OGC Op. No. 07-06-24
The Office of General Counsel issued the following opinion on June 26, 2007, representing the position of the New York State Insurance Department.
RE: Service of process on an insurer through personal or mail delivery to the Superintendent's designee
May service of process on an authorized or unauthorized insurer be made through the Superintendent of Insurance (hereinafter, "Superintendent") pursuant to N.Y. Ins. Law § 1212 or 1213 (McKinney 2006)?
Yes. Service of process on an insurer pursuant to those sections shall be deemed to have been made within the territorial jurisdiction of any court of competent jurisdiction in New York State.
The inquirer’s inquiry is of a general nature, without reference to particular facts. The inquirer asks: “When service is made on the state, what criteria is in place to guarantee that the summons and complaint is timely and correctly mailed to the insurance carrier?”
N.Y. Ins. Law § 1212 (McKinney 2006) governs service of process on an authorized insurer, which may be delivered in person or by mail to the Superintendent’s designee. That provision states in relevant part:
(a) No domestic, foreign or alien insurer . . . shall be or continue to be authorized to do an insurance business in this state unless there shall be filed in the office of the superintendent a power of attorney, executed by such insurer, appointing the superintendent and his successors in office, and authorized deputies, as its true and lawful attorney in and for this state, upon whom all lawful process in any proceeding against it on a contract delivered or issued for delivery, or on a cause of action arising, in this state may be served. Such power of attorney shall be accompanied by the insurer’s written certificate of designation of the name and address of the officer, agent, or other person to whom such process shall be forwarded by the superintendent or his deputy. Such designation may be changed by filing of a new certificate of designation in the office of the superintendent.
(b) Service of process upon any such insurer in any proceeding in any court of competent jurisdiction may be made by serving the superintendent, any deputy superintendent, or any salaried employee of the department whom the superintendent designates for such purpose, all of whom shall have authority to accept such service pursuant to any such power of attorney . . . Service of process so made shall be deemed to have been made within the territorial jurisdiction of any court in this state. (Emphasis added)
(c) At the time of service of process a fee of forty dollars shall be paid to the superintendent or his deputy . . .
(e) Whenever any lawful process shall be served upon the superintendent, any deputy superintendent, or any salaried employee of the department whom the superintendent designates for such purpose under the provisions of this section, such person shall forward a copy of such process by mail, prepaid, directed to the person last designated by such insurer, as shown by the records of the department.
N.Y. Ins. Law § 1213 (McKinney 2006) governs service of process on an unauthorized insurer, which may be delivered in person or by mail to the Superintendent's designee. Insurance Law § 1213(b) provides for substituted service on the Superintendent as the true and lawful attorney for unauthorized insurers, that, as specified in that section, engage in certain activities in New York State. That statute reads as follows:
(b)(1) Any of the following acts in this state, effected by mail or otherwise, by an unauthorized foreign or alien insurer:
(A) the issuance or delivery of contracts of insurance to residents of this state or to corporations authorized to do business therein,
(B) the solicitation of applications for such contracts,
(C) the collection of premiums, membership fees, assessments or other considerations for such contracts, or
(D) any other transaction of business,
is equivalent to and constitutes its appointment of the superintendent, and his successors in office, to be its true and lawful attorney upon whom may be served all lawful process in any proceeding instituted by or on behalf of an insured or beneficiary arising out of any such contract of insurance, and shall signify its agreement that such service of process is of the same legal force and validity as personal service of process in this state upon such insurer.
Insurance Law § 1213(e) sets forth an exemption for proceedings against unauthorized foreign or alien insurers arising out of insurance contracts effectuated through a licensed broker under Insurance Law § 2117(b) or (c), or through an excess line broker under Insurance Law § 2105, where the insurance contracts contain a provision appointing the Superintendent as the true and lawful attorney for actions arising out of those contracts. In addition, Section 27.16 of N.Y. Comp. Codes R. & Regs. tit. 11, Part 27 (2003) (Regulation 41), prohibits excess line brokers from placing coverage with an unauthorized insurer unless the insurer appoints the Superintendent as its true and lawful attorney.
Therefore, substituted service through personal or mail delivery to the Superintendent's designee at the Insurance Department’s New York City or Albany Office is service of process on an authorized or unauthorized insurer pursuant to Insurance Law § 1212 or 1213, respectively, and that shall be deemed to have been made within the territorial jurisdiction of any court of competent jurisdiction in New York State.
The addresses for service of process on an insurer pursuant to Insurance Law § 1212 or 1213 through personal or mail delivery to the Superintendent’s designee at the Department’s New York City and Albany Office are: Office of General Counsel, 25 Beaver Street, 4th Floor, New York, NY 10004, and Corporate Affairs Bureau, One Commerce Plaza, 20th Floor, Albany, NY 12257.1
For further information you may contact Senior Attorney Robert Freedman at the New York City Office.