By Akanksha A. Panicker
Insurance law is a vast field, the insurance sector being composed up of companies that offer risk management in the form of insurance contracts. As an industry, insurance is regarded as a safe sector for investors with minimal fluctuation. While this is not held as the gospel like it was before the turn of the decade (the 1970s and 1980s,) insurance is still relatively stable, rendering a significant demographic who rely on the same. Consequently, statutory safeguards are imperative to protect consumers.
The New York State Department of Financial Services (DFS or NYSDFS) is the New York state government department responsible for regulating financial services and products, particularly those subject to the New York insurance, banking, and financial services laws.
The New York State Insurance Department (NYSID) regulated insurance companies in New York State before phased out from their erstwhile roles as state regulators. Despite being lauded as one of the most state-of-the-art insurance enforcement bodies in the sectors, in October 2011, the New York State Insurance Department was merged with the New York State Banking Department to form the New York State Department of Financial Services. The Department of Financial Services does not accept the Insurance Law’s service for actions against insurance groups or fleets, the Motor Vehicle Accident Indemnity Corporation, the State Insurance Fund, insurance agents and brokers, insurance adjusters, or health maintenance organizations.
The legislature later pondered the viability of insurance policies that were not issued or delivered in the State of New York. The impact of this would render residents in the awkward or impossible position of resorting to distant forums to assert legal rights under such policies. Consequently, where insurers are not authorized to do business in the state, the legislature thereafter provided a substituted service of process to achieve the ends. The legislature postulated that the benefits that pertained to such insurers and declare that in so doing, it exercises its power to protect its residents. It further delineates the constitution of business in the state and the powers and privileges available whereunder it declared that the business of insurance and every person engaged is subject to the laws of the states.
[1.0] WHO MAY BE SERVED AND THE REQUIREMENTS OF SERVICE
A Service of Process action may be served against any insurance company licensed in New York State, an unlicensed insurance company, a Federal Risk Retention Group, or a Federal Purchasing Group, for an action taking place in a Court located in New York State. The New York State Insurance Department does not accept Service of Process against Motor Vehicle Accident Indemnity Corporation, the State Insurance Fund, resident agents and brokers, or Health Maintenance Organizations. The court of venue may be in any county located in New York State.
Service of process upon any such insurer may be conducted in any court of competent jurisdiction of this state. Service is required by serving the superintendent, deputy superintendent, or any salaried employee of the department to whom the superintendent designates authority.
As a general rule, the process is served with two copies and payment of USD 40. Upon receipt of the same, a copy of such process by registered or certified mail will be sent by the superintendent to the defendant at its last known principal place of business. This last known place will be determined as designated by the issuer of such process and will require a record to be maintained of all process that has been similarly served upon them.
Such service of process is sufficient on the main condition that notice of the service and a copy of the process must be sent within ten days by or on behalf of the plaintiff to the defendant at its last known principal place of business. This service may be enacted by registered or certified mail with the return receipt requested. It is imperative to have a notice of Service conveying successful service to the Superintendent of Insurance has been served that is delivered within ten days to the insurance company. This notice of service must be sent via certified mail with return receipt requested. Form CIV-GP-74-A may complete notice of service, a legal form released by the New York City Civil Court in their capacity as a government authority operating within New York City.
The plaintiff’s main responsibility is to also file with the clerk of the court or the justice themselves (if there is no clerk of the court in the county) an Affidavit Of Compliance. The affidavit is of imperative nature and must be furnished with a copy of the process and either a return receipt signed by the defendant or some other individual who is suitably qualified to receive it’s registered or certified mail by the rules and customs of the post office department.
In case acceptance was refused by the defendant or its agent, the original envelope bearing a notation by the postal authorities that receipt was refused. Service of the process so made shall be deemed made within any court’s territorial jurisdiction in this state.
[2.0] ROLE OF THE SUPERINTENDENT
The New York Superintendent of Financial Services is an appointed state executive position in the New York state government, responsible for overseeing the Department of Financial Services, which supervises and regulates insurance companies, banks, and other financial institutions. The superintendent accepts the process on behalf of many insurance businesses if they are registered and transacting business within the state. Service will personally serve the Superintendent of Insurance at the request of the individual.
