Author: LegalEase Solutions
You have asked us to research states that have enacted statutes establishing requirements/limitations with respect to the termination of insurance agent contracts (e.g., notice), or which provide for post termination payments of any kind. These issues require discussion of:
- State statutes;
- Applicable case law in each state.
A state-by-state breakdown of the findings follows below:
INSURANCE AGENT CONTRACT TERMINATION RULES: STATE-BY-STATE ANALYSIS
The creation of an agency relationship through which a person undertakes to represent an insurance company may be made under the general principles of the laws of agency, and the general rules of law relative to the duration and termination of agency relationships will apply. Where a principal’s termination of an agency relationship is a contractual violation, such termination will render the principal liable to the agent in damages, and a principal who wrongfully revokes an agency relationship may be liable for any wrong thus inflicted upon his agent. According to the Second Restatement of Agency, a principal has a duty not to repudiate or terminate an employment in violation of the contract of employment (5A.L.R.4th 1080, 1b-2a).
THE GENERAL RULE REGARDING COMPENSATION
An insurance agent has no vested right to compensation under agency contract after termination, and agent’s right to commissions, salary or other compensation upon termination is governed by terms of agency contract. Thus, where insurance agent, who had been terminated for failure to give his insurers first priority in placing insurance, engaged in competitive activity shortly after his contract was terminated, agent forfeited his right to service bonuses, uncollected commissions, and renewal commissions, where contract had provided for such forfeiture if agent engaged in competitive activity within one year of termination. Anderson v Farm Bureau Mut. Ins. Co 112 Idaho 461; 732 P2d 699 (1987).
Generally, it may be said that the right of an insurance agent to recover commissions on renewal premiums depends upon the contract existing between the agent and the insurance company or one of its general agents. In order for the agent to be entitled to recover commissions on renewal premiums from an insurance company, it would be incumbent on him to show that the agency was indeed with the instant insurance company, and that all the conditions precedent to his right to such commissions had been performed.
A large number of cases have discussed the right of the agent to recover renewal commissions after termination of the agency. It may be stated as a general rule that unless the contract of an agent provides for commissions on renewal premiums paid after the termination of his employment, he will not be entitled to such commissions after his agency has been rightfully terminated. The cases are not entirely consistent on the question whether an agent entitled to renewal commissions by contract could be deprived of his right by the insurance company’s waiver of the payment of the premiums by the insured. In some cases recovery has been allowed, whereas in others recovery has been denied.
It has been held that an agent who was entitled to commissions on renewal premiums could not be deprived of his right of recovery by his wrongful discharge. Under the particular terms of the agency contract it has been held, in a number of cases, that an agent was entitled to recover commissions on renewal premiums paid after the rightful termination of the agency. The courts have usually given effect to a provision that in the event of termination the insurance company may deduct a certain percentage from the renewal commissions for a service or collection fee where the agent himself does not collect the premiums.
In several cases, it has been held that the agent’s right to commissions on renewal premiums was lost when the insurance company ceased to do business. See generally, Wallman v. United Casualty Co. 147 F.2d 636 (3d Cir. 1945).
In the absence of provision for payment after termination, there has been found to be a general rule denying recovery: It may be stated as a general rule that unless the contract of an agent provides for commissions on renewal premiums paid after the termination of his employment, he will not be entitled to commissions on renewal premiums paid after his agency has been rightfully terminated. Michigan Mut. Ins. Co. v Thompson 266 F 973; (CA2 NY, 1920).
Differences among individual states with regard to this area of insurance regulation are discussed below.
SUMMARY –TERMINATION BY INSURER ANYTIME-NOTICE TO COMMISSIONER WITHIN 30 DAYS:
The essential elements for appointment and termination of agency contract in state of Alabama are contained in Section 27-7-30 in the code of Alabama. Subject to the producer’s contract rights, if any, an insurer or authorized representative of the insurer may terminate a producer’s appointment at any time. An insurer or authorized representative of the insurer that terminates the appointment, employment, or contract with a producer for any reason shall within 30 days following the effective date of the termination, using a format prescribed by the commissioner, give notice of the termination to the commissioner. ) Each insurer shall give its producers timely written notice of all appointments and renewal of appointments.
(f) Upon written request of the commissioner, the insurer or authorized representative shall file with the commissioner a statement of the facts relative to the termination and the cause thereof.
- i) Each insurer shall give its producers timely written notice of all appointments and renewal of appointments.
30.1 asks for the producer to give in writing, written comments concerning the substance of the notification with the commissioner within 30 days after receipt of such notification.
SUMMARY-TERMINATION BY INSURER BY NOTICE TO COMMISSIONER ANNUALLY, ON JUNE 1ST
In the State of Arkansas, an insurer (or insurance company) can terminate its appointments by giving notice to commissioner by June 1st every year, in written or electronic form. The insurer shall give notice, in any written or electronic method prescribed by the commissioner, of nonrenewal or termination of agent or producer appointments to the commissioner and to the producer and shall retain the notices or electronic transmittals as part of the insurer’s records for compliance under this section and under § 23-64-515.
