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| PRIOR PRINTER'S NO. 242 | PRINTER'S NO. 631 |
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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| SENATE BILL |
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| INTRODUCED BY CORMAN, BROWNE, STACK, EARLL, RAFFERTY, BAKER, FERLO, GORDNER, O'PAKE, WILLIAMS, WAUGH AND M. WHITE, FEBRUARY 19, 2009 |
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| SENATOR D. WHITE, BANKING AND INSURANCE, AS AMENDED, MARCH 10, 2009 |
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| AN ACT |
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1 | Amending the act of May 17, 1921 (P.L.682, No.284), entitled "An |
2 | act relating to insurance; amending, revising, and |
3 | consolidating the law providing for the incorporation of |
4 | insurance companies, and the regulation, supervision, and |
5 | protection of home and foreign insurance companies, Lloyds |
6 | associations, reciprocal and inter-insurance exchanges, and |
7 | fire insurance rating bureaus, and the regulation and |
8 | supervision of insurance carried by such companies, |
9 | associations, and exchanges, including insurance carried by |
10 | the State Workmen's Insurance Fund; providing penalties; and |
11 | repealing existing laws," further providing for annual and | <-- |
12 | other reports; and providing for suitability of annuity |
13 | transactions. |
14 | The General Assembly of the Commonwealth of Pennsylvania |
15 | hereby enacts as follows: |
16 | Section 1. The act of May 17, 1921 (P.L.682, No.284), known | <-- |
17 | as The Insurance Company Law of 1921, is amended by adding an |
18 | article to read: |
19 | Section 1. Section 320 of the act of May 17, 1921 (P.L.682, | <-- |
20 | No.284), known as The Insurance Company Law of 1921, amended |
21 | December 18, 1992 (P.L.1519, No.178) and February 17, 1994 |
22 | (P.L.92, No.9), is amended to read: |
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1 | Section 320. Annual and Other Reports; Penalties.--(a) (1) |
2 | Every stock and mutual insurance company, association, and |
3 | exchange, doing business in this Commonwealth, shall annually, |
4 | on or before the first day of March, file in the office of the |
5 | Insurance Commissioner and with the National Association of |
6 | Insurance Commissioners a statement which shall exhibit its |
7 | financial condition on the thirty-first day of December of the |
8 | previous year, and its business of that year and shall, within |
9 | thirty days after requested by the Insurance Commissioner, file |
10 | with the Insurance Commissioner and with the National |
11 | Association of Insurance Commissioners such additional statement |
12 | or statements concerning its affairs and financial condition as |
13 | the Insurance Commissioner may, in his discretion, require. The |
14 | Insurance Commissioner shall require each insurance company |
15 | association and exchange to report its financial condition on |
16 | the statement convention blanks, in such form as adopted by the |
17 | National Association of Insurance Commissioners and shall, upon |
18 | written request, furnish such blanks for their convenience; and |
19 | may make such changes, from time to time, in the form of the |
20 | same as shall seem best adapted to elicit from them a true |
21 | exhibit of their financial condition. |
22 | (2) Unless otherwise provided by law, regulation or order of |
23 | the Insurance Commissioner, each insurance company, association |
24 | and exchange shall adhere to the annual or quarterly statement |
25 | instructions and the accounting practices and procedures manuals |
26 | prescribed by the National Association of Insurance |
27 | Commissioners. The Insurance Commissioner may require each |
28 | insurance company, association and exchange to file in the |
29 | office of the Insurance Commissioner and with the National |
30 | Association of Insurance Commissioners financial statements on |
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1 | diskettes or other electronic information storage devices |
2 | acceptable to the Insurance Commissioner. |
3 | (b) Insurance companies of foreign governments, doing |
4 | business in this Commonwealth, shall be required to return only |
5 | the business done in the United States, and the assets held by |
6 | and for them within the United States for the protection of |
7 | policyholders therein. |
8 | (c) In the absence of actual malice, members of the National |
9 | Association of Insurance Commissioners, their duly authorized |
10 | committees, subcommittees and task forces, their delegates and |
11 | employes and all others charged with the responsibility of |
12 | collecting, reviewing, analyzing and disseminating the |
