Bill Text: CA AB1883 | 2023-2024 | Regular Session | Amended

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Bill Title: Insurance: home protection contracts.

Sponsorship: Partisan Bill (Democrat 1)

Status: (Engrossed - Dead) 2024-05-29 - Referred to Com. on INS. [AB1883 Detail]

Download: California-2023-AB1883-Amended.html

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Amended  IN  Assembly  April 09, 2024

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill

No. 1883

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Introduced by Assembly Member Calderon

January 22, 2024

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An act to amend Section 12752 of 12743 of, and to add Article 16.8 (commencing with Section 1758.1000) to Chapter 5 of Part 2 of Division 1 of, the Insurance Code, relating to insurance.

LEGISLATIVE COUNSEL'S DIGEST

AB 1883, as amended, Calderon. Insurance: home protection companies. contracts.

Existing law regulates home protection companies, which issue contracts for the repair or replacement of a component, system, or appliance of a home. Existing law prohibits a person from issuing or offering a home protection contract unless the person holds a home protection company license issued by the Department of Insurance, as specified.

This bill would, notwithstanding the above-described provisions, prohibit a person or entity from selling or offering any form of a home protection contract unless the person is licensed as an insurance agent or broker, falls under a specified exemption, or has been issued a license under the provisions described below.

The bill would provide for the licensure of an applicant and require specified information be submitted to the Insurance Commissioner along with a written application, including an application fee, as specified, and a certificate by a home protection company or insurer stating that it is satisfied that the named applicant is trustworthy and competent to act as an agent on its behalf.

The bill would authorize an endorsee, as defined, to act on behalf of, or under the supervision of, a licensee, as defined, in matters relating to selling or offering home protection contracts, if specified conditions are met. The bill would require the licensee to provide specified training to an endorsee prior to allowing the endorsee to sell or offer home protection contracts. The bill would also require a licensee to provide the training materials with the initial application for a license, and whenever the materials are changed, for review and approval by the department.

The bill would prohibit the licensee or endorsee from selling or offering a home protection contract under specified circumstances, including through telephone solicitation, as defined. The bill would prohibit the licensee from specified actions, including selling a contract without providing the prospective customer with specified information. The bill would also authorize the commissioner to take specified disciplinary actions for a violation of these provisions after notice and hearing, including suspending or revoking the license of the licensee.

The bill would authorize the commissioner to send an application for renewal to the licensee, through mail or an electronic delivery method, not less than 60 days before a license period, as defined, expires. The bill would place the responsibility for renewal on the licensee, whether or not they receive an application from the commissioner, and would require the licensee to pay a renewal fee. The bill would require the commissioner to impose a penalty fee equal to ¹/₂ of the renewal fee for a renewal filed after the license period expires, unless specified circumstances occur.

Existing law regulates home protection companies, which issue contracts for the repair or replacement of a component, system, or appliance of a home. Existing law requires a home protection company to file an annual statement exhibiting its conditions and affairs, as specified, and an annual statement of financial condition. Existing law requires a home protection company to maintain a reserve for unearned premiums in an amount not less than 40% of the aggregate premiums charged on its current contracts. Existing law requires the Insurance Commissioner to examine the affairs of a home protection company before licensure and at other times as appears necessary, and prohibits the commissioner from conducting more than one financial examination of a home protection company in a 5-year period, unless specified requirements are met. Existing law authorizes the commissioner to extend the period between examinations up to 2 additional years if the commissioner determines that conditions warrant the extension, as specified, including the company’s net worth.

This bill would authorize the commissioner to extend the period between examinations to up to 3 additional years and allow the commissioner to also consider the availability of examiners as a condition that could warrant an extension.

Digest Key

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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Bill Text

The people of the State of California do enact as follows:

SECTION 1.

 Article 16.8 (commencing with Section 1758.1000) is added to Chapter 5 of Part 2 of Division 1 of the Insurance Code, to read:

Article  16.8. Home Protection Contracts

1758.1000.

 As used in this article, the following terms have the following meanings:

(a) “Endorsee” means an unlicensed employee or authorized representative of a licensee.

(b) “Established business relationship” means a prior or existing relationship formed by a voluntary two-way communication between a person or entity and a consumer, not previously terminated by either party, based on either of the following:

(1) The consumer’s purchase or transaction, with or without an exchange of consideration, with the entity within the 18 months immediately preceding the date of the telephone call.

(2) The consumer’s inquiry or application regarding products or services offered by the entity within the three months immediately preceding the date of the call.

(c) “Home protection company” has the same meaning as in Section 12740.

(d) “Home protection contract” has the same meaning as in Section 12740.

(e) “Home protection contract holder” means a person who is the purchaser or holder of a home protection contract.

