OGC Op. No. 07-12-09
The Office of General Counsel issued the following opinion on December 19, 2007 representing the position of the New York State Insurance Department.
RE: Body Damage Estimator
Must a body damage estimator licensed in accordance with the N.Y. Veh. & Traff. Law (McKinney 2002) also be licensed by the New York State Insurance Department as an independent adjuster?
Depending upon the functions performed, such an individual may also have to be licensed as an independent adjuster.
The inquirer reports that he is licensed in Vermont as an Auto Damage Appraiser, and in New York as a Body Damage Appraiser. He further reports that he acts on behalf of insurers in estimating claims, in that he views the vehicle, prepares a report for the insurer or adjuster that retained him, and forwards the report to the insurer or adjuster. He adds that, while he may send a copy of his report to the body shop or vehicle owner, he does not negotiate with the body shop or vehicle owner.
In 2006, the Insurance Department received an anonymous complaint that the inquirer was functioning as an independent adjuster without a license. After reviewing his explanation, an examiner of the Consumer Services Bureau determined that he was not improperly acting as an independent adjuster, and so notified him.
The inquirer now seeks confirmation that his activities do not require a license as an independent adjuster.
There is nothing in the Insurance Law that denominates “body damage appraiser” as a category of license. Vehicle & Traffic Law § 398-d regulates motor vehicle repair shops. Specifically, Vehicle & Traffic Law § 398-d(5) provides:
Every person who shall write any auto body repair estimate on behalf of a motor vehicle repair shop, whether registered or not, must hold a valid estimator's license for such purpose issued by the commissioner. The form and manner of applying for such license shall be prescribed by regulation to be promulgated by the commissioner. . . .
For the purposes of this opinion, the Department presumes that the inquirer has a license issued in accordance with Vehicle & Traffic Law § 398-d(5).
Insurance Law § 2101(g)(1) is relevant to the inquiry. It defines an “independent adjuster” as follows:
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, except that such term shall not include: (A) any officer, director or regular salaried employee of an authorized insurer . . . unless acting as an auto body repair estimator as defined in subsection (j) of this section . . . .
Insurance Law § 2101(j), in turn, sets forth the definition of an “auto body repair estimator”:
In this article, "auto body repair estimator" means any officer, director or regular salaried employee of an authorized insurer or of any adjustment bureau or association owned and maintained by insurers, who writes, or who directly supervises the writing of, any motor vehicle body repair estimate in this state, on behalf of such insurer in the work of diagnosing or estimating motor vehicle repair costs or procedures relative to appraising, investigating or adjusting claims for motor vehicle body repair work pursuant to an insurance contract.
It has been the consistent position of the Insurance Department, see, e.g., April 1, 2001 opinion of the Office of General Counsel, that an individual or entity acts as an independent adjuster if that individual or entity exercises discretion on behalf of an insurer in the settlement of a claim. Based upon the inquirer's representation, he does not exercise such discretion. Accordingly, since the inquirer’s activities do not meet the test set forth in the first part of Insurance Law § 2101(g), he need not be licensed as an independent adjuster. Further, since he is not an officer, director, or employee of an insurer or adjustment bureau, he is not considered to be an “auto body repair estimator.”
Nevertheless, because the functions of someone licensed by the Department of Motor Vehicles as an “auto body repair estimator” also may coincide with the functions of an independent appraiser, this opinion should not be construed beyond its terms as expressing any position concerning facts other than the particular situation.
For further information you may contact Principal Attorney Alan Rachlin at the New York City office.