ARKANSAS EXCEPTION TO RULE§ 23-64-219. Appointment of agent — Continuation or termination of appointment
The provision in an agency contract permitting termination without cause is consistent with express Arkansas law; extending the employment law public policy exception to independent insurance agents would effectively nullify the termination-without-cause provision in such a contract, contrary to this express statutory authorization. McNeill v. Security Benefit Life Ins. Co., 28 F.3d 891 (8th Cir. 1994)
SUMMARY-ONLY LICENSEE ALLOWED TO SELL INSURANCE; PRODUCER GETS LICENSE FROM DIRECTOR-ON REVOCATION, SUSPENSION, NON-RENEWAL OF LICENSE, OR SURRENDER OF LICENSE BY PRODUCER, CEASES TO BE CAPABLE OF SELLING INSURANCE- EXTENSION QUADRENIALLY-REVOCATION IN CASE OF FRAUD
Under the Arizona Revised Statutes, A.R.S. § 20-281
“Insurance producer” means a person required to be licensed under this article to sell, solicit or negotiate insurance.
License required A person shall not sell, solicit or negotiate insurance in this state for any class or classes of insurance unless the person is licensed for that line of authority in accordance with this article. A.R.S. § 20-282.
There are exceptions to license requirements under Arizona law governing Insurance issues. An insurer is not required to have the license. Section 20-283 gives exceptions to license requirements for producers or special agents provided they do not receive any commissions on policies written or sold.
A license continues to be in force according to Sec. 20-289 until it expires, or is surrendered or is suspended, revoked or terminated by the director. A license expires quadrenially unless it is renewed by the director on fulfillment of certain conditions prescribed by the statute in the appropriate format.
Sec. 20-293 refers to State of Arizona having the interesting concept of insurance vending machines which can be used for selling and soliciting applications only by licensed insurance producers duly authorized by the director. The machines are to be used only if the kind of policy sold by the machine does not pose a risk of harm to the public. The authority of the producer to use such such vending machine is to be displayed near the machine and this right can be subject to revocation, suspension or termination by the director.
- An insurer or insurance producer shall not pay a commission, service fee, brokerage or other valuable consideration to a person for selling, soliciting or negotiating insurance in this state if that person is required to be licensed under this Acc. To sec. 20-295, the director may deny, suspend(for not more than 12months), revoke or refuse to renew an insurance producer`s license or even impose a civil penalty if the producer seeking such license is found to have committed fraud, misprepresentation, felony or such other violations of rules. Once the license is withdrawn for any of the reasons, the license is to be returned to the director.
- 20-298 deals with commissions available or not available to producers or other licensees. An insurer or insurance producer shall not pay a commission, service fee, brokerage or other valuable consideration to a person for selling, soliciting or negotiating insurance in this state if that person is required to be licensed under this article and is not so licensed. Other subsections of this statute refer to the few types of commissions like payment to employees that are made available to individuals dealing in the business of insurance. However the regular salaries due to a licensee`s employees in the regular course of business compensation would not stand affected.
SUMMARY: NOTICE TO COMMISSIONER PREREQUISITE TO APPOINTMENT OF AGENT-LICENSE BECOMES INACTIVE ON CANCELLATION AND PREVENTS AGENT FROM TRANSACTING
California Insurance code Sec. 1704 (2005): a life agent, travel agent, a fire and casualty insurance agent shall not act as agent of an insurer unless the insurer has filed with the commissioner a notice of appointment. The licensee gets the authority to transact as an agent on the day of signing the appointment notice. This authority of licensee shall stay in effect until cancellation or expiration of license and the filing of a notice of termination by the insurer or employing fire and casualty broker agent. Upon termination of such appointment and cancellation of the bond with the licensee, the permanent license becomes inactive. Such a license cannot allow a person to transact in a field where a valid license is required.
With regard to post termination payment to an agent, the following cases would clarify the position with regard to the importance of the terms of the contract between the agent and the insurer.
In the absence of a contract an agent is not entitled for commission after termination. Parties to a contract may provide therein for their respective rights and liabilities in the event of the termination thereof. ( J. R. Watkins Co. v Brewer, 73 Ga.App. 331; 36 S.E.2d 442; Coleman v Ford Motor Co., 195 Mo.App. 554; 193 S.W. 866). In Barr v Sun Life Assur. Co. of Canada, 146 Fla. 55; 200 So. 240, it was said: “. . . the great weight of authority holds that the agent [after termination] has no vested rights in commissions on renewal premiums and that his right to be paid commissions on renewal premiums must be based entirely upon the terms of the contract. . . .”
In 44 Corpus Juris Secundum section 162, pages 844-845, it is said: “Except to the extent that his contract provides for renewal commissions, an agent is not entitled to commissions on renewal premiums paid after a proper termination of his agency. . . . On the termination of the agency the agent or his assignee may, however, recover commissions on premiums earned and actually due at the time of the happening of the breach for which the contract was terminated, less any sums owing by the agent to the company.” See also 3 Couch on Insurance, section 560, pages 1784, 1799 and 1800; Deacon v Equitable Life Assur. Society, 17 Ga.App. 74; 86 S.E. 91; Ryan v Phoenix Mut. Life Ins. Co., 264 App.Div. 532; 35 N.Y.S.2d 792; Geisler v Equitable Life Assur. Soc., 169 Va. 118; 192 S.E. 703; Milwaukee Mechanics’ Ins. Co. v Warren, 150 Cal. 346; 89 P. 93; National Union Fire Ins. Co. v Nason, 21 Cal.App. 297; 131 P. 755; Freeman v Monarch Life Ins. Co., 138 Cal.App.2d 702; 292 P.2d 549; Merrill v Continental Assurance Co., 200 Cal. App. 2d 663, 670-671 (Cal. Ct. App. 1962).
