§ 2117 — Acting for or aiding unlicensed or unauthorized insurers or health maintenance organizations

New York § 2117

• Jurisdiction: New York
• Law ISC: Insurance
• Art. 21: Agents, Brokers, Adjusters, Consultants and Intermediaries

Text

§ 2117. Acting for or aiding unlicensed or unauthorized insurers or\nhealth maintenance organizations. (a) No person, firm, association or\ncorporation shall in this state act as agent for any insurer or health\nmaintenance organization which is not licensed or authorized to do an\ninsurance or health maintenance organization business in this state, in\nthe doing of any insurance or health maintenance organization business\nin this state or in soliciting, negotiating or effectuating any\ninsurance, health maintenance organization or annuity contract or shall\nin this state act as insurance broker in soliciting, negotiating or in\nany way effectuating any insurance, health maintenance organization or\nannuity contract of, or in placing risks with, any such insurer or\nhealth maintenance organization, or shall in this state in any way or\nmanner aid any such insurer or health maintenance organization in\neffecting any insurance, health maintenance organization or annuity\ncontract.\n (b) Notwithstanding the provisions of subsection (a) hereof, any\ninsurance broker licensed under subparagraph (B) of paragraph one of\nsubsection (b) of section two thousand one hundred four of this article\nmay negotiate a contract of insurance, or place insurance, in an insurer\nnot authorized to do business in this state, as follows:\n (1) a contract of reinsurance on risks produced by such broker;\n (2) insurance against loss of or damage to property having a permanent\nsitus outside of this state; and\n (3) marine insurance of the following kind or kinds, where it is\nreasonable so to do with due regard to the interests of all concerned\nand whether or not, at the time of such negotiation, the subject matter\nof such insurance is within or without this state:\n (A) insurance against perils of navigation, transit or transportation\nupon hulls, freights or disbursements, or other shipowner interests,\ngoods, wares, merchandise and all other personal property and interests\ntherein, in course of exportation from or importation into any country,\nor transportation coastwise, including transportation by land or water\nfrom point of origin to final destination and including war risks and\nmarine builders' risks; and\n (B) insurance in connection with ocean going vessels against any of\nthe risks specified in paragraph twenty-one of subsection (a) of section\none thousand one hundred thirteen of this chapter.\n (c) Notwithstanding the provisions of subsection (a) hereof, any\ninsurance broker licensed under subparagraph (B) of paragraph one of\nsubsection (b) of section two thousand one hundred four of this article\nmay negotiate a contract of insurance or place insurance in an\nunauthorized insurer as follows:\n (1) insurance against legal liability arising out of the ownership,\noperation or maintenance of any motor vehicle or aircraft which is\nneither principally garaged nor principally used in this state, arising\nout of any activity carried on wholly outside of this state or arising\nout of the ownership, operation or maintenance of any property having a\npermanent situs outside of this state, but in case such property or risk\nis located in any other state, then only in an insurer authorized to do\nsuch business in such state or in an insurer in which a licensed\ninsurance broker of such state may lawfully place such insurance; and\n (2) fidelity bonds guaranteeing the fidelity of persons holding or\nexercising positions of public or private trust wholly outside of this\nstate, and surety bonds guaranteeing or assuming the performance of any\ncontract or other obligation of the kind included under subparagraphs\n(B) and (C) of paragraph sixteen of subsection (a) of section one\nthousand one hundred thirteen of this chapter, to be performed wholly\noutside of this state; but if such positions are held or exercised in\nanother state or if such contract or other obligation is to be performed\nwholly or partly in another state, then only if such insurance is placed\nin an insurer authorized to do such business in such state, or in which\na licensed broker of such state may lawfully place such insurance.\n (d) Notwithstanding the provisions of subsection (a) hereof, any\nlicensed reinsurance intermediary may negotiate a contract of\nreinsurance, or place reinsurance, in an insurer not authorized to do\nbusiness in this state.\n (e) This section shall not authorize any person, firm, association or\ncorporation to guarantee or otherwise validate or secure the performance\nor legality of any agreement, instrument or policy of insurance or\nannuity contract of any insurer not authorized to do business in this\nstate, or to bind risks, validate, effect by countersignature,\nendorsement or otherwise, any binder, memorandum, cover note, slip,\ncertificate, policy or other instrument of insurance of any insurer not\nauthorized or licensed to do business in this state, or to make binding\ndeclarations of risks thereunder, or permit any unauthorized insurer to\ndo any insurance business by its agent acting within this state; but\nlicensed insurance brokers acting pursuant to subsections (b) and (c)\nhereof may issue to their clients, the insureds, confirmation of\ninsurance so lawfully placed.\n (f) This chapter shall not prohibit or prevent an attorney and\ncounsellor at law from representing an unauthorized insurer in\nlitigation or settlement of claims in this state.\n (g) Any person, firm, association or corporation violating any\nprovision of this section shall, in addition to any other penalty\nprovided by law, forfeit to the people of the state the sum of five\nhundred dollars for each transaction.\n (h) (1) This section shall not prohibit any person, firm, association\nor corporation from acting within the scope of the authority conferred\nby section two thousand one hundred five of this article.\n (2) Notwithstanding subsection (a) of this section, a licensed\ninsurance broker may deliver to the insured an insurance policy or\ncontract procured by any person, firm, association or corporation acting\npursuant to the authority conferred by section two thousand one hundred\nfive of this article.\n (3) Notwithstanding subsection (a) of this section and any other\nprovision of law to the contrary, any excess line broker licensed\npursuant to section two thousand one hundred five of this article may\nexercise binding authority and execute an authority to bind coverage on\nbehalf of an insurer not licensed or authorized to do business in this\nstate pursuant to the provisions of subsection (f) of section two\nthousand one hundred eighteen of this article.