SENATE BILL 983
47th legislature - STATE OF NEW MEXICO - first session, 2005
INTRODUCED BY
Carroll H. Leavell
AN ACT
RELATING TO INSURANCE; AMENDING AND ENACTING SECTIONS OF THE NEW MEXICO INSURANCE CODE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 59A-5-29 NMSA 1978 (being Laws 1984, Chapter 127, Section 96, as amended) is amended to read:
"59A-5-29. ANNUAL STATEMENT.--
A. Each authorized insurer shall annually on or before March 1, or within any reasonable extension of time which the superintendent for good cause may have granted on or before such date, file with the superintendent and with the national association of insurance commissioners a full and true statement of its financial condition and of its transactions and affairs as of the December 31 next preceding. The statement shall be prepared in the form of the annual statement blank prescribed by the national association of insurance commissioners for use in the United States for the type of insurer and kinds of insurance to be reported upon, in accordance with the annual statement instructions and the accounting practices and procedures manual published by the national association of insurance commissioners, or such other form and instructions as the superintendent may prescribe, and supplemented by additional information reasonably required by the superintendent; the superintendent may require that the annual statement data [also] be filed in electronically readable format, or may accept in lieu of filing a statement or supplemental information filed in electronic format with the national association of insurance commissioners that is readily available to the superintendent and that the superintendent can reproduce or otherwise make available to the public for a period of at least five years from the date that the filing is due. The statement shall be verified by the oath of the insurer's president or vice president and secretary or actuary, as applicable; or, in absence of the foregoing, by two other principal officers; or if a reciprocal insurer or Lloyds insurer, the oath of the attorney-in-fact or its like officers if a corporation.
B. The statement of an alien insurer shall be verified by its United States manager or other officer duly authorized and shall relate only to the insurer's transactions and affairs in the United States unless the superintendent requires otherwise. If the superintendent requires a statement as to the alien insurer's affairs throughout the world, the insurer shall file such statement with the superintendent as soon as reasonably possible.
C. If the insurer's statement is in any language other than English or in monetary amounts other than United States dollars, the statement shall be accompanied by an English-language translation and monetary amounts shall be shown in United States dollars with statement of the basis upon and date as of which the monetary conversion was made.
D. The superintendent may suspend or revoke the certificate of authority of any insurer failing to file its annual statement when due.
E. At time of filing, the insurer shall pay the fee for filing its annual statement with the superintendent as prescribed by Section 59A-6-1 NMSA 1978, and pay to the national association of insurance commissioners the fee established for filing, review or processing of the information, unless such fee has been disapproved by the superintendent.
F. In the absence of actual malice, members of national association of insurance commissioners, their duly authorized committees, subcommittees and task forces, their delegates, employees and all others charged by the superintendent or the national association of insurance commissioners with the responsibility of collecting, reviewing, analyzing and disseminating the information developed from the filing of the annual statement blanks shall be acting as agents of the superintendent under the authority of the Insurance Code and shall not be subject to civil liability for libel, slander or any other cause of action by virtue of their collection, review and analysis or dissemination of the data and information collected from the filings required hereunder.
G. As to publication of nonstatutory financial statements, refer to Section 59A-16-9 NMSA 1978."
Section 2. Section 59A-6-2 NMSA 1978 (being Laws 1984, Chapter 127, Section 102, as amended) is amended to read:
"59A-6-2. PREMIUM TAX--HEALTH INSURANCE PREMIUM SURTAX.--
A. The premium tax provided for in this section shall apply as to the following taxpayers:
(1) each insurer authorized to transact insurance in New Mexico;
(2) each insurer formerly authorized to transact insurance in New Mexico and receiving premiums on policies remaining in force in New Mexico, except that this provision shall not apply as to an insurer that withdrew from New Mexico prior to March 26, 1955;
(3) each plan operating under provisions of Chapter 59A, Articles 46 through 49 NMSA 1978;
(4) each property bondsman, as that person is defined in Section 59A-51-2 NMSA 1978, as to any consideration received as security or surety for a bail bond in connection with a judicial proceeding, which consideration shall be considered "gross premiums" for the purposes of this section; and
(5) each unauthorized insurer that has assumed a contract or policy of insurance directly or indirectly from an authorized or formerly authorized insurer and is receiving premiums on such policies remaining in force in New Mexico, except that this provision shall not apply if a ceding insurer continues to pay the tax provided in this section as to such policy or contract.
B. Each such taxpayer shall pay in accordance with this subsection a premium tax of three and three-thousandths percent of the gross premiums and membership and policy fees received or written by it, as reported in Schedule T and supporting schedules of its annual financial statement, on insurance or contracts covering risks within this state during the preceding calendar year, less all return premiums, including dividends paid or credited to policyholders or contract holders and premiums received for reinsurance on New Mexico risks.
