HB 0524

HB 524 - AS INTRODUCED

AN ACT relative to unfair insurance trade practices.

SPONSORS: Rep. Francoeur, Rock 22; Rep. M. Fuller Clark, Rock 36; Rep. Langley, Rock 24; Sen. Wheeler, Dist 21

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

AN ACT relative to unfair insurance trade practices.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1 Unfair Insurance Trade Practices; Purpose. Amend RSA 417:1 to read as follows:

417:1 Purpose of Chapter. The purpose of this chapter is to regulate trade practices in the business of insurance, in accordance with the intent of Congress as expressed in the Act of Congress of March 9, 1945 (Public Law 15, 79th Congress), and the Gramm-Leach Bliley Act (Public Law 106-102, 106^th Congress), by defining, or providing for the determination of, all such practices [~~which constitute~~] in this state that constitute unfair methods of competition or unfair or deceptive acts or practices and by prohibiting the trade practices so defined or determined. Nothing in this chapter shall be construed to create or imply a private cause of action for a violation of this chapter.

2 Unfair Insurance Trade Practices; Definitions. RSA 417:2 is repealed and reenacted to read as follows:

I. "Affiliate" means any company that controls, is controlled by, or is under common control with another company.

III. "Customer" means a person who obtains, applies for, or is solicited to obtain insurance.

V. "Insurance information" means information concerning the premiums, terms, and conditions of insurance coverage, including expiration dates and rates, and insurance claims of a customer contained in the records of a depository institution or an affiliate of the depository institution.

VI. "Insured" means the party named on a policy or certificate as the individual with legal rights to the benefits provided by such policy.

VII. "Insurer" means any person, reciprocal exchange, interinsurer, Lloyds insurer, fraternal benefit society, and any other legal entity engaged in the business of insurance, including agents, brokers, adjusters and third-party administrators. Insurer shall also mean medical service plans, hospital service plans, health maintenance organizations, prepaid limited health care service plans, dental, optometric and other similar health service plans as defined in Title XXXVII. For purposes of this chapter, these foregoing entities shall be deemed to be engaged in the business of insurance.

VIII. "Person" means any natural or artificial entity, including but not limited to, individuals, partnerships, associations, trusts or corporations.

IX. "Policy" or "certificate" means any contract of insurance, indemnity, medical, health or hospital service, suretyship, or annuity issued, proposed for issuance, or intended for issuance by any insurer.

X. Producer" means a person required to be licensed under the laws of this state to sell, solicit, or negotiate insurance.

3 Unfair Insurance Trade Practices; Prohibition. Amend RSA 417:3 to read as follows:

I. No person shall engage in this state in any trade practice which is defined in this chapter or determined pursuant to this chapter as an unfair method of competition or an unfair or deceptive act or practice in the business of insurance.

II. It is an unfair trade practice for any insurer to commit any practice defined in RSA 417:4 if:

(a) It is committed flagrantly and in conscious disregard of this chapter or of any rules adopted hereunder; or

(b) It has been committed with such frequency to indicate a general business practice to engage in that type of conduct.

4 Unfair Insurance Trade Practices; Defined. RSA 417:4 is repealed and reenacted to read as follows:

417:4 Unfair Methods, Acts, and Practices Defined. Any of the following practices, if committed in violation of RSA 417:3, are hereby defined as unfair trade practices in the business of insurance:

I. 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:

(b) Misrepresents the dividends or share of the surplus to be received on any policy.

(d) Is misleading or is a misrepresentation as to the financial condition of any insurer, or as to the legal reserve system upon which any life insurer operates.

(e) Uses any name or title of any policy or class of policies misrepresenting the true nature thereof.

(f) Is a misrepresentation, including any intentional misquote of premium rate, for the purpose of inducing or tending to induce the purchase, lapse, forfeiture, exchange, conversion, or surrender of any policy.

(g) Is a misrepresentation for the purpose of effecting a pledge or assignment of or effecting a loan against any policy.

II. 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 insurer in the conduct of its insurance business, which is untrue, deceptive or misleading.