SUMMARY: 90 DAYS ADVANCE NOTICE TO PRODUCER REQUIRED BEFORE TERMINATION OF CONTRACT-ANY NEW BUSINESS ENTERED INTO BY PRODUCER WITHIN THE 90 DAYS TO BE DONE WITH WRITTEN APPROVAL OF SUCH INSURER-COMMISSION PAYABLE FOR THIS BUSINESS DESPITE TERMINATION-RULE NOT APPLICABLE TO LIFE, HEALTH AND ACCIDENT INSURANCE
Connecticut General Statute, Sec. 38a-709: No insurance agency contract entered into in the State of Connecticut by a licensed insurer with a licensed producer shall be terminated by the licensed insurer without the latter giving not less than ninety days` written notice in advance to the producer, unless the contract shall be terminated by the licensed insurer for failure of the producer, after receiving a written demand, to pay over moneys due to such insurer, provided during said ninety-day period after any such notice, the producer shall not write or bind any new business on behalf of the licensed insurer without the specific written approval by such insurer of such business.
(c) Any insurance company renewing contracts of insurance in accordance with this section shall pay commissions for such renewals to the terminated producer in the same amount as had been paid to him on similar policies during the twelve months immediately preceding the notice of termination.
(d) The provisions of this section shall not apply to any contract with a producer for the sale of life or accident and health insurance
SUMMARY: NOTIFICATION TO COMMISSIONER WITHIN 30 DAYS AFTER TERMINATION –COPY OF NOTIFICATION TO PRODUCER TO BE GIVEN WITHIN 15 DAYS OF MAKING NOTIFICATION-STATUTE GIVES IMMUNITY TO PRODUCER, INSURER AND COMMISSIONER FOR INFORMATION GIVEN PURSUANT TO REQUIREMENTS OF THIS STATUTE
C.R.S. 10-2-416 (2005):
10-2-416. Notification to the commissioner of termination
In the State of Colorado, an insurer needs to give notice of termination to commissioner within 30 days of effective termination for reasons set forth in article 3 of this title or if a court or government body or other authority found the producer to be engaged in activities as set forth in article 3 of this title. All additional information is to be given by insurer to commissioner in prescribed format. Copy of notification to be given to producer within 15 days of making it. The producer shall file his written comments to the commissioner within 30 days of receipt of the notification of his termination.
Subsection (4) absolves an insurer, a producer the commissioner or any related organization, from any civil liability, in the absence of willful and wanton behavior, on the basis of any statement or information given by such individual pursuant to requirements of this section. This statute gives a lot of importance to confidentiality of all written information exchanged between parties concerned with the commissioner.
DISTRICT OF COLUMBIA
SUMMARY: NOTIFICATION OF TERMINATION TO COMMISSIONER WITHIN 30 DAYS AFTER TERMINATION. COPY OF TERMINATION TO PRODUCER WITHIN 15 DAYS OF SUCH NOTIFICATION-PRODUCER TO FILE WRITTEN COMMENTS TO COMMISSIONER WITHIN 30 DAYS OF RECEIPT OF NOTIFICATION-IMMUNITY CLAUSE PROTECTS INSURER, PRODUCER AND COMMISSIONER FROM CIVIL LIABILITY-RECORDS NOT TO BE USED AS EVIDENCE-AUTHORITY OF INSURER TO BE REVOKED IN CASE OF MALICE
In the District of Columbia, D.C. Code § 31-1131.15 (2005) provides that an insurer terminating appointment or contract with an insurance producer shall notify commissioner within 30 days after such termination. Whether or not the termination took place due to producer indulging in activities as mentioned in Sec. 31-1131.12 or those not in that section, the notification and submission of other additional information are to be provided to the commissioner in the prescribed form. Within 15 days of making the notification, the insurer shall mail a copy of this notification of termination to the producer. Within 30 days of receipt of this copy, the producer shall file written comments concerning the substance of the notification to the commissioner.
An Immunity clause absolves the producer, insurer and commissioner from any civil liability arising from any statements made pursuant to requirements of this section. Any material or document that is in the custody of the Department of Insurance, or Security, Bank or Commissioner, shall not be used as evidence in a court of law and shall have privileged status. An insurer who acts in malice and withholds or misleads the commissioner shall have his license revoked or suspended by the commissioner.
SUMMARY: NOTIFICATION TO COMMISSIONER WITHIN 30 DAYS OF TERMINATION. COPY T O PRODUCER WITHIN 15 DAYS OF MAKING NOTIFICATION- IMMUNITIES CLAUSE PROTECTS INSURER, PRODUCER, COMMISSIONER ARISING FROM INFORMATION GIVEN UNDET THIS ACT-CONFIDENTIALITY OF INFORMATION, DOCUMENTS MAINTAINED-COMMISSIONER CANNOT TESTIFY IN CIVIL ACTION REGARDING INFORMATION HE HAS WITH HIM-INSURER`S AUTHORITY REVOKED IF HE ACTS WITH MALICE.
18 Del. C. § 1716 (2005)
1716. Notification to Insurance Commissioner of termination
In Sec. 1716 (2005) of the Delaware code, An insurer who terminates the contract with the producer with or without cause as given in the statute, shall give notice of such termination to the Insurance commissioner in the prescribed format and shall provide any additional information as may be required. Within 15 days of making this notification, the producer shall be served a copy of the notice of termination. And within 30 days of receipt of such notification, the producer shall furnish his written comments to the commissioner.
