Bill Text: NY A08949 | 2017-2018 | General Assembly | Introduced
Bill Title: Enacts the "construction insurance transparency act" to require insurers providing coverage for liability under the scaffold law to report, on an annual basis, to the superintendent of financial services relating to its finances and claims paid thereunder.
Spectrum: Strong Partisan Bill (Democrat 27-2)
Status: (Introduced - Dead) 2018-01-09 - referred to insurance [A08949 Detail]
Download: New_York-2017-A08949-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 8949 IN ASSEMBLY January 9, 2018 ___________ Introduced by M. of A. BRONSON -- read once and referred to the Commit- tee on Insurance AN ACT to amend the insurance law, in relation to enacting the "construction insurance transparency act of 2017" requiring all insur- ers which issue policies of liability insurance insuring against claims made in reliance upon the duty imposed by the "scaffold law" to file annual financial statements and detailed claim data with the superintendent of financial services The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. This act shall be known and may be cited as the 2 "construction insurance transparency act of 2017". 3 § 2. Declarations of legislative findings. The legislature hereby 4 finds and declares that persons, corporations, associations or other 5 business entities which issue policies of liability insurance insuring 6 an owner of real property or a contractor who is performing work and 7 services on real property against claims made in reliance upon the 8 duties imposed upon such parties by section 240 of the labor law, 9 commonly referred to as the "scaffold law", owe an obligation to the 10 public, to those they insure and to those who may in the future be 11 insured by them, to fully disclose in a public and transparent manner 12 all elements relating to the premiums paid for such insurance, the meth- 13 od and manner in which such premiums are determined and imposed upon 14 insureds, and claims made by injured persons who rely on owners and 15 contractors to provide a safe and secure worksite as required in such 16 section of such law. It is essential that the public be made aware of 17 such an insurer's responsibility to inform them of their financial 18 condition and solvency, and the details and specifics of the factors and 19 circumstances behind its financial solvency as well as the basis for the 20 rates they charge to owners and contractors to obtain such coverage. The 21 determination of premiums for such liability insurance policy in this 22 state has, unfortunately, gone on too long in obscurity, with even those 23 who bear the cost of premiums unable to learn why prices are set as they 24 are. As a matter of public trust, liability insurers should be required EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD07100-01-7A. 8949 2 1 to make the public aware of the pertinent facts related to their premium 2 determinations and financial solvency by disclosing all the pertinent 3 facts as provided for in this section. It is the further sense of the 4 legislature that this data should be disclosed in an open and public 5 manner, and should be made available without undue cost and delay. 6 § 3. The insurance law is amended by adding a new section 343 to read 7 as follows: 8 § 343. Financial statement and detailed claim data to be filed with 9 the superintendent. (a) For purposes of this section, the term "insurer" 10 shall mean any person, corporation, association or other business entity 11 which issues a policy of liability insurance insuring a contractor or 12 owner of real property located in this state against claims made by an 13 injured worker, the claim for which is made in reliance upon the duty 14 owed to such worker pursuant to the provisions of section two hundred 15 forty of the labor law. 16 (b) On or before April first of each year, every insurer shall for the 17 prior calendar year provide the superintendent and the public with a 18 detailed financial statement to supplement and expand upon any other 19 information otherwise provided to the department as it relates an insur- 20 er's provision of liability insurance coverage to owners of real proper- 21 ty or contractors performing services to owners of real property for 22 claims made by an injured person in reliance upon the duty owed by 23 section two hundred forty of the labor law; provided, however, that the 24 initial financial statement so filed by an insurer after the effective 25 date of this section shall include the information required in this 26 subdivision not only for such prior calendar year but also for the 27 previous nine calendar years prior to such report. The financial state- 28 ment shall, in depth, separate the cost of providing section two hundred 29 forty of the labor law based coverage from the cost of providing general 30 liability insurance insuring the same owner or contractor with respect 31 to the same property and shall contain at least the following informa- 32 tion relating to coverage pursuant to such section: (1) that portion of 33 premiums assessed and attributable to providing such coverage; (2) paid 34 judgments, settlements or losses resulting from such coverage; (3) case 35 reserves for losses which may be attributable to coverage; (4) incurred 36 but not reported loss estimates which may be attributable to coverage; 37 (5) paid defense and cost containment expenses attributable to any 38 claims made based upon such coverage; (6) case reserves for defense and 39 cost containment experience attributable to any claims made based upon 40 such coverage; (7) incurred but not reported defense and cost contain- 41 ment estimates