Volume 5, No. 6 - June 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 The laws noted in our publications are/were in effect at the time of publication but may have been repealed, amended or replaced and new laws may have been enacted subsequently.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 ~ Agency Names

Prohibited Agency Names

Florida Statutes §626.602 allows the Department to disapprove an agency’s name if the name may mislead the public in any way, or if the name implies the agency is an insurer, state or federal agency, charitable organization, or an entity that provides advice and counsel rather than selling or soliciting insurance products. The Department is enforcing the provisions of this law.

We have seen an increase in agency names that imply the agency is related to the Affordable Care Act, “Obamacare,” or affiliated with Medicare in some way, which could mislead Florida consumers. The Department is actively reviewing every new agency’s name prior to being approved for licensing.

Names that have been disapproved include "Seniors and Disabled Insurance Company, Inc.", "Medicare Benefit Consultants", "Nationwide Medicare Group" , "Senior Service Center", "U.S. Standard Insurance Company" and "Obamacare Enrollment Center".

We recommend that licensees review this law prior to submitting an application for an agency license or before requesting a change of an existing agency's name.

Bail Bond Agency Names

The Department’s does not typically require approval of your bail bond agency's name. However, the use of a name that would be misleading or deceptive in any way should be avoided. Names chosen should not imply that the agency is an insurance company (including bail bond and surety companies), governmental agency, or any other national or state organization. They should also not imply a reduced rate of premium or have the word "free" in it. Any bail bond agent who intends to conduct business under any business name, other than his or her own individual name, is required to file form DFS-H2-1541 with us before they may operate or advertise. Please see 648.44(6), F.S.

Title Insurance Agency Names

A title agency "…shall not adopt a name which contains the words "title insurance," "title guaranty," or "title guarantee," unless such words are followed by the word "agent" or "agency" in the same size and type as the words preceding them…" Please see section 626.8413, F.S.

Fictitious Agency Names

A fictitious name, or as more commonly known, doing business as (DBA), must be properly registered with the Department of State, Bureau of Corporations; however, the Department has determined that the use of multiple fictitious names (DBAs) is misleading to the public. Accordingly, no insurance, bail bond, or title agency, adjusting firm, or any other business entity regulated by the Department of Financial Services, Division of Agent and Agency Services may use more than one DBA per business entity.

Customer Representative Appointment

As a licensed customer representative (CR) you must be appointed by either a duly licensed and appointed general lines agent or a general lines insurance agency before you can conduct insurance business. The general lines agent who appoints you or your designated supervising agent is responsible for supervising your work and conduct while you transact insurance business. You can only be appointed by one agent or agency at any one time. Be sure to follow up with your supervising general lines agent to ensure he or she has appointed you as required by law. You cannot appoint yourself. See 626.7353, F.S.

Agent in Charge - Requirements, Changes and Responsibilities

Each person operating an insurance agency and each location of a multiple location agency must designate a licensed and appointed agent in charge for each location.

An agent in charge (AIC) is defined as the licensed and appointed agent responsible for the supervision of all individuals within an insurance agency.

Requirements

Each business location established by an agent or insurance agency must be in the active full-time charge of a licensed and appointed agent holding the required licenses for the lines of insurance transacted at the location. The AIC of an insurance agency may be the AIC of additional branch locations if: (1) insurance activities requiring licensure as an insurance agent do not occur at the location(s) when either the AIC or an appropriately licensed agent is not physically present and (2) unlicensed employees at the location(s) do not engage in insurance activities that require licensure as an insurance agent or customer representative.

Each insurance agency and branch office is required to designate an AIC and to file the agent’s name, license number, and physical address of the insurance agency location with DFS at the DFS website. Adding and removing an AIC can be done by going to www.MyFloridaCFO.com/Division/Agents and logging in to the agency's account in MyProfile.

Changes

A change of the designated AIC must be reported to DFS within 30 days, and becomes effective upon notification to DFS. An insurance agency location is precluded from conducting the business of insurance unless an AIC is designated by, and providing services to, the agency at all times. When the agent in charge ends her/his affiliation with the agency, the agency must designate another AIC within 30 days. If the agency fails to make such designation within 90 days after the designated agent has ended their affiliation with the agency, the agency license will automatically expire.