\n (i) Notwithstanding subsection (a) of this section, a licensed insurer\nmay provide, from its office in the state, services to support the\ninsurance business of an unauthorized insurer with which it is\naffiliated, provided that the unauthorized insurer has satisfied all\napplicable requirements for placements by excess line brokers as set\nforth in section two thousand one hundred eighteen of this article. Such\nservices may include, but shall not be limited to, computer operations,\nclerical and staffing support, underwriting, negotiating contract terms,\nquoting premiums, binding coverage, drafting and issuing policies and\nclaims handling, investigation and payment, among other incidental\nservices. Services expressly prohibited under this section include the\nmarketing, soliciting or advertising by the unauthorized insurer\ndirectly to policyholders. Notwithstanding paragraph two of subsection\n(a) of section two thousand one hundred twenty-two of this article, such\nunauthorized insurers shall be permitted to advertise to, and market and\nsolicit through, excess line brokers licensed pursuant to section two\nthousand one hundred five of this article, from an office within the\nstate. All obligations of such licensee under this article shall remain\nin full force and effect. Any document issued by an unauthorized insurer\nthat indicates any location within this state in which it conducts its\noperations shall include a prominent notice that the insurer is not\nlicensed by the state of New York, in no smaller than 10 point type, in\naccordance with regulations as may be promulgated by the superintendent.\n (j) Nothing in this section shall prohibit a person who is not a\nresident of this state from selling, soliciting or negotiating a\nproperty/casualty insurance contract of an insurer not authorized to do\nbusiness in this state, provided that: (1) the insured's home state is a\nstate other than this state; and (2) the person is licensed to sell,\nsolicit or negotiate excess line insurance in the insured's home state.\n (k)(1) Notwithstanding subsection (a) of this section, any insurance\nbroker licensed under subparagraph (A) of paragraph one of subsection\n(b) of section two thousand one hundred four of this article with\nrespect to life insurance or annuities, subparagraph (A) or (B) of\nparagraph one of subsection (b) of such section with respect to accident\nand health insurance, or subparagraph (B) of this paragraph with respect\nto property/casualty insurance may engage in the activities specified in\nparagraph two of this subsection with respect to an alien insurer not\nauthorized to do an insurance business in this state, provided that:\n (A) the activities relate to a policy or contract of group life, group\nannuity, group accident and health insurance, or property/casualty\ninsurance where the policyholder or proposed policyholder is a\nmultinational entity resident outside the United States, the policy or\ncontract covers the multinational entity's liabilities, properties,\nemployees and their dependents, and the liabilities arise, or the\nproperties and employees reside outside of the United States, except\nthat the policy or contract may provide coverage to employees who are\ntemporarily inside the United States;\n (B) the policy or contract shall not be underwritten or negotiated in\nthis state or issued or delivered in the United States;\n (C) the alien insurer is authorized to transact the kinds of insurance\nbusiness in the jurisdictions where the policies or contracts will be\nissued or delivered and the policies or contracts are issued in\nconformance with the laws of such jurisdictions;\n (D) before engaging in any of the activities specified in paragraph\ntwo of this subsection, the licensed insurance broker provides written\nnotice to the multinational entity that the alien insurer is not\nlicensed in or authorized to do business in this state; the policy or\ncontract is not protected by the New York state guaranty funds; the\npolicy or contract has not been approved by the superintendent; and the\npolicy or contract may not be subject to all of the laws of this state;\n (E) the alien insurer shall not maintain any office in this state; and\n (F) except as specifically provided in this section, the licensed\ninsurance broker shall not call attention to the alien insurer by any\nadvertisement or public announcement in this state.\n (2) Subject to paragraph one of this subsection, the licensed\ninsurance broker may engage in this state in only the following\nactivities with respect to the alien insurer:\n (A) provide information to the multinational entity with respect to a\npolicy or contract of group life, group annuity, group accident and\nhealth insurance, or a property/casualty insurance policy issued or\ndelivered or that will be issued or delivered by the alien insurer;\n (B) meet and discuss insurance needs with the multinational entity,\nincluding providing information directly to the entity in person or\notherwise about the policies or contracts offered by the alien insurer;\nand facilitating introductions with the multinational entity's human\nresources and benefits manager in each country in which the\nmultinational entity has employee benefit needs;\n (C) refer the multinational entity to the alien insurer and provide\ninformation to the multinational entity about the alien insurer;\n (D) respond to requests for information by representatives of the\nmultinational entity concerning quotes and any other specific terms and\nconditions of a group life, group annuity, group accident and health\ninsurance, or property/casualty insurance policy or contract being\nnegotiated in the jurisdiction where the policy or contract will be\nissued or delivered by the alien insurer;\n (E) provide information concerning renewals of existing policies or\ncontracts of group life, group annuity, group accident and health\ninsurance, or a property/casualty insurance policy issued by the alien\ninsurer; and\n (F) manage the employee benefits program of the multinational entity,\nincluding aggregating and reporting employee benefits and financial\ninformation about the program.\n (3) Any activity in which a licensed insurance broker engages with\nrespect to an alien insurer pursuant to this subsection shall be deemed\nto be included within the meaning of "any other transaction of business"\nfor the purposes of section one thousand two hundred thirteen of this\narticle.\n (4) For purposes of this subsection:\n (A) "multinational entity" shall mean an institution that is a member\nof a multinational group of institutions operating globally where: (i)\nat least one institution in the group is formed under the laws of the\nUnited States or has significant operations in the United States; and\n(ii) at least one institution in the group has offices outside the\nUnited States; and\n (B) "group of institutions" shall mean a parent corporation and its\nsubsidiaries.\n