Volume 5, No. 9 - September 2016

Compliance Corner

This section has been created to assist you in keeping your insurance business in compliance. The items are intended as reminders only. Note: Division publications may include references to the Florida Statutes and/or the Florida Administrative Code. The laws noted in our publications are/were in effect at the time of publication but may have been repealed, amended or replaced and new laws may have been enacted subsequently.

Compliance Topic of the Month ~ Continuation of Your License

The Department occasionally receives calls and emails from customers whose license or licenses have expired. A Florida insurance license authorizes the licensee to be appointed to transact insurance or adjust claims for the classes of insurance identified on the license. An appointment with an insurer or employer authorizes a licensee to transact insurance or adjust claims on behalf of the appointing entity. Without an appointment, a licensee cannot lawfully transact the business of insurance. Licensed insurance representatives should not assume that they are eligible to begin selling insurance, adjusting losses, etc., until they have been properly appointed. Both licensure and appointment are required.

To preserve your current license status you must be appointed for each class of insurance listed on your license within 48 months after the date you were licensed. When the last appointment for a particular class or classes of insurance has terminated, you have 48 months in which to secure another appointment before eligibility in that class or classes of insurance expires. Failure to maintain at least one active appointment will result in the expiration of your license (after the 48-month period has elapsed). To obtain your license again, you may have to requalify as a first-time applicant.

Even though the function of submitting an appointment request with the Department rests with the insurance company or other appointing entity, licensees should assume responsibility for ensuring that their appointments are maintained.

Appointments and Insurance Transactions

A licensee may not transact insurance or adjust claims until he or she is appointed by an insurer, adjusting firm, general lines agent or the licensee (in the case of a self-appointed licensee), in accordance with the class(es) of licensure held. For instance, if an individual is licensed in the classes of life, including variable annuity and health, and wishes to market all three types of products, he or she must be appointed by either an insurance company authorized under its Certificate of Authority to transact all three of these lines of business or by separate companies for each line. For example, if Company ABC appoints an agent to sell only life insurance, then the agent will still be required to obtain an additional appointment(s) with an appropriate company(s) for the variable annuity and health portion of his or her license, if the agent intends to market these products.

Who can appoint licensees?

  1. Insurance companies appoint agents and insurance company employee adjusters.
  2. Licensed and appointed General Lines (Property & Casualty) insurance agents appoint customer representatives, crop hail and multiple-peril crop insurance agents.
  3. Adjusting firms appoint independent and public adjusters.
  4. Surplus lines agents, reinsurance intermediaries, professional bail bond agents and self-employed independent or public adjusters are responsible for appointing themselves.
  5. Agents who choose to be classified as an "unaffiliated agent" must be self-appointed, and are not eligible for appointment by an insurer or any other licensed entity. [See s. 626.015(18), F.S.]

To verify your license and appointment status, you can log in to your MyProfile account or use our public licensee search

Temporary Bail Bond Agents - Employment Reports - Who is Responsible?

One of the requirements for temporary bail bond agents is the monthly submission of a "Temporary Bail Bond Agent Employment Report”. The form must be received by the Department no later than the last day of the month following the month being reported on the form. [see Chapter 69B-221.051(4)(c) . F.A.C. and s.648.355(1)(e), F.S.]

Recently, a few temporary bail bond agents have contacted the Department to complain that their supervising bail bond agent has failed to submit the required forms, either at all, or in a timely fashion. The Department has authority to take action against a supervising bail bond agent who fails to comply with 69B-221.051(4)(c), F.A.C.; however, it is also the responsibility of the temporary bail bond agent to ensure this requirement is met on a timely basis. Failure to do so could result in the loss of employment hours towards the required hours to qualify for a 2-34 Limited Surety (Bail) Bond agent license. We strongly encourage all temporary bail bond agents to maintain a copy of every employment report completed by their supervising bail bond agent should a discrepancy arise.

