(1) No person, firm, association, or corporation acting in the capacity of an MGA shall place business with an insurer unless there is in force a written contract between the parties which sets forth the responsibilities of each party and where both parties share responsibility for a particular function, which specifies the division of such responsibilities, and which contains the following minimum provisions:
The insurer may terminate the contract for cause upon written notice to the MGA.The insurer may suspend the underwriting authority of the MGA during the pendency of any dispute regarding the cause for termination.
The MGA shall render accounts to the insurer detailing all transactions and remit allfunds due under the contract to the insurer on not less than a monthly basis.
All funds collected for the insurer's account shall be held by the MGA in a fiduciarycapacity in a bank which is a member of the federal reserve system. This account shall be used for all payments on behalf of the insurer. The MGA may retain no more than three months' estimated claims payments and allocated loss adjustment expenses.
Separate records of business written by the MGA shall be maintained. The insurershall have access and right to copy all accounts and records related to its business in a form usable by the insurer, and the commissioner shall have access to all books, bank accounts, and records of the MGA in a form usable to the commissioner. Such records shall be retained for a period of five years commencing no later than the effective date of the last financial examination of the insurer.
The contract may not be assigned in whole or part by the MGA.
(I) Appropriate underwriting guidelines which shall include:
The maximum annual premium volume;
The basis of the rates to be charged;
The types of risks which may be written;
Maximum limits of liability;
Applicable exclusions;
Territorial limitations;
Policy cancellation provisions; and(H) The maximum policy period.
(II) The insurer shall have the right to cancel or nonrenew any policy of insurance subject to the applicable laws and regulations concerning the cancellation and nonrenewal of insurance policies.
(g) (I) If the contract permits the MGA to settle claims on behalf of the insurer, all claims shall be reported to the company in a timely manner.
(II) A copy of the claim file shall be sent to the insurer at its request or as soon as it becomes known that the claim:
Has the potential to exceed an amount determined by the commissioner or exceedsthe limit set by the company, whichever is less;
Involves a coverage dispute;
May exceed the MGA's claims settlement authority;
Is open for more than six months; or
Is closed by payment of an amount set by the commissioner or an amount set by thecompany, whichever is less.
All claim files shall be the joint property of the insurer and the MGA; however,upon an order of liquidation of the insurer, such files shall become the sole property of the insurer or its estate. The MGA shall have reasonable access to and the right to copy the files on a timely basis.
Any settlement authority granted to the MGA may be terminated for cause upon theinsurer's written notice to the MGA or upon the termination of the contract. The insurer may suspend the settlement authority during the pendency of any dispute regarding the cause for termination.
Where electronic claims files are in existence, the contract must address the timelytransmission of the data;
If the contract provides for a sharing of interim profits by the MGA, and the MGAhas the authority to determine the amount of the interim profits by establishing loss reserves or controlling claim payments, or in any other manner, interim profits shall not be paid to the MGA until one year after they are earned for property insurance business and five years after they are earned on casualty business and not until the profits have been verified pursuant to section 10-21005.
(2) The MGA shall not:
Bind reinsurance or retrocessions on behalf of the insurer; except that the MGA maybind facultative reinsurance contracts pursuant to obligatory facultative agreements if the contract with the insurer contains reinsurance underwriting guidelines including, for both reinsurance assumed and ceded, a list of reinsurers with which such automatic agreements are in effect, the coverages and amounts or percentages that may be reinsured, and commission schedules;
Commit the insurer to participate in insurance or reinsurance syndicates;
Appoint any producer without assuring that the producer is lawfully licensed to transact the type of insurance for which such producer is appointed;
Without prior approval of the insurer, pay or commit the insurer to pay a claim over aspecified amount, net of reinsurance, which shall not exceed one percent of the insurer's policyholder's surplus as of December 31 of the last completed calendar year;
Collect any payment from a reinsurer or commit the insurer to any claim settlementwith a reinsurer, without prior approval of the insurer. If prior approval is given, a report shall be promptly forwarded to the insurer.
Permit its subproducer to serve on the insurer's board of directors;(g) Jointly employ an individual who is employed with the insurer; (h) Appoint a sub-MGA.
Source: L. 93: Entire article R&RE, p. 1384, § 1, effective January 1, 1995.
Editor's note: This section is similar to former § 10-2-404 as it existed prior to 1993.