(f) “Licensee” means any individual or entity licensed pursuant to this article to transact, sell, or offer home protection contracts.

(g) (1) “License period” means all of that two-year period beginning as described in subparagraph (A) or (B) of paragraph (2), as applicable, and ending the second succeeding year on the last calendar day of the month in which the initial license was issued.

(2) A license period shall be determined for each person or entity as follows:

(A) Upon initial licensing, the license period shall start on the date the license is issued.

(B) For a subsequent license, the license period shall start on the first day of the first month following the month in which the initial license was issued.

(3) A license shall be renewed on or before the expiration date of the license period.

(h) “Protection contract fee” has the same meaning as in Section 12740.

(i) “Sell or offer” has the same meaning as “solicit, negotiate, or effect” as used in Section 1631.

(j) “Telephone solicitation” means the initiation of an outbound telephone call or message for the purpose of encouraging the purchase of a home protection contract, which is transmitted to any person, but the term does not include a call or message to either of the following:

(1) A person with that person’s prior express invitation or permission.

(2) A person with whom the caller has an established business relationship.

1758.1001.

 Notwithstanding Part 7 (commencing with Section 12740) of Division 2, a person or entity may sell or offer any form of a home protection contract in this state if that person or entity is any of the following:

(a) Licensed as an insurance agent or broker pursuant to Article 3 (commencing with Section 1631).

(b) Exempt from licensing pursuant to subdivision (g) of Section 1634 or subdivision (j) of Section 1635.

(c) In compliance with the requirements of this article and issued a license by the commissioner as provided in this article.

1758.1002.

 The commissioner may issue a license that authorizes a licensee and its endorsees to sell or offer a home protection contract to an applicant that has complied with the requirements of this article.

1758.1003.

 (a) An applicant for a license under this article shall submit all of the following to the commissioner:

(1) A written application for licensure, signed by the applicant or an authorized representative of the applicant, in the form prescribed by the commissioner.

(2) A certificate by the home protection company or insurer that is to be named in the licensee’s license, stating that the home protection company or insurer has satisfied itself that the named applicant is trustworthy and competent to act as its agent limited to this purpose and that the home protection company or insurer will appoint the applicant to act as its agent to sell or offer the kind or kinds of contracts that are permitted by this article, if the license applied for is issued by the commissioner. The certification shall be subscribed by an officer or managing agent of the home protection company or insurer on a form prescribed by the commissioner.

(3) An application fee of two hundred ninety-two dollars ($292).

(b) Notwithstanding any other law, Sections 1667, 1668, 1668.5, 1669, 1670, 1738, and 1739 shall apply to an application for, or issuance of, a license pursuant to this article.

(c) Costs associated with an enforcement action or investigation shall be paid by the person or organization licensed pursuant to this article.

1758.1004.

 (a) An endorsee may act on behalf of, and under the supervision of, the licensee in matters relating to selling or offering home protection contracts and may sell or offer home protection contracts under the authority of the licensee if both of the following conditions have been met:

(1) The endorsee is 18 years of age or older.

(2) A list of all endorsees is maintained by the licensee and updated no less than annually. The list shall be made available to the commissioner for review and inspection upon request.

(b) The conduct of an endorsee of a licensee acting within the scope of employment or agency shall be deemed the conduct of the licensee for purposes of this article.

(c) The commissioner may request the licensee submit an annual certification, subscribed by an officer of the company on a form prescribed by the commissioner, including all of the following:

(1) The number of endorsees, if any, offering home protection contracts under the authority of the licensee for the applicable period.

(2) A statement that no person other than an endorsee sells or offers home protection contracts on the licensee’s behalf.

(3) A statement that all endorsees have completed training as required by this article.

1758.1005.

 (a) The licensee shall provide for the training of its endorsees under a program developed by a home protection company or a property and casualty broker or agent prior to allowing its endorsees to sell or offer home protection contracts. Each endorsee shall receive instruction or training on all of the following:

(1) The home protection contracts that are offered for sale to prospective customers.

(2) Ethical sales practices.

(3) The disclosures to be given to prospective customers pursuant to subparagraph (F) of paragraph (1) of subdivision (d) of Section 1758.1009.

(b) The licensee shall retrain endorsees whenever there is a material change in a home protection contract that requires modification of the training materials, but no less frequently than every two years for each endorsee.

(c) Training materials used by, or on behalf of, the licensee to train endorsees shall be submitted to the department at the time the licensee applies for a license under this article, and whenever modified thereafter.

(d) Training materials, and changes to those materials, submitted to the department pursuant to this section shall be deemed approved for use by, or on behalf of, the licensee unless otherwise notified by the department. Failure by a licensee to submit training materials or changes for departmental review, or the use of unapproved or disapproved training materials, shall constitute grounds for denial of an application for a license, nonrenewal of a license, suspension of a license, or other action as deemed appropriate by the commissioner.

