2101 - Definitions.

§  2101. Definitions. (a) In this article, "insurance agent" means any  authorized or  acknowledged  agent  of  an  insurer,  fraternal  benefit  society  or  health  maintenance  organization  issued  a certificate of  authority pursuant to article forty-four of the public health  law,  and  any sub-agent or other representative of such an agent, who acts as such  in  the  solicitation  of,  negotiation  for,  or sale of, an insurance,  health maintenance organization or annuity contract,  other  than  as  a  licensed insurance broker, except that such term shall not include:    (1)  any  regular  salaried officer or employee of a licensed insurer,  fraternal benefit society or health maintenance  organization  or  of  a  licensed  insurance  agent,  who  does  not  solicit  or accept from the  public, outside  of  an  office  of  such  insurer,  health  maintenance  organization  or agent, applications or orders for any such contract, if  such officer  or  employee  does  not  receive  a  commission  or  other  compensation  for his services which commission or other compensation is  directly dependent upon the amount of business done;    (2) employees of  insurers,  fraternal  benefit  societies  or  health  maintenance   organizations   or  organizations  employed  by  insurers,  fraternal benefit societies or health maintenance organizations who  are  engaging in the inspection, rating or classification of risks, or in the  supervision  of the training of licensed insurance producers and who are  not individually engaged in the sale,  solicitation  or  negotiation  of  insurance;    (3)  any agent or representative of a fraternal benefit society, other  than agents representing societies governed  by  section  four  thousand  five  hundred  twenty-seven  of this chapter, who devotes, or intends to  devote, less than fifty percent of the person's time to the solicitation  and negotiation or sale of insurance  contracts  for  fraternal  benefit  societies and who receives or intends to receive any commission or other  compensation  directly  dependent  on  the amount of insurance, provided  that any person who  in  the  preceding  calendar  year  has  solicited,  negotiated or sold any of the following contracts of insurance on behalf  of  a fraternal benefit society is presumed to have devoted, or intended  to devote, fifty percent of  the  person's  time  to  the  solicitation,  negotiation and sale of insurance contracts;    (A)  life  insurance  contracts  that,  in  the  aggregate, exceed two  hundred thousand dollars of coverage  for  all  lives  insured  for  the  preceding calendar year;    (B)  a  permanent  life  insurance  contract  offering  more  than ten  thousand dollars of coverage on an individual life;    (C) a term life insurance contract offering more than  fifty  thousand  dollars of coverage on an individual life;    (D) any insurance contracts other than life that the fraternal benefit  society  may  write  that  insure  the  individual  lives  of  more than  twenty-five persons;    (E) any variable life insurance or variable annuity contract;    (4) any agent or other representative of any title insurance company;    (5) any service contract  provider  or  any  administrator  or  person  designated  by  a  service  contract provider who in this state markets,  sells, offers for sale, issues, makes, proposes to  make  or  administer  service contracts pursuant to article seventy-nine of this chapter;    (6)  a person who secures and furnishes information for the purpose of  group  life  insurance,   group   property/casualty   insurance,   group  annuities,  group  or  blanket accident and health insurance; or for the  purpose of enrolling individuals under plans, issuing certificates under  plans or otherwise  assisting  in  administering  plans;  or  performing  administrative  services  related  to  mass  marketed  property/casualtyinsurance, provided that no commission is paid to  the  person  for  the  service;    (7)  an employer or association or its officers, directors, 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, fraternal benefit society  or  health  maintenance  organization,   as   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;    (8) 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;    (9)  a  person who is not a resident of this state who sells, solicits  or negotiates a contract of insurance for  commercial  property/casualty  risks  to  an  insured with risks located in more than one state insured  under that contract, provided that such person is otherwise licensed  as  an  insurance  producer  to sell, solicit or negotiate that 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    (10)  any  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.    (b) In this article, "independent insurance agent" means an "insurance  agent" who is not owned or controlled by any insurer, fraternal  benefit  society or health maintenance organization or group of such insurers and  whose  agency  agreement  does  not prohibit the representation of other  insurers or groups of insurers and which provides that upon  termination  of  the agreement the agent's records and use and control of expirations  remain the property of the agent. Only an "independent insurance  agent"  shall  be represented to the public as an independent insurance agent or  agency.    (c) In this  article,  "insurance  broker"  means  any  person,  firm,  association or corporation who or which for any compensation, commission  or  other  thing  of  value  acts  or  aids in any manner in soliciting,  negotiating or selling, any insurance or annuity contract or in  placing  risks  or  taking  out  insurance,  on  behalf  of an insured other than  himself, herself or itself  or  on  behalf  of  any  licensed  insurance  broker, except that such term shall not include:    (1) any 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;    (2) an officer, director or employee of a licensed insurance producer,  provided  that  the  officer,  director or employee does not receive any  commission on policies written or sold to insure risks residing, located  or to be performed in this state and:    (A) the officer, director  or  employee's  activities  are  executive,  administrative,  managerial, clerical or a combination of these, and are  only indirectly related to the  sale,  solicitation  or  negotiation  of  insurance; or(B)   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    (C)  the  officer, director or employee is acting in the capacity of a  special  agent  or  agency  supervisor  assisting   licensed   insurance  producers  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;    (3) any foreign freight forwarder registered with the federal maritime  commission  or  any  custom  house  broker licensed by the United States  treasury department, when such forwarder or broker negotiates, issues or  delivers a certificate or other evidence  of  a  contract  of  insurance  under  an  open  marine  policy  naming  the  forwarder or broker as the  insured and covering exports or imports serviced by  such  forwarder  or  broker on behalf of others, provided that such forwarder or broker takes  or  receives no money or other thing of value when acting as hereinafter  specified, from  any  insurer  or  representative  thereof,  unless  the  receipt of money or thing of value is authorized under this chapter;    (4)  any  service  contract  provider  or  any administrator or person  designated by a service contract provider who  in  this  state  markets,  sells,  offers  for sale, issues, makes, proposes to make or administers  service contracts pursuant to article seventy-nine of this chapter;    (5) a person who secures and furnishes information for the purpose  of  group   life   insurance,   group   property/casualty  insurance,  group  annuities, group or blanket accident and health insurance;  or  for  the  purpose of enrolling individuals under plans, issuing certificates under  plans  or  otherwise  assisting  in  administering  plans;  or  performs  administrative  services  related  to  mass  marketed  property/casualty  insurance, where no commission is paid to the person for the service;    (6)  an employer or association or its officers, directors, employees,  or the trustees of an employee  trust  plan,  to  the  extent  that  the  employers,  officers, employees, director 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, fraternal benefit society or health maintenance  organization,  as  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;    (7) 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; or    (8) a person who is not a resident of this state who  sells,  solicits  or  negotiates  a  contract for commercial property/casualty risks to an  insured with risks located in more than one  state  insured  under  that  contract,  provided  that  such  person  is  otherwise  licensed  as  an  insurance producer to sell, solicit or negotiate that insurance  in  the  state  where  the  insured maintains its principal place of business and  the contract of insurance insures risks located in that state.    (d)  In  this  article,  "non-resident  insurance  agent"   means   an  individual  who  is  a non-resident of this state and who is licensed or  authorized to act as an  insurance  agent  in  the  state  in  which  he  resides,  or  in  which  he  or the firm or association of which he is amember or employee, or the  corporation  of  which  he  is  an  officer,  director, or employee maintains an office as an insurance agent.    (e)  In  this  article,  "non-resident  insurance  broker",  means  an  individual who is a non-resident of this state and who  is  licensed  or  authorized  to  act  as  an  insurance  broker  in the state in which he  resides, or in which he, or the firm or association of  which  he  is  a  member  or  employee,  or  the  corporation  of  which he is an officer,  director or employee, maintains an office as an insurance broker.    (f) In this article,  "reinsurance  intermediary"  means  any  person,  firm,  association  or  corporation  who  acts  as broker in soliciting,  negotiating or selling any reinsurance contract or binder, or acts as an  agent in accepting any reinsurance contract or binder on  behalf  of  an  insurer, except that such term shall not include:    (1)   licensed  attorneys  at  law  of  this  state  acting  in  their  professional capacity as such;    (2) regular salaried officers, employees or attorneys in  fact  of  an  authorized  insurer  or  of an underwriting office of such insurer while  acting in their capacity as such in  discharging  the  duties  of  their  employment or appointment;    (3)  licensed insurance agents acting within the scope of their agency  authority in  the  placement  or  acceptance  of  reinsurance  on  risks  produced or managed by such agents; or    (4)  licensed  insurance  brokers,  in the placement of reinsurance on  risks produced by such brokers.    (g) In this article, "adjuster" means any  "independent  adjuster"  or  "public adjuster" as defined below:    (1)   The   term   "independent  adjuster"  means  any  person,  firm,  association or corporation who, or which, for money, commission  or  any  other  thing of value, acts in this state on behalf of an insurer in the  work of investigating  and  adjusting  claims  arising  under  insurance  contracts  issued  by such insurer and who performs such duties required  by such insurer as are incidental to such claims and also  includes  any  person  who  for  compensation  or  anything  of  value investigates and  adjusts claims on behalf of any independent adjuster, except  that  such  term shall not include:    (A)   any  officer,  director  or  regular  salaried  employee  of  an  authorized insurer or entity licensed pursuant to article forty-four  of  the  public  health law providing comprehensive health service plans (as  used in this paragraph, a "health  maintenance  organization"),  or  any  manager  thereof,  individual  or  corporate,  or  the manager, agent or  general agent of any department thereof,  individual  or  corporate,  or  attorney  in  fact  of  any reciprocal insurer or Lloyds underwriter, or  marine underwriting  office,  unless  acting  as  an  auto  body  repair  estimator as defined in subsection (j) of this section;    (B)  any  officer, director or regular salaried employee of an insurer  authorized  to  write  accident  and  health  insurance,  a  corporation  licensed  under  article  forty-three  of this chapter (collectively, as  used in this paragraph, a "health  insurer")  or  a  health  maintenance  organization,  or any manager thereof, individual or corporate, when the  claim to be adjusted is issued or administered by another health insurer  or health maintenance  organization  within  the  same  holding  company  system   as  the  health  insurer  or  health  maintenance  organization  adjusting the claim;    (C) any officer, director or regular salaried employee of  an  article  fifteen  holding  company  or  a  controlled  person within such holding  company system providing administrative  services  within  that  holding  company, or any manager thereof, individual or corporate, when the claim  to be adjusted is submitted for payment under a health benefit plan thatis  issued  or  administered  by  a health insurer or health maintenance  organization within that same holding company system;    (D)   any  officer,  director  or  regular  salaried  employee  of  an  authorized insurer that is licensed to write the kind of insurance to be  adjusted, or any manager thereof,  individual  or  corporate,  when  the  claim  to  be  adjusted  is  pursuant  to  a  policy  that  is issued or  administered by another insurer within the same holding  company  system  as  the authorized insurer adjusting the claim, unless acting as an auto  body repair estimator as defined in subsection (j) of this section;    (E)  any  officer,  director  or  regular  salaried  employee  of   an  authorized life insurance company, or any manager thereof, individual or  corporate,  or  the  manager,  agent  or general agent of any department  thereof, individual or corporate, when  the  claim  to  be  adjusted  is  submitted  under an insurance contract issued by another insurer and the  claim: (i) is within the scope of a contract of reinsurance between  the  two  insurers for all of the underlying risks and none of the underlying  risks are later reinsured back to the ceding insurer; and  (ii)  relates  to  a  kind  of  insurance  that  the  authorized life insurance company  adjusting the claim is licensed to write;    (F) any adjustment bureau  or  association  owned  and  maintained  by  insurers  to  adjust  or  investigate  losses,  or  any regular salaried  employee or manager thereof who devotes substantially all of his time to  the business of such bureau or association, unless  acting  as  an  auto  body repair estimator as defined in subsection (j) of this section;    (G) any licensed agent of an authorized insurer who adjusts losses for  such  insurer  solely  under  policies issued through his or its agency,  provided the agent receives no compensation for such services in  excess  of fifty dollars per loss adjusted;    (H) any licensed attorney at law of this state;    (I) any average adjuster or adjuster of maritime losses; or    (J)  any  agent  or  other  representative of an insurer authorized to  issue life and annuity contracts, provided he receives  no  compensation  for such services.    (2)   "Public   adjuster"  means  any  person,  firm,  association  or  corporation who, or which, for money, commission or any other  thing  of  value, acts or aids in any manner on behalf of an insured in negotiating  for,  or  effecting,  the  settlement  of  a claim or claims for loss or  damage to property of the insured in this state caused by, or  resulting  from,  any  of  the  risks  as enumerated in paragraphs four, five, six,  seven, eight, nine and ten and subparagraphs (B) and  (C)  of  paragraph  twenty of subsection (a) of section one thousand one hundred thirteen of  this chapter, not including loss or damage to persons under subparagraph  (B)  of  paragraph  twenty  of subsection (a) of such section or who, or  which, advertises for, or solicits employment as  an  adjuster  of  such  claims,  and shall also include any person who, for money, commission or  any other thing of value, solicits, investigates, or adjusts such claims  on behalf of any such public adjuster, except that such term  shall  not  include:    (A)  any  employee,  agent  or  other representative of any authorized  insurer who acts as such in the adjustment of any claim or any  licensed  insurance  broker  who  acts as an adjuster for a client of such broker,  without any compensation for such services as adjuster if such insurer's  representative or such licensed insurance broker does not  advertise  or  publicly  solicit the adjustment of claims in such a way as is likely to  mislead the public into believing that he is offering his services as  a  public adjuster;(B)  any  licensed  attorney  at law of this state who acts or aids in  adjusting insurance claims  as  an  incident  to  the  practice  of  his  profession and who does not advertise himself as a public adjuster;    (C) any licensed insurance broker who acts as an adjuster with respect  to  any loss involving insurance contracts under which he was the broker  of record in placing the insurance, whether or not designated in writing  to act for the insured; or    (D) any other licensed insurance broker who has been designated to act  for the insured in writing before a loss occurs.    (h) In this chapter, "licensed insurance broker," means  an  insurance  broker  who  is the licensee or a sub-licensee named in a license issued  or renewed pursuant to  the  provisions  of  section  two  thousand  one  hundred four of this article and in full force and effect.    (i) In this chapter, "limited licensee" shall mean a person authorized  to  sell  certain  coverages  relating  to  the rental of motor vehicles  pursuant  to  the  provisions  of  section  two  thousand  one   hundred  thirty-one of this article.    (j)  In  this article, "auto body repair estimator" means any officer,  director or regular salaried employee of an authorized insurer or of any  adjustment bureau or association owned and maintained by  insurers,  who  writes,  or  who  directly  supervises the writing of, any motor vehicle  body repair estimate in this state, on behalf of  such  insurer  in  the  work   of  diagnosing  or  estimating  motor  vehicle  repair  costs  or  procedures relative to appraising, investigating or adjusting claims for  motor vehicle body repair work pursuant to an insurance contract.    (k) In this article, "insurance producer" means  an  insurance  agent,  insurance  broker, reinsurance intermediary, excess lines broker, or any  other person required to be licensed under the laws  of  this  state  to  sell, solicit or negotiate insurance. Such term shall not include:    (1)  an officer, director or employee of a licensed insurer, fraternal  benefit society or health maintenance  organization  or  of  a  licensed  insurance producer, provided that the officer, director or employee does  not  receive  any commission on policies written or sold to insure risks  residing, located or to be performed in this state and:    (A) the officer, director  or  employee's  activities  are  executive,  administrative,  managerial, clerical or a combination of these, and are  only indirectly related to the  sale,  solicitation  or  negotiation  of  insurance; or    (B)   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    (C)  the  officer, director or employee is acting in the capacity of a  special  agent  or  agency  supervisor  assisting   licensed   insurance  producers  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;    (2)  employees  of  insurers,  fraternal  benefit  societies or health  maintenance  organizations  or  organizations  employed   by   insurers,  fraternal  benefit societies or health maintenance organizations who are  engaging in the inspection, rating or classification of risks, or in the  supervision of the training of licensed insurance producers and who  are  not  individually  engaged  in  the sale, solicitation or negotiation of  insurance;    (3) any agent or representative of a fraternal benefit society,  other  than  agents  representing  societies  governed by section four thousand  five hundred twenty-seven of this chapter, who devotes,  or  intends  to  devote,   less   than   fifty  percent  of  the  person's  time  to  the  solicitation, negotiation or sale of insurance contracts  for  fraternalbenefit  societies and who receives or intends to receive any commission  or other compensation directly dependent on  the  amount  of  insurance,  provided  that  any  person  who  in  the  preceding  calendar  year has  solicited,  negotiated  or  sold  any  of  the  following  contracts  of  insurance on behalf of a fraternal benefit society is presumed  to  have  devoted,  or  intended  to devote, fifty percent of the person's time to  the solicitation, negotiation or sale of insurance contracts:    (A) life insurance  contracts  that,  in  the  aggregate,  exceed  two  hundred  thousand  dollars  of  coverage  for  all lives insured for the  preceding calendar year;    (B) a  permanent  life  insurance  contract  offering  more  than  