BILL NUMBER: SB 712 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 3, 2011
AMENDED IN SENATE APRIL 5, 2011
AMENDED IN SENATE MARCH 21, 2011
INTRODUCED BY Committee on Insurance (Senators Calderon (Chair),
Anderson, Corbett, Correa, Gaines, Lowenthal, Price, and Wyland)
FEBRUARY 18, 2011
An act to amend Sections 790.03, 10234.86, 11093, 11788, 11790,
11874, and 12352 of, and to add Section 923.6 to, the Insurance Code,
relating to insurance.
LEGISLATIVE COUNSEL'S DIGEST
SB 712, as amended, Committee on Insurance. Insurance.
(1) Existing law creates the State Compensation Insurance Fund to
be administered by its board of directors for the purpose of
transacting workers' compensation insurance, and insurance against
the expense of defending any suit for serious and willful misconduct,
against an employer or his or her agent, and insurance to employees
and other persons of the compensation fixed by the workers'
compensation laws for employees and their dependents.
Existing law gives the Insurance Commissioner certain powers and
duties regarding domestic fraternal benefit societies.
Existing law requires every title insurer to deposit $100,000 with
the Insurance Commissioner or other designated official of its home
state, as provided.
Existing law requires long-term care insurers to maintain records
for each agent of that agent's amount of replacement sales as a
percent of the agent's total annual sales and the amount of lapses of
long-term care insurance policies sold by the agent as a percent of
the agent's total annual sales.
Existing law defines unfair methods of competition and unfair and
deceptive acts or practices in the business of insurance.
This bill would make technical, nonsubstantive changes to those
provisions.
(2) Existing law requires insurers transacting business in this
state to at all times maintain reserves in an amount estimated in the
aggregate to provide for the payment of all losses and claims for
which the insurer may be liable, and to provide for the expense of
adjustment or settlement of losses and claims.
This bill would require every admitted property and casualty
insurer, unless otherwise exempted by the domiciliary commissioner,
to annually submit a Statement of Actuarial Opinion in accordance
with the appropriate Property and Casualty Annual Statement
Instructions of the National Association of Insurance Commissioners
and specified supporting materials, as provided, and would authorize
the commissioner to adopt regulations related to those instructions.
The bill would require that specified documents, materials, and other
information provided to the commissioner in support of the opinion
and any other material provided by the insurer to the commissioner in
connection with the specified supporting documents be, among other
things, confidential, privileged, and exempt from the requirements of
the California Public Records Act.
(3) Existing constitutional provisions require that a statute that
limits the right of access to the writings of public officials and
agencies be adopted with findings demonstrating the interest
protected by the limitation and the need for protecting that
interest.
The bill would make legislative findings to that effect.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 790.03 of the Insurance Code is amended to
read:
790.03. The following are hereby defined as unfair methods of
competition and unfair and deceptive acts or practices in the
business of insurance.
(a) Making, issuing, circulating, or causing to be made, issued or
circulated, any estimate, illustration, circular, or statement
misrepresenting the terms of any policy issued or to be issued or the
benefits or advantages promised thereby or the dividends or share of
the surplus to be received thereon, or making any false or
misleading statement as to the dividends or share of surplus
previously paid on similar policies, or making any misleading
representation or any misrepresentation as to the financial condition
of any insurer, or as to the legal reserve system upon which any
life insurer operates, or using any name or title of any policy or
class of policies misrepresenting the true nature thereof, or making
any misrepresentation to any policyholder insured in any company for
the purpose of inducing or tending to induce the policyholder to
lapse, forfeit, or surrender his or her insurance.
(b) Making or disseminating or causing to be made or disseminated
before the public in this state, in any newspaper or other
publication, or any advertising device, or by public outcry or
proclamation, or in any other manner or means whatsoever, any
statement containing any assertion, representation, or statement with
respect to the business of insurance or with respect to any person
in the conduct of his or her insurance business, which is untrue,
deceptive, or misleading, and which is known, or which by the
exercise of reasonable care should be known, to be untrue, deceptive,
or misleading.
(c) Entering into any agreement to commit, or by any concerted
action committing, any act of boycott, coercion, or intimidation
resulting in or tending to result in unreasonable restraint of, or
monopoly in, the business of insurance.
(d) Filing with any supervisory or other public official, or
making, publishing, disseminating, circulating, or delivering to any
person, or placing before the public, or causing directly or
indirectly, to be made, published, disseminated, circulated,
delivered to any person, or placed before the public any false
statement of financial condition of an insurer with intent to
deceive.