13 | information developed from the filing of the annual statement |
14 | convention blanks shall be acting as agents of the Insurance |
15 | Commissioner under the authority of this act and shall not be |
16 | subject to civil liability for libel, slander or any other cause |
17 | of action by virtue of their collection, review and analysis or |
18 | dissemination of the data and information collected from the |
19 | filings required hereunder. |
20 | (d) [All financial analysis ratios and examination synopses |
21 | concerning insurance companies that are submitted to the |
22 | Insurance Department by the National Association of Insurance |
23 | Commissioners' Insurance Regulatory Information System are |
24 | confidential and may not be disclosed by the Insurance |
25 | Department. Work products developed by Insurance Department |
26 | staff in conducting financial analyses of financial statements |
27 | filed pursuant to this section are confidential and shall not be |
28 | disclosed by the Insurance Department.] |
29 | (1) The following documents, materials or information shall |
30 | be confidential by law and privileged and shall not be subject |
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1 | to subpoena, discovery, the act of February 14, 2008 (P.L.6, No. |
2 | 3), known as the "Right-to-Know Law," or admissible in evidence |
3 | in any private civil action: |
4 | (i) All documents, materials or other information prepared |
5 | or provided by an insurance company, association or exchange |
6 | solely in support of the statement of actuarial opinion filed |
7 | under this section, including actuarial reports, work papers or |
8 | actuarial opinion summaries and any other material solely |
9 | prepared by the insurance company, association or exchange for |
10 | the purpose of providing it to the Insurance Department in |
11 | connection with actuarial reports, work papers or actuarial |
12 | opinion summaries. |
13 | (ii) All financial analysis ratios, analyst team reports and |
14 | other financial analytical results concerning insurance |
15 | companies, associations and exchanges that are provided to the |
16 | Insurance Department by the National Association of Insurance |
17 | Commissioners. |
18 | (iii) All additional work products, documents, materials or |
19 | information produced by, obtained by or provided to the |
20 | Insurance Department in the course of conducting financial |
21 | analyses of financial statements filed under this section. |
22 | (2) The protections established under paragraph (1)(i) and |
23 | (iii) shall also apply to the materials, drafts or copies |
24 | thereof when in possession of the insurance company, association |
25 | or exchange if the materials or drafts were prepared solely for |
26 | the purpose of submitting the materials to the Insurance |
27 | Department. Any documents, materials or information that are |
28 | provided to the Insurance Department under paragraph (1)(i) or |
29 | (iii) and that would otherwise be available from original |
30 | sources shall not be construed as immune from discovery from the |
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1 | original source and use in any private civil action merely |
2 | because they were provided to the Insurance Department. |
3 | (3) Neither the Insurance Commissioner nor any individual or |
4 | person who receives documents, materials or information while |
5 | acting under the authority of the Insurance Commissioner shall |
6 | be permitted or required to testify in any private civil action |
7 | concerning any confidential documents, materials or information |
8 | covered under this section. |
9 | (4) No waiver of any applicable privilege or claim of |
10 | confidentiality in the documents, materials or information shall |
11 | occur as a result of disclosure to the Insurance Commissioner or |
12 | as a result of the Insurance Commissioner sharing information in |
13 | conformance with sections 201-A and 202-A of the act of May 17, |
14 | 1921 (P.L. 789, No. 285), known as "The Insurance Department Act |
15 | of 1921." |
16 | (5) The Insurance Commissioner may use the documents, |
17 | materials or other information obtained or created under this |
18 | section in furtherance of any regulatory or legal action brought |
19 | as part of the Insurance Commissioner’s official duties. |
20 | (e) (1) Any company, association, or exchange, which |
21 | neglects to make and file its annual statement, or other |
22 | statements that may be required, in the form or within the time |
23 | herein provided shall forfeit a sum not to exceed two hundred |
24 | dollars ($200) for each day during which such neglect continues, |
25 | and, upon notice by the commissioner, its authority to do new |
26 | business shall cease while such default continues. |