C. In addition to the premium tax imposed pursuant to Subsection B of this section, each taxpayer described in Subsection A of this section that transacts health insurance in New Mexico or is a plan described in Chapter 59A, Article 46 or 47 NMSA 1978 shall pay a health insurance premium surtax of one percent of the gross health insurance premiums and membership and policy fees received by it on health insurance or contracts, excluding disability income insurance or contracts, covering health risks within this state during the preceding calendar year, less all return health insurance premiums, including dividends paid or credited to policyholders or contract holders and health insurance premiums received for reinsurance on New Mexico risks. Except as provided in this section, all references in the Insurance Code to the premium tax shall include both the premium tax and the health insurance premium surtax.
D. For each calendar quarter, an estimated payment of the premium tax and the health insurance premium surtax shall be made on April 15, July 15, October 15 and the following January 15. The estimated payments shall be equal to at least one-fourth of either the payment made during the previous calendar year or eighty percent of the actual payment due for the current calendar year, whichever is greater. The final adjustment for payments due for the prior year shall be made with the return, which shall be filed on April 15 of each year, at which time all taxes for that year are due. Dividends paid or credited to policyholders or contract holders and refunds, savings, savings coupons and similar returns or credits applied or credited to payment of premiums for existing, new or additional insurance shall, in the amount so used, constitute premiums subject to tax under this section for the year in which so applied or credited.
E. Exempted from the taxes imposed by this section are:
(1) premiums attributable to insurance or contracts purchased by the state or a political subdivision for the state's or political subdivision's active or retired employees; and
(2) payments received by a health maintenance organization from the federal secretary of health and human services pursuant to a contract issued under the provisions of 42 U.S.C. Section 1395 mm(g)."
Section 3. Section 59A-6-5 NMSA 1978 (being Laws 1984, Chapter 127, Section 105, as amended) is amended to read:
"59A-6-5. DISTRIBUTION OF DIVISION COLLECTIONS.--
A. All money received by the division for fees, licenses, penalties and taxes shall be paid daily by the superintendent to the state treasurer and by him credited to the "insurance department suspense fund" except as provided by:
(1) the Law Enforcement Protection Fund Act;
(2) Section 59A-6-1.1 NMSA 1978; and
(3) the Voter Action Act.
B. The superintendent may authorize refund of money erroneously paid as fees, licenses, penalties or taxes from the insurance department suspense fund under request for refund made within three years after the erroneous payment. In the case of premium taxes erroneously paid or overpaid in accordance with law, refund may also be requested as a credit against premium taxes due in any annual or quarterly premium tax return filed within three years of the erroneous or excess payment.
C. The "insurance operations fund" is created in the state treasury. The fund shall consist of the distributions made to it pursuant to Subsection D of this section. The legislature shall annually appropriate from the fund to the division those amounts necessary for the division to carry out its responsibilities pursuant to the Insurance Code and other laws. Any balance in the fund at the end of a fiscal year greater than one-half of that fiscal year's appropriation shall revert to the general fund.
D. At the end of every month, after applicable refunds are made pursuant to Subsection B of this section, the treasurer shall make the following transfers from the balance remaining in the insurance department suspense fund:
(1) to the "fire protection fund", that part of the balance derived from property and vehicle insurance business;
(2) to the insurance operations fund, that part of the balance derived from the fees imposed pursuant to Subsections A and E of Section 59A-6-1 NMSA 1978 other than fees derived from property and vehicle insurance business; and
(3) to the general fund, the balance remaining in the insurance department suspense fund derived from all other kinds of insurance business."
Section 4. A new section of the New Mexico Insurance Code is enacted to read:
"[NEW MATERIAL] DISHONORED CHECKS AND OTHER FORMS OF PAYMENT--PENALTY.--When a check or an electronic payment transaction for payment of fees is dishonored or reversed by the payer's financial institution, the payer shall pay to the insurance division a civil penalty in the amount of twenty-five dollars ($25.00). Neither the division nor the fiscal agent of New Mexico is obligated to resubmit the transaction or check for payment. The superintendent shall treat the transaction as though payment has not been made and cancel, suspend, rescind or revoke the transaction for failure to make payment. Any other penalty, reinstatement fee or other cost associated with failure to make the payment shall be in addition to the penalty set forth in this section. In this section, "electronic payment transaction" means credit card payments, electronic fund transfers, automated clearinghouse transactions and other similar forms of payment."