based upon such coverage; (8) premium and loss experience 42 identified by policy limits and deductibles; (9) number of claims initi- 43 ated and closed; (10) number of claims closed with loss payments; (11) 44 number of open claims at the time such statement is prepared; (12) other 45 expenses by category as determined by the superintendent to reflect the 46 cost to the insurer to provide such coverage as part of a liability 47 insurance policy; (13) investment income realized from that portion of 48 the premium paid for a policy providing such coverage; (14) the amount 49 of exposure to the insurer resulting from the provision of such coverage 50 and whether the insurer has limited the amount of coverage provided 51 together with an estimate of the amount which might be required of the 52 insured to purchase further coverage from an out of state excess lines 53 provider, based upon current data available to such in-state provider, 54 especially where such in-state provider operates as an excess line 55 insurer for risks in another state; (15) amounts spent by insurer for 56 risk management programs, or required to be spent by insureds at theA. 8949 3 1 behest of the insurer, which programs are designed and intended to 2 promote worksite safety, more particularly as it relates to height 3 related accidents covered by section two hundred forty of the labor law; 4 and (16) the aforegoing experience and information further subdivided by 5 quality of risk as measured by prior loss experience, contractor payroll 6 ranges, contractor number of employee ranges, risk management partic- 7 ipation, and other relevant identifiable differences in exposure to 8 insurance loss. The data provided by insurers shall be separated out so 9 that a determination can be made that a claim made or paid is based 10 partially or totally upon section two hundred forty of the labor law; 11 coverage, and not any other provision of statutory or common law impos- 12 ing another or different or separate standard of care or duty to an 13 injured party. Such financial statement shall include the entirety of 14 such insurer's business activities insuring against risks occurring in 15 this state and shall be in a form determined by the superintendent. The 16 form shall be sufficiently itemized in a manner that allows for an actu- 17 arially sound analysis of the income realized by the insurer from all 18 sources during such year, including but not limited to premiums, invest- 19 ment income, and any other category or categories of income as deter- 20 mined by the superintendent to reflect the full disclosure requirements 21 of this section and that portion which may be specifically related to 22 such coverage. At a minimum, such information shall consist of the items 23 set forth in the statement of income, excluding the capital and surplus 24 account section of the property/casualty statutory annual statement, as 25 applicable to the insurer's New York state business, as well as the 26 other information delineated in this subsection. Such financial state- 27 ment shall also contain a comprehensive and detailed disclosure of the 28 insurer's expenses actually incurred and paid during such calendar year, 29 to include normal business expenses, salaries, commissions, consulting 30 fees, legal expenses, advertising costs and any other category deemed 31 pertinent to the intent of this section. At a minimum, the expense 32 information required shall consist of the items set forth in the under- 33 writing and investment exhibit - part 3 - expenses of the 34 property/casualty statutory annual statement, as applicable to the 35 insurer's New York state business. With respect to salaries (including 36 all other forms of compensation), each insurer shall itemize the salary 37 of the twenty most highly compensated employees of such insurer during 38 such year, provided that the names of such employees need not be 39 disclosed. Such financial statement shall also provide the public with 40 a synopsis of claims or settlements paid for section two hundred forty 41 of the labor law coverage pursuant to such policies or contracts, list- 42 ing the total of such claims and settlements attributable to such cover- 43 age. At a minimum, the claim information required shall consist of the 44 items set forth in the exhibit of premiums and losses of the 45 property/casualty statutory annual statement, as applicable to the 46 insurer's New York state business and identified and categorized sepa- 47 rately for each zip code in this state. Such financial statement shall 48 be signed and attested as full, complete and accurate by the chief exec- 49 utive officer of the insurer, and he or she shall be held personally 50 responsible with respect to the accuracy of the content of such state- 51 ment. The superintendent shall provide insurers with a method to submit 52 their financial statements electronically via the internet, which method 53 shall include instructions relating to the use of an electronic signa- 54 ture which shall be subject to, and submitted in accordance with section 55 three hundred sixteen of this article; provided, however, that no excep- 56 tion authorized in such section may be requested or granted.A. 8949 4 1 (c) On or before April first of each year, every insurer shall provide 2 the superintendent with detailed closed claim information for the same 3 insurance coverage as provided for in subsection (b) of this section for 4 the most recently concluded calendar year. Until the superintendent 5 promulgates data collection forms and procedures for the itemization 6 requirements, data shall be collected using, at a minimum, the most 7 recent publicly available forms required by law, or commonly used in the 8 insurance industry. The superintendent may require additional informa- 9 tion beyond that which may otherwise be currently required if he or she 10 deems it necessary and warranted without the need to formally adopt a 11 rule or regulation provided such requirement is consistent with the 12 intent of this section. Such detailed claim data shall be signed and 13 attested as full, complete and accurate by the chief executive officer 14 of the insurer, and he or she shall be held personally responsible with 15 respect to the accuracy of the data. The detailed claim data shall be 16 submitted in the same manner as provided for in subsection (b) of this 17 section. 