Life Insurance Agent as Beneficiary - Prohibited

Life insurance agents cannot be named as a beneficiary on a life insurance policy sold to a person who is not a family member unless clear insurable interest in the life of the insured can be proven.

To declare an insurable interest, there must exist an actual, lawful and substantial economic interest in the safety and preservation of the life of the insured or a reasonable expectation of benefit or advantage from the continued life of the insured.

“Not a family member," means an individual who is not related to you, the life agent, as father, mother, son, daughter, brother, sister, grandfather, grandmother, uncle, aunt, first cousin, nephew, niece, husband, wife, father-in-law, mother-in-law, brother-in-law, sister-in-law, stepfather, stepmother, stepson, stepdaughter, stepbrother, stepsister, half brother or half sister.

An agent may be named as a trustee; however, the agent or a family member of such agent may not be designated as a trustee or guardian or be granted power of attorney unless he or she is a family member of the policy owner or insured, or is a bank or trust company duly authorized to act as a fiduciary. [See s. 626.798, F.S.]

Criminal History Reporting Requirements to the Department

Applicants are required to report on their application for a license all prior criminal history. In addition, once licensed they are required to report to the Department within 30 days of being found guilty or pleading guilty or nolo contendere (no contest) to any felony, or other crime punishable by one or more years in prison (even if a misdemeanor), or any violation of the state insurance laws, regardless of adjudication by the court. It is still required even if civil rights have been restored or an appeal is pending.

Appointing entities are also required by law to advise the Department within 15 days after they or their general agent, officer, or other official becomes aware that an appointee has pleaded guilty or nolo contendere to or has been found guilty of a felony after being appointed. If the appointee is a bail bond agent, the appointing entity is required to report it within 5 days.

[See s.626.451 and s.648.382(4), Florida Statutes]

Representations in Applications for an Insurance Policy

The Department has seen a rise in claims denied by carriers due to misrepresentations made in the application for insurance. Many times these representations were due to the agent or customer representative not diligently reviewing all the questions on the application with their customer. These could also be simple mistakes caused when the agent or representative does not properly ask a customer about a prior DUI, bankruptcy, or claim. You must remember to never assume anything, even if the customer is well known to you, such as a close friend or family member.

When a claim is denied, it can be especially detrimental to your customer. Depending on the circumstances, it could also result in an E&O claim for you.

Please remember your responsibilities to your customers and be sure they understand the importance of answering all insurance application questions completely, accurately, and truthfully. Be sure to ask each question on every application every time, and never assume anything. [See s.627.409, Florida Statutes]

Retention for Agent, Adjuster, and Agency Records

Section 626.748, Florida Statutes, requires agents to keep records of policies transacted. These records include daily reports, applications, change endorsements, or documents signed or initialed by the insured concerning the policies. The records must be available to policyholders and the Department upon request. The records must be maintained in the agent's office or be readily accessible by electronic or photographic means for at least five years after policy expiration.

Every licensee is also required to preserve books, accounts, and records relating to a premium payment for at least three years after payment, per section 626.561, F.S. The law allows a licensee to maintain premium payment records by electronic or photographic means, as long as they are readily accessible in the licensee's office.

Section 626.875, F.S., states that the records of an adjuster relating to a particular claim or loss shall be retained in the adjuster's place of business for not less than three years after the adjustment is completed.

Public adjusters have an additional, specific requirement as to their written estimate for an insured/claimant. Subsection 626.854(12), F.S., states that public adjusters shall retain such written estimate for at least five years and shall make the estimate available to the claimant or insured, the insurer, and the Department upon request.

It's always a good idea to maintain a backup copy of all required records in the event that a hurricane or other disaster damages the business, or restricts your ability to access your records. That way, you will be able to access policyholders' records and be able to provide assistance to them.

Compliance Information

Department licensees and consumers can access compliance information at the Division's web page Compliance Information. Additional information is available by type of license at our Frequently Asked Questions web page.