to accept
settlements or compromises less than the amount awarded in arbitration.
(l) Delaying the investigation or payment of claims by requiring an insured, claimant,
or the physician of either to submit a preliminary claim report and then requiring the
subsequent submission of formal proof of loss forms, both of which submissions contain
substantially the same information.
(m) Failing to promptly settle claims, where liability has become reasonably clear,
under one portion of the insurance policy coverage in order to influence settlements under
other portions of the insurance policy coverage.
(n) Failing to promptly provide a reasonable explanation of the basis in the insurance
policy in relation to the facts or applicable law for denial of a claim or for the offer of a
compromise settlement.
(o) Failing to provide forms necessary to present claims within fifteen calendar days
of a request with reasonable explanations regarding their use, if the insurer maintains the
forms for that purpose.
(p) Failing to make available upon the written request of an insured any portion of
the claim file, including but not limited to estimates, bids, plans, measurements, drawings,
engineer reports, contractor reports, statements, photographs, video recordings, or any other
documents or communications, unless the record is legally privileged, that the insurer
prepared, had prepared, or used during its adjustment of the insured's claim. An insurer may
keep confidential any adjuster notes, logs, and any other documents or communications
prepared in conjunction with a fraud investigation.
(q) Failing to make available, upon the written request of an insured, the original
field adjuster's repair estimate and, if the estimate was revised, failing to identify the person
who made the revisions.
(15)(a) The issuance, delivery, issuance for delivery, or renewal of, or execution of
a contract for, a health benefits policy or plan which:
(i) Prohibits or limits a person who is an insured or other beneficiary of the policy
or plan from selecting a pharmacy or pharmacist of the person's choice to be a provider under
the policy or plan to furnish pharmaceutical services or pharmaceutical products offered or
provided by that policy or plan or in any manner interferes with that person's selection of a
pharmacy or pharmacist, provided that the chosen pharmacy or pharmacist agrees in writing
to provide pharmaceutical services and pharmaceutical products that meet all the terms and
requirements, including the same administrative, financial, and professional conditions and
a minimum contract term of one year if requested, that apply to all other pharmacies or
pharmacists who have been designated as providers under the policy or plan or as
participating providers in a pharmacy network established by the policy or plan.
(ii) Denies a pharmacy licensed and physically located in the state or a pharmacist
licensed in the state the right to participate as a contract provider of pharmaceutical services
or pharmaceutical products under the policy or plan, or under a pharmacy network
established by the policy or plan, if the pharmacy or pharmacist agrees in writing to provide
pharmaceutical services and pharmaceutical products that meet all the terms and
requirements, including the same administrative, financial, and professional conditions and
a minimum contract term of one year, if requested, which apply to pharmacies and
pharmacists which have been designated as providers under the policy or plan or as
participating providers in a pharmacy network established by the policy or plan.
(b) This Paragraph shall not, however, require a health benefits policy or plan to
provide pharmaceutical services or pharmaceutical products.
(c) As used in this Paragraph, the following terms shall be given these meanings:
(i) "Drug" and "prescription" have the meanings assigned by R.S. 37:1164 and
regulations of the Louisiana Board of Pharmacy.
(ii) "Health benefits policy or plan" means any and all health and accident insurance
policies or contracts, including but not limited to individual, group, family, family group,
blanket, and association health and accident insurance policies, as well as health maintenance
organizations and preferred provider organizations, and any and all other third-party payment
plans or contracts, and any and all other health care or health benefits plans, policies,
contracts, or funds that either in whole or in part provide benefits for pharmaceutical services
and pharmaceutical products that are necessary as a result of or to prevent an accident or
sickness.
(iii) "Interferes" or "interferes with" means and includes but is not limited to the
charging to or imposing on an insured or other beneficiary who does not utilize a specified
or designated pharmacy or pharmacist, a copayment fee or other condition not equally
charged to or imposed on all insureds or other beneficiaries in or under the same program or
policy or plan. However, "interferes" or "interferes with" does not mean or include the
advertisement, or periodic dissemination, to all insureds or other beneficiaries of current lists
of all pharmacies or pharmacists who have agreed to participate as a contract provider
pursuant to the requirements of Item (a)(ii) of this Paragraph.
(iv) "Pharmaceutical product" means a "drug" and "prescription", as defined in this
Paragraph, and home intravenous therapies.
(v) "Pharmaceutical services" means services that are ordinarily and customarily
rendered by a pharmacy or pharmacist, including the preparation and dispensing of
pharmaceutical products.
