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Introduced Version Senate Bill 507 History

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sb507 intr
Senate Bill No. 507

(By Senators Minard and McCabe)

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[Introduced March 10, 2005; referred to the Committee

on Banking and Insurance; and then to the Committee on the Judiciary.]

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A BILL to amend and reenact §33-2-20 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §33-2-21; to amend and reenact §33-6-8 of said code; to amend and reenact §33-16B-1 and §33-16B-3 of said code; to amend and reenact §33-17-8 and §33-17-9 of said code; to amend said code by adding thereto three new sections, designated §33-17A-4a, §33-17A-4b and §33-17A-4c; and to amend and reenact §33-20-4 of said code, all relating to insurance; allowing the Commissioner to permit automobile insurers to withdraw from doing business in this state; requiring insurer to submit a plan; permitting promulgation of rules; redesignating a section of the insurance code enacted as part of the bill assigning workers compensation duties to the Insurance Commissioner; clarifying that certain rules remain in effect; exempting commercial insurance lines from the requirement of prior approval of rates and forms; creating a presumption of prospective relief when forms are disapproved and providing factors to be considered in determining whether relief should be retroactive; defining terms; clarifying that certain health insurance forms marketed to associations must be filed with the Commissioner; providing that commercial and certain health insurance forms marketed to associations are effective upon first use after filing; clarifying that prior rate approval applies to health insurance certificates and endorsements; providing an alternative method for nonrenewal of property insurance; providing a manner of electing an alternative method; requiring report to the Legislature; and providing alternative methods of determining insurer liability in cases of loss to real property.

Be it enacted by the Legislature of West Virginia:
That §33-2-20 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that said code be amended by adding thereto a new section, designated §33-2-21; that §33-6-8 of said code be amended and reenacted; that §33-16B-1 and §33-16B-3 of said code be amended and reenacted; that §33-17-8 and §33-17-9 of said code be amended and reenacted; that said code be amended by adding thereto three new sections, designated §33-17A-4a, §33-17A-4b and §33-17A-4c; and that §33-20-4 of said code be amended and reenacted, all to read as follows:
ARTICLE 2. INSURANCE COMMISSIONER.
§33-2-20. Authority of Commissioner to allow withdrawal of insurance carriers from doing business in the state.

(a) Notwithstanding any provision of the code to the contrary, the Commissioner may, consistent with the provisions of this section, authorize an insurer to withdraw from the line of automobile liability insurance for personal, private passenger automobiles covered by article six-a of this chapter or from doing business entirely in this state if:
(1) The insurer has submitted and received approval from the Commissioner of a withdrawal plan; and
(2) The insurer demonstrates to the satisfaction of the Commissioner that allowing the insurer to withdraw would be in the best interest of the insurer, its policyholders and the citizens of this state.
(b) Any insurer that elects to nonrenew or cancel the particular type or line of insurance coverage provided for by section five, article seventeen-a of this chapter shall submit to the Insurance Commissioner a withdrawal plan for informational purposes only prior to cancellation or nonrenewal of all its business in this state.
(c) The Commissioner shall promulgate rules pursuant to chapter twenty-nine-a of this code setting forth the criteria for withdrawal plans: Provided, That the procedural rules previously promulgated setting forth the criteria for withdrawal plans, which rules were made effective the twenty-fifth day of September, two thousand four, shall continue in effect in the same manner as if this section had not been amended during the first special session of the Legislature in two thousand five.
§33-2-21. Authority of Insurance Commissioner to regulate workers compensation industry; authority of Insurance Commissioner to administer chapter twenty-three.

