H. B. 4023


(By Delegate Gillespie and Azinger)
[Introduced January 16, 1998; referred to the
Committee on Government Organization then Finance.]




A BILL to repeal article ten, chapter fifty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section ten, article one, chapter thirty-three of said code; and to further amend said chapter by adding thereto a new article, designated article nineteen-a, all relating to licensing of bail bondsmen; definitions; insurance commissioner's power to regulate and enforce; license required; application and issuance of license; denial, suspension, revocation, or refusal to renew license; civil penalty; effect of conviction; procedure and appeal where suspension or revocation; prohibited activities; and criminal penalty.

Be it enacted by the Legislature of West Virginia:
That article ten, chapter fifty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; that section ten, article one, chapter thirty-three of said code be amended and reenacted; and that said chapter be further amended by adding thereto a new article, designated article nineteen-a, all to read as follows:
ARTICLE 1. DEFINITIONS.

§33-1-10. Kinds of insurance defined.

The following definitions of kinds of insurance are not mutually exclusive and, if reasonably adaptable thereto, a particular coverage may be included under one or more of such definitions:
(a) Life insurance. -- Life insurance is insurance on human lives including endowment benefits, additional benefits in the event of death or dismemberment by accident or accidental means, additional benefits for disability and annuities.
(b) Accident and sickness. -- Accident and sickness insurance is insurance against bodily injury, disability or death by accident or accidental means, or the expense thereof, or against disability or expense resulting from sickness, and insurance relating thereto. Group credit accident and health insurance may also include loss of income insurance which is insurance against the failure of a debtor to pay his or her monthly obligation due to involuntary loss of employment. For the purposes of this definition, involuntary loss of employment means the debtor loses employment income (salary or wages) as a result of unemployment caused by individual or mass layoff, general strikes, labor disputes, lockout or termination by employer for other than willful or criminal misconduct. Any or all of the above mentioned perils may be included in an insurance policy, at the discretion of the policyholder.
(c) Fire. -- Fire insurance is insurance on real or personal property of every kind and interest therein, against loss or damage from any or all hazard or cause, and against loss consequential upon such loss or damage, other than noncontractual liability for any such loss or damage. Fire insurance shall also include miscellaneous insurance as defined in paragraph (12), subdivision (e) of this section.
(d) Marine. -- Marine insurance is insurance:
(1) Against any and all kinds of loss or damage to vessels, craft, aircraft, cars, automobiles and vehicles of every kind, as well as all goods, freight, cargoes, merchandise, effects, disbursements, profits, moneys, bullion, precious stones, securities, choses in action, evidences of debt, valuable papers, bottomry and respondentia interests and all other kinds of property and interests therein, in respect to, appertaining to or in connection with any and all risks or perils of navigation, transit or transportation, including war risks, on or under any seas or other waters, on land (above or below ground), or in the air, or while being assembled, packed, crated, baled, compressed or similarly prepared for shipment or while awaiting the same or during any delays, storage, transshipment, or reshipment incident thereto, including marine builders' risks and all personal property floater risks;
(2) Against any and all kinds of loss or damage to person or to property in connection with or appertaining to a marine, inland marine, transit or transportation insurance, including liability for loss of or damage to either, arising out of or in connection with the construction, repair, operation, maintenance or use of the subject matter of such insurance (but not including life insurance or surety bonds nor insurance against loss by reason of bodily injury to the person arising out of the ownership, maintenance or use of automobiles);
(3) Against any and all kinds of loss or damage to precious stones, jewels, jewelry, gold, silver and other precious metals, whether used in business or trade or otherwise and whether the same be in course of transportation or otherwise;
(4) Against any and all kinds of loss or damage to bridges, tunnels and other instrumentalities of transportation and communication (excluding buildings, their furniture and furnishings, fixed contents and supplies held in storage) unless fire, windstorm, sprinkler leakage, hail, explosion, earthquake, riot or civil commotion or any or all of them are the only hazards to be covered;
(5) Against any and all kinds of loss or damage to piers, wharves, docks and ships, excluding the risks of fire, windstorm, sprinkler leakage, hail, explosion, earthquake, riot and civil commotion and each of them;
(6) Against any and all kinds of loss or damage to other aids to navigation and transportation, including dry docks and marine railways, dams and appurtenant facilities for control of waterways; and
(7) Marine protection and indemnity insurance, which is insurance against, or against legal liability of the insured for, loss, damage or expense arising out of, or incident to, the ownership, operation, chartering, maintenance, use, repair or construction of any vessel, craft or instrumentality in use in ocean or inland waterways, including liability of the insured for personal injury, illness or death or for loss of or damage to the property of another person.
(e) Casualty. -- Casualty insurance includes:
(1) Vehicle insurance, which is insurance against loss of or damage to any land vehicle or aircraft or any draft or riding animal or to property while contained therein or thereon or being loaded therein or therefrom, from any hazard or cause, and against any loss, liability or expense resulting from or incident to ownership, maintenance or use of any such vehicle, aircraft or animal; together with insurance against accidental death or accidental injury to individuals, including the named insured, while in, entering, alighting from, adjusting, repairing or cranking, or caused by being struck by any vehicle, aircraft or draft or riding animal, if such insurance is issued as a part of insurance on the vehicle, aircraft or draft or riding animal;
