The Office of General Counsel issued the following informal opinion on January 20, 2005 representing the position of the New York State Insurance Department.
Re: No exemptions from requirement of licensing
Does New York Insurance Law permit exemptions to its licensing requirements if a person or business is licensed by another state?
No. Both the business and the employees would need appropriate licenses to perform work for which the New York Insurance Law requires licenses.
The inquirer wanted to know whether any employees of the inquirers company, including the president of the inquirers company and/or the company itself needed to be licensed pursuant to New York Insurance Law in order to work in the State of New York. The inquirers question was based on the premise that the company, Employee Health Insurance Management, (hereinafter, EHIM), is licensed in other states, and the inquirer wanted to know whether New York State has reciprocity with these other states regarding licensing requirements of the New York Insurance Law. The inquirers letter did not state what work is performed by the employees EHIM, nor is this clear from the EHIM website. Therefore, the Department cannot determine which licenses may be required by EHIM and/or its employees. Below are excerpts from applicable statutes and a general discussion of licensing requirements for insurance brokers, agents and consultants in New York. The inquirer should review these statutes and their exceptions in their entirety to determine if any apply to the inquirers situation.
Pursuant to N.Y. Ins. Law § 2102(a)(1) (McKinney Supp. 2005) "[n]o person, firm, association or corporation shall act as an insurance producer or insurance adjuster in this state without having authority to do so by virtue of a license issued and in force pursuant to the provisions of the this chapter." N.Y. Ins. Law § 2102(b)(1) (McKinney Supp. 2005) states that "[u]nless licensed as an insurance agent, insurance broker or insurance consultant, no person, firm, association or corporation shall in this state identify or hold himself or itself out to be an insurance advisor, insurance consultant or insurance counselor."
N.Y. Ins. Law § 2102(b)(3) (McKinney Supp. 2005) states:
"[u]nless licensed as an insurance agent, insurance broker or insurance consultant with respect to the relevant kinds of insurance, no person, firm, association or corporation shall receive any money, fee, commission or thing of value for examining, appraising, reviewing or evaluating any insurance policy, annuity or pension contract, plan or program or shall make recommendations or give advice with regard to any of the above."
N.Y. Ins. Law § 2101 (a) (McKinney Supp. 2005) defines an insurance agent to mean, in pertinent part:
(a) In this article, "insurance agent" means any authorized or acknowledged agent of an insurer, fraternal benefit society or health maintenance organization issued to a certificate of authority pursuant to article forty-four of the public health law, and any sub-agent or other representative of such an agent, who acts as such in the solicitation of, negotiation for, or sale of, an insurance, health maintenance organization or annuity contract, or other than as a licensed insurance broker, . . . .
N.Y. Ins. Law § 2101 (c) (McKinney Supp. 2005) defines an insurance broker to mean, in pertinent part:
. . . any person, firm, association or corporation who or which for any compensation, commission or other thing of value acts or aids in any manner in soliciting, negotiating or selling, any insurance or annuity contract or in placing risks or taking out insurance, on behalf of an insured other than himself, herself or itself or on behalf of any licensed insurance broker, . . .
N.Y. Ins. Law § 2108(a)(1) (McKinney Supp. 2005) requires adjusters to be appropriately licensed.
N.Y. Ins. Law § 2108(a) (McKinney Supp. 2005) states:
(1) Adjusters shall be licensed as independent adjusters or as public adjusters.
(2) The superintendent may prescribe the types of independent adjusters" licenses according to the kind or kinds of insurance claims which the licensee is to be authorized to investigate and adjust.
(3) No adjuster shall act on behalf of an insurer unless licensed as an independent adjuster, and no adjuster shall act on behalf of an insured unless licensed as a public adjuster.
(4) No insurer, agent or other representative of an insurer shall pay any fees or other compensation to any person, firm, association or corporation for acting as an independent adjuster except to a licensed independent adjuster or to a person excepted from the licensing requirement pursuant to subsection (g) of section two thousand one hundred one of this article.
N.Y. Ins. Law § 2101(g)(1) (McKinney Supp. 2005) states:
The term "independent adjuster" means any person, firm, association or corporation who, or which, for money, commission or any other thing of value, acts in this state on behalf of an insurer in the work of investigating and adjusting claims arising under insurance contracts issued by such insurer and who performs such duties required by such insurer as are incidental to such claims and also includes any person who for compensation or anything of value investigates and adjusts claims on behalf of any independent adjuster. . .
N.Y. Ins. Law § 2101(g)(2) (McKinney Supp. 2005) states:
"Public adjuster" means any person, firm, association or corporation who, or which, for money, commission or any other thing of value, acts or aids in any manner on behalf of an insured in negotiating for, or effecting, the settlement of a claim or claims for loss or damage to property of the insured in this state caused by, or resulting from, any of the risks as enumerated in paragraphs four, five, six, seven, eight, nine and ten and subparagraphs (B) and (C) of paragraph twenty of subsection (a) of section one thousand one hundred thirteen of this chapter, not including loss or damage to persons under subparagraph (B) of paragraph twenty of subsection (a) of such section or who, or which, advertises for, or solicits employment as an adjuster of such claims, and shall also include any person who, for money, commission or any other thing of value, solicits, investigates, or adjusts such claims on behalf of any such public adjuster. . .
While New York Insurance Law provides no licensing reciprocity with other states, New York has adopted the Model Producer Law that facilitates licensing of non-residents.
For assistance with applying for appropriate licenses, one may contact the Departments Licensing Bureau, either on line at the Departments website www.ins.state.ny.us, or by telephone at 516-473-7661 and/or 518-486-6876. Any questions about whether specific activities require licensing may be submitted with a detailed description of such activities to this office for an Office of General Counsel opinion.
For further information one may contact Senior Attorney Susan A. Dess at the New York City Office.