The Immunities clause in this section absolves the insurer, producer or commissioner of any responsibility arising from any information furnished or statements made pursuant to requirements of this section. The confidentiality clause prevents any information, documents that the commissioner is in receipt of, from being used as evidence in a court of law. The commissioner, insurer or other person, shall not testify in a court of law with regard to any information or documents that has been furnished to him under the requirements of this section. He shall also not enter into any agreement with a third party to share the information that he is possession of. This section also proposes civil liability revocation of authority to an insurer who acts in malice and does not reveal information correctly to the commissioner.
SUMMARY: TERMINATION POSSIBLE ANYTIME-APPOINTING AUTHORITY TO GIVE APPOINTEE ATLEAST 60 DAYS ADVANCE WRITTEN NOTICE PRIOR TO TERMINATION-WITHIN 30 DAYS OF SUCH TERMINATION NOTIFICATION TO BE GIVEN TO DEPARTMENT OF INSURANCE-SUBJECT TO EXCEPTIONS, APPOINTING AUTHORITY TO CONTINUE OUTSTANDING CONTRACTS TRANSACTED BY AGENT UNTIL EXPIRATION DATE-APPOINTEE CAN TERMINATE CONTRACT ANYTIME BY WRITTEN OR ELECTRONIC NOTICE TO DEPARTMENT- TERMINATION SHALL TAKE EFFECT IMMEDIATELY-APPOINTEE`S CONTRACT RIGHTS IMPORTANT IN DETERMINING RIGHTS
Fla. Stat. § 626.471 (2005)
626.471. Termination of appointment
In Florida, subject to the contract rights, an appointing entity can terminate appointment of appointee any time. The appointer shall give at least 60 days advance written notice to appointee of intention to terminate in person or by mail. Within 30 days of such termination of the appointment, the appointing entity shall file written notice thereof to the Department with other relevant materials according to prescribed format. The appointing authority shall subject to exceptions provided under subsection (1), continue the outstanding contracts transacted by an agent until the expiration date or anniversary date when the policy is a continuous policy with no expiration date. This paragraph shall not be construed to prohibit the cancellation of such contracts when not otherwise prohibited by law. An appointee may terminate the appointment at any time by giving written or electronic notice thereof to the appointing entity, department, or person designated by the department to administer the appointment process. The department shall immediately terminate the appointment and notify the appointing entity of such termination. Such termination shall be subject to the appointee’s contract rights, if any.
Upon receiving notice of termination, the department or person designated by the department to administer the appointment process shall terminate the appointment.
SUMMARY: VALID LICENSE NECESSARY TO SELL INSURANCE IN GEORGIA-NO COMMISSIONS PAID OR ACCEPTED UNLESS LICENSE IS OBTAINED-ON T ERMINATION OF CONTRACT INSURER TO GIVE NOTICE TO COMMISIONER WITHIN 30 DAYS OF TERMINATION-WHEN CERTIFICATE OF AUTHORITY IS TERMINATED BY INSURER NOTICE TO BE GIVEN WITHIN REASONABLE TIME TO COMMISSIONER AND AGENT
O.C.G.A. § 33-23-3 clearly states that for an entity or person to sell, solicit or negotiate insurance in the State of Georgia, a valid license is necessary. No insurer or agent doing business in this state shall pay, directly or indirectly, any commissions or any other valuable consideration to any person for services as an agent, subagent, or adjuster within this state, unless such person is duly licensed in accordance with this article. ) No person other than a duly licensed adjuster, agent, subagent, or counselor shall pay or accept any commission or other valuable consideration except as provided in subsections (b) and (c) of this Code section.
O.C.G.A. § 33-23-26: An insurer who terminates the contract with an agent shall notify commissioner within 30 days following the effective date of the termination in the prescribed format. If an agent’s authority is terminated insurer shall promptly give notice of said termination to commissioner and agent wherever possible. Insurer may also be required to prove to commissioner to his satisfaction that he made a reasonable effort to give notice to agent. Insurer shall give notice of said termination to agent and commissioner where reasonably possible.
LICENSE REQUIRED TO ENTER INSURANCE BUSINESS-ON TERMINATION OF APPOINTMENT OF PRODUCER NOTICE TO BE GIVEN TO COMMISSIONER WITHIN 30 DAYS OF TERMINATION-15 DAYS THENCE NOTICE COPY TO PRODUCER-AND 30 DAYS MORE TO SEND WRITTEN COMMENTS BY PRODUCER TO COMMISSIONER-IMMUNITY AND CONFIDENTIALITY CLAUSES FOR INFORMATION, DOCUMENTS WITH COMMISSIONER MAINTAINED AND ONLY USED IN FURTHERANCE OF COMMISSIONER`S DUTIES
(a) A person shall not sell, solicit, or negotiate insurance in this State for any line, class, or classes of insurance unless the person is licensed for the proper line of authority or class in accordance with this article.
