H. B. 4260
(By Delegates Perry, Ashley)
[By Request of the Insurance Commissioner]
[Introduced February 1, 2010; referred to the
Committee on Banking and Insurance then the Judiciary.]
A BILL to repeal §33-12B-2 and §33-12B-13 of the Code of West
Virginia, 1931, as amended; to amend and reenact §33-12B-1,
§33-12B-3, §33-12B-5, §33-12B-9 and §33-12B-10 of said code;
to amend said code by adding thereto a new section, designated
§33-12B-10a; and to amend and reenact §33-12B-11 of said code,
all relating to insurance adjusters; defining "home state";
permitting an adjuster to designate a home state; establishing
a new crop adjuster license and its qualifications; revising
the requirements for nonresident adjusters; granting the
Commissioner of Insurance the authority to examine the
business practices of persons holding or applying for adjuster
licenses; revising the licensing renewal requirements;
requiring notification by adjusters of legal actions taken
against them; clarifying the process to be used concerning
adverse administrative actions; and increasing maximum administrative penalty for violations.
Be it enacted by the Legislature of West Virginia:
That §33-12B-2 and §33-12B-13 of the Code of West Virginia,
1931, as amended, be repealed; that §33-12B-1, §33-12B-3,
§33-12B-5, §33-12B-9 and §
33-12B-10 of said code be amended and
reenacted; that said code be amended by adding thereto a new
section, designated §33-12B-10a; and that §
33-12B-11 of said code
be amended and reenacted, all to read as follows:
ARTICLE 12B. ADJUSTERS.
(a) An "adjuster" is any individual who, for compensation, fee
or commission, investigates and settles claims arising under
property, casualty or surety insurance contracts, on behalf solely
of either the insurer or insured. A licensed attorney who is
qualified to practice law in this state is deemed not to be an
adjuster for the purposes of this article.
(b) "Company adjuster" means an adjuster representing the
interests of the insurer, including an independent contractor and
a salaried employee of the insurer.
(c) "Home state" means the District of Columbia or any state
or territory of the United States in which an adjuster maintains
his or her principal place of residence or business and in which he
or she is licensed to act as a resident adjuster. If a person's
principal place of residence or business does not license adjusters for the type of adjuster license sought in this state, he or she
shall designate as his or her home state any state in which he or
she has such a license.
(d) "Public adjuster" means an independent contractor
representing solely the financial interests of the insured named in
§33-12B-3. Company, public and crop adjusters; concurrency; direct
The commissioner shall license an individual as
An or crop adjuster
individual may be licensed concurrently under
the same license or
as a company adjuster and as a public adjuster
but shall not act as
a company an
and a public adjuster
representing the interests of the insured and the insurer
respect to the same claim.
§33-12B-5. Qualifications for adjuster's license; examinations;
(a) For the protection of the people of West Virginia, the
commissioner shall not issue, renew or permit to exist any
adjuster's license, except to an individual who:
(1) Is eighteen years of age or more.
(2) Is a resident of West Virginia, except for nonresident
adjusters as provided in section nine of this article.
(3) Satisfies the commissioner that he or she
is trustworthy and competent.
(b) For purposes of subdivision (3) of subsection (a) herein,
the (b)(1) The
commissioner may, at his or her
discretion, test the
competency of an applicant for a license under this section by
examination. However, in order to qualify for a crop adjuster
license, an applicant must pass a written examination that tests the
knowledge of the individual concerning the insurance laws of this
state and the duties and responsibilities of a multi-peril crop
adjuster. In lieu of such an examination, the commissioner may
accept certification that the individual has passed a proficiency
examination approved by the federal Risk Management Agency.
If such an
examination is required
by the commissioner
each examinee shall pay a $25 examination fee for each examination
to the commissioner, which fees shall be used for the purposes set
forth in section thirteen, article three of this chapter. The
commissioner may, at his or her
discretion, designate an independent
testing service to prepare and administer such examination subject
to direction and approval by the commissioner, and examination fees
charged by such service shall be paid by the applicant.
Any applicant who is engaged in the practice of
professional insurance adjusting prior to the first day of July, one
thousand nine hundred eighty-nine, shall be exempt from the
examination requirement of subsection (b) of this section (d)
requirements of this section
not apply to licenses issued to emergency adjusters.
as defined in section eleven-a of this
§33-12B-9. Licensing of nonresident adjusters.
