COMMITTEE SUBSTITUTE
FOR
H. B. 4004
(By Mr. Speaker, Mr. Kiss, and Delegate Trump)
[By Request of the Executive ]Delegates Name

(Originating in the Committee on the JudiciaryCommittee)
[Month and DayJanuary 20, 2004]

A BILL to repeal §33-2-18 of the code of West Virginia, 1931, as amended; to amend and reenact §33-2-17 of said code; to amend said code by adding thereto a new article, designated §33-2A- 1, §33-2A-2, §33-2A-3, §33-2A-4, §33-2A-5, §33-2A-6 and §33- 2A-7; to amend said code by adding thereto a new section, designated §33-6-31g; to amend and reenact §33-6A-4 of said code; to amend said code by adding thereto a new section, designated §33-22-2a; to amend said code by adding thereto a new section, designated §33-23-2a; to amend said code by adding thereto a new section, designated §33-24-4b; to amend said code by adding thereto a new section, designated §33-25- 6a; to amend said code by adding thereto a new section, designated §33-25A-24b; to amend and reenact §33-41-1, §33-41- 2 and §33-41-3; to amend said code by adding thereto eleven new sections, designated §33-41-4, §33-41-5, §33-41-6, §33-41- 7, §33-41-8, §33-41-9, §33-41-10, §33-41-11, §33-41-12, §33- 41-13 and §33-41-14; and to amend and reenact §55-7-13 of said code , all relating to indemnification for losses generally; deleting language dealing with funding of the office of consumer advocacy; striking language limiting the authority of the office of consumer advocacy to health related matters; authorizing the office of consumer advocacy to coordinate the consumer service functions within the office of the insurance commissioner prohibiting the use of credit scoring to determine scoring of certain premiums; creating a legislative oversight commission on insurance; adding additional instances when an insurers may elect to nonrenew automobile insurance policies due to at-fault accidents; restricting the amount of time in which an insured may apply for renewal beyond the original expiration date of the policy; and allowing insurance companies to impose a processing fee upon insurers who renew a policy within thirty days beyond the original expiration date of the policy; creating an insurance fraud unit within the insurance commission; regulating insurance fraud; subjecting farmers' mutual insurance companies, fraternal benefit societies, certain hospital, medical, dental and health services corporations, health care corporations, and health maintenance organization; defining terms; establishing an insurance fraud unit within the division of insurance; authorizing the promulgation of rules and requiring the filing of annual reports; establishing powers and duties of the unit; outlining investigative powers and procedures; providing confidentiality and immunity of the unit operations; prohibiting insurance fraud; establishing criminal penalties and fines; authorizing prosecution for fraudulent acts; authorizing special prosecutors; specifying duties of insurers; authorizing funding by an assessment of insurers; establishing the West Virginia insurance fraud prevention act; defining legislative intent and terms; creating misdemeanor and felony offenses for the commission of fraudulent acts; creating penalties, exceptions and immunities; and modifying joint and several liability by specifying that there is only joint liability if the liability of a defendant exceeds ten percent. Title Language

Be it enacted by the Legislature of West Virginia:
That Enacting Section §33-2-18 of the c ode of West Virginia, 1931, as amended, be repealed; that section §33-2-17 of said code be amended and reenacted; that said code be amended by adding thereto a new article, designated §33-2A-1, §33-2A-2, §33-2A-3, §33-2A-4, §33-2A- 5, §33-2A-6, and §33-2A-7; to amend said code by adding thereto a new section, designated §33-6-31g; that §33-6A-4 , of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §33-22-2a; that said code be amended by adding thereto a new section, designated §33-23-2a; that said code be amended by adding thereto a new section, designated §33-24-4b; that said code be amended by adding thereto a new section, designated §33-25-6a; that said code be amended by adding thereto a new section, designated §33-25A-24b; that §33-41-1, §33-41-2 and §33-41-3 of said code be amended and reenacted; that said code be amended by adding thereto eleven new sections, designated §33-41-4, §33-41-5, §33-41-6, §33-41-7, §33-41-8, §33-41-9, §33-41-10, §33- 41-11, §33-41-12, §33-41-13 and §33-41-14; and that §55-7-13 of said code be amended and reenacted, all to read as follows:
CHAPTER 33. INSURANCE.
ARTICLE 2. INSURANCE COMMISSIONER.

§33-2-17. Authority of office of consumer advocacy; retroactive effect of authority prohibited.