(a) Upon the termination of the Workers' Compensation Commission pursuant to chapter twenty-three of this code, the powers and duties heretofore imposed upon the Workers' Compensation Commission as they relate to general administration of the provisions of chapter twenty-three of this code are hereby transferred to and imposed upon the Insurance Commissioner.
(b) Unless otherwise specified in chapter twenty-three, upon termination of the Workers' Compensation Commission, the duties imposed upon the Workers' Compensation Commission as they relate to the award and payment of disability and death benefits and the review of claims in articles four and five, chapter twenty-three of this code, will be imposed upon the employers mutual insurance company established pursuant to article two-c, chapter twenty-three of this code, a private carrier offering workers' compensation insurance in this state and self-insured employers. Whenever reference is made to the Workers' Compensation Commissioner in those articles, the duty prescribed shall apply to the employers mutual insurance company, a private carrier or self-insured employer, as applicable.
(c) From the effective date of this enactment, the Insurance Commissioner shall regulate all insurers licensed to transact workers' compensation insurance in this state and all of the provisions of this chapter shall apply to such insurers, unless otherwise exempted by statute.
ARTICLE 6. THE INSURANCE POLICY.
§33-6-8. Filing of forms.
(a) Except as provided in section eight, article seventeen of this chapter (fire and marine forms), no No insurance policy form, no group certificate form, no insurance application form where a written application is required and is to be made a part of the policy, and no rider, endorsement or other form to be attached to any policy, shall be delivered or issued for delivery in this state by an insurer unless it has been filed with the Commissioner and, to the extent required by paragraph (1), subsection (b) of this section, approved by the Commissioner, except that as to group insurance policies delivered outside this state, only the group certificates to be delivered or issued for delivery in this state shall be filed for approval with the Commissioner. This section shall does not apply to policies, riders, endorsements or forms of unique character designed for and used with relation to insurance upon a particular subject, or which relate to the manner of distribution of benefits or to the reservation of rights and benefits under life or accident and sickness insurance policies, and are used at the request of the individual policyholder, contract holder or certificate holder, nor to the surety bond forms. (b) Every such filing shall be made specified in subsection (a) of this section shall be subject to the following:
(1) Forms for personal lines shall be filed not less than sixty days in advance of any such delivery At and at the expiration of such sixty days, unless the period has been extended by the Commissioner for the purpose of obtaining additional information from the insurer, the form so filed shall be deemed is considered approved unless prior thereto it has been affirmatively approved or disapproved by the Commissioner. Approval of any such form by the Commissioner shall constitute a waiver of any unexpired portion of such the waiting period. The Commissioner may at any time, after notice and for cause shown, withdraw any such approval.
(2) Forms for: (A) Commercial lines property and casualty risks; and (B) any mass-marketed life and/or health insurance policy offered to members of any association by the association, need not be approved by the Commissioner prior to use, although the Commissioner may at any time request information to ensure compliance with applicable statutory provisions or to disapprove form filings not in compliance with applicable statutory provisions within the first thirty days after receipt of the form filing. If the Commissioner does not disapprove the filing within the thirty day period, the form filing is effective upon first usage after filing.
(c) Any order of the Commissioner disapproving any such form or withdrawing a previous approval shall state the grounds therefor.
(c) When a filing is not accompanied by the information upon which the insurer supports the filing, and the Commissioner does not have sufficient information to determine whether the filing meets the requirements of this article, he or she shall require the insurer to furnish the information upon which it supports the filing and in the event the waiting period shall, with respect to a filing involving personal lines risks, commence as of the date the information is furnished: Provided, That the Commissioner may request additional information after the initial sixty-day period (with respect to personal lines) or thirty-day period (with respect to commercial lines and mass-marketed life and/or health insurance to associations) to ensure continuing compliance with applicable statutory provisions and may at any time, after notice and for cause shown, withdraw any approval or disapprove any filing: Provided, however, That any disapproval by the Commissioner of any form or withdrawal of a previous approval shall state the grounds therefor.
(d) Any disapproval by the Commissioner or withdrawal of prior approval is presumed to be prospective only and does not affect the validity of forms already in use unless the Commissioner determines that retroactive action is necessary after consideration of the nature and extent of harm to the consumers if the forms in use are permitted to remain in use, whether any violation of law by the insurer was willful, and the costs to the insurer.
(d) (e) The Commissioner may, by order, exempt from the requirements of this section for so long as he or she deems considers proper any insurance document or form or type thereof as specified in such the order, to which, in his or her opinion, this section may not practicably be applied, or the filing and approval of which are, in his or her opinion, not desirable or necessary for the protection of the public.
