The officer, director, or employee's function relates to underwriting, loss control, inspection, or the processing, adjusting, investigating, or settling of a claim on a contract of insurance; or
The officer, director, or employee is acting in the capacity of a special agent or agency supervisor assisting insurance agents where the person's activities are limited to providing technical advice and assistance to licensed insurance producers and do not include the sale, solicitation, or negotiation of insurance;
A person who meets the criteria set forth in paragraph (1), (4), or (6) of subsection (b) of Code Section 33-23-1;
An employer or association or its officers, directors, or employees or the trustees of an employee trust plan to the extent that the employers, officers, employees, directors, or trustees are engaged in the administration or operation of a program of employee benefits for the employer's or association's own employees or the employees of its subsidiaries or affiliates, which program involves the use of insurance issued by an insurer, so long as the employers, associations, officers, directors, employees, or trustees are not in any manner compensated, directly or indirectly, by the company issuing the contracts;
Employees of insurers or organizations employed by insurers who are engaging in the inspection, rating, or classification of risks or in the supervision of the training of insurance agents and who are not individually engaged in the sale, solicitation, or negotiation of insurance;
A person whose activities in this state are limited to advertising without the intent to solicit insurance in this state through communications in printed publications or other forms of electronic mass media whose distribution is not limited to residents of the state, provided that the person does not sell, solicit, or negotiate insurance that would insure risks residing, located, or to be performed in this state;
A person who is not a resident of this state who sells, solicits, or negotiates a contract of insurance for commercial property and casualty risks to an insured with risks located in more than one state insured under that contract, provided that the person is otherwise licensed as an insurance agent to sell, solicit, or negotiate insurance in the state where the insured maintains its principal place of business and the contract of insurance insures risks located in that state; or
A salaried, full-time employee who counsels or advises his or her employer relative to the insurance interests of the employer or of the subsidiaries or business affiliates of the employer provided that the employee does not sell or solicit insurance or receive a commission.
(Code 1981, §33-23-4, enacted by Ga. L. 1992, p. 2830, § 1; Ga. L. 1996, p. 705, § 9; Ga. L. 1997, p. 1296, § 4; Ga. L. 2001, p. 925, § 1; Ga. L. 2008, p. 1076, § 2/SB 113; Ga. L. 2014, p. 181, § 3/HB 610; Ga. L. 2016, p. 255, § 1/SB 290; Ga. L. 2017, p. 774, § 33/HB 323; Ga. L. 2019, p. 386, § 5/SB 133.)
The 2019 amendment, effective July 1, 2019, substituted "this article" for "this chapter" near the end of paragraph (a)(1) and in the proviso of subsection (f); substituted "such person" for "the person" in the middle of paragraph (a)(1); and deleted "currently" following "counselors holding" in the middle of subsection (c).
Law reviews.- For article surveying developments in Georgia insurance law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 143 (1981).
JUDICIAL DECISIONS
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1933, § 56-803 and former Code Section 33-23-2 are included in the annotations to this Code section.
Equal protection claim.
- Bidding insurer's summary judgment motion was properly granted as to the insurer's equal protection claim against a county as the county did not exercise arbitrary power but acted rationally and reasonably in rejecting all bids across the board after it was discovered that a consultant lacked a counselor's license under O.C.G.A. §§ 33-23-1.1 and33-23-4; because of the taint to the process, all bids were rejected, no classification was created at all, and all similarly situated persons were treated alike. Benefit Support, Inc. v. Hall County, 281 Ga. App. 825, 637 S.E.2d 763 (2006), cert. denied, No. S07C0306, 2007 Ga. LEXIS 214 (Ga. 2007).
Deduction of premiums authorized.
- Consent form authorizing a common carrier to deduct insurance premiums and certain administrative fees from delivery commissions paid to a commercial trucking company for the delivery of freight was not voided by O.C.G.A. § 33-23-4(e). Seals v. Hygrade Distrib. & Delivery Sys., Inc., 249 Ga. App. 574, 549 S.E.2d 412 (2001).
Noncompliance as bar to recovery on claims.
- Failure to comply with the statutory scheme governing life insurance agents will bar any recovery on the basis of a contractual claim. This strict rule has been held to be necessary to compel compliance with the licensure requirement. Management Comp. Group/Southeast, Inc. v. United Sec. Emp. Programs, Inc., 194 Ga. App. 99, 389 S.E.2d 525 (1989) (decided under former O.C.G.A. § 33-23-2).
Notwithstanding clause did not run afoul of section.