(a) In addition to the authority established under the rules promulgated by the director, the office of consumer advocacy is authorized to:
(1) Institute, intervene in, or otherwise participate in, as an advocate for the public interest and the interests of insurance consumers, proceedings in state and federal courts, before administrative agencies, or before the health care cost review authority, concerning applications or proceedings before the health care cost review authority or the review of any act, failure to act, or order of the health care cost review authority;
(2) At the request of one or more policyholders, or whenever the public interest is served, to advocate the interests of those policyholders in proceedings arising out of any filing made with the insurance commissioner by any insurance company or relating to any complaint alleging an unfair or deceptive act or practice in the business of insurance;
(3) Institute, intervene in, or otherwise participate in, as an advocate for the public interest and the interests of insurance consumers, proceedings in state and federal courts, before administrative agencies, or before the insurance commissioner, concerning applications or proceedings before the commissioner or the review of any act, failure to act, or order of the insurance commissioner;
(4) Review and compile information, data and studies of the reasonable and customary rate schedules of health care providers and health insurers, for the purposes of reviewing, establishing, investigating, or supporting any policy regarding health care insurance rates;
(5) Exercise all the same rights and powers regarding examination and cross-examination of witnesses, presentation of evidence, rights of appeal and other matters as any party in interest appearing before the insurance commissioner or the health care cost review authority;
(6) Hire consultants, experts, lawyers, actuaries, economists, statisticians, accountants, clerks, stenographers, support staff, assistants, and other personnel necessary to carry out the provisions of this section and sections section sixteen and eighteen of this article, which personnel shall be paid from special revenue funds appropriated for the use of the office;
(7) Contract for the services of technically qualified persons in the area of insurance matters to assist in the preparation and presentation of matters before the courts, the insurance commissioner, administrative agencies, or the health care cost review authority, which persons shall be paid from special revenue funds appropriated for the use of the office;
(8) Make recommendations to the Legislature concerning legislation to assist the office in the performance of its duties;
(9) Communicate and exchange data and information with other federal or state agencies, divisions, departments, or officers, and with other interested parties including, but not limited to, health care providers, insurance companies, consumers or other interested parties; and
(10) Perform other duties to effect the purposes of the office.
(b) The provisions of this section do not apply to any filing made by an insurance company, or act or order performed or issued by the commissioner, or complaint filed by a policyholder with the commissioner prior to the thirtieth day of June, one thousand nine hundred ninety-one. All proceedings and orders in connection with these prior matters shall be governed by the law in effect at the time of the filing, or performance or issuance of the act or order.
(c) The scope of authority granted under this section and section sixteen of this article is restricted to matters related to health care costs and health insurance policies, subscriber contracts issued by organizations under article twenty-four of this chapter, health care corporations under article twenty-five of this chapter, health maintenance organizations under article twenty-five-a of this chapter, contracts supplemental to health insurance policies, and other matters related to health insurance issues identified by rules of the commissioner promulgated under section one of this article and chapter twenty-nine-a of this code.
ARTICLE 2A. LEGISLATIVE OVERSIGHT COMMISSION ON INSURANCE.
§33-2A-1. Findings and purpose.
The Legislature hereby finds and declares that:
(1) A crisis exists in regards to the availability and affordability of insurance in this state;
(2) Insurance exists to provide protection and financial stability of the citizens of this state;
(3) The health and well-being of the citizens is jeopardized when insurance becomes unavailable or unaffordable;
(4) That many factors have contributed to the current crisis in availability and affordability of insurance in the market of this state;
(4) The insurance commission is responsible for the regulation of the insurance industry in a manner that is most beneficial to the citizens of the state and protects those citizens from unfair pricing by the insurance industry; and
(5) The problem is exacerbated when various entities make competing or conflicting policy decisions regarding the regulation of insurance.
§33-2A-2. Legislative intent.
It is the intent of the Legislature that all actions taken pursuant to the provisions of this article by the Legislature and the various programs within the insurance commission serve the following core set of principles:
(1) That all insurance provided to the citizens of the state be coordinated to maximize efficiencies, provide various protections, and to insure that coverage is available and affordable;
(2) That communication be facilitated between the insurance commission and the Legislature;
(3) That policy changes, not made by legislative rule, be discussed with the commission for purposes of coordinating those policies with existing programs and stated goals;
(4) That programs or policies implemented in accordance with federal mandates be communicated to the commission;
(5) That in developing new responsibilities for the commission that all interested parties are heard; and
(6) That the insurance commission advise the commission when decisions may affect the health and well-being of the citizens of West Virginia.
§33-2A-3. Definitions.
As used in this article:
(a) "Commission" means the legislative oversight commission on insurance.
§33-2A-4. Creation of a legislative oversight commission on insurance.
(a) There is hereby created a joint commission of the Legislature known as the legislative oversight commission on insurance. The commission shall be composed of six members of the Senate appointed by the president of the Senate and six members of the House of Delegates appointed by the speaker of the House of Delegates. No more than five of the six members appointed by the president of the Senate and the speaker of the House of Delegates, respectively, may be members of the same political party. In addition, the president of the Senate and speaker of the House of Delegates shall be ex officio nonvoting members of the commission and shall designate the co-chairpersons. The members shall serve until their successors have been appointed as heretofore provided. At least one of the Senate appointees and one of the House of Delegates appointees shall be:
(1) The chairperson of the committee on insurance of the Senate and House of Delegates respectively;
(2) A member of the committee on finance of the Senate and House of Delegates, respectively; and,
(3) A member of the committee on the judiciary of the Senate and House of Delegates, respectively .