27 | (2) For wilfully making a false annual or other statement |
28 | required by law, an insurance company, association or exchange, |
29 | and the persons making oath to or subscribing the same, shall |
30 | severally be punished by a fine of not less than one thousand |
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1 | dollars ($1,000) nor more than ten thousand dollars ($10,000). A |
2 | person who wilfully makes oath to such false statement shall be |
3 | guilty of perjury. |
4 | (3) The Insurance Commissioner may suspend, revoke or refuse |
5 | to renew the certificate of authority of any insurer failing to |
6 | file its annual statement when due. |
7 | Section 2. The act is amended by adding an article to read: |
8 | ARTICLE IV-B |
9 | SUITABILITY OF ANNUITY TRANSACTIONS |
10 | Section 401-B. Definitions. |
11 | The following words and phrases when used in this article |
12 | shall have the meanings given to them in this section unless the |
13 | context clearly indicates otherwise: |
14 | "Annuity." A fixed annuity or variable annuity that is |
15 | individually solicited, whether the product is classified as an |
16 | individual or group annuity. |
17 | "Commissioner." The Insurance Commissioner of the |
18 | Commonwealth. |
19 | "General agent." An insurance producer that provides |
20 | supervision on behalf of an insurer to an insurer's sales force |
21 | in a particular geographic region or territory. |
22 | "Independent agency." A producer entity that does not |
23 | exclusively represent one insurance company. |
24 | "Insurance producer." A person who sells, solicits or |
25 | negotiates contracts of insurance as defined in section 601-A of |
26 | the act of May 17, 1921 (P.L.789, No.285), known as The |
27 | Insurance Department Act of 1921. |
28 | "Insurer." A life insurance company licensed or required to |
29 | be licensed under section 202 or a fraternal benefit society as |
30 | defined in section 2403. |
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1 | "Recommendation." Advice provided by an insurance producer, |
2 | or an insurer where no producer is involved, to an individual |
3 | consumer that results in a purchase or exchange of an annuity in |
4 | accordance with that advice. |
5 | Section 402-B. Applicability and scope. |
6 | (a) General rule.--This article shall apply to any |
7 | recommendation to purchase or exchange an annuity made to a |
8 | consumer by an insurance producer, or an insurer where no |
9 | producer is involved, that results in the purchase or exchange |
10 | recommended. |
11 | (b) Exclusions.--Unless otherwise specifically included, |
12 | this article shall not apply to recommendations involving the |
13 | following: |
14 | (1) Direct response solicitations where there is no |
15 | recommendation based on information collected from the |
16 | consumer pursuant to this article. |
17 | (2) Annuity contracts used to fund: |
18 | (i) An employee pension or welfare benefit plan that |
19 | is covered by the Employee Retirement Income Security Act |
20 | of 1974 (Public Law 93-406, 88 Stat. 829). |
21 | (ii) A plan described by sections 401(a) or (k), |
22 | 403(b), 408(k) or (p) of the Internal Revenue Code of |
23 | 1986 (Public Law 99-514, 26 U.S.C. §§ 401(a) or (k), |
24 | 403(b), 408(k) or (p)), when the plan, for purposes of |
25 | the Employee Retirement Income Security Act of 1974, is |
26 | established or maintained by an employer. |
27 | (iii) A governmental or church plan defined in |
28 | section 414 of the Internal Revenue Code of 1986 or a |
29 | deferred compensation plan of a State or local government |
30 | or tax exempt organization under section 457 of the |
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1 | Internal Revenue Code of 1986. |
2 | (iv) A nonqualified deferred compensation |
3 | arrangement established or maintained by an employer or |
4 | plan sponsor. |
5 | (v) Settlements of or assumptions of liabilities |
6 | associated with personal injury litigation or any dispute |
7 | or claim resolution process. |
8 | (vi) Formal prepaid funeral contracts. |
9 | Section 403-B. Duties of insurers and insurance producers. |
10 | (a) General duties.--In making a recommendation to a |
11 | consumer for the purchase of an annuity or the exchange of an |
12 | annuity that results in another insurance transaction or series |
13 | of insurance transactions, the insurance producer, or the |
14 | insurer where no insurance producer is involved, shall have |
15 | reasonable grounds for believing that the recommendation is |
16 | suitable for the consumer on the basis of the facts disclosed by |
17 | the consumer as to the consumer's investments and other |
18 | insurance products and as to the consumer's financial situation |
19 | and needs. |
20 | (b) Consumer information.--Prior to the execution of a |