(e) (f) Notwithstanding any other provisions of this section, any mass marketed life and/or health insurance policy offered to members of any association by the association shall be exempt from the provision requiring prior approval under this section: Provided, That for For purposes of this section: the association shall
(1) An association must have a minimum of sixty-one members at the outset of the issuance of the mass-marketed life and/or health insurance policy and shall have been organized and maintained in good faith for purposes other than that of obtaining or providing insurance. Provided, however, That the The association shall also have been in active existence for at least two years and shall have a constitution and bylaws which provide that: (1) The association holds annual meetings to further purposes of its members; (2) except in the case of credit unions, the association collects dues or solicits contributions from members; and (3) the members have voting privileges and representation on the governing board and committees that exist under the authority of the association: Provided, further, That upon written application by an association and for good cause shown, the Commissioner may grant an exemption to the association from the minimum member requirements of this section.
(2) "Commercial lines" means insurance for business and professional interests, except that it does not include medical malpractice insurance.
(3) "Personal lines" means insurance for personal, family or household needs.
(f) (g) This section shall apply also to any form used by domestic insurers for delivery in a jurisdiction outside West Virginia, if the insurance supervisory official of such the jurisdiction informs the Commissioner that such the form is not subject to approval or disapproval by such the official, and upon the Commissioner's order requiring the form to be submitted to him or her for the that purpose. The applicable same standards shall apply to such the forms as apply to forms for domestic use.
ARTICLE 16B. ACCIDENT AND SICKNESS RATES.
§33-16B-1. Filing and approval of accident and sickness rates.
Premium rate charges for any individual or group accident and sickness insurance policy, or for any group accident and sickness insurance policy issued pursuant to this chapter certificate or other evidence of insurance issued, endorsed, or delivered in this state shall be filed with the Commissioner for a waiting period of sixty days before such these charges become effective. At the expiration of such the sixty days the premium rate charges so filed shall be deemed are considered approved unless prior thereto the charges have been affirmatively approved or disapproved by the Commissioner.
The Commissioner shall disapprove accident and health insurance premium rates which are not in compliance with the requirements of this chapter or any rule promulgated by the Commissioner pursuant to section two of this article. The Commissioner shall send written notice of such the disapproval to the insurer. The Commissioner may approve the premium rates before the sixty-day period expires by giving written notice of approval.
§33-16B-3. Exceptions.
This article shall does not apply to policies issued to group accident and health insurance plans upon which premiums are negotiated with the individual group policyholder and are based on the historic and projected loss experience of the group to be insured experienced rated.
ARTICLE 17. FIRE AND MARINE INSURANCE.
§33-17-8. Filing of forms.
(a) No fire or marine policy, rider or endorsement to be attached to any policy, covering any risk located or to be performed in West Virginia shall be delivered or issued for delivery in this state unless either that form is: (1) Filed with and approved by the Commissioner, or (2) conforms to applicable rules approved by the Commissioner or is identical as to language to a policy, rider or endorsement approved by the Commissioner, or (3) qualifies under subsection (c) of this section. If the use of any such form under the provisions of clause (2) above by any insurer or by the members and subscribers of any rating organization shall be is so extensive that in the opinion of the Commissioner the public interest requires, the Commissioner may require that such the form be filed with him or her by such the insurer or by such the rating organization on behalf of its members and subscribers. (b) The procedure for filing and approval or disapproval of forms under this section shall be that is provided in paragraphs (b), (c), (d), and (e) of section eight, of article six of this chapter. Grounds for disapproval shall be are those set forth in section nine, of article six of this chapter. Such These filings may be made on behalf of any insurer by a rating organization licensed as such under the provisions of article twenty of this chapter. This section shall does not apply to ocean marine policies, riders or endorsements, or to forms on specially rated inland marine risks.
(c) For commercial lines risks, a fire or marine policy, rider or endorsement is subject to the provisions of section six, article eight of this chapter governing other commercial lines form filings.
§33-17-9. Total or partial fire loss.
(a)
All insurers issuing policies providing fire insurance on real property situate in West Virginia shall be liable, in case of total loss by fire or otherwise, as stated in the policy, for the whole amount of insurance stated in the policy, upon such real property; and in case of partial loss by fire or otherwise, as aforesaid, of the real property insured, the liability shall be for the total amount of such the partial loss, not to exceed the whole amount of insurance upon such the real property as stated in the policy. This section shall does not apply where such insurance has been procured from two or more insurers covering the same interest in such real property.
(b) Notwithstanding the provisions of subsection (a) of this section, if the policy contains a provision that requires the insured to actually repair or replace the damaged or destroyed structure in order to be indemnified for the cost of the repair or replacement, the liability of the insurer shall be as prescribed by the policy.
(c) The Commissioner may promulgate rules to implement the provisions of this section.
ARTICLE 17A. PROPERTY INSURANCE DECLINATION, TERMINATION AND DISCLOSURE.