(b) Members of the commission shall receive such compensation and expenses as provided in article two-a, chapter four of this code. Such expenses and all other expenses including those incurred in the employment of legal, technical, investigative, clerical, stenographic, advisory and other personnel shall be paid from an appropriation to be made expressly for the legislative oversight commission on insurance: Provided, That if no such appropriation be made, such expenses shall be paid from the appropriation under "Fund No. 0175 for Joint Expenses" created pursuant to the provisions of said chapter: Provided, however, That no expense of any kind payable under the account for joint expenses shall be incurred unless first approved by the joint committee on government and finance.
(c) The commission may meet at any time both during sessions of the Legislature and in the interim or as often as may be necessary.
§33-2A-5. Powers and duties of commission.
(a) The powers, duties and responsibilities of the commission shall include the following:
(1) Make a continuing investigation, study and review of the practices, policies and procedures of the insurance commission in this state;
(2) Make a continuing investigation, study and review of all matters related to the regulated insurance industry in the state;
(3) Review program development by the insurance commission and how those programs impact the availability and affordability of insurance to the citizens of West Virginia;
(4) Conduct studies on:
(A) The current insurance environment in the state to determine if all necessary actions are being taken by the insurance commission to insure availability and affordability of insurance to the citizens of the state;
(B) The extent to which persons in this state are negatively or positively affected by actions taken by the insurance commission;
(D) The operation of the programs and funds created by article two of this chapter; and
(5) Review and study the laws of the state to determine if the laws are having a negative effect on availability and affordability of insurance or are not providing adequate protection to the citizens of the state;
(6) Review and study the feasibility and financial impact upon the state of assuring increased access to insurance for the uninsured;
(7) Review and study the feasibility and financial impact upon the state of the establishment of different types of insurance that can provide coverage to those who are currently uninsured; and
(8) Review and study the data collection to insure that all data needed to make proper policy decisions is available.
(b) The commission shall make annual reports to the Legislature regarding the results of all investigations, studies and reviews pursuant to the provisions of section seven of this article.
§33-2A-6. Examination and subpoena powers; contempt proceedings.
(a) For purposes of carrying out its duties, the commission is hereby empowered and authorized to examine witnesses and to subpoena such persons and books, records, documents, papers or any other tangible things as it believes should be examined to make a complete investigation.
(b) All witnesses appearing before the commission under subpoena shall testify under oath or affirmation. Any member of the commission may administer oaths or affirmations to such witnesses.
(c) To compel the attendance of witnesses at hearings or the production of any books, records, documents, papers or any other tangible thing, the commission is hereby empowered and authorized to issue subpoenas, signed by one of the cochairpersons, in accordance with section five, article one, chapter four of this code. Subpoenas shall be served by any person authorized by law to serve and execute legal process and service shall be made without charge. Witnesses subpoenaed to attend hearings shall be allowed the same mileage and per diem as is allowed witnesses before any petit jury in this state.
(d) If any person subpoenaed to appear at any hearing shall refuse to appear or to answer inquiries there propounded, or shall fail or refuse to produce books, records, documents, papers or any other tangible thing within his control when the same are demanded, the commission shall report the facts to the circuit court of Kanawha County or any other court of competent jurisdiction and such court may compel obedience to the subpoena as though such subpoena had been issued by such court in the first instance.
§33-2A-7. Legislative reports.
(a) The commission shall submit annual reports to the Legislature, as required by the provisions of section five of this article, which such reports shall describe and evaluate in a concise manner:
(1) The major activities of the insurance commission for the fiscal year immediately past, including important policy decisions reached on initiatives undertaken during that year, especially as such activities, decisions and initiatives relate to the need for legislative action; and
(2) the work of the commission in its oversight responsibilities with recommendations for legislative action.
ARTICLE 6. THE INSURANCE POLICY.
§33-6-31g. Prohibition of use of credit scoring.
Notwithstanding any other provisions of this code to the contrary, credit scoring, rating or history may not be used as grounds for determining the amount of premium charged for a motor vehicle policy.
ARTICLE 6A.

CANCELLATION OR NONRENEWAL OF AUTOMOBILE LIABILITY POLICIES.

§33-6A-4. Advance notice of nonrenewal required; assigned risk policies; reasons for nonrenewal; hearing and review after nonrenewal.

(a) No insurer shall fail to renew an outstanding automobile liability or physical damage insurance policy unless such nonrenewal is preceded by at least forty-five days of advance notice to the named insured of such the insurer's election not to renew such the policy: Provided, That subject to this section, nothing contained in this article shall be construed so as to prevent an insurer from refusing to issue an automobile liability or physical damage insurance policy upon application to such the insurer, nor shall any provision of this article be construed to prevent an insurer from refusing to renew such a policy upon expiration, except as to the notice requirements of this section, and except further as to those applicants lawfully submitted pursuant to the West Virginia assigned risk plan: Provided, however,.