III. 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 any insurer, and which is calculated to injure such insurer.

IV. Boycott, Coercion, and Intimidation. Entering into any agreement to commit, or by any concerted action committing any act of boycott, coercion, or intimidation resulting in or tending to result in unreasonable restraint of, or monopoly in, the business of insurance. Except as contained in the policy, no insurer, corporation, partnership, or individual shall make any contract or agreement with any person insured or to be insured except as initiated by or agreed to by the person insured or to be insured that the whole or any part of the insurance which is subject to the provisions of this title, shall be placed by any particular corporation, partnership, or individual or be written by or in any particular company or insurer, or by or in any group of companies or insurers or by any producer or group of producers. Any contracts made in contravention of this paragraph shall be null and void.

(1) 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 an insurer.

(2) 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 insurance department official.

(4) Obtaining money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statement made, in light of the circumstances under which it was made, not misleading; the burden of establishing truthfulness or completeness shall be upon the party stating or omitting to state a material fact.

(5) Engaging in any other transaction, practice, or course of business which operates as a fraud or deceit upon the purchaser, insured, or person with policy ownership rights.

(b) The burden of establishing truth and completeness shall be on the person making, publishing, circulating or placing said advertisement, announcement, or statement before the public.

VI. Stock Operations and Advisory Board Contracts. 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 common law corporation, or securities or any special or advisory board contracts or other contracts of any kind promising returns and profits as an inducement to purchase insurance.

(a) Making or permitting any unfair discrimination between individuals of the same class and equal expectation of life in the rates charged for any life insurance policy or annuity or in the dividends or other benefits payable thereon, or in any other of the terms and conditions of such policy.

(b) Making or permitting any unfair discrimination between individuals of the same class and of essentially the same hazard in the amount of premium, policy fees, or rates charged for any accident or health insurance policy or in the benefits payable thereunder, or in any of the terms or conditions of such policy, or in any other manner.

(c) 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, canceling 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 the result of the application of sound underwriting and actuarial principles related to actual or reasonably anticipated loss experience.

(d) 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.

(e) Refusing to insure, refusing to continue to insure, or limiting the amount of coverage available to an individual because of the sex, marital status, race, religion, or national origin of the individual; however, nothing in this subparagraph shall prohibit an insurer from taking marital status into account for the purpose of defining persons eligible for dependent benefits. Nothing in this paragraph shall prohibit or limit the operation of fraternal benefit societies.

(f) Terminating, or modifying coverage or refusing to issue or renew any property or casualty policy solely because the applicant or insured or any employee of either is mentally or physically impaired; provided that this subparagraph shall not apply to accident and health insurance sold by a casualty insurer and, provided further, that this subparagraph 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.

(g) 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 herein contained shall prevent the termination of an excess insurance policy on account of the failure of the insured to maintain any required underlying insurance.

(h) Making or permitting any unfair distinction or discrimination in any contract of insurance or annuity contract.

(i) Refusing to insure risks solely because of age (except in the case of life, accident, or health insurance), place or area of residence, race, color, creed, national origin, ancestry, marital status, or lawful occupation including the military service (except in the case of life, accident or health insurance), of anyone who is or seeks to become insured or 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 or solely because the insured does not insure collateral business with the insurer. The exemption in this subparagraph shall not permit a mortgage life insurance policy or certificate to cease, cancel, or terminate solely on the basis of the mortgagor's age, until the mortgagor has reached the age of 80.

(j) Refusing to insure or to continue to insure, or limiting the amount, extent or kind of coverage available solely because the applicant who is also the proposed insured has been or may become the victim of domestic abuse or violence. Nothing in this subparagraph shall prohibit an insurer from underwriting a risk on the basis of the physical or medical history or condition of the proposed insured, or other relevant factors relating to the proposed insured, at the time of application regardless of the underlying cause of the condition and in accordance with subparagraph (a) of this paragraph. No insurer shall be held criminally or civilly liable for any cause of action which may result from compliance with this subparagraph.

(k) Charging a higher premium for private passenger automobile or homeowner insurance solely on the basis of information obtained from a credit rating, a credit history, or a credit scoring model.

(a) Except as otherwise expressly provided by law, knowingly permitting or offering to make or making any life insurance policy or annuity, or accident and health insurance or other insurance, or agreement as to such contract other than as plainly expressed in the policy issued thereon, or paying or allowing, or giving or offering to pay, allow, or give, directly or indirectly, as inducement to such policy, any rebate of premiums payable on the policy, or any special favor or advantage in the dividends or other benefits thereon, or any valuable consideration or inducement whatever not specified in the policy; or giving, or selling, or purchasing or offering to give, sell, or purchase as inducement to such policy or annuity or in connection therewith, any stocks, bonds, or other securities of any insurance company or other corporation, association, or partnership, or any dividends or profits accrued thereon, or anything of value whatsoever not specified in the policy.

