Current through Register Vol. XLI, No. 38, September 20, 2024
2.1. "Affiliate" means a
company that controls, is controlled by or is under common control with another
company.
2.2. "Clear and conspicuous"
means that a notice is reasonably understandable and designed to call attention to
the nature and significance of the information in the notice.
a. A licensee makes its notice reasonably
understandable if it:
1. Presents the information
in the notice in clear, concise sentences, paragraphs and sections;
2. Uses short explanatory sentences or bullet
lists whenever possible;
3. Uses
definite, concrete, everyday words and active voice whenever possible;
4. Avoids multiple negatives;
5. Avoids legal and highly technical business
terminology whenever possible; and
6.
Avoids explanations that are imprecise and readily subject to different
interpretations.
b. A
licensee designs its notice to call attention to the nature and significance of the
information in it if the licensee:
1. Uses a
plain-language heading to call attention to the notice;
2. Uses a typeface and type size that are easy to
read;
3. Provides wide margins and ample
line spacing;
4. Uses boldface or
italics for key words; and
5. In a form
that combines the licensee's notice with other information, uses distinctive type
size, style, and graphic devices, such as shading or sidebars.
c. If a licensee provides a notice on a web page,
the licensee designs its notice to call attention to the nature and significance of
the information in it if the licensee uses text or visual cues to encourage
scrolling down the page, if necessary, to view the entire notice and to ensure that
other elements on the web site (such as text, graphics, hyperlinks or sound) do not
distract attention from the notice, and the licensee either:
1. Places the notice on a screen that consumers
frequently access, such as a page on which transactions are conducted; or
2. Places a link on a screen that consumers
frequently access, such as a page on which transactions are conducted, that connects
directly to the notice and is labeled appropriately to convey the importance, nature
and relevance of the notice.
2.3. "Collect" means to obtain information that
the licensee organizes or can retrieve by the name of an individual or by
identifying number, symbol or other identifying particular assigned to the
individual, irrespective of the source of the underlying information.
2.4. "Commissioner" means the Insurance
Commissioner of the State of West Virginia.
2.5. "Company" means a corporation, limited
liability company, business trust, general or limited partnership, association, sole
proprietorship or similar organization.
2.6. "Consumer" means an individual who seeks to
obtain, obtains or has obtained an insurance product or service from a licensee that
is to be used primarily for personal, family or household purposes, and about whom
the licensee has nonpublic personal information, or that individual's legal
representative.
a. An individual who provides
nonpublic personal information to a licensee in connection with obtaining or seeking
to obtain financial, investment or economic advisory services relating to an
insurance product or service is a consumer regardless of whether the licensee
establishes an ongoing advisory relationship.
b. An applicant for insurance prior to the
inception of insurance coverage is a licensee's consumer.
c. An individual who is a consumer of another
financial institution is not a licensee's consumer solely because the licensee is
acting as agent for, or provides processing or other services to, that financial
institution.
d. An individual is a
licensee's consumer if the licensee discloses nonpublic personal financial
information about the individual to a nonaffiliated third party other than as
permitted under sections 12, 13 and 14 of this rule, and:
1. the individual is a beneficiary of a life
insurance policy underwritten by the licensee;
2. the individual is a claimant under an insurance
policy issued by the licensee;
3. the
individual is an insured or an annuitant under an insurance policy or an annuity,
respectively, issued by the licensee; or
4. the individual is a mortgagor of a mortgage
covered under a mortgage insurance policy.
e. Provided that the licensee provides the
initial, annual and revised notices under sections 3, 4 and 7 of this rule to the
plan sponsor, group or blanket insurance policyholder or group annuity contract
holder, all of whom are to be treated as customers for purposes of those sections,
and further provided that the licensee does not disclose to a nonaffiliated third
party nonpublic personal financial information about such an individual other than
as permitted under sections 12, 13 and 14 of this rule, an individual is not the
consumer of the licensee solely because he or she is:
1. A participant or a beneficiary of an employee
benefit plan that the licensee administers or sponsors or for which the licensee
acts as a trustee, insurer or fiduciary; or
2. Covered under a group or blanket insurance
policy or group annuity contract issued by the licensee.