(b) That an An insurer may not fail to renew an outstanding automobile liability or physical damage insurance policy which has been in existence for two consecutive years or longer except for the following reasons:
(a) (1) The named insured fails to make payments of premium for such policy or any installment of the premium when due;
(b)(2) The policy is obtained through material misrepresentation;
(c) (3)The insured violates any of the material terms and conditions of the policy;
(d) (4) The named insured or any other operator, either residing in the same household or who customarily operates an automobile insured under such policy:
(1) (A)Has had his or her operator's license suspended or revoked during the policy period; or
(2) (B)Is or becomes subject to epilepsy or heart attacks and such individual cannot produce a certificate from a physician testifying to his ability to operate a motor vehicle;
(e) (5) The named insured or any other operator, either residing in the same household or who customarily operates an automobile insured under such policy, is convicted of or forfeits bail during the policy period for any of the following reasons:
(1) (A) Any felony or assault involving the use of a motor vehicle;
(2) (B) Negligent homicide arising out of the operation of a motor vehicle;
(3) (C) Operating a motor vehicle while under the influence of intoxicating liquor or of any narcotic drug;
(4) (D) Leaving the scene of a motor vehicle accident in which the insured is involved without reporting it as required by law;
(5) (E) Theft of a motor vehicle or the unlawful taking of a motor vehicle;
(6) (F) Making false statements in an application for a motor vehicle operator's license;
(7) (G) Two or more moving traffic violations committed within a period of twelve months, each of which results in three or more points being assessed on the driver's record by the division of motor vehicles, whether or not the insurer renewed the policy without knowledge of all such violations. Notice of any nonrenewal made pursuant to this subsection shall be mailed to the named insured either during the current policy period or during the first full policy period following the date that the second moving traffic violation is recorded by the division of motor vehicles.
(f) (6) The named insured or any other operator, has had a second at-fault motor vehicle accident within a period of twelve months At-fault motor vehicle accidents may be grounds for nonrenewal when the following conditions are present:
(A) The named insured has a third-at fault motor vehicle accident within a period of thirty-six months prior to the notice of nonrenewal and claims are paid by the insurer in excess of one thousand dollars per vehicle accident. If more than one person is a named insured, then for purposes of calculating the number of at- fault accidents, the accidents of each driver may not be attributable to the other; or,
(B) Any other operator, either residing in the same household or who customarily operates an automobile insured under the policy has a third-at fault motor vehicle accident within a period of thirty-six months prior to the notice of nonrenewal , and claims are paid by the insurer in excess of one thousand dollars per vehicle accident;
(C)Nonrenewal is permissible under this subdivision
whether or not the insurer renewed the policy without knowledge of all such the accidents;
(D) Notice of any nonrenewal made pursuant to this subsection subdivision shall be mailed to the named insured either during the current policy period or during the first full policy period following the date of the second third accident.
(7) The insurer which issues said policy of insurance ceases to write private passenger automobile insurance throughout the state and the following requirements have been fulfilled:
(A) The insurer has filed and received approval of a line of business or line of authority withdrawal plan with the insurance commissioner, and,
(B) The insurer has fewer than five hundred in-force policies when the withdrawal plan is filed.
(c) Nonrenewal of such a policy for any reason is subject to a hearing and review as provided for in section five of this article. Cost of the hearing shall be assessed against the losing party but shall not exceed seventy-five dollars.
(d) Notwithstanding the provisions of subsection (a) of this section, the insurer shall renew any automobile liability or physical damage insurance policy that has not been renewed due to the insured's failure to pay the renewal premium when due if: (1) None of the other grounds for nonrenewal as set forth in subsections (b) through (f), inclusive, of this section this section exist; and (2) the insured makes an application for renewal within ninety thirty days of the original expiration date of the policy. If a policy is renewed as provided for in this paragraph, then the coverage afforded shall not be is not retroactive to the original expiration date of the policy, but shall begin on the reinstatement date at the current premium levels offered by the company. The insurer may charge a fifteen dollar processing fee to insureds electing to renew within thirty days of the expiration date of the policy.
ARTICLE 22. FARMERS' MUTUAL FIRE INSURANCE COMPANIES.
§33-22-2a. Applicability of Insurance Fraud Prevention Act.
Notwithstanding any provision of this code to the contrary, article forty-one, chapter thirty-three is applicable to farmers' mutual fire insurance companies. ARTICLE 23. FRATERNAL BENEFIT SOCIETIES.
§33-23-2a. Applicability of Insurance Fraud Prevention Act.
Notwithstanding any provision of this code to the contrary, article forty-one, chapter thirty-three is applicable to fraternal benefit societies. ARTICLE 24. HOSPITAL SERVICE CORPORATIONS, MEDICAL SERVICE CORPORATIONS, DENTAL SERVICE CORPORATIONS AND HEALTH SERVICE CORPORATIONS.