(b) Nothing in paragraph VII, or subparagraph VIII (a) shall be construed as including within the definition of discrimination or rebates any of the following practices:

(1) In the case of life insurance policies or annuities, 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 interests of the company and its policyholders.

(2) In the case of life insurance policies issued on the industrial debit plan, making allowance to policyholders who have continuously for a specified period made premium payments directly to an office of the insurer in an amount that fairly represents the saving in collection expenses.

(3) Readjusting the rate of premium for a group insurance policy based on the loss or expense thereunder, at the end of the first or any subsequent policy year of insurance thereunder, which may be made retroactive only for such policy year.

(c) Issuing insurance policies covering bona fide employees of the insurer at a rate less than the rate charged other persons in the same class.

(d) Issuing policies on a salary saving, payroll deduction, pre-authorized, postdated, automatic check or draft plans at a reduced rate commensurate with the savings made by the use of such plan.

(e) Paying commissions or other compensation to duly licensed producers, or allowing or returning to participating policyholders, members or subscribers, dividends, savings, or unabsorbed premium deposits.

(f) Paying by an insurance producer of part of all of commissions on public insurance to a nonprofit association of insurance agents, which is affiliated with a recognized state or national insurance producer's association, to be used in whole or in part for one or more civic enterprises.

(g) Reduction of premium rate for policies of large amounts, but not exceeding savings in issuance and administration expenses reasonably attributable to such policies as compared with policies of similar plan issued in smaller amounts.

(h) Knowingly receiving or accepting, directly or indirectly, any rebate of premium or part thereof, or producer's commission thereon payable on any policy of insurance or annuity contract or any favor or advantage, a share in the dividend, or other benefit to accrue thereon, or receiving anything of value as an inducement to such insurance or contract or in connection therewith which is not specified, promised, or provided for in the policy or contract, except as provided herein.

(i) Nothing in this chapter shall be construed as including within the definition of securities as inducement to purchase insurance, the selling or offering for sale, contemporaneously with life insurance or annuities, of mutual fund shares or face amount certificates of regulated investment companies under offerings registered with the securities and exchange commission and the state of New Hampshire pursuant to RSA 421-B where such shares or such face amount certificates or such insurance or annuities may be purchased independently of and not contingent upon purchase of the other, at the same price and upon the same terms and conditions as were purchased independently.

IX. Prohibited Group Enrollments. No insurer shall offer more than one group policy of insurance through any person unless such person is licensed, at a minimum, as a limited insurance producer. However, this prohibition shall not apply to employer/employee relationships, nor to any such enrollments.

X. 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 2 preceding years shall be maintained.

(a) Failure of any insurer to maintain a complete record of all the complaints it received since the date of its last examination under RSA 400-A:37. 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.

(1) Failing to maintain a procedural means within the company, headed by a responsible officer, to process and respond adequately to policyholder's complaints.

(2) Failing to record and assemble all records of policyholder's complaints in a central location to facilitate periodic review by insurance departments.

(3) Failing to record, maintain and produce, when requested by appropriate authority, a summary of all complaints received, whether or not they were deemed valid, the time it took to process the complaint, and the disposition thereof, and failing to file an annual report thereof with the insurance department.

(4) Failing to provide within this state reasonable means whereby any person aggrieved by the application of an insurer's rating system, claims practices, sales practices, or underwriting procedures may be heard, in person or by an authorized representative, upon the person's written request to review the manner in which such procedures were applied in connection with insurance afforded or tendered to the person.

(b) Evidence as to the numbers and types of complaints to the insurance department against an insurer, and said department's complaint experience with other insurers writing similar lines of insurance, shall be admissible in evidence in an administrative or judicial proceeding brought under this title, provided no insurer shall be deemed in violation of this section solely by reason of the numbers and types of such complaints.

XII. Conflict of Interest. Failing to establish a reasonable procedure whereby insurance company officers, directors, trustees or responsible employees can disclose to the company board of directors or trustees any material interest or affiliation likely to conflict with their official duties.

XIII. Misrepresentation in Insurance Applications. 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.

(a) Holding himself or herself 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)(1) Engaging in the business of financial planning without disclosing to the client prior to the execution of the agreement provided for in subparagraph (c) or solicitation of the sale of a product or service that:

(B) 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.