An insurer terminating appointment of producer needs to give notice to commissioner at least within 30 days after termination. With reasons in the format prescribed. Within 15 days after such notification, a copy shall be sent to the producer. Within 30 days thence, written comments shall be furnished b producer to commissioner. The immunity clause and the confidentiality clauses exist in the Insurance Code of Hawaii, § 431:9A-115; Notification to Commissioner of Termination
§ 431:9A-113 deals with the subject of commissions in the state of Hawaii:
(a) An insurance company or insurance producer shall not pay a commission, service fee, brokerage fee, or other valuable consideration to a person for selling, soliciting, or negotiating insurance in this State if that person is required to be licensed under this article and is not so licensed.
(b) A person shall not accept a commission, service fee, brokerage fee, or other valuable consideration for selling, soliciting, or negotiating insurance in this State if that person is required to be licensed under this article and is not so licensed.
(c) Renewal or other deferred commissions may be paid to a person for selling, soliciting, or negotiating insurance in this State if that person was required to be licensed under this article at the time of the sale, solicitation, or negotiation and was so licensed.
(d) An insurer or insurance producer may pay or assign commissions, service fees, brokerage fees, or other valuable consideration to an insurance agency or to persons who do not sell, solicit, or negotiate insurance in this State, unless the payment would violate section 431:13-103
SUMMARY:LICENSE NECESSARY-30 DAYS TIME FOR NOTIFYING COMMISSIONER AFTER TERMINATION OF AGENT`S CONTRACT-15DAYS THENCE TO NOTIFY AGENT OR PRODUCER-IMMUNITY CLAUSE PROTECTS INSURER, AGENT 0R COMMISIONER FOR MATTERS ARISING OUT OF INORMATION GIVEN UNDER THIS SECTION-INFORMATION GIVEN PRIVELEGED STATUS-BUT PURSUANT TO COMMISSIONER`S DUTIES DOCUMENTS AND OTHER INFORMATION CAN BE USED BY COMMISSIONER
According to Iowa code 522B.2, A person shall not sell, solicit, or negotiate insurance in this state for any line of insurance unless the person is licensed as an insurance producer for that line of insurance as provided in this chapter. Even to be able to offer to the public to engage in an insurance policy advice, or other service, the person must be licensed.
An individual insurance producer who acts as an agent of an insurer must be appointed by that insurer. Iowa Code § 522B.13 (1).
According to Sec. -522B.14 : an insurer terminating appointment or contract with an insurance producer shall notify commissioner within 30 days after such termination. Whether or not the termination took place due to producer indulging in activities as mentioned in Sec. 31-1131.12 or those not in that section, the notification and submission of other additional information are to be provided to the commissioner in the prescribed form. Within 15 days of making the notification, the insurer shall mail a copy of this notification of termination to the producer. Within 30 days of receipt of this copy, the producer shall file written comments concerning the substance of the notification to the commissioner.
An Immunity clause absolves the producer, insurer and commissioner from any civil liability arising from any statements made pursuant to requirements of this section. Any material or document that is in the custody of the Department of Insurance, or Security, Bank or Commissioner, shall not be used as evidence in a court of law and shall have privileged status. An insurer who acts in malice and withholds or misleads the commissioner shall have his license revoked or suspended by the commissioner. An insurer acting with malice and withholding information relevant shall have his authority revoked by the commissioner.
Sections 41-1004, 1017, 1018 and 1019 of the Idaho Code discuss the relevant details relating to License requirements, appointment and termination of an insurance agent/producer and the conditions for payment or acceptance of commission. Details are same as in many other states as in Idaho.
SUMMARY: IN ILLINOIS, INSURANCE CONTRACT BETWEEN AGENT AND INSURER NOT TERMINATED UNLESS PROVIDED FOR BY MUTUAL AGREEMENT AT THE TIME OF WRITTEN TERMINATION OR UNLESS 180 DAYS PRIOR WRITTEN NOTICE IS GIVEN TO AGENT. AGENT NOT TO BIND ANY NEW BUSINESS IN THE 180 DAY PERIOD
According to Illinois Compiled Insurance Statutes Annotated:
215 ILCS 5/141.02. [Termination of agent’s contract — Rehabilitation; notice; renewals after termination]
An independent insurance agent should be licensed and represents an insurance company but not as an employee. The section only applies to contracts which are more than 1 year old. An important element in this section is the rehabilitation clause which provides for the company and agent to reach a mutual agreement on a written plan for rehabilitation for a period of time agreed by them. That written plan shall identify the problem areas and what the agent must do in an effort to avoid termination.
(3) Notice of Termination. Contracts between the independent insurance agent and any company shall not be terminated by the company except by signed mutual agreement at the time of written termination notice or unless the company provides 180 days written notice to the independent insurance agent prior to the effective date of termination. The effective date of termination shall be 180 days from the date of mailing of the termination notice.
Renewals following termination: during the 180 days notice or other mutually agreed time period the independent insurance agent shall not write or bind any new business on behalf of the terminating company without specific written approval.
Ind. Code Ann. § 27-1-15.6-13, 14 AND 15 clearly outline statutory requirements for termination of an agency contract under Insurance law as complied under Indiana Code. The rules closely follow the pattern as given under many states . Rules in the State of Iowa may be referred to for understanding of termination procedure and commissions in Indiana.
