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Virginia, one thousand nine hundred thirty-one, as amended, be repealed; that section ten, article one, chapter thirty-three of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.