(e) Making any false entry in any book, report, or statement of
any insurer with intent to deceive any agent or examiner lawfully
appointed to examine into its condition or into any of its affairs,
or any public official to whom the insurer is required by law to
report, or who has authority by law to examine into its condition or
into any of its affairs, or, with like intent, willfully omitting to
make a true entry of any material fact pertaining to the business of
the insurer in any book, report, or statement of the insurer.
(f) (1) Making or permitting any unfair discrimination between
individuals of the same class and equal expectation of life in the
rates charged for any contract of life insurance or of life annuity
or in the dividends or other benefits payable thereon, or in any
other of the terms and conditions of the contract.
(2) This subdivision shall be interpreted, for any contract of
ordinary life insurance or individual life annuity applied for and
issued on or after January 1, 1981, to require differentials based
upon the sex of the individual insured or annuitant in the rates or
dividends or benefits, or any combination thereof. This requirement
is satisfied if those differentials are substantially supported by
valid pertinent data segregated by sex, including, but not limited
to, mortality data segregated by sex.
(3) However, for any contract of ordinary life insurance or
individual life annuity applied for and issued on or after January 1,
1981, but before the compliance date, in lieu of those differentials
based on data segregated by sex, rates, or dividends or benefits, or
any combination thereof, for ordinary life insurance or individual
life annuity on a female life may be calculated as follows: (A)
according to an age not less than three years nor more than six years
younger than the actual age of the female insured or female
annuitant, in the case of a contract of ordinary life insurance with
a face value greater than five thousand dollars ($5,000) or a
contract of individual life annuity; and (B) according to an age not
more than six years younger than the actual age of the female
insured, in the case of a contract of ordinary life insurance with a
face value of five thousand dollars ($5,000) or less. "Compliance
date" as used in this paragraph shall mean the date or dates
established as the operative date or dates by future amendments to
this code directing and authorizing life insurers to use a mortality
table containing mortality data segregated by sex for the calculation
of adjusted premiums and present values for nonforfeiture benefits
and valuation reserves as specified in Sections 10163.1 and 10489.2
or successor sections.
(4) Notwithstanding the provisions of this subdivision, sex-based
differentials in rates or dividends or benefits, or any combination
thereof, shall not be required for (A) any contract of life insurance
or life annuity issued pursuant to arrangements which may be
considered terms, conditions, or privileges of employment as these
terms are used in Title VII of the Civil Rights Act of 1964 (Public
Law 88-352), as amended, and (B) tax sheltered annuities for
employees of public schools or of tax exempt organizations described
in Section 501(c)(3) of the Internal Revenue Code.
(g) Making or disseminating, or causing to be made or
disseminated, before the public in this state, in any newspaper or
other publication, or any other advertising device, or by public
outcry or proclamation, or in any other manner or means whatever,
whether directly or by implication, any statement that a named
insurer, or named insurers, are members of the California Insurance
Guarantee Association, or insured against insolvency as defined in
Section 119.5. This subdivision shall not be interpreted to prohibit
any activity of the California Insurance Guarantee Association or the
commissioner authorized, directly or by implication, by Article 14.2
(commencing with Section 1063).
(h) Knowingly committing or performing with such frequency as to
indicate a general business practice any of the following unfair
claims settlement practices:
(1) Misrepresenting to claimants pertinent facts or insurance
policy provisions relating to any coverages at issue.
(2) Failing to acknowledge and act reasonably promptly upon
communications with respect to claims arising under insurance
policies.
(3) Failing to adopt and implement reasonable standards for the
prompt investigation and processing of claims arising under insurance
policies.
(4) Failing to affirm or deny coverage of claims within a
reasonable time after proof of loss requirements have been completed
and submitted by the insured.
(5) Not attempting in good faith to effectuate prompt, fair, and
equitable settlements of claims in which liability has become
reasonably clear.
(6) Compelling insureds to institute litigation to recover amounts
due under an insurance policy by offering substantially less than
the amounts ultimately recovered in actions brought by the insureds,
when the insureds have made claims for amounts reasonably similar to
the amounts ultimately recovered.
(7) Attempting to settle a claim by an insured for less than the
amount to which a reasonable person would have believed he or she was
entitled by reference to written or printed advertising material
accompanying or made part of an application.
(8) Attempting to settle claims on the basis of an application
which was altered without notice to, or knowledge or consent of, the
insured, his or her representative, agent, or broker.
(9) Failing, after payment of a claim, to inform insureds or
beneficiaries, upon request by them, of the coverage under which
payment has been made.