Position relating to payment of commission on termination in state of Indiana:
In Sample v Kinser Ins. Agency, 700 N.E.2d 802, 804 (Ind. Ct. App. 1998) it was held that:
“the general rule is that a person employed on a commission basis is entitled to those commissions when the order is accepted by the employer. Robinson v Century Personnel, Inc., 678 N.E.2d 1268, 1270 (Ind. Ct. App. 1997), trans. denied. Stated differently, a person employed on a commission basis is entitled to commissions on business she has secured even though payment is not received by the [**6] employer until a later date. Vector Engineering & Mfg. Corp. v Pequet, 431 N.E.2d 503 (Ind. Ct. App. 1982). “This general rule may be altered by a written agreement which clearly demonstrates a different compensation scheme.” Robinson, 678 N.E.2d at 1270. In this case the written compensation agreement is silent as to whether Sample is entitled to commissions subsequent to her termination as an employee. Contrary to Kinser Insurance’s argument this does not mean that Sample is not entitled to commissions. Rather, the general rule applies. We conclude that Sample is entitled to be paid commissions for renewal business she had secured prior to her termination of employment. These were earned commissions, that is, Sample had done all the work required of her as the agent of Kinser Insurance. The sales had been consummated, and her right to the commissions had fully accrued, subject only to actual receipt of the premium payments. The trial court’s grant of summary judgment in favor of Kinser Insurance on Sample’s breach of contract claim is therefore reversed.”(Id. at 807)
SUMMARY: NOTICE TO COMMISSIONER WITHIN 30 DAYS OF TERMINATION-COPY OF NOTIFICATION TO AGENT WITHIN 15 DAYS THENCE-CONFIDENTIALITY CLAUSE-IMMUNITY CLAUSE- SPECIFIC COMPENSATION CLAUSE OVER AND ABOVE LEGITIMATE COMMISSION THAT AN AGENT IS ELIGIBLE TO-GENERALLY COMMISSIONS PROHIBITED WITH EXCEPTIONS PROVIDED IN STATUTE
Sections 40- 4910, 11and 13 of ARTICLE 49. UNIFORM INSURANCE AGENTS LICENSING ACT follows to a large extent the provisions of many other states like Iowa with regard to provisions relating to termination of insurance agents.
The main feature in the Insurance law of Kansas State is:
40-4911. Agents’ receipt of compensation.
A licensed insurance agent may receive compensation for or on account of negotiating contracts of insurance or placing or soliciting or effecting contracts of insurance. Nothing in this chapter shall abridge or restrict freedom of contract of insurance carriers or agents or brokers with reference to the amount of commissions or fees to be paid to such insurance agents and such payments are expressly authorized. Insurance agents shall have the right to compensation other than commissions from any insured or prospective insured on account of negotiation or procurement of or other services in connection with contracts of insurance policies including adjustment of claims if such compensation is based upon a written agreement between the insurance agent and insured specifying the amount of such compensation. Nothing herein contained shall affect the right of any insurance agent to recover from the insured the amount of any premium or premiums for insurance placed by or through the insurance agent.
Generally commissions, service fees or brokerage fees are prohibited under sec. 40-4910 of this act unless they fall into one of the exceptions given in this section.
Commission may be paid to an entity or person transacting insurance only if he is licensed. Renewed or other deferred commissions may be paid to person selling insurance if such person was required to be licensed at the time of the sale of insurance and he was indeed licensed according to this section.
SUMMARY: 30 DAYS NOTICE PERIOD AFTER TERMINATION OF AGENT CONTRACT-15 DAYS THENCE FOR NOTIFICATION TO AGENT-CONFIDENTIALITY AND PRIVELEGED STATUS OF INFORMATION CLAUSE-IMMUNITY FROM CIVIL LIABILITY OF AGENT, INSURER, COMMISSIONER WITH REGARD TO INFORMATION EXCHANGED UNDER THIS SECTION-COMPENSATION ALLOWED UNDER THIS ACT AS LONG AS AGENT IS LICENSE IF THIS WAS AGREED UPON DURING APPOINTMENT.
KRS § 304.9-280 (2004)
According to Kentucky Revised Statutes § 304.9-280, an insurer can terminate an appointment at any time. However the 30-day notice period is applicable soon after termination in the prescribed format. The rules here again follow the same lines as those in Iowa and several other state insurance laws with regard to notification time, format, civil immunity of commissioner, agent and insurer-confidential and privileged information use clause of information and documents is present under this law. The commissioner can use the information in pursuant to performance of his duties.
- 304.9-290. Rights of agent following termination of appointment
Following termination of an appointment and subject to the terms of any agreement between the agent and the insurer, the agent may continue to service, and receive from the insurer commissions or other compensation relative to, business written by him or her for the insurer during the existence of the appointment, so long as the agent continues to be licensed as to the kinds of insurance involved.
15 DAYS TIME FOR NOTIFICATION TO COMMISSIONER ON TERMINATION OF AGENT-15 DAYS THERAFTER FOR NOTIFICATION TO BE SENT TO AGENT-CIVIL IMMUNITY-PRIVELEGED INFORMATION CONFIDENTIALITY CLAUSE-COMMISSIONER`S USE OF INORMATION FOR PERFORMANCE OF HIS DUTIES- RENEWAL OR DEFERRED COMMISSIONS PAYABLE TO LICENSED AGENTS
22:1145. Notification to commissioner of termination:
Insurer shall notify commissioner within 15 days of termination of contract with agent, giving reasons and other information relevant in the prescribed format. Within 15 days thereafter the agent should be notified by a copy dispatched to him. The privileged information and confidentiality clause and the civil immunity clause as in some other states exists here in the same tenor.