(2) The disclosure requirement under this subparagraph may be met by including it in any disclosure required by federal or state securities law.

(c)(1) Charging fees other than commissions for financial planning by insurance producers, 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.

(A) The services for which the fee is to be charged shall be specifically stated in the agreement.

(B) The amount of the fee to be charged or how it will be determined or calculated shall be specifically stated in the agreement.

(C) The agreement shall state that the client is under no obligation to purchase any insurance product through the insurance producer.

(2) The insurance producer shall retain a copy of the agreement for not less than 3 years after completion of services, and a copy shall be available to the commissioner upon request.

XV. Failure to File or to Certify Information Regarding the Endorsement or Sale of Long-term Care Insurance. Failure of any insurer to:

(b) Certify annually that the insurer has complied with the responsibilities for disclosure, advertising, compensation arrangements, or other information required by the commissioner, as set forth by regulation.

(a) Loss Information; Property and Casualty. Failure of a company issuing property and casualty insurance to provide the following loss information for the 3 previous policy years to the first-named insured within 30 days of receipt of the first-named insured's written request:

(1) On all claims, date and description of occurrence, and total amount of payments; and

(2) For any occurrence not included in subparagraph (1), the date and description of occurrence.

(b) Should the first named insured be requested by a prospective insurer to provide detailed loss information in addition to that required under subparagraph (a), 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 20 days of receipt of the written request. Notwithstanding any other provision of this paragraph, 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.

(c) The commissioner may promulgate regulations to exclude the providing of the loss information as outlined in subparagraph (a) 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.

(d) Information provided under subparagraph (b) shall not be subject to discovery by any party other than the insured, the insurer, and the prospective insurer.

(a) No person or depository institution, or affiliate of a depository institution, may require as a condition precedent to the lending of money or extension of credit, or any renewal thereof, that the person to whom such money or credit is extended or whose obligation a creditor is to acquire or finance, negotiate any policy or renewal thereof through a particular insurer or group of insurers or producer or group of producers. Further, no person or depository institution, or affiliate of a depository institution, may reject an insurance policy solely because the policy has been issued or underwritten by a person who is not associated with such depository institution or affiliate when insurance is required in connection with a loan or extension of credit.

(b) No person or depository institution, or affiliate of a depository institution, who lends money or extends credit may:

(1) Solicit insurance for the protection of real property, after a person indicates interest in securing a first mortgage credit extension, until such person has received a commitment in writing from the lender as to a loan or credit extension. However, this provision does not prohibit a person or depository institution, or affiliate of a depository institution, from informing a customer or prospective customer that insurance is required in order to obtain a loan or credit, or that loan or credit approval is contingent upon the procurement by the customer of acceptable insurance, or that insurance is available from the person or depository institution, or affiliate of a depository institution.

(2) Unreasonably reject a policy furnished by the customer or borrower for the protection of the property securing the credit or lien. A rejection shall not be deemed unreasonable if it is based on reasonable standards, uniformly applied, relating to the extent of coverage required and the financial soundness and the services of an insurer. Such standards shall not discriminate against any particular type of insurer, nor shall such standards call for rejection of a policy because it contains coverage in addition to that required in the credit transaction.

(3) Require that any customer, borrower, mortgagor, purchaser, insurer, or producer pay a separate charge, in connection with the handling of any policy required as security for a loan on real estate, or pay a separate charge to substitute the policy of one insurer for that of another. This paragraph does not include the interest that may be charged on premium loans or premium advancements in accordance with the terms of the loan or credit document. Further, this paragraph does not apply to charges that would be required when the person or depository institution or affiliate of a depository institution is the licensed producer providing the insurance.

(4) Use or disclose, without the express consent of the customer, borrower, mortgagor or purchaser taken at a time other than the making of the loan or extension of credit insurance information relative to a policy which is required by the credit transaction, for the purpose of soliciting, selling, or replacing such insurance. This provision does not apply in case of a transfer of insurance information to an unaffiliated insurer in connection with transferring insurance in force on existing insured of the depository institution, or an affiliate thereof, or in connection with a merger with or acquisition of an unaffiliated insurer, or the release of information as otherwise authorized by state or federal law.

(5) Require any procedures or conditions of duly licensed producers or insurers not customarily required of those producers or insurers affiliated or in any way connected with the person who lends money or extends credit.

(6) Use any advertisement that would cause a reasonable person to mistakenly believe that the federal government or the state is responsible for the sales activity of, or stands behind the credit of, the person, depository institution or its affiliate.