(vi) "Pharmacist" means a person licensed to practice pharmacy under the Pharmacy
Law and Board of Pharmacy regulations of the state of Louisiana.
(vii) "Pharmacy" has the meaning assigned by R.S. 37:1164 and regulations of the
Louisiana Board of Pharmacy.
(d) This Paragraph shall be cited as the "Patient Pharmacy Preference Act".
(16) Failure to maintain marketing and performance records. Failure of an insurer
to maintain its books, records, documents, and other business records in such an order that
data regarding complaints, claims, rating, underwriting, and marketing are accessible and
retrievable for examination by the insurance commissioner. Data for at least the current
calendar year and the two preceding years shall be maintained.
(17) Failure to maintain adequate complaint handling procedures. Failure of any
insurer to maintain a complete record of all the complaints that it received since the date of
its last examination. This record shall indicate the total number of complaints, their
classification by line of insurance, the nature of each complaint, the disposition of each
complaint, and the time it took to process each complaint. For purposes of this Paragraph,
"complaint" shall mean any written communication primarily expressing a grievance
received by the insurer from the Department of Insurance.
(18) Misrepresentation in insurance application. Making false or fraudulent
statements or representations on or relative to an application for a policy, for the purpose of
obtaining a fee, commission, money, or other benefit from any provider or individual person.
(19) Unfair financial planning practices. An insurance producer:
(a) Holding himself out, directly or indirectly, to the public as a "financial planner",
"investment adviser", "consultant", "financial counselor", or any other specialist engaged in
the business of giving financial planning or advice relating to investments, insurance, real
estate, tax matters, or trust and estate matters when such person is in fact engaged only in the
sale of policies.
(b)(i) Engaging in the business of financial planning without disclosing to the client
prior to the execution of the agreement provided for in Subparagraph (c) of this Paragraph
or solicitation of the sale of a product or service that:
(aa) He is also an insurance salesperson.
(bb) That a commission for the sale of an insurance product will be received in
addition to a fee for financial planning, if such is the case.
(ii) The disclosure requirement under this Paragraph may be met by including it in
any disclosure required by federal or state securities law.
(c)(i) Charging fees other than commissions for financial planning by insurance
producer, unless such fees are based upon a written agreement, signed by the party to be
charged in advance of the performance of the services under the agreement. A copy of the
agreement shall be provided to the party to be charged at the time the agreement is signed by
the party and shall specifically state:
(aa) The services for which the fee is to be charged.
(bb) The amount of the fee to be charged or how it will be determined or calculated.
(cc) That the client is under no obligation to purchase any insurance product through
the insurance producer or consultant.
(ii) The insurance producer shall retain a copy of the agreement for not less than
three years after completion of services, and a copy shall be available to the commissioner
upon request.
(20)(a) Failure to provide claims history - personal lines.
(i) Loss information - property and casualty. Failure of a company issuing property
and casualty insurance to provide the following loss information for the three previous policy
years to the first named insured within thirty days of receipt of the first named insured's
written request:
(aa) On all claims, date, and description of occurrence, and total amount of
payments.
(bb) For any occurrence not included in Subitem (aa) of this Item, the date and
description of occurrence.
(ii) Should the first named insured be requested by a prospective insurer to provide
detailed loss information in addition to that required under Item (i) of this Subparagraph, the
first named insured may mail or deliver a written request to the insurer for the additional
information. No prospective insurer shall request more detailed loss information than
reasonably required to underwrite the same line or class of insurance. The insurer shall
provide information under this Subparagraph to the first named insured as soon as possible,
but in no event later than twenty days of receipt of the written request. Notwithstanding any
other provision of this Section, no insurer shall be required to provide loss reserve
information, and no prospective insurer may refuse to insure an applicant solely because the
prospective insurer is unable to obtain loss reserve information.
(iii) The commissioner may promulgate regulations to exclude the providing of the
loss information as outlined in Item (i) of this Subparagraph for any line or class of insurance
where it can be shown that the information is not needed for that line or class of insurance
or where the provision of loss information otherwise is required by law.
(iv) Information provided under Item (ii) of this Subparagraph shall not be subject
to discovery by any party other than the insured, the insurer, and the prospective insurer.
(b) The provisions of this Paragraph shall apply exclusively to personal lines.
(21)(a) Failure to provide claims history - commercial lines.