In addition, the State of Louisiana prescribed renewal and deferred commissions for agents if the agent is licensed at the time of such transaction:
22:1143 (3) Renewal or other deferred commissions may be paid to a person for selling, soliciting, or negotiating insurance in this state if the person was required to be licensed under this Part at the time of the sale, solicitation, or negotiation and was so licensed at that time.
ALM GL ch. 175, § 162T-ANNOTATED LAWS OF MASSACHUSETTS:
SUMMARY: 30 DAYS TIME FRAME FOR NOTICE OF TERMINATION TO SUPERINTENDANT-15 DAYS TIME THENCE FOR NOTICE OR COPY TO AGENT-CONFIDENTIALITY CLAUSE-CIVIL IMMUNITY-NO COMPENSATION TO PERSON WHO HAS LOST LICENSE-NO COMMISSIONS TO UNLICENSED PERSON ENTITY.
24-A M.R.S. § 1420-N
1420-N deals with Notification to superintendent of termination of agent. The commonly used procedure of 30 days time before giving notice to the superintendent of the termination, the 15 days time within which to give notice or copy to agent holds good in the State of Maine. The confidentiality clause, privileged information clause and civil immunity clause are given importance in this statute.
In addition, Sec. 1412, clearly specifies that a producer whose license has been revoked or suspended shall not derive any compensation based on the insurance business operation. However he shall get paid for activity conducted prior to loss of license. According to Section 1450, an unlicensed person shall not receive or accept any commissions unless licensed pursuant to this chapter.
2. COMPENSATION. A person whose license as an insurance producer, consultant or adjuster has been revoked, suspended, denied for cause or voluntarily surrendered to avoid prosecution may not derive any compensation, by whatever name called, based on the operation of the insurance business entity in which the person was engaged or employed prior to the revocation, suspension, denial or surrender of license. This subsection does not prohibit a person from receiving compensation for activities that the person engaged in prior to any loss of license referred to in this section, nor does it prohibit any person from divesting an interest in an insurance company or agency for value.
- 1450. Commissions; payment; acceptance:
COMMISSIONS….. An unlicensed person or business entity may not receive or accept any commission or compensation for insurance unless licensed pursuant to this chapter…..
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ALM GL ch. 175, § 162T-ANNOTATED LAWS OF MASSACHUSETTS-
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According to the Minnesota Statutes on Insurance, Section 60A.171, special rights are given to agents. After an agency contractual relationship has been in effect for 3 years, an insurer dealing in fire or casualty loss insurance cannot terminate agency unless the insurer has attempted to rehabilitate the agent. If the agent and company are not able to reach a mutually acceptable plan of rehab the company can terminate the agency after providing written notice of termination to the agent at least 90 days in advance. In addition an insurer cannot terminate an agency based on the list provided under subsection (d) of Sec. 60A.171 which includes an adverse loss experience for a single year, etc.
Agent request to renew insurance contract. The company shall at the request of the agent renew any insurance contract written by the agent for the company for not more than one year for fire or casualty loss insurance during a period of nine months after the effective date of the termination, but in the event any risk does not meet current underwriting standards of the company, the company may decline its renewal, provided that the company shall give the agent not less than 60 days’ notice of its intention not to renew the contract of insurance.
In case of involuntary termination of agency, a termination review process should be available for use at the option of agent which he would make use of within 15 days of the request or before the date of termination. If an agent is terminated by an insurer, he can request a hearing before the board of review. A Three member board for review shall be selected and compiled by the commissioner. The board`s view shall determine if the termination is justified. If the agent does not feel it is justified, the district court could be approached as a last resort for review of the Board`s decision. If the Board finds the insurer`s termination unjustified, it can ask for an appropriate compensation to be paid to the agent
Rehabilitation plan. (a) Before notice of termination of the agency contract, the company shall negotiate in good faith in an effort to reach mutual agreement with the agent on a written plan for rehabilitation.
60A.175 Agent commissions
(a) An insurer that cancels a written agreement with an agent under section 60A.171 or 60A.172 or cancels a line of business sold by the agent must pay to the agent all commissions, bonuses, and other compensation earned by that agent prior to or after termination. The commission rate must be the rate in effect at the time of the notice of termination.
(b) An insurer may not reduce agent commissions, bonuses, or other compensation contained in written agreements without first providing written notice of the change to the agent at least 180 days before its effective date.
Minn. Stat. § 60A.177 (2004).
Comments: A wide range of powers are given which seem to protect the interests of the insurance agent in Minnesota providing for various contingencies.
Restrictions imposed by insurance companies on an agent’s acceptance of new business, based on unacceptable loss ratios, did not constitute a termination of the agency and did not violate the agency rehabilitation and cancellation statute. Morgan Assocs. v Midwest Mut. Ins. Co., 519 N.W.2d 499;1994 Minn. App. LEXIS 756 (Minn. Ct. App. 1994).
375.033: Termination of contract, notice — agent not to do business
- 1. All contracts between an insurer and an independent insurance producer in effect in the state of Missouri on or after September 28, 1979, shall not be terminated or canceled by the insurer except by mutual agreement or unless ninety days’ written notice in advance has been given to the independent insurance producer and the director of insurance.
2. During the ninety days’ notice period the independent insurance producer shall not write or bind any new business on behalf of the insurer without specific written approval.