Regardless of whether the insurance company is domestic or a foreign or alien insurer, companies that want to continue doing insurance in the state need to file a power of attorney in the superintendent’s office. However, the responsibility of attorney power for foreign or alien unauthorized companies is significantly more limited than other forms of companies.
The insurer must execute this power of attorney and authorize the superintendent and their successors to be the state’s true and lawful attorney. Consequently, the process can then be levied upon them on a contract delivered or to be delivered. Furthermore, this also allows the superintendent to accept the process for any cause of action arising in the state.
A power of attorney must be accompanied by the [A.] insurer’s written certificate of designation of the name and [B.] address of the officer, agent, or another person to whom the superintendent or their deputy shall forward such process. If the designation of the name must be changed, a certificate of designation may be filed with the superintendent’s office.
The superintendent shall keep a record of each process served upon them. It is necessary to include complete records, including the date of service. In fact, upon request made within ten years of such service, the superintendent is obligated to issue a certificate under their seal certifying the receipt of the process by an authorized person, the date and place of service, and the receipt of the statutory fee. For any means of service upon the superintendent, the record and the process itself will be destroyed by them after ten years of said service.
Regardless of whether the service is done by mail, the insurance company effectively appoints the superintendent and their relevant designated successors as their lawful attorney enabled to accept process if they are empowered to affect the [A.] issuance or delivery of contracts of insurance to residents of this state or to corporations authorized to do business therein,[B.] solicitation of applications for such contracts, [C.] collection of premiums, membership fees, assessments or other considerations for such contracts, or [D.] any other business transaction.
Before any unauthorized foreign or alien insurer files any pleading in any proceeding against it, it must deposit either cash or securities with the clerk of the court. As long as the proceeding is pending, the court will approve an amount sufficient to secure payment of any final judgment delivered by the court. However, it must be noted that this provision is subject to the discretion of the court. An order may be made that is dispensatory to the deposit made. This depends on the superintendent’s certification that the insurer maintains an amount within state funds or securities that constitutes a sufficient amount to satisfy any final judgment. The alternative is to procure a license to practice insurance in the state.
[3.0] REQUIREMENTS OF PROCESS
If the above conditions are satisfied, all lawful process in any proceeding instituted by or on behalf of an insured and effectively conveys that all process thus served has the equivalent same legal force and validity as personal service of process in this state upon such insurer. It is further acceptable if service is done on any person who works on behalf of a said insurer in the capacity of insurance by [A.] soliciting; [B.] making, issuing or delivering any contract of insurance; or [C.] collecting or receiving any premium, membership fee, assessment or other consideration.
The requisite documents should be filed within thirty days after the return receipt or other official proof of delivery, or the plaintiff receives the original envelope bearing a notation of refusal. The papers must be filed according to the relevant section. If the proceeding is against an unlicensed company, the process is considered accomplished when all papers that accompany complete filing have been delivered.
When selecting an insurance policy, consumers are also selecting an insurance company and require both ease of access and stability provided by that company. This is not always possible in terms of an out-state insurance company. Consequently, the New York Department of Financial Services provides a holistic system for serving summonses on insurance companies that are being sued. The lack of a local office does not bar individuals from raising their complaints. The Department will accept one cheque or money order for multiple insurance companies being served. However, if payment is made with a single check or money order and the papers are unacceptable as to any one of the parties being served (for example, if the name of the insurance company is incorrect), all of the papers that have been attempt to be served will be returned, meaning that service of process will not have been effected upon any of the companies.
For information on serving legal papers, click here or call (800) 774-6922. Representatives are available Monday-Friday 8 am – 8 pm EST. If you found this article helpful, please consider donating. Thank you for following our blog, A space dedicated to bringing you news on breaking legal developments, interesting articles for law professionals, and educational material for all. We hope that you enjoy your time on our blog and revisit us! We also invite you to check out our Frequently Asked Questions About Process Servers by clicking here.