ten  thousand dollars of coverage on an individual life;    (C)  a  term life insurance contract offering more than fifty thousand  dollars of coverage on an individual life;    (D) any insurance contracts other than life that the fraternal benefit  society may  write  that  insure  the  individual  lives  of  more  than  twenty-five persons;    (E) any variable life insurance or variable annuity contract; or    (4) any agent or other representative of any title insurance company;    (5)  any  service  contract  provider  or  any administrator or person  designated by a service contract provider who  in  this  state  markets,  sells,  offers  for  sale, issues, makes, proposes to make or administer  service contracts pursuant to article seventy-nine of this chapter;    (6) a person who secures and furnishes information for the purpose  of  group   life   insurance,   group   property/casualty  insurance,  group  annuities, group or blanket accident and health insurance;  or  for  the  purpose of enrolling individuals under plans, issuing certificates under  plans  or  otherwise  assisting  in  administering  plans;  or  performs  administrative  services  related  to  mass  marketed  property/casualty  insurance, where no commission is paid to the person for the service;    (7)  an employer or association or its officers, directors, 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, fraternal benefit society  or  health  maintenance  organization,   as   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;    (8) 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;    (9)  a  person who is not a resident of this state who sells, solicits  or negotiates a contract of insurance for  commercial  property/casualty  risks  to  an  insured with risks located in more than one state insured  under that contract, provided that such person is otherwise licensed  as  an  insurance  producer  to sell, solicit or negotiate that 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    (10)  any  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.(l) In this article, "home state" means the District  of  Columbia  or  any  state  or  territory  of  the  United  States in which an insurance  producer maintains his, her or  its  principal  place  of  residence  or  principal  place  of  business  and  is  licensed to act as an insurance  producer.    (m)  In  this  article,  "negotiate" or "negotiation" means the act of  conferring directly with or offering advice directly to a  purchaser  or  prospective  purchaser  of a particular contract of insurance concerning  any of the substantive benefits, terms or conditions  of  the  contract,  provided  that  the person engaged in that act either sells insurance or  obtains insurance from licensed insurers, fraternal benefit societies or  health maintenance organizations for purchasers.    (n) In this article, "sell" or "sale" means to exchange a contract  of  insurance  by  any  means,  for  money or its equivalent, on behalf of a  licensed  insurer,  fraternal  benefit  society  or  health  maintenance  organization.    (o)  In  this article, "solicit" or "solicitation" means attempting to  sell insurance or asking or urging a person to apply  for  a  particular  kind  of insurance from a particular licensed insurer, fraternal benefit  society or health maintenance organization.    (p)  In  this  article,  "business  entity"   means   a   corporation,  association,  partnership,  limited liability company, limited liability  partnership or other legal entity.    (q) In this article,  "person"  means  an  individual  or  a  business  entity.    (r) In this article, "line of authority" means any of the following:    (1)  life:  insurance  coverage  on  human lives including benefits of  endowment and annuities, and may include benefits in the event of  death  or dismemberment by accident and benefits for disability income;    (2)  accident and health or sickness: insurance coverage for sickness,  bodily  injury  or  accidental  death  and  may  include  benefits   for  disability income;    (3)  property: insurance coverage for the direct or consequential loss  or damage to property of every kind;    (4) casualty: insurance coverage against  legal  liability,  including  that  for  death,  injury  or  disability  or damage to real or personal  property;    (5) variable life and variable annuity  products:  insurance  coverage  provided under variable life insurance contracts and variable annuities;    (6)  personal  lines:  property/casualty  insurance  coverage  sold to  individuals and families for primarily noncommercial purposes; and    (7) any other line of insurance permitted pursuant to this chapter.    (s) In this article, "controlled person" shall have  the  meaning  set  forth  in  paragraph five of subsection (a) of section one thousand five  hundred one of this chapter.    (t) In this article, "holding company"  shall  have  the  meaning  set  forth  in paragraph three of subsection (a) of section one thousand five  hundred one of this chapter.    (u) In this article, "holding company system" shall have  the  meaning  set  forth  in  paragraph  six of subsection (a) of section one thousand  five hundred one of this chapter.    (v) In this article, "life settlement broker" shall have  the  meaning  contained  in subsection (j) of section seven thousand eight hundred two  of this chapter.