(7) Use any advertisement that would cause a reasonable person to mistakenly believe that the federal government or the state guarantees any returns on insurance products or is a source of payment on any insurance obligation of or sold by the person, depository institution or its affiliate.

(9) Pay or receive any commission, brokerage fee, or other compensation as a producer, unless the person holds a valid producer's license for the applicable class of insurance. However, an unlicensed person employed by a depository institution, its affiliate, or an insurance agency may refer a customer or potential customer to a licensed producer provided that the person does not discuss specific insurance policy terms and conditions. Such unlicensed person may be compensated for the referral only if the compensation is a one-time nominal fixed dollar amount for each referral that does not depend on whether the customer purchases the insurance product from the licensed producer.

(10) Use, disclose, or release health information obtained from the insurance records of a customer for any purpose other than for its activities as a licensed producer, without the express consent of the customer.

(11) Solicit or sell insurance, other than credit insurance or flood insurance, unless such solicitation or sale is completed through documents separate from any credit transactions.

(12) Include the expense of insurance premiums, other than credit insurance premiums or flood insurance premiums, in the primary credit transaction without the express written consent of the customer.

(13) Solicit or sell insurance unless its insurance sales activities are, to the extent practicable, physically separated from areas where retail deposits are routinely accepted.

(14) Solicit or sell insurance unless it maintains separate and distinct books and records relating to such insurance transactions, including all files relating to and reflecting consumer complaints.

(15) Whenever the instrument requires that the purchaser, mortgagor, or borrower furnish insurance of any kind on real or personal property which is being conveyed or which is collateral security to a loan, the mortgagee or depository institution or affiliate of a depository institution shall refrain from disclosing or using any and all such insurance information to its own advantage and to the detriment of either the borrower, purchaser, mortgagor, insurer, or company or agency complying with the requirements relating to insurance.

(16) Notwithstanding any other law to the contrary, a depository institution or affiliate of a depository institution of a loan secured by an interest in real property shall not require the borrower to keep the mortgaged property insured under a property insurance policy in a sum in excess of the value of the buildings on the real property.

(17) Notwithstanding any other law to the contrary, no depository institution or affiliate of a depository institution shall require as a condition to closing a loan that the borrower provide an original insurance policy at said closing; provided, however, that the depository institution or affiliate of a depository institution may require the borrower to produce at closing a binder showing the borrower as named insured and depository institution or affiliate of a depository institution as mortgagee, and confirming that insurance has been issued, is in force, and will remain in full force until a copy of the final policy is delivered to the depository institution or affiliate of a depository institution or until the depository institution or affiliate of a depository institution has received notice of cancellation in accordance with the policy conditions.

(18) No insurer may automatically write insurance of a debtor who has contracted credit based on the principle that the insurance is applicable unless specifically rejected by the debtor, unless the premium or such other identifiable charge as may be applicable is paid in full by the depository institution or affiliate of a depository institution.

(c) Every person or depository institution, or affiliate of a depository institution who lends money or extends credit and who solicits insurance on real and personal property subject to subparagraph (b) shall disclose to the customer in writing that the insurance related to such credit extension may be purchased from an insurer or producer of the customer's choice, subject only to the lenders' right to reject a given insurer or producer as provided in subparagraph (a)(2). Further, the disclosure shall inform the customer that the customer's choice of insurer or producer will not affect the credit decision or credit terms in any way, except that the depository institution may impose reasonable requirements concerning the creditworthiness of the insurer and the scope of coverage chosen as provided in subparagraph (b)(2).

(d)(1) Every person or depository institution, or affiliate of a depository institution who lends money or extends credit and who solicits insurance on real and personal property shall disclose to the customer in writing and in a clear and conspicuous manner, prior to the sale, that the insurance related to such credit extension:

(C) Is not guaranteed by the depository institution, its affiliate, or any person soliciting or selling insurance on its premises; and

(D) Where appropriate, involves investment risk, including the potential loss of principal.

(2) The person, depository institution, or affiliate of the depository institution shall obtain written acknowledgment of the disclosure from the customer at the time the customer receives the disclosure or at the time of the initial purchase of the insurance policy.