f. The individuals described in paragraphs 1 and 2
of subdivision e of this subsection are consumers of a licensee if the licensee does
not meet all the conditions of subdivision e.
g. In no event shall the individuals, solely by
virtue of the status described in paragraphs 1 and 2 of subdivision e of this
subsection, be deemed to be customers for purposes of this rule.
h. An individual is not a licensee's consumer
solely because he or she is a beneficiary of a trust for which the licensee is a
trustee.
i. An individual is not a
licensee's consumer solely because he or she has designated the licensee as trustee
for a trust.
2.7. "Consumer
reporting agency" has the same meaning as in section 603(f) of the federal Fair
Credit Reporting Act (
15 U.S.C.
1681 a(f)).
2.8. "Control" means:
a. Ownership, control or power to vote twenty-five
percent (25%) or more of the outstanding shares of any class of voting security of
the company, directly or indirectly, or acting through one or more other
persons;
b. Control in any manner over
the election of a majority of the directors, trustees or general partners (or
individuals exercising similar functions) of the company; or
c. The power to exercise, directly or indirectly,
a controlling influence over the management or policies of the company, as the
commissioner determines.
2.9.
"Customer" means a consumer who has a customer relationship with a licensee.
2.10. "Customer relationship" means a
continuing relationship between a consumer and a licensee under which the licensee
provides one or more insurance products or services to the consumer that are to be
used primarily for personal, family or household purposes.
a. A consumer has a continuing relationship with a
licensee if:
1. The consumer is a current
policyholder of an insurance product issued by or through the licensee; or
2. The consumer obtains financial, investment or
economic advisory services relating to an insurance product or service from the
licensee for a fee.
b. A
consumer does not have a continuing relationship with a licensee if:
1. The consumer applies for insurance but does not
purchase the insurance;
2. The licensee
sells the consumer travel insurance in an isolated transaction;
3. The individual is no longer a current
policyholder of an insurance product or no longer obtains insurance services with or
through the licensee;
4. The consumer is
a beneficiary or claimant under a policy and has submitted a claim under a policy
choosing a settlement option involving an ongoing relationship with the
licensee;
5. The consumer is a
beneficiary or a claimant under a policy and has submitted a claim under that policy
choosing a lump sum settlement option;
6. The customer's policy is lapsed, expired, or
otherwise inactive or dormant under the licensee's business practices, and the
licensee has not communicated with the customer about the relationship for a period
of twelve (12) consecutive months, other than annual privacy notices, material
required by law or regulation, communication at the direction of a state or federal
authority, or promotional materials;
7.
The individual is an insured or an annuitant under an insurance policy or annuity,
respectively, but is not the policyholder or owner of the insurance policy or
annuity; or
8. The individual's last
known address according to the licensee's records is deemed invalid. For the
purposes of this rule, an address of record is deemed invalid if mail sent to that
address by the licensee has been returned by the postal authorities as undeliverable
and if subsequent attempts by the licensee to obtain a current valid address for the
individual have been unsuccessful.
2.11. "Financial institution" means any
institution the business of which is engaging in activities that are financial in
nature or incidental to such financial activities as described in section 4(k) of
the Bank Holding Company Act of 1956 (
12 U.S.C.
1843(k)) . Financial institution
does not include:
a. Any person or entity with
respect to any financial activity that is subject to the jurisdiction of the
Commodity Futures Trading Commission under the Commodity Exchange Act (
7 U.S.C.
1 et seq.);
b. The Federal Agricultural Mortgage Corporation
or any entity charged and operating under the Farm Credit Act of 1971 (
12 U.S.C.
2001 et seq.); or
c. Institutions chartered by Congress specifically
to engage in securitizations, secondary market sales (including sales of servicing
rights) or similar transactions related to a transaction of a consumer, as long as
the institutions do not sell or transfer nonpublic personal information to a
nonaffiliated third party.