§33-24-4b. Applicability of Insurance Fraud Prevention Act.
Notwithstanding any provision of this code to the contrary, article forty-one, chapter thirty-three is applicable to hospital service corporations, medical service corporations, dental service corporations and health service corporations.
ARTICLE 25. HEALTH CARE CORPORATIONS.
§33-25-6a. Applicability of Insurance Fraud Prevention Act.
Notwithstanding any provision of this code to the contrary, article forty-one, chapter thirty-three is applicable to health care corporations.
ARTICLE 25A. HEALTH MAINTENANCE ORGANIZATION ACT.
§33-25A-24b. Applicability of Insurance Fraud Prevention Act.
Notwithstanding any provision of this code to the contrary, article forty-one, chapter thirty-three is applicable to health maintenance organizations.
ARTICLE 41. INSURANCE FRAUD PREVENTION ACT.
§33-41-1. Legislative purpose and findings.
This article may be cited as the West Virginia Insurance Fraud Prevention Act. The West Virginia Legislature finds that the business of insurance involves many transactions that have potential for fraud, abuse and other illegal activities. This article is intended to permit full utilization of the expertise of the commissioner to investigate and discover fraudulent insurance acts more effectively, halt fraudulent insurance acts and assist and receive assistance from state, local and federal law enforcement and regulatory agencies in enforcing laws prohibiting fraudulent insurance acts.
§33-41-2. Definitions.

As used in this article:

(a) "Benefits" mean money payments, goods, services or any other thing of value.
(b) "Business of insurance" means the writing of insurance or the reinsuring of risks by an insurer, including acts necessary or incidental to writing insurance or reinsuring risks and the activities of persons who act as or are officers, directors, agents or employees of insurers, or who are other persons authorized to act on their behalf.
(c) "Claim" means an application or request for payment or benefits provided under an insurance policy.
(d) "Commissioner" means the commissioner of insurance, the commissioner's designees or the office of the insurance commissioner.
(e) "Financial loss" includes, but is not limited to, loss of earnings, out-of-pocket and other expenses, repair and replacement costs and claims payments made by any insurer, provider or person.
(f) "Fraudulent insurance act" means an act or omission committed by a person who, knowingly and with intent to injure, defraud, or deceive any person commits, or conceals any material information concerning, one or more of the following:
(1) Presenting, causing to be presented or preparing with knowledge or belief that it will be presented to or by an insurer, a reinsurer, broker or its agent, false information as part of, in support of or concerning a fact material to one or more of the following:
(A) An application for the issuance or renewal of an insurance policy or reinsurance contract;
(B) The rating of an insurance policy or reinsurance contract;
(C) A claim for payment or benefit pursuant to an insurance policy or reinsurance contract;
(D) Premiums paid on an insurance policy or reinsurance contract;
(E) Payments made in accordance with the terms of an insurance policy or reinsurance contract;
(F) A document filed with the commissioner or the chief insurance regulatory official of another jurisdiction;
(G) The financial condition of an insurer or reinsurer;
(H) The formation, acquisition, merger, reconsolidation, dissolution or withdrawal from one or more lines of insurance or reinsurance in all or part of this state by an insurer or reinsurer;
(I) The issuance of written evidence of insurance; or
(J) The reinstatement of an insurance policy;
(2) Solicitation or acceptance of new or renewal insurance risks on behalf of an insurer, reinsurer or other person engaged in the business of insurance by a person who knows or should know that the insurer or other person responsible for the risk is insolvent at the time of the transaction;
(3) Removal, concealment, alteration or destruction of the assets or records of an insurer, reinsurer or other person engaged in the business of insurance;
(4) Willful embezzlement, abstracting, purloining or conversion of moneys, funds, premiums, credits or other property of an insurer, reinsurer or person engaged in the business of insurance;
(5) Transaction of the business of insurance in violation of laws requiring a license, certificate of authority or other legal authority for the transaction of the business of insurance;
(6) Soliciting, offering or receiving any remuneration, including any kickback, rebate or bribe, directly or indirectly, with the intent of causing an expenditure of moneys from any person which would not otherwise be payable under an applicable insurance policy; or
(7) Attempting to commit, aiding or abetting in the commission of, or conspiracy to commit the acts or omissions specified in this subsection.
(g) "Health care provider" means any person, firm or corporation rendering health care services or goods.
(h) "Insurance" means a contract or arrangement in which one undertakes to:
(1) Pay or indemnify another as to loss from certain contingencies called "risks," including through reinsurance;
(2) Pay or grant a specified amount or determinable benefit to another in connection with ascertainable risk contingencies;
(3) Pay an annuity to another; or
(4) Act as surety.
