Current through Register Vol. 46, No. 39, September 25, 2024
(a) For every
policy or policy renewal procured from an unauthorized insurer pursuant to
section
2118 of the
Insurance Law when the insured's home state is this State, affidavits meeting
the requirements of this section shall be filed by the excess line broker with
the excess line association.
(b)
Each affidavit shall be on an affidavit form prescribed by the superintendent,
consisting of parts A and C, as follows:
(1)
part A is the affidavit by the excess line broker and shall be consecutively
numbered; and
(2) part C is the
affidavit by the producing broker that shall be submitted in addition to part
A, if any of the requisite declinations from authorized insurers has been
obtained by the producing broker or if the producing broker provided the
insured with the written notice required by subdivision (e) of this
section.
(c)
(1) The excess line broker shall obtain a
properly completed and executed affidavit from the producing broker (part C),
if the producing broker has obtained any of the requisite declinations from
authorized insurers or if the producing broker provided the insured with the
written notice required by subdivision (e) of this section.
(2) The affidavits required by paragraph (1)
of this subdivision shall be obtained, whenever practicable, prior to placing
coverage with an unauthorized insurer, but in no event more than 45 days
following such placement.
(d)
(1) As
set forth in Part 301 (Insurance Regulation 134) of this Title:
(i) a consolidated part A and, when required,
a consolidated part C of the required affidavit may be completed and executed
by the excess line broker or producing broker, on behalf of more than one
member of a purchasing group, where liability insurance (as defined in section
5902 of the
Insurance Law for purchasing group members) has been procured during any
consecutive 30-day period prior to the filing of the affidavit(s);
and
(ii) any consolidated affidavit
(part A or part C) shall specify all applicable information required for each
insured member of the purchasing group.
(2) As set forth in Subpart 60-3 (Insurance
Regulation 35-E) of this Title: a consolidated part A and, when required, a
consolidated part C of the required affidavit may be completed and executed by
the excess line broker or producing broker, on behalf of the transportation
network company drivers of the transportation network company, when a group
policy has been obtained by a transportation network company as the group
policyholder pursuant to section
3455 of the
Insurance Law, with respect to coverages provided without option by the group
policyholder.
(3) As set forth in
Subpart 60-4 (Insurance Regulation 35-F) of this Title: a consolidated part A
and, when required, a consolidated part C of the required affidavit may be
completed and executed by the excess line broker or producing broker, on behalf
of the shared vehicle owners and shared vehicle drivers of the peer-to-peer car
sharing program administrator, when a group policy has been obtained by an
administrator as the group policyholder pursuant to section
3458 of the
Insurance Law, with respect to coverages provided without option by the group
policyholder.
(e) The
excess line broker or the producing broker shall affirm in part A or part C of
the affidavit, as true under the penalties of perjury, that the insured was
specifically advised in writing, prior to placement, that:
(1) the unauthorized insurer with which the
coverage would be placed is not authorized to do an insurance business in this
State and is not subject to supervision by this State;
(2) in the event of the insolvency of the
unauthorized insurer, losses will not be covered by any New York State security
fund; and
(3) the policy may not be
subject to all of the regulations of the superintendent pertaining to policy
forms. A copy of the written notice provided to the insured shall be attached
to the affirming broker's affidavit.
(f) With regard to an exempt commercial
purchaser, the excess line broker or the producing broker also shall affirm in
part A or part C of the affidavit, as true under the penalties of perjury, that
the exempt commercial purchaser was specifically advised in writing, prior to
placement, that the insurance may or may not be available from the authorized
market that may provide greater protection with more regulatory
oversight.
(g) In part A of the
affidavit, the excess line broker shall:
(1)
identify each authorized insurer declining to issue or renew the coverage and
the date of each declination;
(2)
identify any producing broker acting on behalf of the insured;
(3) identify the insured being placed with
the unauthorized insurer;
(4)
describe the type and extent of, and the premium for, the coverage to be
placed;
(5) identify the
unauthorized insurer with which the coverage has been placed;
(6) specify, if coverage has been placed with
more than one unauthorized insurer, the separate participation and
proportionate premium of each such insurer, except that for purposes of this
paragraph placement with Lloyd's shall be treated as if the placement was made
with one unauthorized insurer;
(7)
identify, in the case of an association of insurance underwriters or insurance
exchange entity, each syndicate participating in the coverage;
(8) identify the insured's home state;
and
(9) indicate when coverage has
been placed through participation in a purchasing group.
(h) For insurance contracts that have an
effective date prior to July 21, 2011, where the premium tax is to be allocated
in accordance with section
27.9 of this Part, the excess line
broker shall also specify the bases for allocation, using a form prescribed by
the superintendent that shall be attached to part A of the affidavit and, if an
alternative equitable method of allocation is utilized, additional information
to substantiate such method shall be provided.