(i) Loss information - property and casualty. Failure of a company issuing property
and casualty insurance to provide the following loss information, by mail and, if the request
was not submitted by mail, by the same means the request was submitted, for the five
previous policy years to the first named insured within ten business days of receipt of the first
named insured's written request submitted by mail, fax, or email:
(aa) On all claims, date, and description of occurrence, and total amount of
payments.
(bb) For any occurrence not included in Subitem (aa) of this Item, the date and
description of occurrence.
(ii) If the first named insured is requested by a prospective insurer to provide detailed
loss information in addition to that required under Item (i) of this Subparagraph, the first
named insured may mail, fax, email, or deliver a written request to the insurer for the
additional information. No prospective insurer shall request more detailed loss information
than reasonably required to underwrite the same line or class of insurance. The insurer shall
provide information pursuant to this Item, by mail and, if the request was not submitted by
mail, by the same means the request was submitted, to the first named insured as soon as
possible, but in no event later than ten business days of receipt of the written request.
Notwithstanding any other provision of this Section, no insurer shall be required to provide
loss reserve information, and no prospective insurer may refuse to insure an applicant solely
because the prospective insurer is unable to obtain loss reserve information.
(iii) The commissioner may promulgate regulations to exclude the providing of the
loss information as outlined in Item (i) of this Subparagraph for any line or class of insurance
where it can be shown that the information is not needed for that line or class of insurance
or where the provision of loss information otherwise is required by law.
(iv) Information provided pursuant to Item (ii) of this Subparagraph shall not be
subject to discovery by any party other than the insured, the insurer, and the prospective
insurer.
(b) The provisions of this Paragraph shall apply exclusively to commercial lines.
(22) The issuance of any line of health insurance in the state by an insurer, self-insurer, or other entity that provides health and accident insurance policies or plans within
five years after the entity has ceased writing insurance or issuing plans in the state.
(23) The discrimination against an insured, enrollee, or beneficiary in the issuance,
payment of benefits, withholding of coverage, cancellation, or nonrenewal of a policy,
contract, plan, or program based upon the results of a prenatal test.
(24) The discrimination against an insured, enrollee, or beneficiary in the issuance,
payment of benefits, withholding of coverage, cancellation or nonrenewal of a policy,
contract, plan, or program based upon the results of a genetic test or receipt of genetic
information. Actions of an insurer or third parties dealing with an insurer taken in the
ordinary course of business in connection with the sale, issuance or administration of a life,
disability income, or long-term care insurance policy are exempt from the provisions of this
Paragraph.
(25) Requiring a producer or offering any incentive for a producer who represents
more than one company to limit information provided to consumers on limited benefit or
supplemental benefit plans, including attempting to enforce a provision of a sales
representative agreement, a sales agent agreement, a nonsolicitation agreement, or a
noncompetition agreement against such a producer which would result in limiting the
information that the producer provides to consumers on limited benefit or supplemental
benefit plans. Failure to comply with the provisions of this Paragraph shall subject the
insurer to a penalty, of not less than two thousand five hundred dollars nor more than five
thousand dollars, payable to the producer and shall not be subject to the penalties provided
for in R.S. 22:1969.
(26) Requiring a producer or offering any incentive for a producer who represents
more than one insurance company to limit the number of other insurance companies such a
producer may represent, including attempting to enforce a provision of a sales representative
agreement, a sales agent agreement, a nonsolicitation agreement, or a noncompetition
agreement against such a producer which would result in limiting the number of other
insurance companies that the producer may represent. Failure to comply with the provisions
of this Paragraph shall subject the insurer to a penalty up to ten thousand dollars and shall
not be subject to the penalties provided for in R.S. 22:1969.
(27) Failure by an organization that negotiates with a pharmacy or pharmacies, or an
organization that represents an independent pharmacy or a group of independent pharmacies,
to provide to a pharmacy a contract, agreement, or other documentation relative to the
pharmacy's network participation with a third-party payor as required in R.S. 22:1857.1.
(28) Deliberate use of misrepresentations or false statements for the purpose of
convincing a customer to replace a limited benefit insurance policy. The commissioner shall
promulgate regulations which address the replacement of limited benefit insurance policies
as defined in R.S. 22:47(2)(c).
(29) Failure by an admitted insurer upon renewal or issuance of any policy or
contract of insurance which includes a provision that the policy or contract contains defense
costs within the limit of liability to provide notice of such provision through a separate notice
or inclusion on the declaration page of the insurance policy or contract. Failure to comply
with the provisions of this Paragraph shall not subject the insurer to the penalties provided
in R.S. 22:1969.
(30) Any violation of R.S. 22:1828.
Related
Legislative History
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