1758.1006.

 (a) If a licensee or endorsee violates any provision of this article or any other provision of this code, in addition to the general disciplinary powers of the commissioner under Sections 1737 through 1748.5, inclusive, the commissioner may take any of the following disciplinary actions after notice and hearing:

(1) Suspend or revoke the license of the licensee.

(2) Suspend or revoke the ability of individual endorsees to act under the licensee’s license.

(3) Impose fines on the licensee for its conduct or that of its endorsees.

(4) Impose other penalties the commissioner deems necessary.

(b) If a person sells or offers a home protection contract or holds themselves or an organization out as a licensee without obtaining the license required by this article, or as being licensed pursuant to Chapter 5 (commencing with Section 1621) without obtaining that license, the commissioner may issue a cease and desist order pursuant to Section 12921.8.

(c) Notwithstanding any other law, Section 1748.5 is applicable to the individual or organization issued a license pursuant to this article and any endorsee to that license.

1758.1007.

 (a) An endorsee shall not sell a home protection contract while in a prospective customer’s home. This section does not prohibit an endorsee from providing a prospective customer with written materials regarding the availability of a home protection contract.

(b) A licensee or endorsee shall not sell or offer home protection contracts pursuant to this article through telephone solicitation.

1758.1008.

 Protection contract fees may be billed and collected by a licensee. A licensee shall not be required to maintain those funds in a segregated account if the home protection company represented by the licensee has provided in writing that the funds need not be segregated from funds received by the licensee. All protection contract fees shall be considered funds held in trust by the licensee in a fiduciary capacity for the benefit of the home protection company. Licensees may receive compensation for billing and collection services.

1758.1009.

 A licensee shall not do any of the following:

(a) Advertise, represent, or otherwise portray itself or its endorsees as a licensed insurer, home protection company, or property and casualty broker-agent.

(b) Pay compensation to an endorsee based primarily on the number of customers electing coverage under the license. Nothing in this code shall prohibit the payment of compensation to an endorsee of a licensee for activities under the licensee’s license that are incidental to their overall compensation. The incidental compensation shall not exceed fifteen dollars ($15) per customer who purchases a home protection contract.

(c) Provide anything of value to a real estate broker licensed pursuant to Part 1 (commencing with Section 10000) of Division 4 of the Business and Professions Code in connection with their licensed functions authorized by Section 10131 or 10131.6 of the Business and Professions Code.

(d) (1) Sell a home protection contract pursuant to this article without providing all of the following information to the prospective customer:

(A) The material terms and conditions of the home protection contract, including the identity of the home protection company.

(B) How to file a claim, including a toll-free telephone number to report a claim.

(C) The price, benefits, and any material exclusions or conditions of the home protection contract.

(D) The licensee’s name, address, telephone number, and license number.

(E) The department’s toll-free consumer hotline.

(F) The following disclosures:

(i) The purchase of the home protection contract is not required to receive any other goods or services, including, but not limited to, utility services.

(ii) The endorsee is not qualified or authorized to evaluate the adequacy of the prospective customer’s existing insurance coverage, if any.

(2) A licensee may comply with this subdivision by providing the consumer with a brochure, or other written material, containing the information or by directing the consumer to an internet website that displays a brochure and a sample of the terms and conditions of the home protection contract.

1758.1010.

 A home protection contract sold by a licensee or endorsee shall permit the home protection contract holder to return the contract within 30 days of the start date of the contract, if no claim has been made under the contract prior to its return. Upon return of the home protection contract to the licensee or home protection company within the applicable time period, the contract is void and the home protection company shall refund to the home protection contract holder the full purchase price of the contract.

1758.1011.

 (a) Not less than 60 days before a license period expires, the commissioner may use an electronic delivery method, including email or other similar electronic method of delivery, to deliver, or may mail, to the latest email or mailing address appearing on their records, an application to the licensee to renew the license for the appropriate succeeding license term. It is the licensee’s responsibility to renew, whether or not a renewal notice is received.

(b) The commissioner may accept a late renewal without penalty, provided that the licensee’s failure to comply is due to a clerical error or inadvertence by the department.

(c) An application for renewal of a license may be filed on or before the expiration date. An application for renewal of an expired license may be filed after the expiration date and until that same month and date of the next succeeding year.

(d) An application for renewal shall be accompanied by a renewal fee of two hundred ninety-two dollars ($292).

(e) The commissioner shall impose a penalty fee equal to one-half of the renewal fee for the licensee for any renewal that is filed after the expiration date of the license.

1758.1012.

 Notwithstanding any other law, licensees under this article may be paid on a commission basis.

1758.1013.