21 | purchase or exchange of an annuity resulting from a |
22 | recommendation, an insurance producer, or an insurer where no |
23 | insurance producer is involved, shall make reasonable efforts to |
24 | obtain information concerning all of the following: |
25 | (1) The consumer's financial status. |
26 | (2) The consumer's tax status. |
27 | (3) The consumer's investment objectives. |
28 | (4) Other information used or considered to be |
29 | reasonable by the insurance producer, or the insurer where no |
30 | insurance producer is involved, in making recommendations to |
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1 | the consumer. |
2 | (c) Obligation limits.-- |
3 | (1) Neither an insurance producer nor an insurer where |
4 | no insurance producer is involved shall have any obligation |
5 | to a consumer under subsection (a) related to any |
6 | recommendation that is reasonable under all the circumstances |
7 | actually known to the insurer or insurance producer at the |
8 | time of the recommendation when a consumer: |
9 | (i) Refuses to provide relevant information |
10 | requested by the insurer or insurance producer. |
11 | (ii) Decides to enter into an insurance transaction |
12 | that is not based on a recommendation of the insurer or |
13 | insurance producer. |
14 | (iii) Fails to provide complete or accurate |
15 | information. |
16 | (d) Supervision of recommendations.-- |
17 | (1) An insurer shall assure that a system to supervise |
18 | recommendations that is reasonably designed to achieve |
19 | compliance with this article is established and maintained by |
20 | complying with paragraphs (3) and (4), or shall establish and |
21 | maintain such a system that includes at least the following: |
22 | (i) Maintaining written procedures. |
23 | (ii) Conducting periodic reviews of its records that |
24 | are reasonably designed to assist in detecting and |
25 | preventing violations of this article. |
26 | (2) A general agent or independent agency shall adopt a |
27 | system established by an insurer to supervise recommendations |
28 | of its insurance producers that is reasonably designed to |
29 | achieve compliance with this article, or shall establish and |
30 | maintain a system that is reasonably designed to achieve |
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1 | compliance with this article. The system must include at |
2 | least the following: |
3 | (i) Maintaining written procedures. |
4 | (ii) Conducting periodic reviews of records that are |
5 | reasonably designed to assist in detecting and preventing |
6 | violations of this article. |
7 | (3) An insurer may contract with a third party, |
8 | including a general agent or independent agency, to establish |
9 | and maintain a system of supervision as required by paragraph |
10 | (1) with respect to insurance producers under contract with |
11 | or employed by the third party. |
12 | (4) An insurer shall make reasonable inquiry to assure |
13 | that the third party contracting under paragraph (3) is |
14 | performing the functions required under paragraph (1) and |
15 | shall take such action as is reasonable under the |
16 | circumstances to enforce the contractual obligation to |
17 | perform the functions. An insurer may comply with its |
18 | obligation to make reasonable inquiry by doing both of the |
19 | following: |
20 | (i) The insurer annually obtains, electronically or |
21 | otherwise,a certification from a third party senior |
22 | manager who has responsibility for the delegated |
23 | functions that the manager has a reasonable basis to |
24 | represent, and does represent, that the third party is |
25 | performing the required functions. |
26 | (ii) The insurer, based on reasonable selection |
27 | criteria, periodically selects third parties contracting |
28 | under paragraph (3) for a review to determine whether the |
29 | third parties are performing the required functions. The |
30 | insurer shall perform procedures to conduct the review |
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1 | that are reasonable under the circumstances. |
2 | (5) An insurer that contracts with a third party under |
3 | paragraph (3) and that complies with the requirements to |
4 | supervise under paragraph (4) shall have fulfilled its |
5 | responsibilities under paragraph (1). |
6 | (6) An insurer, general agent or independent agency is |
7 | not required to do either of the following: |
8 | (i) Review or provide for review of all insurance |
9 | producer-solicited transactions. |
10 | (ii) Include in its system of supervision an |
11 | insurance producer's recommendations to consumers of |
12 | products other than the annuities offered by the insurer, |
13 | general agent or independent agency. |
14 | (7) A general agent or independent agency contracting |