(e) The commissioner shall have the power to examine and investigate those insurance related activities of any person, depository institution, affiliate of a depository institution or insurer that the commissioner believes may be in violation of this section. The person, depository institution, affiliate of a depository institution or insurer shall make its insurance books and records available to the commissioner and the commissioner's staff for inspection upon reasonable notice. Any affected person may submit to the commissioner a complaint or material pertinent to the enforcement of this section.

(f) Nothing herein shall prevent a person or depository institution, or affiliate of a depository institution, who lends money or extends credit from placing insurance on real or personal property in the event the mortgagor, borrower, or purchaser has failed to provide required insurance in accordance with the terms of the loan or credit document.

(g) Nothing contained in this paragraph shall apply to credit life or credit accident and health insurance.

XIX. Title Insurance Commissions, Rebates, and Discounts. Paying, allowing, or permitting commissions, rebates, or discounts to any person who has an interest in or lien upon real property, which is the subject of the title insurance involved, or to any person acting for or on behalf of a person with such an interest or lien.

XX. Political Contributions. Directly or indirectly, paying, using, or offering, or consenting or agreeing to pay or to use by any insurer any money or property for or in aid of any political party, committee, or organization, or for or in aid of any corporation, joint stock or other association organized or maintained for political purposes, or for or in aid of any candidate for political office or for nomination for such office, or for any political purpose whatever, or for the reimbursement of indemnification of any person for money or property so used.

XXI. Collecting Proper Premium. Knowingly collecting as premium or charge for insurance any sum in excess of or less than the premium or charge applicable to such insurance and as specified in the policy, in accordance with the applicable classifications and rates as filed with and approved by the commissioner, except a premium finance charge, consultant's fee, policy fee and/or service fee as allowed by law or regulation; or, in cases where classifications, premiums, or rates are not required by this title to be so filed and approved, such premiums and charges shall not be in excess of or less than those specified in the policy and as fixed by the insurer. This provision shall not be deemed to prohibit the charging and collecting, by surplus line producers of the amount of applicable state and federal taxes in addition to the premium required by the insurer. Nor shall it be deemed to prohibit the charge and collecting, by an insurer, of amounts actually to be expended for medical examination of an applicant for insurance or for reinstatement of an insurance policy. Nor shall it be deemed to prohibit the charge or collecting by an insurance producer of a reasonable service charge or fee as may be determined by regulation.

XXII. Separate Charge for Insurance. Arranging or participating in any plan to offer or effect in this state as an inducement to the purchase or rental by the public of any property or services, any insurance for which there is no separate charge to the insured. This paragraph shall not apply to:

(a) Insurance offered as a guarantee of the performance of goods, and designed to protect the purchasers or users of such goods.

XXIII. Coverage Reduction. Reduction by an insurance company authorized to do business in this state of liability limits or increasing premiums on any policy during its term, without the consent of the insured.

(a) Any of the following acts by an insurer, if committed without just cause and not merely inadvertently or accidentally, shall constitute unfair claim settlement practices:

(1) Knowingly misrepresenting to claimants or insureds pertinent facts or policy provisions relating to coverages at issue.

(2) Failing to acknowledge and act promptly upon communications with respect to claims arising under insurance policies.

(3) Failing to adopt and implement reasonable standards for the prompt investigation of claims arising under insurance policies.

(4) Not attempting in good faith to effectuate prompt, fair and equitable settlements or compromises of claims in which liability has become reasonably clear.

(5) Compelling claimants to institute litigation to recover amounts due under insurance policies by offering substantially less than the amounts ultimately recovered in actions brought by them.

(6) Adopting or 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.

(7) Attempting settlement or compromise of a claim on the basis of an application which was altered without notice to, or acknowledge or consent of the insured.

(8) Attempting to settle or compromise a claim for less than the amount which the insured had been led to believe the insured was entitled to by written or printed advertising material accompanying or made part of an application.

(9) Attempting to delay the investigation or payment of claims by requiring an insured and the insured's physician 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.

(10) Making any claim payment not accompanied by a statement setting forth the benefits included within the claim payment.

(11) Failing to affirm or deny coverage of claims within a reasonable time after proof of loss forms have been submitted.

(12) Refusing payment of a claim solely on the basis of an insured's request to do so without making an independent evaluation of the insured's liability based upon all available information.

(13) Failure of an insurer to maintain a complete record of all complaints which it has received, whether or not they were deemed valid, the time it took to process the complaint, and the disposition therefor, and file an annual report thereof with the insurance department.