2.12. "Financial product or service" means a
product or service that a financial holding company could offer by engaging in an
activity that is financial in nature or incidental to such a financial activity
under section 4(k) of the Bank Holding Company Act of 1956 (
12 U.S.C.
1843(k)) . Financial service
includes a financial institution's evaluation or brokerage of information that the
financial institution collects in connection with a request or an application from a
consumer for a financial product or service.
2.13. "Health care" means:
a. Preventive, diagnostic, therapeutic,
rehabilitative, maintenance or palliative care, services, procedures, tests or
counseling that:
1. Relates to the physical, mental
or behavioral condition of an individual; or
2. Affects the structure or function of the human
body or any part of the human body, including the banking of blood, sperm, organs or
any other tissue; or
b.
Prescribing, dispensing or furnishing to an individual drugs or biologicals, or
medical devices or health care equipment and supplies.
2.14. "Health care provider" means a physician or
other health care practitioner licensed, accredited or certified to perform
specified health services consistent with state law, or a health care
facility.
2.15. "Health information"
means any information or data except age or gender, whether oral or recorded in any
form or medium, created by or derived from a health care provider or the consumer
that relates to:
a. The past, present or future
physical, mental or behavioral health or condition of an individual;
b. The provision of health care to an individual;
or
c. Payment for the provision of
health care to an individual.
2.16. "Insurance product or service" means any
product or service that is offered by a licensee pursuant to the insurance laws of
this state. Insurance service includes a licensee's evaluation, brokerage or
distribution of information that the licensee collects in connection with a request
or an application from a consumer for a insurance product or service.
2.17. "Licensee" means all licensed insurers,
producers and other persons licensed or required to be licensed, or authorized or
required to be authorized, or registered or required to be registered pursuant to
chapter 33 of the West Virginia Code.
a. A
licensee is not subject to the notice and opt-out requirements for nonpublic
personal financial information set forth in sections 1 through 14 of this rule if
the licensee is an employee, agent or other representative of another licensee ("the
principal") and:
1. The principal otherwise
complies with, and provides the notices required by, the provisions of this rule;
and
2. The licensee does not disclose
any nonpublic personal information to any person other than the principal or its
affiliates in a manner permitted by this rule.
b. Subject to paragraph 1 of this subdivision,
"licensee" shall also include an unlicensed insurer that accepts business placed
through a licensed excess lines broker in this state, but only in regard to the
excess lines placements placed pursuant to W. Va. Code §
33-12-10. An excess lines broker
or excess lines insurer shall be deemed to be in compliance with the notice and
opt-out requirements for nonpublic personal financial information set forth in
sections 1 through 14 of this rule provided:
1.
The broker or insurer does not disclose nonpublic personal information of a consumer
or a customer to nonaffiliated third parties for any purpose, including joint
servicing or marketing under section 12 of this rule, except as permitted by
sections 13 or 14 of this rule; and
2.
The broker or insurer delivers a notice to the consumer at the time a customer
relationship is established on which the following is printed in 16-point type:
PRIVACY NOTICE
"Neither the U.S. brokers that handled this insurance nor the
insurers that have underwritten this insurance will disclose nonpublic personal
information concerning the buyer to nonaffiliates of the brokers or insurers except
as permitted by law."
2.18. "Nonaffiliated third party" means any person
except:
a. A licensee's affiliate; or
b. A person employed jointly by a licensee and any
company that is not the licensee's affiliate (but nonaffiliated third party includes
the other company that jointly employs the person).
c. Nonaffiliated third party includes any company
that is an affiliate solely by virtue of the direct or indirect ownership or control
of the company by the licensee or its affiliate in conducting merchant banking or
investment banking activities of the type described in section 4(k)(4)(H) or
insurance company investment activities of the type described in section 4(k)(4)(I)
of the federal Bank Holding Company Act (
12 U.S.C.
1843(k)(4)(H) and (I)
).