§33-17A-4a. Alternative method for nonrenewal for property insurance.

(a) On or after the first day of July, two thousand five, an insurer may nonrenew a property insurance policy for any reason that is consistent with its underwriting standards.
(b) Notwithstanding any other provisions in this section, race, religion, nationality, ethnic group, age, sex, marital status, or other reason prohibited by the provisions of this chapter may not be considered as a reason for nonrenewal.
(c) Notwithstanding the provisions of subsection (c), section four of this article, a nonrenewal may only be issued pursuant to the provisions of this section upon notice to the named insured at least thirty days before the end of the policy period of the insurer's election not to renew the policy.
(d) Commencing the first day of July, two thousand five, the total number of nonrenewal notices issued by the insurer each year pursuant to this section that result in nonrenewals may not exceed one percent per year of the total number of the policies of the insurer in force at the end of the previous calendar year in this state: Provided, That the total number of such nonrenewal notices issued each year to insureds within any given county in this state that result in nonrenewals may not exceed one percent per year of the total number of such policies in force in that county at the end of the previous calendar year: Provided, however, That an insurer may nonrenew one policy per year in any county if the applicable percentage limitation results in less than one policy.
(e) A notice issued pursuant to this section shall state the specific reason or reasons for refusal to renew and shall advise the named insured that nonrenewal of the policy for any reason is subject to a hearing and review as provided in section seven of this article: Provided, That the hearing shall relate to whether the nonrenewal of the policy was issued for a discriminatory reason, was based upon inadequate notice, was based on an underwriting standard found by the Commissioner to be in violation of this chapter, or causes the insurer to exceed the percentage limitations, or percentage limitations by county, of nonrenewal notices set forth in this section. Cost of the hearing shall be assessed against the losing party but may not exceed seventy-five dollars. The notice shall also advise the insured of possible eligibility for coverage through the West Virginia Essential Property Insurance Association.
(f) Each insurer licensed to write property insurance policies in this state shall file with the Commissioner a copy of its underwriting standards, including any amendments or supplements. The Commissioner shall review and examine the underwriting standards to ensure that they are consistent with generally accepted underwriting principles. The underwriting standards filed with the Commissioner shall be considered confidential by law and privileged, are exempt from disclosure pursuant to chapter twenty-nine-b of this code, are not open to public inspection, are not subject to subpoena, and are not subject to discovery or admissible in evidence in any criminal, civil or administrative action and are not subject to production pursuant to court order. The Commissioner shall promulgate legislative rules pursuant to chapter twenty-nine-a of this code to implement the provisions of this section.
(g) Each insurer that has elected to issue nonrenewal notices pursuant to the percentage limitations provided in this section shall report to the Commissioner, on a form prescribed by the Commissioner, on or before the thirtieth day of September of each year the total number of nonrenewal notices issued in this state and in each county of this state for the preceding year and the specific reason or reasons for the nonrenewals by county.
§33-17A-4b. Manner of making election relating to nonrenewals.
(a) Each insurer licensed to write property insurance policies in this state, as of the first day of July, two thousand five, may elect to issue all nonrenewal notices either pursuant to subsection (c), section four or section four-a of this article. Each insurer may notify the Commissioner of its election on or before the first day of July, two thousand five, and shall remain bound by the election for a period of five years. For each subsequent five-year period, each insurer shall notify the Commissioner of its election to issue all nonrenewal notices either pursuant to subsection (c), section four or section four-a of this article. The failure of an insurer to notify the Commissioner of its election by the first day of July, two thousand five, will be considered to be an election by the insurer to issue all nonrenewal notices pursuant to subsection (c), section four of this article and the insurer will be bound by the election for a period of five years.
