Issues. Surplus lines insurance issues arise in litigation in connection with:
- Whether the particular surplus lines insurance carrier is authorized in the first instance to write insurance policies in the state in question;
- Whether their policy forms and rates adhere to the law and custom and practice;
- Whether their agents and brokers are duly licensed;
- Whether appropriate affidavits and taxes have been submitted to the regulators;
- Whether the insured received notice that there is no guaranty fund protection for surplus lines policies;
- Whether the insured received notice that there is generally no department oversight over forms and rates;
- Whether the policy actually issued by the surplus lines insurer met other state requirements (i.e., some states require that where the surplus lines binder references exclusions, it is assumed during the pendency of the binder, that standard exclusions are intended; other states have no such requirements); and
- Whether the agents and brokers exercised due care in placing the insured with a particular surplus lines carrier in the first instance.
Specific Expertise as to Insurance Agencies and Agents, Brokers and Surplus Lines Agents.
Duties of Care. I have extensive background (and have testified extensively) as to the duty of care of agents, agencies, and brokers (sometimes collectively: “producers of insurance”) and surplus lines agents as follows:
A. Expertise as to Insurance Agents and Brokers and Surplus Lines Agents as a Regulator: Prosecution. I have had extensive and substantive experience relating directly to the duty of care that comes to bear on insurance agents and agencies and brokers and surplus lines agents in their various relationships with personal and commercial lines property casualty insurers and life, health, disability and annuity insurance companies (collectively, “insurance companies”). As an Assistant Attorney General, I have prosecuted insurance agents and brokers and surplus lines agents for violations relating to their duty of care. In this regard, I have initiated revocation actions against the producer’s license and prosecuted those actions to completion.
B. Expertise as to Insurance Agents and Brokers and Surplus Lines Agents as a Regulator: Pre- Licensure Background Investigations. As an insurance regulator (Commissioner of Insurance and First Deputy Commissioner of Insurance), along with my staff, I have screened hundreds of thousands of agents, brokers for character and background (separate and apart from subject matter testing).
C. Expertise as to Insurance Agents and Brokers and Surplus Lines Agents as a Regulator: Formulating Licensing Exams. As to subject matter, I have formulated producer-licensing exams in the first instance. Upon passage of the exam, I have licensed hundreds of thousands of insurance producers.
D. Expertise as to Insurance Agents and Brokers as a Regulator and Surplus Lines Agents: Appointments. In addition to licensure, all insurance agents (and other producers of insurance) require a formal appointment by an insurance company before they can represent that company. The appointment must be filed with and approved by the Commissioner of Insurance as a condition precedent to representing that insurer in the state. As Commissioner of Insurance, I oversaw this appointment process and approved hundreds of thousands of such appointments by insurance companies of their agents and brokers.
E. Supervision of the Relationship Between Insurers and Producers. I have supervised as well the ongoing relationship of all insurance companies with all of their appointed producers of insurance including surplus lines agents.
F. Expertise as to Insurance Agents and Brokers and Surplus Lines Agents as a Regulator: Continuing Education.I have had full responsibility for continuing education for licensed insurance agents (approving CE courses in the first instance for acceptable content; overseeing the administration of such courses and granting and denying credit for such courses).
G. Expertise as to Insurance Agents and Brokers and Surplus Lines Agents as a Regulator: Administrative Law Judge. I have sat as the Administrative Law Judge in such actions as to agents and brokers and entered findings of facts and conclusions of law in scores of cases in which the producers were prosecuted for violations relating to standards of care in connection with insurance matters.
H. Expertise as to Insurance Agents and Brokers and Surplus Lines Agents: Legal Representation. As a lawyer, I have defended agents, brokers and MGAs against allegations (in administrative law forums) of violations of their duty of care.
I. Expertise as to Insurance Agents: Industry CEO. As President and Chief Executive Officer of a major U.S. Property Casualty insurance organization (NCCI) doing business in some 40 states, I have had substantial working relationships with the U.S. insurance agent and agency community including surplus lines agents. Almost all insurance is sold or produced by producers of insurance.