XXV. Human Immunodeficiency Virus. No person engaged in the business of insurance in this state shall test for the presence of an antibody or antigen to a human immunodeficiency virus other than in accordance with the provisions of this paragraph. Such persons shall not be subject to any provisions of RSA 141-F.

(a) No person may test any individual in connection with an application for insurance for the presence of an antibody or antigen to a human immunodeficiency virus unless such individual gives written consent on a form designed by the commissioner of the department of health and human services, with consultation and approval by the commissioner of insurance. The form shall contain information about the medical interpretations of positive and negative test findings, disclosure of test results, and the purpose for which the test results may be used.

(b) If the laboratory analysis is performed within this state, only laboratories certified by the department of health and human services, shall be used to test for the presence of an antibody or antigen to a human immunodeficiency virus. If the laboratory analysis is conducted without this state, only laboratories licensed by the United States Department of Health and Human Services under the Clinical Laboratory Improvement Act of 1988, as amended, shall be used to perform such tests.

(c) In the event of a positive test result on blood, urine, or oral specimen, or a positive test result on an FDA approved test, a person who tests for the presence of an antibody or antigen to a human immunodeficiency virus shall disclose the test results, but only to:

(2) Such other person or entity as the individual tested may authorize by written consent to receive the test results, which consent shall be clearly identifiable as part of the form described in subparagraph (a) of this paragraph.

(d) Notwithstanding the provisions of subparagraph (c), if the test results are positive or indeterminate and the individual tested has not given written consent authorizing a physician to receive the test results, such individual shall be urged, at the time the individual is informed of the positive or indeterminate test results, to contact the commissioner of the department of health and human services for appropriate counseling.

(e) A person who requires the test for the presence of an antibody or antigen to a human immunodeficiency virus shall maintain all test results and records pertaining to test results as confidential and protected against inadvertent or unwarranted intrusion. Such test results obtained by subpoena or any other method of discovery shall not be released or made public outside the proceedings.

(f) The commissioner of insurance shall adopt rules, under RSA 541-A, relative to:

(1) Recordkeeping designed to maintain the confidentiality of an individual tested under this paragraph.

(a) No insurance company, and no producer or adjuster for such insurance company, that issues or renews in this state any policy of insurance covering, in whole or in part, motor vehicles shall require any insured person or entity under that policy to use a particular company or location for the providing of automobile glass replacement or automobile repair services or products insured in whole or in part by that policy.

(b) No such insurance company, producer, or adjuster shall engage in any act or practice of intimidation, coercion, threat, for or against any such insured person or entity to use such a particular company or location to provide such services or products.

(c) Nothing shall prohibit any insurance company, producer or adjuster from providing to such insured person or entity the name of an automobile glass company or automobile repair company with which arrangements may have been made with respect to automobile glass or repair prices or services. If a name is provided, there shall be disclosure by the insurance company, producer or adjuster to the insured person or entity that any other automobile glass company or automobile repair company or location may be used at the discretion of the insured person or entity. However, the insurer may limit payment for such work based on the fair and reasonable price in the area by repair shops or facilities providing similar services with the usual and customary guarantees as to materials and workmanship. If an independent repair shop or facility and an insurer are unable to agree on a price, then for the purposes of this section, "fair and reasonable price" shall mean the price available from a recognized, competent and conveniently located, independent repair shop or facility which is willing and able to repair the damaged automobile within a reasonable time.

417:5 Power of Commissioner. The commissioner shall have power to examine and investigate into the affairs of every person engaged in the business of insurance in this state in order to determine whether such person has been or is engaged in any unfair method of competition or any unfair or deceptive act or practice. Further, the commissioner shall have the power to examine and investigate the affairs of every person, depository institution, or affiliate of a depository institution related to the insurance sales activities of the person, depository institution, or affiliate of a depository institution in this state in order to determine whether such person, depository institution, or affiliate of a depository institution has been engaged in any unfair trade practice prohibited by this chapter.

IV. An insurer or insurance producer may pay or assign commissions, service fees, brokerages, or other valuable consideration to an insurance agency or to persons who do not sell, solicit, or negotiate insurance in this state, unless the payment would violate RSA 417:4, [IX] VIII.

406-C:13 Application of State and Federal Consumer Protection Provisions. Any financial institution which solicits or sells insurance products pursuant to RSA 384:16-b, III and this chapter shall be subject to all applicable federal and state consumer protection laws, including the federal anti-tying provisions of 12 U.S.C. section 1972 and the provisions of RSA 417.