(2) Liability insurance, which is insurance against legal liability for the death, injury or disability of any human being, or for damage to property; and provisions for medical, hospital, surgical, disability benefits to injured persons and funeral and death benefits to dependents, beneficiaries or personal representatives of persons killed, irrespective of legal liability of the insured, when issued as an incidental coverage with or supplemental to liability insurance;
(3) Burglary and theft insurance, which is insurance against loss or damage by burglary, theft, larceny, robbery, forgery, fraud, vandalism, malicious mischief, confiscation, or wrongful conversion, disposal or concealment, or from any attempt at any of the foregoing, including supplemental coverages for medical, hospital, surgical and funeral benefits sustained by the named insured or other person as a result of bodily injury during the commission of a burglary, robbery or theft by another; also insurance against loss of or damage to moneys, coins, bullion, securities, notes, drafts, acceptances, or any other valuable papers and documents, resulting from any cause;
(4) Personal property floater insurance, which is insurance upon personal effects against loss or damage from any cause;
(5) Glass insurance, which is insurance against loss or damage to glass, including its lettering, ornamentation and fittings;
(6) Boiler and machinery insurance, which is insurance against any liability and loss or damage to property or interest resulting from accidents to or explosion of boilers, pipes, pressure containers, machinery or apparatus, and to make inspection of and issue certificates of inspection upon boilers, machinery and apparatus of any kind, whether or not insured;
(7) Leakage and fire extinguishing equipment insurance, which is insurance against loss or damage to any property or interest caused by the breakage or leakage of sprinklers, hoses, pumps and other fire extinguishing equipment or apparatus, water mains, pipes and containers, or by water entering through leaks or openings in buildings, and insurance against loss or damage to such sprinklers, hoses, pumps and other fire extinguishing equipment or apparatus;
(8) Credit insurance, which is insurance against loss or damage resulting from failure of debtors to pay their obligations to the insured. Credit insurance shall include loss of income insurance which is insurance against the failure of a debtor to pay his or her monthly obligation due to involuntary loss of employment. For the purpose of this definition, involuntary loss of employment means the debtor loses employment income (salary or wages) as a result of unemployment caused by individual or mass layoff, general strikes, labor disputes, lockout or termination by employer for other than willful or criminal misconduct; any, or all of the above mentioned perils may be included in an insurance policy, at the discretion of the policyholder;
(9) Malpractice insurance, which is insurance against legal liability of the insured, and against loss, damage or expense incidental to a claim of such liability, and including medical, hospital, surgical and funeral benefits to injured persons, irrespective of legal liability of the insured arising out of the death, injury or disablement of any person, or arising out of damage to the economic interest of any person, as the result of negligence in rendering expert, fiduciary or professional service;
(10) Entertainment insurance, which is insurance indemnifying the producer of any motion picture, television, radio, theatrical, sport, spectacle, entertainment or similar production, event or exhibition against loss from interruption, postponement or cancellation thereof due to death, accidental injury or sickness of performers, participants, directors or other principals;
(11) Mine subsidence insurance as provided for in article thirty of this chapter; and
(12) Miscellaneous insurance, which is insurance against any other kind of loss, damage or liability properly a subject of insurance and not within any other kind of insurance as defined in this chapter, if such insurance is not disapproved by the commissioner as being contrary to law or public policy.
(f) Surety. -- Surety insurance includes:
(1) Fidelity insurance, which is insurance guaranteeing the fidelity of persons holding positions of public or private trust;
(2) Insurance guaranteeing the performance of contracts, other than insurance policies, and guaranteeing and executing bonds, undertakings, and contracts of suretyship: Provided, That surety insurance does not include the guaranteeing and executing of bonds by professional bondsmen in criminal cases, or by individuals not in the business of becoming a surety for compensation upon bonds;
(3) Insurance indemnifying banks, bankers, brokers, financial or moneyed corporations or associations against loss, resulting from any cause, of bills of exchange, notes, bonds, securities, evidences of debt, deeds, mortgages, warehouse receipts or other valuable papers, documents, money, precious metals and articles made therefrom, jewelry, watches, necklaces, bracelets, gems, precious and semiprecious stones, including any loss while they are being transported in armored motor vehicles or by messenger, but not including any other risks of transportation or navigation, and also insurance against loss or damage to such an insured's premises or to his furnishings, fixtures, equipment, safes and vaults therein, caused by burglary, robbery, theft, vandalism or malicious mischief, or any attempt to commit such crimes; and
(4) Title insurance, which is insurance of owners of property or others having an interest therein, or liens or encumbrances thereon, against loss by encumbrance, defective title, invalidity or adverse claim to title.
ARTICLE 19A. LICENSURE OF BAIL BONDSMEN.
§33-19A-1. Definitions.
As used in this article:
(a) "Bail bondsman" means any person, partnership or corporation engaged for profit in the business of furnishing bail, making bonds or entering into undertakings, as surety, for the appearance of persons charged with a criminal offense or violation of law punishable by fine or imprisonment before any of the courts of this state, including city courts, or securing the payment of fines imposed and of costs assessed by such courts upon final disposition thereof.
(b) "Commissioner" means the commissioner of insurance.
§33-19A-2. Commissioner's power to regulate and enforce.
(a) The commissioner shall have authority to regulate bail bondsmen and the bail bond business, and may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to effectuate the provisions of this article.
(b) The commissioner may require any reasonable interrogatories or examination relating to bail bonding of an applicant for a license under this article, including any license renewal, relating to the applicant's qualifications or other matters which are reasonably necessary to protect the public and ascertain the qualifications of the applicant.
§33-19A-3. License required for bail bondsmen; issuance of license; application.