(b) An insurer that is not licensed to write property insurance policies in this state as of the first day of July, two thousand five, but which becomes licensed to write such policies after that date shall, no later than four years after the date the insurer becomes licensed to write such policies, make an election to issue all nonrenewal notices either pursuant to subsection (c), section four or section four-a of this article, and shall notify the Commissioner of its election. If the insurer elects to issue all nonrenewal notices pursuant to section four-a of this article, the total number of nonrenewals may not exceed the percentage limitations set forth in section four-a of this article. An insurer first becoming licensed to issue property insurance policies in this state after the first day of July, two thousand five, shall be bound by its election for a period of five years, and for each subsequent five-year period shall notify the Commissioner of its election to issue all nonrenewal notices either pursuant to subsection (c), section four or section four-a of this article.
(c) An insurer that elects to issue nonrenewals pursuant to subsection (c), section four of this article may include as a permitted reason for nonrenewal of a policy, in addition to the reasons enumerated in section five of this article, two or more paid claims under a policy within a period of thirty-six months, each of which occurs after the first day of July, two thousand five.
§33-17A-4c. Report to the Legislature.
By the first day of January, two thousand ten, the Commissioner shall submit a report to the Legislature. The report shall contain the following:
(1) An analysis of the impact of legislation enacted during the two thousand five legislative session upon rates and insurance availability in the state; and
(2) Statistics reflecting the rate history of insurers conducting business in West Virginia from the first day of July, two thousand five, until the first day of July, two thousand nine.
ARTICLE 20. RATES AND RATING ORGANIZATIONS.
§33-20-4. Rate filings.
(a) (1) Every insurer shall file with the Commissioner every manual of classifications, territorial rate areas established pursuant to subdivision (2), subsection (c), section three of this article, rules and rates, every rating plan and every modification of any of the foregoing which it proposes to use for casualty insurance to which this article applies. (2) Every insurer shall file with the Commissioner, except as to inland marine risks which by general custom of the business are not written according to manual rates or rating plans, every manual, minimum, class rate, rating schedule or rating plan and every other rating rule and every modification of any of the foregoing which it proposes to use for fire and marine insurance to which this article applies. Specific inland marine rates on risks specially rated, made by a rating organization, shall be filed with the Commissioner. (b) Every such filing shall state the proposed effective date thereof and shall indicate the character and extent of the coverage contemplated. When a filing is not accompanied by the information upon which the insurer supports such filing, and the Commissioner does not have sufficient information to determine whether such the filing meets the requirements of this article, he or she shall require such the insurer to furnish the information upon which it supports such filing and in such the event the waiting period shall commence as of the date such the information is furnished. The information furnished in support of a filing may include: (1) The experience or judgment of the insurer or rating organization making the filing; (2) the experience or judgment of the insurer or rating organization in the territorial rate areas established by subdivision (2), subsection (c), section three of this article; (3) its interpretation of any statistical data it relies upon; (4) the experience of other insurers or rating organizations; or (5) any other relevant factors. A filing and any supporting information shall be is open to public inspection as soon as the filing is received by the Commissioner. Any interested party may file a brief with the Commissioner supporting his or her position concerning the filing. Any person or organization may file with the Commissioner a signed statement declaring and supporting his or her or its position concerning the filing. Upon receipt of such the statement prior to the effective date of the filing, the Commissioner shall mail or deliver a copy of such the statement to the filer, which may file such a reply as it may desire to make. This section shall is not be applicable to any memorandum or statement of any kind by any employee of the Commissioner. (c) An insurer may satisfy its obligation to make such filing by becoming a member of, or a subscriber to, a licensed rating organization which makes such filings, and by authorizing the Commissioner to accept such filings on its behalf: Provided, That nothing contained in this article shall be construed as requiring any insurer to become a member of or a subscriber to