(i) "Insurer" means a person entering into arrangements or contracts of insurance or reinsurance. Insurer includes, but is not limited to, any domestic or foreign stock company, mutual company, mutual protective association, farmers' mutual fire companies, fraternal benefit society, reciprocal or interinsurance exchange, nonprofit medical care corporation, nonprofit health care corporation, nonprofit hospital service association, nonprofit dental care corporation, health maintenance organization, captive insurance company, risk retention group or other insurer, regardless of the type of coverage written, benefits provided or guarantees made by each. A person is an insurer regardless of whether the person is acting in violation of laws requiring a certificate of authority or regardless of whether the person denies being an insurer.
(j) "Insurance representative" means any person, firm or corporation acting on an insurer's behalf, including, but not limited to, any agent, adjuster, officer, director, employee or investigator.
(k) "NAIC" means the national association of insurance commissioners.
(l) "Person" means an individual, a corporation, a limited liability company, a partnership, an association, a joint stock company, a trust, trustees, an unincorporated organization, or any similar business entity or any combination of the foregoing. "Person" also includes hospital service corporations, medical service corporations and dental service corporations as defined in article twenty-four of this chapter, health care corporations as defined in article twenty-five of this chapter, or a health maintenance organization organized pursuant to article twenty-five- a of this chapter.
(m) "Policy" means an individual or group policy, group certificate, contract or arrangement of insurance or reinsurance affecting the rights of a resident of this state or bearing a reasonable relation to this state, regardless of whether delivered or issued for delivery in this state.
(n) "Reinsurance" means a contract, binder of coverage (including placement slip) or arrangement under which an insurer procures insurance for itself in another insurer as to all or part of an insurance risk of the originating insurer.
(o) "Statement" means any written or oral representation made to any person, insurer or authorized agency. A statement includes, but is not limited to, any oral report or representation; any insurance application, policy, notice or statement; any proof of loss, bill of lading, receipt for payment, invoice, account, estimate of property damages, or other evidence of loss, injury or expense; any bill for services, diagnosis, prescription, hospital or doctor record, x-ray, test result or other evidence of treatment, services or expense; and any application, report, actuarial study, rate request or other document submitted or required to be submitted to any authorized agency. A statement also includes any of the above recorded by electronic or other media.
(p) "Unit" means the insurance fraud unit established pursuant to the provisions of this article acting collectively or by its duly authorized representatives.
§33-41-3. Fraudulent insurance acts, interference and participation of convicted felons prohibited.
(a) A person may not commit a fraudulent insurance act.
(b) A person may not knowingly or intentionally interfere with the enforcement of the provisions of this article or investigations of suspected or actual violations of this article.
(c)(1) A person convicted of a felony involving dishonesty or breach of trust may not participate in the business of insurance.
(2) A person in the business of insurance may not knowingly or intentionally permit a person convicted of a felony involving dishonesty or breach of trust to participate in the business of insurance.
§33-41-4. Fraud warning required.
(a) Claim forms and applications for insurance, regardless of the form of transmission, shall contain the following statement or a substantially similar statement:
"Any person who knowingly presents a false or fraudulent claim for payment of a loss or benefit or knowingly presents false information in an application for insurance is guilty of a crime and may be subject to fines and confinement in prison."
(b) The lack of a statement as required in subsection (a) of this section does not constitute a defense in any prosecution for a fraudulent insurance act.
(c) Policies issued by nonadmitted insurers pursuant to article twelve-c of this chapter shall contain a statement disclosing the status of the insurer to do business in the state where the policy is delivered or issued for delivery or the state where coverage is in force. The requirement of this subsection may be satisfied by a disclosure specifically required by section five, article twelve-c of this chapter; section nine, article thirty-two of this chapter; and section eighteen, article thirty-two for this chapter.
(d) The requirements of this section shall not apply to reinsurance claim forms or reinsurance applications.
§33-41-5. Investigative and prosecution authority of the commissioner.
(a) The commissioner may investigate suspected fraudulent insurance acts.
(b) If the commissioner finds as the result of an investigation that a violation has occurred, then the commissioner may petition the appropriate circuit court for the appointment of a special prosecutor in accordance with the provisions of chapter seven, article seven, section eight;
(c) The commissioner may negotiate with an attorney representing the state to prosecute violations of the article, to provide technical and litigation assistance to the county prosecutors, and to allocate resources for the purpose of insurance fraud prosecution as identified in this article .
(d) The commissioner may employ attorneys to assist in the prosecution of violations of this article, or to act as special prosecutor if the attorney is appointed to act in accordance with the provisions of chapter seven, article seven, section eight .
(e) Funds allocated for insurance fraud prevention may be dispersed by the commissioner, at his or her discretion, to prosecution authorities for the purpose of insurance fraud enforcement as identified in this article.
(f) It shall be the duty of the West Virginia state police, municipal police departments and the sheriffs of the counties in West Virginia to assist fraud investigators in making arrests and the duty of the prosecuting attorneys of the several counties to assist in the prosecution of all violations of this article.