(a) A person may not act in the capacity of a bail bondsman or perform any of the functions, duties, or powers prescribed for bail bondsmen under this article unless the person is licensed as provided in this article.
(b) Upon an affirmative showing to the commissioner that a
person has an all lines property and casualty license, a bail bondsman license shall be issued to the person without further qualification or fee to represent an insurer the person is licensed to represent. A person holding an all lines property and casualty license is subject to the provisions of this article when engaged in the activities of a bail bondsman. No person may transact business with an insurance company to write bail bonds without an all lines property and casualty license.
(c) Any other applicant for a bail bondsman license shall meet the following requirements:
(1) A license fee of six hundred fifty dollars and an examination fee of one hundred dollars shall be submitted to the commissioner with each application for the issuance of a bail bondsman license;
(2) An applicant for a bail bondsman license shall also furnish with the application a complete set of the applicant's fingerprints and a recent credential-size full face photograph of the applicant. The applicant's fingerprints must be certified by an authorized law-enforcement officer; and
(3) The application for a bail bondsman license shall affirmatively show that:
(A) The applicant is at least eighteen years of age and is of good moral character;
(B) The applicant has never been convicted of a disqualifying offense as set forth in this article or:
(i) In the case of a felony conviction, at least ten years have passed since the date of the applicant's conviction or release from imprisonment, parole or probation, whichever is later; or
(ii) In the case of a misdemeanor disqualifying offense, at least five years have passed since the date of the applicant's conviction or release from imprisonment, parole or probation,
whichever is later.
(C) The application shall affirmatively show that the applicant has been a bona fide resident of the state for one year immediately preceding the date of application.
(d) A bail bondsman license issued under this article shall expire in two years unless the license is revoked or suspended before that date by the commissioner.
(e) The applicant for a bail bondsman license shall be required to appear in person and take a written examination prepared by the commissioner testing the applicant's ability and qualifications to be a bail bondsman.
(f) A renewal license shall be issued by the commissioner, without further examination, to a licensee who has continuously maintained a license in effect upon the payment of a renewal fee of six hundred fifty dollars, if the licensee has in all other respects complied with and been subject to this article.
§33-19A-4. Denial, suspension, revocation, or refusal to renew license; grounds; civil penalty; effect of conviction.
(a) The commissioner shall deny, suspend, revoke, or refuse to renew any license issued under this article for any of the following causes:
(1) Any cause for which issuance of the license could have been refused had it then existed and been known to the commissioner;
(2) Violation of any laws of this state in the course of dealings under any license issued the licensee by the commissioner;
(3) Material misstatement, misrepresentation, or fraud in obtaining the license;
(4) Misappropriation, conversion, or unlawful withholding of money belonging to insurers or others, and received in the conduct of business under any license issued to the licensee by the commissioner;
(5) Fraudulent or dishonest practices in the conduct of business under any license issued to the licensee by the commissioner;
(6) Willful failure to comply with or willful violation of any proper order or rule of the commissioner; and
(7) When, in the judgment of the commissioner, the licensee has, in the conduct of affairs under the license, demonstrated:
(A) Incompetency or untrustworthiness;
(B) Conduct or practices rendering the licensee unfit to carry on the bail bond business or making the licensee's continuance in such business detrimental to the public interest;
(C) That the licensee is no longer in good faith carrying on the bail bond business; or
(D) That the licensee is guilty of rebating, or offering to rebate, or unlawfully dividing, or offering to divide, the licensee's commissions; and for such reason is found by the commissioner to be a source of detriment, injury, or loss to the public.