any rating organization. (d) The Commissioner shall review filings as soon as reasonably possible after they have been made in order to determine whether they meet the requirements of this article. (e) Subject to the exceptions specified in subsections (f), and (g) and (h) of this section, each filing shall be on file for a waiting period of sixty days before it becomes effective. Upon written application by such insurer or rating organization, the Commissioner may authorize a filing which he or she has reviewed to become effective before the expiration of the waiting period. A filing shall be deemed is considered to meet the requirements of this article unless disapproved by the Commissioner within the waiting period. (f) Any special filing with respect to a surety bond required by law or by court or executive order or by order, rule or regulation of a public body, not covered by a previous filing, shall become effective when filed and shall be deemed is considered to meet the requirements of this article until such time as the Commissioner reviews the filing and so long thereafter as the filing remains in effect.(g) Specific inland marine rates on risks specially rated by a rating organization shall become effective when filed and shall be deemed is considered to meet the requirements of this article until such time as the Commissioner reviews the filing and so long thereafter as the filing remains in effect.
(h) Rates for commercial lines property and casualty risks must be filed with the Commissioner and such filings need not be approved by the Commissioner. The Commissioner may request additional information to ensure compliance with applicable statutory standards, but if the Commissioner does not disapprove the filing within the initial thirty-day period after receipt, the rate filing will become effective upon first usage after filing: Provided, That the Commissioner may at any time thereafter, after notice and for cause shown, disapprove any rate filing.
(h) (i) Under such rules and regulations as he or she shall adopt, the Commissioner may, by written order, suspend or modify the requirement of filing as to any kind of insurance, subdivision or combination thereof, or as to classes of risks, the rates for which cannot practicably be filed before they are used. Such These orders and rules and regulations shall be made known to insurers and rating organizations affected thereby. The Commissioner may make such an examination as he or she may deem consider advisable to ascertain whether any rates affected by such an order meet the standards set forth in subsection (b), section three of this article.(i) (j) Upon the written application of the insured, stating his or her reasons therefor, filed with and approved by the Commissioner, a rate in excess of that provided by a filing otherwise applicable may be used on any specific risks.
(j) (k) No insurer shall make or issue a contract or policy except in accordance with the filings which are in effect for said insurer as provided in this article. or in accordance with subsection (h) or (i) of this section. This subsection shall does not apply to contracts or policies for inland marine risks as to which filings are not required.
(k) (l) In instances when an insurer files a request for an increase of automobile liability insurance rates in the amount of fifteen percent or more, the Insurance Commissioner shall provide notice of such increase with the office of the Secretary of State to be filed in the State Register and shall provide interested persons the opportunity to comment on such request up to the time the Commissioner approves or disapproves such the rate increase.
(m) For purposes of this section, "commercial" means insurance for business and professional interests.

NOTE: The purposes of this bill are to: (1) Amend the insurance code to discontinue the use of the prior approval system of rate and form filings for most commercial insurance line risks and establish a file and use system, while reserving the right for the Commissioner to request additional information or to disapprove filings altogether if not meeting statutorily applicable provisions; (2) provide an alternative method for the non-renewal of homeowner's policies; and (3) provide a new method of assessing insurer liability in situations of total or partial loss of real property.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.

§33-2-21 is existing law currently contained in §33-2-20 and enacted in S.B. 1004 during the first extraordinary session, 2005, and has only been renumbered; therefore, underscoring and strike-throughs have been omitted.

§33-2-20 was inadvertently omitted in S.B. 1004 during the first extraordinary session, 2005, and has been restored to §33-2-20. Underscoring indicates new language that would be added.

§§33-17A-4a, 33-17A-4b and 33-17A-4c are new; therefore, underscoring and strike-throughs have been omitted.
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