(10) Making known to insureds or claimants a practice of the
insurer of appealing from arbitration awards in favor of insureds or
claimants for the purpose of compelling them to accept settlements or
compromises less than the amount awarded in arbitration.
(11) Delaying the investigation or payment of claims by requiring
an insured, claimant, or the physician of either, to submit a
preliminary claim report, and then requiring the subsequent
submission of formal proof of loss forms, both of which submissions
contain substantially the same information.
(12) Failing to settle claims promptly, where liability has become
apparent, under one portion of the insurance policy coverage in
order to influence settlements under other portions of the insurance
policy coverage.
(13) Failing to provide promptly a reasonable explanation of the
basis relied on in the insurance policy, in relation to the facts or
applicable law, for the denial of a claim or for the offer of a
compromise settlement.
(14) Directly advising a claimant not to obtain the services of an
attorney.
(15) Misleading a claimant as to the applicable statute of
limitations.
(16) Delaying the payment or provision of hospital, medical, or
surgical benefits for services provided with respect to acquired
immune deficiency syndrome or AIDS-related complex for more than 60
days after the insurer has received a claim for those benefits, where
the delay in claim payment is for the purpose of investigating
whether the condition preexisted the coverage. However, this 60-day
period shall not include any time during which the insurer is
awaiting a response for relevant medical information from a health
care provider.
(i) Canceling or refusing to renew a policy in violation of
Section 676.10.
SEC. 2. Section 923.6 is added to the Insurance Code, to read:
923.6. (a) Every admitted property and casualty insurer, unless
otherwise exempted by the domiciliary commissioner, shall annually
submit the opinion of an Appointed Actuary entitled "Statement of
Actuarial Opinion." This opinion shall be filed in accordance with
the appropriate Property and Casualty Annual Statement Instructions
of the National Association of Insurance Commissioners (NAIC).
(1) For purposes of this section, the term, "property and casualty
insurer" means any admitted insurer writing insurance as described
in Section 102, 103, 105, 107, 108, 109, 110, 111, 112, 113, 114,
115, 116, 117, 118, 119, 119.6, 120, 124, or 124.5.
(2) For purposes of this section, the following terms have the
same meaning as used in the Property and Casualty Annual Statement
Instructions of the NAIC:
(A) Actuarial Opinion.
(B) Actuarial Opinion Summary.
(C) Actuarial Report.
(D) Appointed Actuary.
(E) Statement of Actuarial Opinion.
(F) Property and Casualty Annual Statement Instructions.
(3) The commissioner may adopt regulations related to the terms
and conditions required by the Property and Casualty Annual Statement
Instructions of the NAIC.
(b) Every property and casualty insurer domiciled in this state
that is required to submit a Statement of Actuarial Opinion shall
annually submit an Actuarial Opinion Summary, written by the insurer'
s Appointed Actuary. This Actuarial Opinion Summary shall be filed in
accordance with the appropriate Property and Casualty Annual
Statement Instructions of the NAIC and shall be considered as a
document supporting the Actuarial Opinion required in subdivision
(a).
(c) An admitted insurer not domiciled in this state shall provide
the Actuarial Opinion Summary upon request of the commissioner.
(d) An Actuarial Report and underlying workpapers as required by
the appropriate Property and Casualty Annual Statement Instructions
of the NAIC shall be prepared to support each Actuarial Opinion. If
an insurer fails to provide either a supporting Actuarial Report or
workpapers at the request of the commissioner, or if the commissioner
determines that the supporting Actuarial Report or workpapers
provided by the insurer are otherwise unacceptable to the
commissioner, the commissioner may engage a qualified actuary at the
expense of the insurer to review the opinion and the basis for the
opinion and prepare the supporting Actuarial Report or workpapers.
(e) Notwithstanding subdivision (d) of Section 6254 of the
Government Code, subdivision (f), or any other provision of law, the
Statement of Actuarial Opinion required by subdivision (a) shall be a
public record and open to inspection.
(f) (1) Documents, materials, or other information in the
possession or control of the commissioner that are considered an
Actuarial Report, workpapers, or Actuarial Opinion Summary provided
in support of the Statement of Actuarial Opinion, and any other
material provided by the insurer to the commissioner in connection
with the Actuarial Report, workpapers, or Actuarial Opinion Summary
shall be confidential by law and privileged, shall not be made public
by the commissioner or any other person and are exempt from the
California Public Records Act (Chapter 3.5 (commencing with Section
6250) of Division 7 of Title 1 of the Government Code), shall not be
subject to subpoena, and shall not be subject to discovery or
admissible in evidence in any civil action brought by a private
party.