Section 5. Section 59A-12-6 NMSA 1978 (being Laws 1984, Chapter 127, Section 207, as amended) is amended to read:
"59A-12-6. LICENSE REQUIRED--PENALTY.--
A. No person shall in this state be, act as or hold himself out to be, as to subjects of insurance resident, located or to be performed in this state or elsewhere, an agent or solicitor unless then licensed as such under the Insurance Code.
B. No authorized insurer shall accept insurance of any subject located, resident or to be performed in this state through any person acting as insurance agent in this state if the insurer knows, or reasonably should have known, that such person was not then licensed as an agent as to such insurance or not appointed as its agent by the insurer.
C. No license as agent or broker shall be issued to any entity other than an individual, firm (partnership) or corporation.
D. No agent or solicitor shall solicit or take an application for, or place for others, any kind of insurance as to which not then so licensed.
E. No agent shall place any insurance with any insurer as to which not then licensed or appointed as agent under the Insurance Code except as permitted by Section 59A-11-10 NMSA 1978.
F. A license as agent or solicitor, or appointment as agent of a particular insurer, shall not be in effect until the license has actually been delivered to the agent or solicitor or to the solicitor's employer agent or the appointment has been duly filed with and approved by the superintendent.
G. In addition to any applicable denial, suspension or revocation of license, refusal to continue license, or administrative fine, violation of this section shall be a misdemeanor punishable by a fine of from one hundred dollars ($100) to five hundred dollars ($500) and by forfeiture to the state of New Mexico of an amount equal to all compensation for services as agent or solicitor received or to be received by the violator by reason of the prohibited transactions."
Section 6. Section 59A-12-18 NMSA 1978 (being Laws 1984, Chapter 127, Section 219, as amended by Laws 2002, Chapter 24, Section 1 and by Laws 2002, Chapter 87, Section 1) is amended to read:
"59A-12-18. LIMITED LICENSE.--
A. The superintendent may issue a limited agent's license to:
(1) individual applicants qualified [therefor under] pursuant to Chapter 59A, Article 12 NMSA 1978 and employed as transportation ticket sellers by public carriers, who in the course of such employment solicit or sell insurance incidental to transportation of persons or storage or transportation of baggage, and the license is limited to that insurance [so transacted]; or [to]
(2) individual applicants employed full time by a vendor of merchandise or other property or by a financial institution making consumer loans, on terms with respect to which credit life [and] insurance or health [insurances or either] insurance, under individual policies is customarily required of or offered to the purchaser or borrower, covering only [such] that credit life and health insurance.
B. The superintendent may issue a limited agent's license to applicants who are [employees, agents or authorized representatives of] retail vendors or lessors of communication equipment or services. The license shall authorize the licensee, in connection with the lease, retail sale or provision of communication equipment or communication services for communication equipment, to sell insurance covering the loss, theft, mechanical failure or malfunction of or damage to the communication equipment. [Licensees pursuant to this subsection shall receive initial training from, and shall be under the oversight of, a general lines agent licensed pursuant to Chapter 59A, Article 12 NMSA 1978.] The licensee shall provide for the training of its employees who are authorized to sell this insurance. The conduct of the licensee's business under the limited license by its employees shall be attributed to the licensee. As used in this subsection, "communication equipment" means handsets, pagers, personal digital assistants, portable computers, automatic answering devices, batteries and other devices or their accessories used to originate or receive communication signals or service, and includes services related to the use of such devices such as access to a network.
C. No holder of a limited license issued pursuant to this section shall concurrently be otherwise licensed
under the Insurance Code."
Section 7. Section 59A-13-2 NMSA 1978 (being Laws 1984, Chapter 127, Section 230, as amended) is amended to read:
"59A-13-2. DEFINITIONS.--
A. For the purposes of the Insurance Code:
(1) "adjuster" is a person that:
(a) investigates, negotiates, settles or adjusts a loss or claim arising under an insurance contract on behalf of an insurer, insured or self-insurer, for a fee, commission or other compensation; however, an adjuster acting on behalf of an insured shall not investigate, negotiate, settle or adjust a claim involving personal injury to the insured; and
(b) advises the insured of his rights to settlement and his rights to settle, arbitrate and litigate the dispute;
(2) "staff adjuster" is an adjuster individual who is a salaried employee of an insurer, representing and adjusting claims solely under policies of the employer insurer or affiliates of the employer insurer; and
(3) "independent adjuster" is an adjuster who is not a staff adjuster and includes a representative and an employee of an independent adjuster.