(g) The commissioner is hereby authorized to apply for a temporary or permanent injunction in any appropriate circuit court of this state seeking to enjoin and restrain a person from violating or continuing to violate the provisions of this article or rule promulgated thereunder, notwithstanding the existence of other remedies at law. The circuit court shall have jurisdiction of the proceeding and have the power to make and enter an order or judgment awarding temporary or permanent injunctive relief as in its judgment is proper .
§33-41-6. Mandatory reporting of fraudulent insurance acts.
(a) A person engaged in the business of insurance having knowledge or a reasonable belief that a fraudulent insurance act is being, will be or has been committed shall provide to the commissioner the information required by, and in a manner prescribed by, the commissioner.
(b) Any other person having knowledge or a reasonable belief that a fraudulent insurance act is being, will be or has been committed may provide to the commissioner the information required by, and in a manner prescribed by, the commissioner.
§33-41-7. Immunity from liability.
(a) There shall be no civil liability imposed on and no cause of action shall arise from a person's furnishing information concerning suspected, anticipated or completed fraudulent insurance acts, if the information is provided to or received from:
(1) The commissioner or the commissioner's employees, agents or representatives;
(2) Federal, state, or local law enforcement or regulatory officials or their employees, agents or representatives;
(3) A person involved in the prevention and detection of fraudulent insurance acts or that person's agents, employees or representatives; or
(4) The national association of insurance commissioners or its employees, agents or representatives.
(b) Subsection (a) of this section shall not apply to statements made willfully, wantonly and recklessly. In an action brought against a person for filing a report or furnishing other information concerning a fraudulent insurance act, the party bringing the action shall plead specifically any allegation that subsection (a) of this section does not apply because the person filing the report or furnishing the information did so willfully, wantonly and recklessly .
(c) This section does not abrogate or modify common law or statutory privileges or immunities.
§33-41-8. Confidentiality.
(a) Documents, materials or other information in the possession or control of the office of the insurance commissioner that are provided pursuant to section six of this article or obtained by the commissioner in an investigation of suspected or actual fraudulent insurance acts shall be confidential by law and privileged, may not be subject to article one, chapter twenty-nine- b of the West Virginia code, one thousand nine hundred thirty-one, as amended, are not open to public inspection, may not be subject to subpoena, and may not be subject to discovery or admissible in evidence in any private civil action. However, the commissioner is authorized to use the documents, materials or other information in the furtherance of any regulatory or legal action brought as a part of the commissioner's official duties. The commissioner is authorized to use the documents, materials or other information if they are required for evidence in criminal proceedings or other action by the state.
(b) Neither the commissioner nor any person who receives documents, materials or other information while acting under the authority of the commissioner may be permitted or required to testify in any private civil action concerning any confidential documents, materials or information subject to subsection (a) of this section.
(c) In order to assist in the performance of the commissioner's duties, the commissioner:
(1) May share documents, materials or other information, including the confidential and privileged documents, materials or information subject to subsection (a) of this section with other state, federal and international regulatory agencies, with the national association of insurance commissioners and its affiliates and subsidiaries, and with local, state, federal and international law-enforcement authorities, provided that the recipient agrees to maintain the confidentiality and privileged status of the document, material or other information;
(2) May receive documents, materials or information, including otherwise confidential and privileged documents, materials or information, from the national association of insurance commissioners and its affiliates and subsidiaries, and from regulatory and law-enforcement officials of other foreign or domestic jurisdictions, and shall maintain as confidential or privileged any document, material or information received with notice or the understanding that it is confidential or privileged under the laws of the jurisdiction that is the source of the document, material or information;
(3) May enter into agreements governing sharing and use of information including the furtherance of any regulatory or legal action brought as part of the recipient's official duties; and
(d) No waiver of any applicable privilege or claim of confidentiality in the documents, materials or information shall occur as a result of disclosure to the commissioner under this section or as a result of sharing as authorized in subsection (c) of this section.
§33-41-9. Creation and purpose of the insurance fraud unit.
(a) The West Virginia insurance commissioner shall establish a fraud investigation unit within his or her office. The insurance commissioner shall appoint a person to serve as the director of the fraud unit. The commissioner shall provide office space, equipment, supplies, clerical and other staff necessary for the insurance fraud investigation unit to carry out its duties and responsibilities under this article. The investigative personnel shall be qualified by training and experience to perform the duties of their positions.
(b) The fraud unit may:
(1) Initiate independent inquiries and conduct independent investigations when the insurance fraud unit has cause to believe that a fraudulent insurance act may be, is being or has been committed;
(2) Review reports or complaints of alleged fraudulent insurance activities from federal, state and local law enforcement and regulatory agencies, persons engaged in the business of insurance, and the public to determine whether the reports require further investigation and to conduct these investigations; and
(3) Conduct independent examinations of alleged fraudulent insurance acts and undertake independent studies to determine the extent of fraudulent insurance acts.
