§ 1213 — Service of process on superintendent as attorney for unauthorized insurers

New York § 1213

• Jurisdiction: New York
• Law ISC: Insurance
• Art. 12: Organization and Corporate Procedure

Text

§ 1213. Service of process on superintendent as attorney for\nunauthorized insurers. (a) The purpose of this section is to subject\ncertain insurers to the jurisdiction of the courts of this state in\nsuits by or on behalf of insureds or beneficiaries under certain\ninsurance contracts. The legislature declares that it is a subject of\nconcern that many residents of this state hold policies of insurance\nissued or delivered in this state by insurers while not authorized to do\nbusiness in this state, thus presenting to such residents the often\ninsuperable obstacle of resorting to distant forums for the purpose of\nasserting legal rights under such policies. In furtherance of such state\ninterest, the legislature herein provides a method of substituted\nservice of process upon such insurers and declares that in so doing it\nexercises its power to protect its residents and to define, for the\npurpose of this section, what constitutes doing business in this state,\nand also exercises powers and privileges available to the state by\nvirtue of public law number fifteen, seventy-ninth congress of the\nUnited States, chapter twenty, first session, senate number three\nhundred forty, as amended, (15 U.S.C. § 1011) which declares that the\nbusiness of insurance and every person engaged therein shall be subject\nto the laws of the several states.\n (b) (1) Any of the following acts in this state, effected by mail or\notherwise, by an unauthorized foreign or alien insurer:\n (A) the issuance or delivery of contracts of insurance to residents of\nthis state or to corporations authorized to do business therein,\n (B) the solicitation of applications for such contracts,\n (C) the collection of premiums, membership fees, assessments or other\nconsiderations for such contracts, or\n (D) any other transaction of business,\nis equivalent to and constitutes its appointment of the superintendent,\nand his successors in office, to be its true and lawful attorney upon\nwhom may be served all lawful process in any proceeding instituted by or\non behalf of an insured or beneficiary arising out of any such contract\nof insurance, and shall signify its agreement that such service of\nprocess is of the same legal force and validity as personal service of\nprocess in this state upon such insurer.\n (2) Such service of process upon any such insurer in any such\nproceeding in any court of competent jurisdiction of this state may be\nmade by serving the superintendent, any deputy superintendent or any\nsalaried employee of the department whom the superintendent designates\nfor such purpose with two copies thereof and the payment to him or her\nof a fee of forty dollars. The superintendent shall forward a copy of\nsuch process by registered or certified mail to the defendant at its\nlast known principal place of business, as designated by the issuer of\nsuch process, and shall keep a record of all process so served upon him\nor her. Such service of process under this paragraph is sufficient,\nprovided notice of such service and a copy of the process are sent\nwithin ten days thereafter by or on behalf of the plaintiff to the\ndefendant at its last known principal place of business by registered or\ncertified mail with return receipt requested. The plaintiff shall file\nwith the clerk of the court in which the action is pending, or with the\njudge or justice of such court if there be no clerk, an affidavit of\ncompliance herewith, a copy of the process, and either a return receipt\npurporting to be signed by the defendant or a person qualified to\nreceive its registered or certified mail in accordance with the rules\nand customs of the post office department, or, if acceptance was refused\nby the defendant or its agent, the original envelope bearing a notation\nby the postal authorities that receipt was refused. Service of process\nso made shall be deemed made within the territorial jurisdiction of any\ncourt in this state.\n (3) Service of process in any such proceeding shall in addition to the\nmanner provided in paragraph two of this subsection be valid if served\nupon any person within this state who, in this state on behalf of such\ninsurer, is:\n (A) soliciting insurance;\n (B) making, issuing or delivering any contract of insurance; or\n (C) collecting or receiving any premium, membership fee, assessment or\nother consideration for insurance;\nprovided notice of such service and a copy of such process are sent\nwithin ten days thereafter, by or on behalf of the plaintiff to the\ndefendant at the last known principal place of business of the\ndefendant, by registered mail with return receipt requested. The\nplaintiff shall file with the clerk of the court in which the action is\npending, or with the judge or justice of such court in case there be no\nclerk, an affidavit of compliance herewith, a copy of the process, and\neither a return receipt purporting to be signed by the defendant or a\nperson qualified to receive its registered mail in accordance with the\nrules and customs of the post office department; or, if acceptance was\nrefused by the defendant or its agent the original envelope bearing a\nnotation by the postal authorities that receipt was refused.