B. Except as otherwise provided, "adjuster" does not include:
(1) an attorney-at-law who adjusts insurance losses or claims from time to time incidental to practice of law and who does not advertise or represent as an adjuster;
(2) a licensed agent or general agent of an authorized insurer or an employee of an agent or general agent who adjusts claims or losses under specific authority from the insurer and solely under policies issued by the insurer;
(3) an agent or employee of a life or health insurer who adjusts claims or losses under the insurer's policies or contracts to administer policies or benefits of that type; or
(4) a salaried or part-time claims agent or investigator employed by a self-insured person."
Section 8. Section 59A-13-8 NMSA 1978 (being Laws 1984, Chapter 127, Section 236) is amended to read:
"59A-13-8. POWERS CONFERRED BY ADJUSTER LICENSE.--An independent adjuster shall have power to investigate and report to the principal, represented, [upon] and if [so] authorized by [such] the principal, adjust and settle claims on behalf of an insurer or self-insurer, and have [such] additional powers as to claims and losses as may be conferred by the principal. A staff adjuster shall have only such powers with respect to claims and losses as granted by the adjuster's employer or affiliates of the adjuster's employer. A temporary adjuster shall, as to claims and losses, have the powers of the employer, subject to extension or limitation by contract."
Section 9. Section 59A-13-9 NMSA 1978 (being Laws 1984, Chapter 127, Section 237, as amended) is amended to read:
"59A-13-9. PLACE OF BUSINESS.--A licensed adjuster shall [have and] maintain a principal place of business [in the state] that is easily accessible to the public and is the place where the adjuster principally conducts transactions under the license. The address of the principal place of business shall appear on the application for license and on the license. The licensee shall promptly notify the superintendent of a change of address of the principal place of business. Failure to notify the superintendent of a change of address within twenty days shall subject the licensee to a penalty in the amount of fifty dollars ($50.00)."
Section 10. Section 59A-48-19 NMSA 1978 (being Laws 1984, Chapter 127, Section 898, as amended) is amended to read:
"59A-48-19. OTHER PROVISIONS APPLICABLE.--In addition to those referred to in Chapter 59A, Article 48 NMSA 1978, the following articles and provisions of the Insurance Code shall also apply, to the extent reasonably applicable and subject to the provisions of that article, as to prepaid dental plan organizations, their sponsors, directors, officers, personnel and representatives and member contracts. For the purposes of this provision, such organizations may be referred to as "insurers" and such contracts as "policies":
A. Chapter 59A, Article 1 NMSA 1978;
B. Chapter 59A, Article 2 NMSA 1978;
C. Chapter 59A, Article 4 NMSA 1978;
D. Subsection C of Section 59A-5-22 NMSA 1978;
E. Section 59A-5-33 NMSA 1978;
F. Sections 59A-6-1, 59A-6-3, 59A-6-4 and 59A-6-6 NMSA 1978;
G. Section 59A-7-11 NMSA 1978;
H. Chapter 59A, Article 8 NMSA 1978;
I. Chapter 59A, Article 10 NMSA 1978;
J. Section 59A-12-22 NMSA 1978;
K. the Insurance Fraud Act;
L. Chapter 59A, Article 18 NMSA 1978;
M. the Policy Language Simplification Law; [and]
N. Section 59A-34-10 NMSA 1978, as to domestic prepaid dental plans; and
O. the Insurance Holding Company Law."
Section 11. Section 59A-58-6 NMSA 1978 (being Laws 2001, Chapter 206, Section 6) is amended to read:
"59A-58-6. SECURITY REQUIRED FOR REGISTRATION OF PROVIDER.--
A. To assure the faithful performance of a provider's obligations to [his] the provider's contract holders, a provider shall maintain a deposit with the superintendent as provided in this section.
B. A provider of a service contract shall deposit fifty thousand dollars ($50,000) unless the contract covers the following, in which case [he] the provider shall deposit one hundred thousand dollars ($100,000):
(1) a motor vehicle; and
(2) mechanical, plumbing and electrical systems and appliances at a residential dwelling when the service contract was sold in conjunction with the sale of the residential dwelling.
C. Deposits required pursuant to Subsection B of this section shall be:
(1) a surety bond issued by a surety company authorized to do business in New Mexico on a form acceptable to the superintendent;
(2) securities of the type eligible for deposit by an insurance company; or
[(3) cash; or
(4)] (3) a clean and irrevocable letter of credit issued by a financial institution acceptable to the superintendent.
D. Additional financial security may be required of any provider when it is determined by the superintendent that an additional deposit is necessary for the protection of the public.
E. The provisions of this section shall not apply to major manufacturing companies' service contracts."
Section 12. TEMPORARY PROVISION--RECOMPILATION.--The compiler shall recompile Section 8-8-9.2 NMSA 1978 (being Laws 2003, Chapter 235, Section 3) as part of the New Mexico Insurance Code.
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