(2) This subdivision shall not limit the commissioner's authority
to release the documents, materials, and other information described
in paragraph (1) to the American Academy of Actuaries' Actuarial
Board for Counseling and Discipline (ABCD), or its successor, so long
as those documents, materials, and other information are required
for the purpose of professional disciplinary proceedings, and the
ABCD establishes procedures satisfactory to the commissioner for
preserving the confidentiality of the documents, nor shall this
subdivision limit the commissioner's authority to use those
documents, materials, or other information in furtherance of any
regulatory or legal action brought as part of the commissioner's
official duties.
(3) The commissioner may also exercise, with respect to the
documents, materials, or other information described in paragraph
(1), all the authority specified in subdivision (b) of Section 735.5,
or any successor provision.
SEC. 3. Section 10234.86 of the Insurance Code is amended to read:
10234.86. (a) Every insurer shall maintain records for each agent
of that agent's amount of replacement sales as a percent of the
agent's total annual sales and the amount of lapses of long-term care
insurance policies sold by the agent as a percent of the agent's
total annual sales.
(b) Every insurer shall report annually by June 30, the 10 percent
of its agents in the state with the greatest percentage of lapses
and replacements as measured by subdivision (a).
(c) Every insurer shall report annually by June 30, the number of
lapsed policies as a percent of its total annual sales in the state,
as a percent of its total number of policies in force in the state,
and as a total number of each policy form in the state, as of the end
of the preceding calendar year.
(d) Every insurer shall report annually by June 30, the number of
replacement policies sold as a percent of its total annual sales in
the state and as a percent of its total number of policies in force
in the state as of the end of the preceding calendar year.
(e) Reported replacement and lapse rates do not alone constitute a
violation of insurance laws or imply wrongdoing. The reports are for
the purpose of reviewing more closely agent activities regarding the
sale of long-term care insurance.
SEC. 4. Section 11093 of the Insurance Code is amended to read:
11093. (a) If the commissioner finds that any of the conditions
set forth in Section 11092 exist in respect to a domestic society, he
or she shall, in an order to show cause, notify the society of his
or her findings and wherein those conditions exist and shall set a
date after a reasonable period of time on which it shall show cause
why it should not be enjoined from carrying on any business until the
overt act or violation complained of shall have been corrected, or
why an action in quo warranto should not be commenced against the
society.
(b) If on such date the society does not present good and
sufficient reason why it should not be so enjoined or why such action
should not be commenced, the commissioner may present the facts
relating thereto to the Attorney General who shall, if he or she
deems the circumstances warrant, commence an action to enjoin the
society from transacting business or in quo warranto.
(c) The court shall thereupon notify the society of a hearing. If
after a full hearing it appears that the society should be so
enjoined or liquidated or a receiver appointed, the court shall enter
the necessary order.
SEC. 5. Section 11788 of the Insurance Code is amended to read:
11788. The State Treasurer shall be custodian of all securities
belonging to the State Compensation Insurance Fund, except as
otherwise provided in this chapter. He or she shall be liable on his
or her official bond for the safe keeping thereof.
SEC. 6. Section 11790 of the Insurance Code is amended to read:
11790. All securities belonging to the fund shall be delivered to
the State Treasurer and held by him or her until otherwise disposed
of as provided in this chapter. Upon delivery of those securities
into the custody of the State Treasurer, the securities shall be
credited by the State Treasurer to the fund.
SEC. 7. Section 11874 of the Insurance Code is amended to read:
11874. On the effective date of this act the Controller shall
draw his or her warrant in favor of the State Compensation Insurance
Fund for the total amount of the funds in the custody of the
Treasurer belonging to the State Compensation Insurance Fund, and the
Treasurer shall pay that warrant.
SEC. 8. Section 12352 of the Insurance Code is amended to read:
12352. If the deposit is made in this state, it shall first be
approved by the commissioner , who shall forthwith
who shall make a special deposit thereof in the State
Treasury, for the purpose specified in Section 12350. The Treasurer
shall give his or her receipt therefor, to the commissioner.
SEC. 9. The Legislature finds and declares that
Section 2 of this act imposes a limitation on the public's right of
access to the writings of public officials and agencies within the
meaning of Section 3 of Article I of the California Constitution.
Pursuant to that constitutional provision, the Legislature makes the
following findings to demonstrate the interest protected by this
limitation and the need for protecting that interest:
In order to protect proprietary information, it is necessary to
enact legislation that the actuarial supporting documents provided
pursuant to this act are kept confidential.