1.N.Y. INSURANCE LAW § 1213: INSURANCE — ORGANIZATION AND CORPORATE PROCEDURE — SERVICE OF PROCESS ON SUPERINTENDENT AS ATTORNEY FOR UNAUTHORIZED INSURERS
to define, for this section, what constitutes doing business in this state, and also exercises powers and privileges available to the state by public law number fifteen, seventy-ninth congress of the United States, chapter twenty, first session, senate number three hundred forty, as amended, ( 15 U.S.C. § 1011 ) which declares that the business of insurance and every person engaged therein shall be subject to the laws of the several states
2.pursuant to Section 1212 of the Insurance Law),
3. under Section 1213 of the Insurance Law
4. Section 5904
5. Section 5908
6.By mail: addressed to New York State Department of Financial Services, Corporate Affairs Unit, One Commerce Plaza – 20th Floor, Albany, New York 12257.
In-person: at New York State Department of Financial Services, Office of General Counsel, One State Street, New York, NY 10004, or One Commerce Plaza, Albany, NY 12257.
A fee of 40 dollars is regardless of whether the company is authorized or unauthorized. See, “At the time of service of process, a fee of forty dollars shall be paid to the superintendent or his deputy” N.Y. Ins. Law § 1212
7. Form CIV-GP-74-B “Affidavit of Compliance With the Insurance Law” – New York City
8. N.Y. Ins. Law § 1212
(d) The power of attorney required by subsection (a) hereof shall be by its terms of indefinite duration, shall bind any person or corporation which as successor acquires the insurer’s assets and assumes its liabilities by merger or consolidation, and shall not be terminated by the insurer or such successor so long as any contracts, or liabilities or duties arising out of contracts, issued or delivered by such insurer in this state are in effect. Except as provided herein, or in section one thousand two hundred thirteen of this article, the superintendent shall not be designated as an attorney for the service of process upon any unlicensed alien or foreign insurer.
9.Whenever any lawful process shall be served upon the superintendent, and deputy superintendent, or any salaried employee of the department whom the superintendent designates for such purpose under the provisions of this section, such person shall forward a copy of such process by mail, prepaid, directed to the person last designated by such insurer, as shown by the records of the department.
10.N.Y. Ins. Law § 1212
11. Under either section 1212 or 1213
12.New York Consolidated Laws, Insurance Law – ISC § 1213. Service of process on superintendent as an attorney for unauthorized insurers
(d) In any action against an unauthorized foreign or alien insurer upon a contract of insurance issued or delivered in this state to a resident thereof or to a corporation authorized to do business therein, if the insurer has failed for thirty days after demand before the commencement of the action to make payment under the contract. It appears to the court that such refusal was vexatious. Without reasonable cause, the court may allow the plaintiff a reasonable attorney’s fee and include such a fee in any judgment rendered in such action. Such fee shall not exceed twelve and one-half percent of the amount the court finds the plaintiff is entitled to recover against the insurer nor be less than twenty-five dollars. Failure of an insurer to defend any such action shall be prima facie evidence that its failure to pay was vexatious and without reasonable cause.
13. Inclusive of any beneficiary arising out of any such contract of insurance,
Notice of such service and a copy of such process is sent within ten days thereafter, by or on behalf of the plaintiff to the defendant at last known principal place of business of the defendant, by registered mail with return receipt requested. The plaintiff shall file with the clerk of the court in which the action is pending, or with the judge or justice of such court in case there be no clerk, an affidavit of herewith, a copy of the process and either a return receipt purporting to be signed by the defendant or a person qualified to receive its registered mail by the rules and customs of the post office department; or if acceptance was refused by the defendant or its agent the original envelope bearing a notation by the postal authorities that receipt was refused.
15.Insurance company licensing: Commitments and requirements for domestic and foreign entities, https://www.dfs.ny.gov/apps_and_licensing/insurance_companies/licensing_domestic_foreign_entities (last visited Feb 2, 2021)