18 (d) The superintendent shall, in both written form and as part of the 19 department web site, make such financial statements and detailed claim 20 information available to the public. The detailed claim information 21 shall be provided in aggregate form for all insurers and separated by 22 specific insurer, combined without any identification of a specific 23 claim to a specific insurer. None of the publicly available detailed 24 claim information shall identify the individual insurer, defendant or 25 plaintiff, or representative of the same, associated with the claim. 26 Such financial statements and detailed claim information shall be deemed 27 a public document and no person shall be required to file a request for 28 such financial statements pursuant to article six of the public officers 29 law in order to receive a copy thereof, but upon request and payment of 30 the fee for copying such document, it shall be provided forthwith. With 31 respect to the electronic copy of such financial statements and detailed 32 claim information, which shall be accessible on the department's web 33 site, the department shall highlight the availability of such informa- 34 tion to the public on such web site, and the link to each insurer's 35 financial statement and the aggregated detailed claim information shall 36 be accessible in a simple and easy manner. Both the financial statement 37 and aggregated detailed claim information on the department's web site 38 shall be available in spreadsheet format, in addition to any other 39 format the superintendent determines is appropriate. Where summaries are 40 included, they shall be written in plain and simple English so that the 41 public at large can easily comprehend the data provided. 42 (e) On or before July first of each year, the superintendent shall 43 issue reports summarizing and explaining the information collected from 44 the financial statements and the detailed claim information and summa- 45 rizing the cost and other essential elements relevant to providing 46 section two hundred forty of the labor law coverage. Such report shall 47 further contain such recommendations the superintendent deems advisable 48 to encourage the utilization of risk management programs to be regularly 49 conducted by contractors to reduce premiums and provide workers with a 50 safer work environment, and any other steps contractors or real property 51 owners should utilize in furtherance of the same. The superintendent may 52 seek, and shall be entitled to receive, the aid and assistance of the 53 commissioner of labor and any other state or local governmental official 54 charged with responsibility for work site safety in preparing such anal- 55 ysis and recommendations. Copies of such reports shall be forwarded to 56 the temporary president of the senate, the speaker of the assembly andA. 8949 5 1 the chairs of the senate and assembly insurance committees. Such reports 2 shall be public documents and shall be accessible both in paper copy and 3 on the department's web site in a similar fashion as provided for in 4 subsection (d) of this section. 5 (f) Where an insurer fails or refuses to provide the superintendent 6 with a full and complete disclosure as required by this section, the 7 superintendent shall take such action he or she deems necessary to bring 8 the insurer into full compliance. Such action may include imposition of 9 a civil penalty of up to fifty thousand dollars assessed against the 10 insurer for each violation, temporary suspension of any right to issue 11 additional policies or contracts until the insurer brings itself into 12 full compliance, an audit of the insurer's records by the department or 13 its designated representative to obtain the information and which audit 14 shall be paid for by the insurer, or any other civil remedy the super- 15 intendent deems warranted or necessary until such insurer fully 16 complies. In addition the officer whose signature is affixed to such 17 statement may be personally penalized to the same extent. 18 (g) The superintendent may promulgate such rules and regulations he or 19 she deems necessary for the proper administration of the provisions of 20 this section, and such rules and regulations may be promulgated on an 21 emergency basis if the superintendent warrants such action to be neces- 22 sary. 23 § 4. Severability. If any item, clause, sentence, subparagraph, subdi- 24 vision or other part of this act, or the application thereof to any 25 person or circumstances shall be held to be invalid, such holding shall 26 not affect, impair or invalidate the remainder of this act but it shall 27 be confined in its operation to the item, clause, sentence, subpara- 28 graph, subdivision or other part of this act directly involved in such 29 holding, or to the person and circumstances therein involved. 30 § 5. This act shall take effect on the first of January next succeed- 31 ing the date upon which it shall have become a law.