\n (4) The papers referred to in paragraphs two and three of this\nsubsection shall be filed within thirty days after the return receipt or\nother official proof of delivery, or the original envelope bearing a\nnotation of refusal, is received by the plaintiff. Service of process\nshall be complete when such process and the accompanying papers are\nfiled pursuant to this section.\n (5) Nothing contained in this section shall limit or abridge the right\nto serve any process, notice or demand upon any insurer in any other\nmanner permitted by law.\n (c) (1) Before any unauthorized foreign or alien insurer files any\npleading in any proceeding against it, it shall either:\n (A) deposit with the clerk of the court in which the proceeding is\npending, cash or securities or file with such clerk a bond with good and\nsufficient sureties, to be approved by the court, in an amount to be\nfixed by the court sufficient to secure payment of any final judgment\nwhich may be rendered in the proceeding, but the court may in its\ndiscretion make an order dispensing with such deposit or bond if the\nsuperintendent certifies to it that such insurer maintains within this\nstate funds or securities in trust or otherwise sufficient and available\nto satisfy any final judgment which may be entered in the proceeding, or\n (B) procure a license to do an insurance business in this state.\n (2) The court in any proceeding wherein service is made pursuant to\nparagraph two or three of subsection (b) of this section may, in its\ndiscretion, order such postponement as may be necessary to afford the\ndefendant reasonable opportunity to comply with the provisions of\nparagraph one of this subsection and to defend such proceeding.\n (3) Nothing in paragraph one of this subsection is to be construed to\nprevent an unauthorized foreign or alien insurer from filing a motion to\nset aside service made in the manner provided in paragraph two or three\nof subsection (b) hereof on the ground (i) that such unauthorized\ninsurer has not done any act enumerated in paragraph one of subsection\n(b) of this section, or (ii) that the person on whom service was made\npursuant to paragraph three of subsection (b) hereof was not doing any\nact therein enumerated.\n (d) In any action against an unauthorized foreign or alien insurer\nupon a contract of insurance issued or delivered in this state to a\nresident thereof or to a corporation authorized to do business therein,\nif the insurer has failed for thirty days after demand prior to the\ncommencement of the action to make payment pursuant to the contract, and\nit appears to the court that such refusal was vexatious and without\nreasonable cause, the court may allow plaintiff a reasonable attorney's\nfee and include such fee in any judgment rendered in such action. Such\nfee shall not exceed twelve and one-half percent of the amount the court\nfinds the plaintiff is entitled to recover against the insurer nor be\nless than twenty-five dollars. Failure of an insurer to defend any such\naction shall be prima facie evidence that its failure to pay was\nvexatious and without reasonable cause.\n (e) This section shall not apply to any proceeding against any\nunauthorized foreign or alien insurer arising out of any contract of\ninsurance effectuated in accordance with subsection (b) or (c) of\nsection two thousand one hundred seventeen of this chapter or in\naccordance with section two thousand one hundred five of this chapter\nwhere such contract designates the superintendent or his successors in\noffice the insurer's true and lawful attorney upon whom may be served\nall lawful process in any proceeding instituted by or on behalf of an\ninsured or beneficiary arising out of such contract.\n (f) The superintendent shall keep a record of each process served upon\nhim under this section and pursuant to section one thousand two hundred\ntwelve of this article, including the date of service. He shall, upon\nrequest made within ten years of such service, issue a certificate under\nhis seal certifying as to the receipt of the process by an authorized\nperson, the date and place of service and the receipt of the statutory\nfee. Process served upon the superintendent pursuant to this section or\nsection one thousand two hundred twelve of this article shall be\ndestroyed by him after a period of ten years from such service.\n