Responsibilities

The AIC of an insurance agency is accountable for misconduct or violations committed by the licensee or agent or by any person under her or his supervision acting on behalf of the agency. However, the AIC is not criminally liable for the misconduct unless she or he personally committed the act or knew or should have known of the acts and of the facts that constitute the violation.

For complete information on the duties and responsibilities of the AIC, see s.626.0428, F.S.

Title Agency Closing Services

The Florida Statutes defines closing services as the "services performed by a licensed title insurer, title insurance agent or agency, or attorney agent in the agent’s or agency's capacity as such, including, but not limited to, preparing documents necessary to close the transaction, conducting the closing, or handling the disbursing of funds related to the closing in a real estate closing transaction in which a title insurance commitment or policy is to be issued." [See s.627.7711(1)(a), F.S.]

This means the closing services fee listed on the settlement statement form is to include all the fees and charges made by the agency to close and complete the transaction. Consumers should not be charged additional fees in addition to the amount listed as the closing or settlement services fee on the settlement statement.

Examples of fees that should not be listed as separate line items on the form include, but are not limited to:

  • Postage and handling
  • Notary services
  • Copies
  • Digital documents
  • Document preparation fees
  • Document storage or warehousing fees
  • Electronic conversion of documents to CD or DVD formats

Agencies that charge additional fees as separate line items may be found to be engaging in deceptive practices against Florida consumers in violation of the Florida Statutes. The penalty for violations such as this can be as strong as suspending or revoking the license of the agent and the agency involved in the practice. Agencies may provide consumers with an itemized listing of the fees and charges that comprise the closing services fee being charged. This itemized listing would be in addition to the settlement statement and the amounts included would need to total to the same number listed on the closing disclosure as the closing services fee.

No other charges are authorized by the Florida Statutes to be charged by a title insurance agent or agency for these services.

Certificate of Insurance

From time to time agents may be asked by one of their customers to provide an entity with a certificate of insurance. A certificate of insurance is essentially proof of coverage and it indicates which insurance company insures the risk. Issuing certifications, declarations or other evidence of coverage that differs from the terms, benefits or conditions of an underlying insurance contract is unlawful. Informational Memorandum OIR-03-003M issued on February 21, 2003 addressed this topic and remains relevant today.

Certificates of insurance generally serve only as evidence of insurance in lieu of an actual copy of an insurance policy. An insurer is under no obligation to abide by any certificate of insurance which has been modified by any person or entity which does not have actual or apparent authority to do so. Distribution of a certificate of insurance which has been modified without authorization and which purports to alter the provisions of the underlying policy, misrepresents the conditions or terms of the insurance policy in violation of 626.9541(1)(a)1, F.S., thereby subjecting the person or entity modifying the certificate to license discipline and administrative fines, in addition to possible criminal penalties.

The Department is receiving an increase in inquiries and seeing more violations in regard to agents and agencies charging their customers for issuing certificates of coverage. There are several fees that are permitted by statute that can be charged, such as policy fees by the managing general agent, motor vehicle report fees, and inspection fees; however, fees for issuing certificates of coverage is not one of them. If you charge for this service, you could be facing administrative penalties for violating subparagraph 626.9541(1)(o), F.S., which is illegal dealings in premium, excess or reduced charges. We will still hold the licensee responsible even if they delegated the issuance of the certificates to a third party who charges the customer.

We realize the time and expense involved issuing numerous certificates for some customers could become significant, but the licensee is expected to absorb these service costs based upon current laws. [See subparagraph 626.9541(1)(o), Florida Statutes.]

Title Agency Data Call 2016

2016 marks the second year title insurance agencies are required under s.626.8437(11), F.S. to submit information to the Florida Office of Insurance Regulation (OIR) under the data call required by section 627.782(8), Florida Statutes. Title agencies had until June 1, 2016, to make their submission to the OIR. The OIR sent emails to each licensed title agency in Florida to remind them of the law with instructions on how to complete the process accurately.

Based on the preliminary information we have received from the OIR, more than 250 licensed agencies have failed to submit a report.

Agencies that did not comply with this requirement by June 1, 2016 are being reviewed for possible disciplinary action against the agency’s license.

If you have any questions regarding this filing process, please contact the OIR's Market Data Collections Unit at 850-413-3147 or via email: TitleAgencyReporting@floir.com.

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.