15 | with an insurer pursuant to paragraph (3) shall promptly, |
16 | when requested by the insurer pursuant to paragraph (4), give |
17 | a certification as described in paragraph (4) or give a clear |
18 | statement that it is unable to meet the certification |
19 | criteria. |
20 | (8) No person may provide a certification under |
21 | paragraph (4)(i) unless both the following conditions are |
22 | met: |
23 | (i) The person is a senior manager with |
24 | responsibility for the delegated functions. |
25 | (ii) The person has a reasonable basis for making |
26 | the certification. |
27 | (e) Compliance with other rules.--Compliance with the |
28 | Financial Industry Regulatory Authority Conduct Rules pertaining |
29 | to suitability shall satisfy the requirements under this section |
30 | for the recommendation of variable annuities registered under | <-- |
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1 | the Securities Act of 1933 (48 Stat. 74, 15 U.S.C. § 77a et |
2 | seq.) or rules and regulations adopted under the Securities Act |
3 | of 1933. Nothing in this subsection shall limit the |
4 | commissioner's ability to enforce the provisions of this |
5 | article. |
6 | (f) Internal audit and compliance procedures.--Nothing in |
7 | this article shall exonerate an insurer from the internal audit |
8 | and compliance procedure requirements under section 405-A. |
9 | Section 404-B. Mitigation of responsibility. |
10 | (a) Corrective actions.--The commissioner may order: |
11 | (1) An insurer to take reasonably appropriate corrective |
12 | action for any consumer harmed by the insurer's or by its |
13 | insurance producer's violation of this article. |
14 | (2) An insurance producer to take reasonably appropriate |
15 | corrective action for any consumer harmed by the insurance |
16 | producer's violation of this article. |
17 | (3) A general agent or independent agency that employs |
18 | or contracts with an insurance producer to sell or solicit |
19 | the sale of annuities to consumers, to take reasonably |
20 | appropriate corrective action for any consumer harmed by the |
21 | insurance producer's violation of this article. |
22 | (b) Reduction of penalty.--Any applicable penalty permitted |
23 | under section 406-B may be reduced or eliminated if corrective |
24 | action for the consumer was taken promptly after a violation was |
25 | discovered. |
26 | Section 405-B. Recordkeeping. |
27 | An insurer, general agent, independent agency and insurance |
28 | producer shall maintain or be able to make available to the |
29 | commissioner records of the information collected from the |
30 | consumer and other information used in making the |
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1 | recommendations that were the basis for insurance transactions |
2 | for five years after the insurance transaction is completed by |
3 | the insurer. An insurer is permitted but shall not be required |
4 | to maintain documentation on behalf of an insurance producer. |
5 | Section 406-B. Enforcement. |
6 | (a) Penalties and remedies.--Upon a determination by hearing |
7 | that this article has been violated, the commissioner may pursue |
8 | one or more of the following courses of action: |
9 | (1) Issue an order requiring the person in violation to |
10 | cease and desist from engaging in the violation. |
11 | (2) Suspend or revoke or refuse to issue or renew the |
12 | certificate or license of the person in violation. |
13 | (3) Impose a civil penalty of not more than $5,000 for |
14 | each violation. |
15 | (4) Impose any other penalty or remedy deemed |
16 | appropriate by the commissioner, including restitution. |
17 | (b) Other remedies.--The enforcement remedies imposed under |
18 | this section are in addition to any other remedies or penalties |
19 | that may be imposed by any other applicable statute, including |
20 | the act of July 22, 1974 (P.L.589, No.205), known as the Unfair |
21 | Insurance Practices Act. Violations of this article are deemed |
22 | and defined by the commissioner to be an unfair method of |
23 | competition and an unfair or deceptive act or practice pursuant |
24 | to the Unfair Insurance Practices Act. |
25 | Section 407-B. Private cause of action. |
26 | Nothing in this article shall be construed to create or imply |
27 | a private cause of action for a violation of this article. |
28 | Section 2. This act shall take effect in 180 days. | <-- |
29 | Section 3. This act shall take effect as follows: | <-- |
30 | (1) The amendment of section 320 of the act shall take |
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1 | effect immediately. |
2 | (2) This section shall take effect immediately. |
3 | (3) The remainder of this act shall take effect in 180 |
4 | days. |
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