 Nothing in this article regulating the sale of home protection contracts by a licensee shall be construed to impair or impede the application of any other law regulating the sale of home protection contracts.

SEC. 2.

 Section 12743 of the Insurance Code is amended to read:

12743.

 The following provisions of this code shall be applicable to home protection contracts and home protection companies:

(a) Sections 1 to 46, inclusive.

(b) Chapter 3 (commencing with Section 330) of Part 1, 1 of Division 1.

(c) Chapter 12 (commencing with Section 679.70) of Part 1, 1 of Division 1.

(d) These provisions of Chapter 1, 1 of Part 2, 2 of Division 1:

(1) Article 1 (commencing with Section 680).

(2) Article 1.5 (commencing with Section 685).

(3) Article 2 (commencing with Section 690).

(4) Section 699, 699.5, 700, 701, 704, 704.5, 704.7, 705, 705.1, 707, 708, 709, 710, 713, 714, 715, 716, 717, 718, 720, and 725 of Article 3 (commencing with Section 699).

(5) Section 750.

(6) Article 5.5 (commencing with Section 770).

(7) Article 6.5 (commencing with Section 790).

(8) Article 8 (commencing with Section 820).

(9) Article 9 (commencing with Section 880).

(10) Article 11 (commencing with Section 939).

(11) Article 13 (commencing with Section 980).

(12) Article 14 (commencing with Section 1010).

(13) Article 14.5 (commencing with Section 1065.1).

(14) Article 15 (commencing with Section 1070).

(15) Article 16 (commencing with Section 1080).

(16) Article 17 (commencing with Section 1100).

(e) These provisions of Chapter 2, 2 of Part 2, 2 of Division 1:

(1) Article 1 (commencing with Section 1140).

(2) Article 2 (commencing with Section 1150). 1152).

(3) Article 3 (commencing with Section 1170).

(4) Article 4 (commencing with Section 1190).

(5) Article 4.7 (commencing with Section 1215).

(6) Article 7 (commencing with Section 1250).

(7) Article 8 (commencing with Section 1260).

(f) Article 4 (commencing with Section 1610) of Chapter 4 of Part 2 of Division 1.

(g) Article 3 (commencing with Section 1631) of Chapter 5 of Part 2 of Division 1.

(h) Article 16.8 (commencing with Section 1758.1000) of Chapter 5 of Part 2 of Division 1.

(h)

(i) Sections 1850, 1850.5, 1852, 1853.5, 1853.7, 1853.8, 1857, 1857.2, 1857.3, 1857.4, 1857.5, 1858, 1858.05, 1858.1, 1858.15, 1858.2, 1858.3, 1858.4, 1858.5, 1858.6, 1858.7, 1859, 1859.1, 1860, 1860.1, and 1860.2 of Chapter 9, 9 of Part 2, 2 of Division 1.

(i)

(j) Division 3 (commencing with Section 12900).

(j)

(k) In any references in the provisions made applicable to this part by subdivisions (a) to (i) inclusive (j), inclusive, of this section:

(1) “Insurer” shall mean home protection company.

(2) “Insured” shall mean a home protection contract holder.

(3) “Premium” shall mean protection contract fee.

(4) “Policy” or “insurance” shall mean home protection contract.

(k)

(l) When any provision of this code, other than this part, is applied to home protection companies, such provision shall be construed in accordance with the nature of home protection companies and the home protection business. In the event of any conflict between such other provision and this part, this part shall prevail.

SECTION 1.Section 12752 of the Insurance Code is amended to read:

12752.

(a)A home protection company shall file an annual statement exhibiting its conditions and affairs in accordance with Sections 900, 900.5, 900.8, 900.9, 902, 903, 903.5, 904, 922.1 to 922.8, inclusive, 923, 923.5, and 924. However, the required contents of the annual statement may vary from the requirements thereof, pursuant to regulations adopted by the commissioner in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code, so as to adapt the requirements to the home protection business. This subdivision shall not be construed to limit the authority of the commissioner to request financial statements from licensees at any time.

(b)The commissioner shall, before licensure and at other times as appears necessary, examine the business and affairs of a home protection company subject to this part. A home protection company so examined shall open its books and records for inspection by the commissioner and shall otherwise facilitate and cooperate in the examination. In making the examination, the commissioner shall have the rights specified in Section 733, and the examinee shall be subject to the obligations of Section 736. The commissioner shall not conduct more than one financial examination of a company in a five-year period, unless the commissioner finds that the financial condition of the company has deteriorated, thereby warranting an interim examination.

(c)The commissioner may extend the period between examinations up to three additional years if the commissioner determines that conditions warrant the extension. In making that determination, the commissioner may consider all of the following factors:

(1)The company’s reserves.

(2)The company’s net worth.

(3)Availability of examiners.

(4)Any other factors the commissioner considers relevant.