- Court's interpretation of the notwithstanding clause did not run afoul of O.C.G.A. § 33-23-4 when the consultant did not charge the client for the client's services based on a percentage of the commissions received by the client, but charged a per hour fee for its services, the parties agreed to a $20,000 quarterly fee for the services, and separately, the parties agreed to a limitation on the amount that the consultant was able to recover. Thus, the receipt of commission payments was not a condition precedent to the payment of outstanding balances. Hessmorganhouse, LLC v. Kingdom Group of Cos., LLC, F.3d (11th Cir. June 24, 2020)(Unpublished).
Policy not voided by issuance by unlicensed agent.- While the law prohibits the issuance of policies by an unlicensed agent, the law does not void such insurance. Chatham County Hosp. Auth. v. John Hancock Mut. Life Ins. Co., 325 F. Supp. 614 (S.D. Ga. 1971) (decided under former Code 1933, § 56-803).
License not required.- District court erred in holding that a plaintiff would not be harmed absent a preliminary injunction barring enforcement of certain restrictive covenants because under Georgia law, a party did not need a license to sell insurance in order to operate an insurance brokerage business and hire others to carry out insurance sales. MacGinnitie v. Hobbs Group, LLC, 420 F.3d 1234 (11th Cir. 2005).
Bid preparation costs for unlicensed consultant.
- Summary judgment was properly entered for a county on a bidding insurer's claim for reimbursement of the insurer's bid preparation costs due to the county's rejection of the insurer's bid as no contract was awarded to an unqualified bidder since all the bids were rejected when it was discovered that the county's consultant lacked an insurance counselor's license under O.C.G.A. §§ 33-23-1.1 and33-23-4. Benefit Support, Inc. v. Hall County, 281 Ga. App. 825, 637 S.E.2d 763 (2006), cert. denied, No. S07C0306, 2007 Ga. LEXIS 214 (Ga. 2007).
Effect on RICO actions.
- Failure of an insurance company to file a policy with the Georgia Insurance Department and the failure of the company's agent to have a certificate of authority issued by the company before selling the policy to insureds were not predicate acts for purposes of the Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq. Security Life Ins. Co. v. Clark, 229 Ga. App. 593, 494 S.E.2d 388 (1997), aff'd in part and rev'd in part, 270 Ga. 165, 509 S.E.2d 602 (1998). But see Clark v. Security Life Ins. Co. of Am., 270 Ga. 165, 509 S.E.2d 602 (1998); Security Life Ins. Co. of Am. v. Clark, 273 Ga. 44, 535 S.E.2d 234 (2000); Williams General Corporation v. Stone, 280 Ga. 631, 632 S.E.2d 376 (2006).
Damages under O.C.G.A. § 51-1-6. - Summary judgment was properly entered for a consultant and a consulting firm on a bidding insurer's claim under O.C.G.A. § 51-1-6 after all of the bids for a county contract were rejected because the consultant lacked a license under O.C.G.A. §§ 33-23-1.1 and33-23-4 as the statutes requiring insurance counselors to be licensed and mandating that licensed individuals meet certain qualifications were designed to protect the insurance counselor's clients and not to protect or benefit providers of insurance; the generic statement that O.C.G.A. § 33-23-5(a) was "for the protection of the people of (Georgia)" did not expand the intent of the statute requiring licensure for counselors to benefit businesses that provided insurance. Benefit Support, Inc. v. Hall County, 281 Ga. App. 825, 637 S.E.2d 763 (2006), cert. denied, No. S07C0306, 2007 Ga. LEXIS 214 (Ga. 2007).
Cited in Sollek v. Laseter, 126 Ga. App. 137, 190 S.E.2d 148 (1972); Long v. Century Fin., 167 Ga. App. 196, 306 S.E.2d 87 (1983); Olukoya v. American Ass'n of Cab Cos., 219 Ga. App. 508, 465 S.E.2d 715 (1995); Am. Cent. Ins. Co. v. Lee, 273 Ga. 880, 548 S.E.2d 338 (2001).
OPINIONS OF THE ATTORNEY GENERAL
Editor's notes.
- In light of the similarity of the statutory provisions, opinions under former Code 1933, § 56-801 are included in the annotations to this Code section.
Adjuster for life, accident, and health insurance is not required to procure license. 1962 Op. Att'y Gen. p. 285 (decided under former Code 1933, § 56-801).
Licensed insurance agent can pay commissions into a corporation of which the agent is an employee. 1962 Op. Att'y Gen. p. 286 (decided under former Code 1933, § 56-801).
RESEARCH REFERENCES
Am. Jur. 2d.
- 43 Am. Jur. 2d, Insurance, § 161 et seq.
C.J.S.- 44 C.J.S., Insurance, §§ 67 et seq., 146, 147.