(b) The commissioner may also levy a civil penalty of not more than ten thousand dollars for any of the causes listed in subsection (a). Any civil penalty levied under this section may be enforced in the same manner as a civil judgment.
(c) When a person who holds a license under this chapter enters a plea of guilty to a disqualifying offense, the commissioner, immediately upon the court's acceptance of the plea, shall revoke the person's license. The commissioner shall revoke the license of any person who is convicted of a disqualifying offense immediately upon conviction. The pending of sentencing or the pending of an appeal of a conviction of a disqualifying offense does not stay the revocation of a license under this section. A person convicted of a felony is not eligible to reapply for a license until ten years from the date of conviction or release from imprisonment, parole or probation, whichever is later. A person convicted of a misdemeanor disqualifying offense is not eligible to reapply for a license until five years from the date of conviction or release from imprisonment, parole or probation, whichever is later.
§33-19A-5. Suspension or revocation; procedure; appeal.
If, after investigation, the commissioner determines that a licensee has been guilty of violating any of the laws of this state relating to bail bonds or has committed any disqualifying offense, the commissioner shall, upon twenty days notice in writing to the licensee of the charges of the unlawful conduct, suspend the license of the licensee, unless on or before the expiration of the twenty days the licensee makes a written response to the commissioner concerning the charges.
(b) If the licensee files a written response denying the charges within the time specified, the commissioner shall call a hearing within a reasonable time for the purpose of taking testimony and evidence on any issue of facts made by the charges and answer.
(c) The commissioner shall give notice to the licensee of the time and place of the hearing. The parties may produce witnesses and appear personally with or without representation by counsel.
(d) If, following the hearing, the commissioner determines by a preponderance of the evidence that the licensee is guilty as alleged in the charges, whether or not convicted in court, the commissioner shall:
(1) Revoke the license of the licensee; or
(2) Suspend the license of the licensee for a definite period of time to be fixed in the order of suspension. The commissioner may also levy a civil penalty against the licensee that is not more than ten thousand dollars.
(e) A licensee whose license has been suspended, revoked or denied renewal, or an applicant whose license application has been denied, by the commissioner may appeal to the circuit court of the county in which the applicant or licensee resides. The appeal shall be heard de novo.
§33-19A-6. Prohibited activities.
(a) A bail bondsman may not:
(1) Suggest or advise the employment of or name for employment any particular attorney to represent the bail bondsman's principal;
(2) Pay a fee or rebate or give any property to an attorney in bail bond matters, except in defense of any action on a bond;
(3) Pay a fee or rebate or give or promise any property to the principal or anyone in the bail bondsman's behalf;
(4) Participate in the capacity of an attorney at a trial or hearing of one on whose bond the bail bondsman is surety;
(5) Accept any property from a principal except the premium, bail bond filing fee, if applicable, and transfer fee, if applicable, except that the bail bondsman may accept collateral security or other indemnity from the principal that must be returned upon final termination of liability on the bond. The collateral security or other indemnity required by the bail bondsman must be reasonable in relation to the amount of the bond; and
(6) Solicit business in or about any place where prisoners are confined, or in or near any courtroom.
(b) The following persons may not act in the capacity of bail bondsman or receive any benefits from the execution of any bail bond:
(1) Jailers;
(2) Law-enforcement officers;
(3) Judges; and
(4) Any person having authority or control of federal, state, county or municipal prisoners.
(c) A person who knowingly violates this section, or who operates as a bail bondsman without a valid license is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than ten thousand dollars, or imprisoned in the county jail not more than sixty days, or both fined and imprisoned.

NOTE: The purpose of this bill is to require licensing of bail bondsmen and to provide standards governing bail bondsman activities.

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

Article 19A is new; therefore, underlining and strike- throughs have been omitted.