(c) The insurance fraud investigation unit shall have the authority to:
(1) Employ and train personnel to achieve the purposes of this article and to employ legal counsel, investigators, auditors and clerical support personnel and other personnel as the commissioner determines necessary from time to time to accomplish the purposes herein;
(2) Inspect, copy or collect records and evidence;
(3) Serve subpoenas;
(4) Administer oaths and affirmations;
(5) Share records and evidence with federal, state or local law-enforcement or regulatory agencies;
(6) Make criminal referrals to the county prosecuting authorities; and
(7) Conduct investigations outside of this state. If the information the insurance fraud unit seeks to obtain is located outside this state, the person from whom the information is sought may make the information available to the insurance fraud unit to examine at the place where the information is located. The insurance fraud unit may designate representatives, including officials of the state in which the matter is located, to inspect the information on behalf of the insurance fraud unit, and the insurance fraud unit may respond to similar requests from officials of other states.
(d) On or before the first day of each regular session of the Legislature, the commissioner shall file with the governor, the clerk of the Senate and the clerk of the House of Delegates a report detailing the finalized actions taken by the insurance fraud unit in the preceding fiscal year.
§33-41-10. Other law enforcement or regulatory authority.
This article does not:
(a) Preempt the authority or relieve the duty of other law- enforcement or regulatory agencies to investigate, examine and prosecute suspected violations of law;
(b) Prevent or prohibit a person from disclosing voluntarily information concerning insurance fraud to a law-enforcement or regulatory agency other than the insurance fraud unit; or
(c) Limit the powers granted elsewhere by the laws of this state to the commissioner or the insurance fraud unit to investigate and examine possible violations of law and to take appropriate action against wrongdoers.
§33-41-11. Antifraud initiatives of insurers.
(a) Insurers shall have antifraud initiatives reasonably calculated to detect, prosecute and prevent fraudulent insurance acts. Antifraud initiatives may include:
(1) Fraud investigators, who may be insurer employees or independent contractors; or
(2) An antifraud plan submitted to the commissioner. Antifraud plans submitted to the commissioner shall be privileged and confidential and may not be a public record and may not be subject to discovery or subpoena in a civil or criminal action.
(b) Insurers shall establish antifraud initiatives as required by this section no later than the first day of July, two thousand five .
§33-41-12. Rules.
The insurance commissioner may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code that are necessary to effectuate this article.
§33-41-13. Administrative penalties.
(a)

A person who is required to include fraud warnings as

required by section four of this article, and who commits an act in violation of section four of this article may, after notice and hearing pursuant to section thirteen, article two of this chapter, be fined by the commissioner a sum not to exceed one thousand dollars per violation.
(b) A person who commits an act in violation of section three of this article may, after notice and hearing pursuant to section thirteen, article two of this chapter , be subject to the following administrative penalties:
(1) Suspension or revocation of any license or certificate of authority issued by the insurance commissioner; and,
(2) A fine of up to ten thousand dollars per violation;
(3) An order to pay restitution to the person or entity injured or damaged in an amount to be determined by the commissioner.
(c) Any money or other property that is awarded to the insurance commission or the insurance fraud unit as the result of an investigation, or administrative penalties which are imposed by the Commission, shall be credited to the special revenue fund established in section thirteen, article three of this chapter.
§33-41-14. Criminal Penalties.
(a) A person who commits an act in violation of section three of this article may be subject to the following criminal penalties:
(1) If the act results in a payment, benefit or financial loss to any person with a value of one thousand dollars or more, the person is guilty of a felony and, upon conviction thereof, shall be fined not more than ten thousand dollars, or imprisoned in a state correctional facility for not less than one nor more than ten years, or both fined and imprisoned.
(2) If the act results in a payment, benefit or financial loss to any person with a value of less than one thousand dollars, the person is guilty of a misdemeanor and, upon conviction thereof, shall be fined not to exceed two thousand five hundred dollars , or confined in a county or regional jail for a term not to exceed one year, or both fined and confined.
(b) In addition to any fine or imprisonment, any person convicted of a misdemeanor or felony pursuant to the provisions of this article may be required to make full restitution to the person injured or damaged in a manner to be determined by the court. The court may, in addition to any other penalty, award the insurance fraud unit the costs of the investigation .
(c) A person who is convicted of a felony pursuant to the provisions of this article shall be disqualified from engaging in the business of insurance.
CHAPTER 55. ACTIONS, SUITS AND ARBITRATION; JUDICIAL SALE.
ARTICLE 7. ACTIONS FOR INJURIES.
§55-7-13. Contribution by joint tort-feasors.
Where a judgment is rendered in an action ex delicto against several persons jointly, and satisfaction of such judgment is made by any one or more of such persons, the others shall be liable to contribution to the same extent as if the judgment were upon an action ex contractu. Except that in every such action, the court shall make findings as to the total dollar amount awarded as damages to each plaintiff. The court shall enter judgment of joint and several liability against every defendant who bears ten percent or more of the negligence attributable to all defendants. The court shall enter judgment of several, but not joint, liability against and among all defendants who bear less than ten percent of the negligence attributable to all defendants.