2.19. "Nonpublic personal
information" means nonpublic personal financial information and nonpublic personal
health information.
2.20. "Nonpublic
personal financial information" means:
a.
Personally identifiable financial information; and
b. Any list, description or other grouping of
consumers (and publicly available information pertaining to them) that is derived
using any personally identifiable financial information that is not publicly
available.
c. Nonpublic personal
financial information does not include:
1. Health
information;
2. Publicly available
information, except as included on a list described in subdivision b of this
subsection; or
3. Any list, description
or other grouping of consumers (and publicly available information pertaining to
them) that is derived without using any personally identifiable financial
information that is not publicly available.
d. Nonpublic personal financial information
includes any list of individuals' names and street addresses that is derived in
whole or in part using personally identifiable financial information that is not
publicly available, such as account numbers.
e. Nonpublic personal financial information does
not include any list of individuals' names and addresses that contains only publicly
available information, is not derived in whole or in part using personally
identifiable financial information that is not publicly available, and is not
disclosed in a manner that indicates that any of the individuals on the list is a
consumer of a financial institution.
2.21. "Nonpublic personal health information"
means health information:
a. That identifies an
individual who is the subject of the information; or
b. With respect to which there is a reasonable
basis to believe that the information could be used to identify an
individual.
2.22. "Opt out"
means a direction by the consumer that the licensee not disclose nonpublic personal
financial information about that consumer to a nonaffiliated third party, other than
as permitted by sections 12, 13 and 14 of this rule.
2.23. "Personally identifiable financial
information" means any information:
a. A consumer
provides to a licensee to obtain an insurance product or service from the
licensee;
b. About a consumer resulting
from a transaction involving an insurance product or service between a licensee and
a consumer; or
c. The licensee
otherwise obtains about a consumer in connection with providing an insurance product
or service to that consumer.
d.
Personally identifiable financial information includes, but is not limited to:
1. Information a consumer provides to a licensee
on an application to obtain an insurance product or service;
2. Account balance information and payment
history;
3. The fact that an individual
is or has been one of the licensee's customers or has obtained an insurance product
or service from the licensee;
4. Any
information about the licensee's consumer if it is disclosed in a manner that
indicates that the individual is or has been the licensee's consumer;
5. Any information that a consumer provides to a
licensee or that the licensee or its agent otherwise obtains in connection with
collecting on a loan or servicing a loan;
6. Any information the licensee collects through
an Internet cookie (an information-collecting device from a web server);
and
7. Information from a consumer
report.
e. Personally
identifiable financial information does not include:
1. Health information;
2. A list of names and addresses of customers of
an entity that is not a financial institution; and
3. Information that does not identify a consumer,
such as aggregate information or blind data that does not contain personal
identifiers such as account numbers, names or addresses.
2.24. "Publicly available information"
means any information that a licensee has a reasonable basis to believe is lawfully
made available to the general public from:
a.
Federal, state or local government records;
b. Widely distributed media; or
c. Disclosures to the general public that are
required to be made by federal, state or local law.
d. A licensee has a reasonable basis to believe
that information is lawfully made available to the general public if the licensee
has taken steps to determine:
1. That the
information is of the type that is available to the general public; and
2. Whether an individual can direct that the
information not be made available to the general public and, if so, that the
licensee's consumer has not done so.
e. Publicly available information in government
records includes information in government real estate records and security interest
filings.
f. Publicly available
information from widely distributed media includes information from a telephone
book, a television or radio program, a newspaper or a web site that is available to
the general public on an unrestricted basis. A web site is not restricted merely
because an Internet service provider or a site operator requires a fee or a
password, so long as access is available to the general public.
g. A licensee has a reasonable basis to believe
that mortgage information is lawfully made available to the general public if the
licensee has determined that the information is of the type included on the public
record in the jurisdiction where the mortgage would be recorded.
h. A licensee has a reasonable basis to believe
that an individual's telephone number is lawfully made available to the general
public if the licensee has located the telephone number in the telephone book or the
consumer has informed you that the telephone number is not unlisted.