An individual otherwise complying with the provisions of this
chapter, who is a resident of another state and who is a licensed
adjuster of such A nonresident applicant for an adjuster license
who holds a similar license in his or her home
state may be licensed
as a nonresident adjuster in this state if the applicant's home
of resident of such nonresident
has established, by law or
regulation like requirements for the licensing of a resident of this
state as a nonresident adjuster.
(b) As a condition of continuing a nonresident adjuster
license, the licensee must maintain a license in his or her home
(c) If a nonresident adjuster desires to become a resident
adjuster he or she must apply to become one within ninety days of
establishing legal residency in this state.
(d) If a nonresident adjuster has his or her license suspended,
terminated or revoked by his or her home state, the adjuster must
immediately notify the commissioner of that action.
§33-12B-10. Expiration of license; renewal.
All licenses of adjusters shall expire at midnight on
May 31 next following the date of issuance
The and the
shall renew annually the license of all such licensees who qualify and make application therefor. However, the commissioner may, in
his or her discretion, establish the dates of expiration of licenses
in any manner deemed advisable for an efficient distribution of the
workload of his or her office
(b) An adjuster whose license expires may, if application is
made within one year of the expiration date, be reissued a license
upon payment of twice the renewal fee.
(c) The commissioner may waive any renewal requirement for any
adjuster who is unable to comply due to military service, long-term
medical disability or other extenuating circumstance.
(d) As a condition of the renewal of a crop adjuster license,
the commissioner may require that the licensee demonstrate that he
or she has maintained certification of proficiency issued or
approved by the federal Risk Management Agency.
§33-12B-10a. Reporting of actions.
(a) An adjuster shall report to the commissioner any
administrative action taken against the adjuster in another
jurisdiction or by another governmental agency in this state within
thirty days of the final disposition of the matter, including
decertification or other action related to the adjuster's
proficiency to adjust multi-peril crop insurance claims. The report
shall include a copy of the order, consent to order and any other
relevant legal documents.
(b) Within thirty days of the initial pretrial hearing date, an adjuster shall report to the commissioner any criminal
prosecution of the adjuster in any jurisdiction. The report shall
include a copy of the initial complaint filed, the order resulting
from the hearing and any other relevant legal documents.
§33-12B-11. Denial, revocation, suspension, probation or refusal
to renew license; penalties.
(a) The commissioner may examine and investigate the business
affairs and conduct of persons applying for or holding an adjuster
license to determine whether such person is trustworthy and
competent or has been or is engaged in any violation of the
insurance laws or rules of this state or in any unfair or deceptive
acts or practices in any state.
(b) If the commissioner denies an application for a license,
he or she shall notify the applicant or licensee in writing of the
reason for such action. The applicant or licensee may, within ten
days of receipt of such notice, make written demand for a hearing
before the commissioner to determine the reasonableness of the
action, and such hearing shall be held in accordance with the
provisions of section thirteen, article two of this chapter.
Whenever, after notice and hearing, the commissioner is
satisfied that any adjuster has violated any provision of this
chapter or of rules promulgated hereunder
, or is incompetent or
untrustworthy, he or she
shall place the adjuster on probation or
revoke, suspend, or, if renewal of license is pending, refuse to renew the license of such adjuster. In addition to placing a
licensee on probation or
revoking, suspending or refusing to renew
such his or her
license, the commissioner may in his or her
discretion order such licensee to pay to the state of West Virginia
an administrative penalty in a sum not to exceed
dollars $5,000 for each violation. Upon the failure of the licensee
to pay such penalty within thirty days, his or her license shall be
revoked or suspended by the commissioner.
(d) Orders issued pursuant to subsection (b) or (c) of this
section are subject to the judicial review provisions of section
fourteen, article two of this chapter.
NOTE: The purpose of this bill is to revise the provisions
affecting insurance adjusters. The bill defines "home state" and
permits an adjuster to designate a home state. The bill establishes
a new crop adjuster license and sets forth its qualifications. The
bill revises the requirements for nonresident adjusters. The bill
also grants the Commissioner of Insurance with the authority to
examine the business practices of persons who hold or apply for
adjuster licenses. Further, the bill revises the licensing renewal
requirements. The bill requires notification by adjusters of legal
actions taken against them. The bill clarifies the process to be
used concerning adverse administrative actions and increases the
maximum administrative penalty for violations.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would