375.035 Any insurer in this state shall, upon termination or cancellation of an independent insurance producer’s contract, permit the renewal of all contracts of insurance written by the independent insurance producer for a period of one year from the date of termination, as determined by the underwriting requirements of the insurer. If not, the insurer has to give 30 days’ notice of his intention not to renew the contract.
Further, the following section deals with renewal of contract rules after termination, in favor of the agent.
375.039. Commercial risks, certain class, cancellation, written notice to agent required, when:
1. No insurer may cancel, terminate or otherwise withdraw coverage for a certain class of commercial risk, unless written notice of such cancellation, termination, or withdrawal is given to the insurer’s independent insurance producer authorized to sell such insurance coverage at least sixty days prior to such cancellation, termination or withdrawal.
2. The provisions of subsection 1 of this section shall not apply if the cancellation, termination or withdrawal of coverage by an insurer is by reason of reinsurance requirements, adverse loss experience, or by the requirement of the Missouri department of insurance. In these circumstances, the notice described in subsection 1 of this section shall be given at least thirty days prior to such cancellation, termination or withdrawal.
Montana Insurance code, Section33-17-231 deals with appointment of insurance producers — continuation and termination. Subject to the insurance producer`s contract rights, an insurer may terminate an insurance producer`s appointment at any time. The insurer shall give written notice to termination to commissioner and producer. An appointment shall remain valid until earlier written notice of termination or revocation of license is filed with the commissioner. One interesting fact in Montana is that termination of an insurer`s authority terminates a producer`s appointment.
No time frame is indicated for notice requirements in State of Montana.
Rights of insurance producer following termination of appointment are discussed in Section 33-17-232
(1) Following termination of any such agency appointment as to property, casualty, or surety insurance and subject to the terms of any agreement between the insurance producer and the insurer, the insurance producer may continue to service and receive from the insurer commissions or other compensation relative to business written by him for the insurer during the existence of the appointment.
(2) This section does not apply as to insurance producers of direct writing insurers or insurance producers or insurers between whom the relationship of employer and employee exists.
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SUMMARY: NOTICE TO COMMISSIONER TO BE GIVEN WITHIN 30 DAYS OF TERMINATION OF CONTRACT-WITHIN `15 DAYS OF THIS, A COPY OF NOTIFICATION TO BE SENT TO PRODUCER-IMMUNITY CLAUSE PROTECTS INSURER, PRODUCER AND COMMISSIONER FROM LIABILITY ARISING FROM INFORMATION GIVEN PURSUANT TO THIS SECTION-COMMISSIONER CAN SHARE AND USE THIS INFORMATION FOR STRICTLY PURSUING HIS DUTIES.
N.C. Gen. Stat. § 58-33-56 (2005)
§ 58-33-56. Notification to Commissioner of termination
In N. Carolina, an insurer needs to notify the commissioner within 30 days after the effective date of the termination of the appointment of the producer with or without cause. Within 15 days of such notification, a copy of the notification needs to be sent by mail to the producer who shall in turn furnish his comments in writing to the commissioner within 30 days of receipt of this notification. In the absence of malice, the insurer, producer or commissioner shall not have any civil liability as a result of any statement made pursuant to this section.
No commissioner or other person acting under him, who has access to any information or documents can use such information as evidence in a civil action. However, the Commissioner is authorized to use the documents, materials, or other information in the furtherance of any regulatory or legal action brought as a part of the Commissioner’s duties. Even agreements to third party- regulatory bodies to share information arising from information gathered in pursuance of this act may be entered into if such actions are part of the commissioner`s duties. If malice is proved on the part of the insurer he stands the risk of having his license revoked.
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In New Hampshire, the Insurance law Calls for the insurer to permit renewal of all contracts of insurance written by such agent for a period of one year from date of termination. If not, 60 days notice is to be given to agent to show intent not to renew.( RSA 402:15-c (2004)
Termination if agent`s contract is not to take place unless 90 days notice prior to termination is given to the producer. Any insurance company renewing contracts of insurance in accordance with this section shall pay commissions for such renewals to the terminated agent in the same amount as had been paid to him on similar policies during the 12 months immediately preceding the notice of termination.
NEW JERSEY (N.J. Stat. § 17:22-6.14a (2005)
Contracts between insurance companies and agents for the appointment of the agent as the representative of the company shall set forth the rate of commission to be paid to the agent for each class of insurance. Said rates of commission shall continue in force and effect unless changed by mutual written consent or until termination of said contract as hereinafter provided. Failure to achieve such mutual consent shall require that the agent’s contract be terminated as herein below provided. The rate of commission being paid on each class of insurance on the date of enactment hereof shall be deemed to be pursuant to the existing contract between agent and company.
In case of termination of contracts contemplated under this section, a 90 notice needs to be given to the agent prior to termination.
The company shall pay a terminated agent who continues to service policies pursuant to the provisions of this subsection a commission in an amount not less than that provided for under the agency contract in effect at the time the notice of termination was issued.
(N.M. Stat. Ann. § 59A-11-13 (2005)
§ 59A-11-13. Agents’ rights; cancellation )
No insurer shall terminate a contract appointing any person as an independent agent without giving the agent written notice of the termination, including the specific reason for such action, at least one hundred eighty days prior to the termination, giving reasons for the termination. No insurer may cancel a written agreement with an agent with respect to property or casualty insurance because of an adverse loss-ratio experience on that agent’s book of business during any three full consecutive calendar years if conditions of Section 59A-11-13 B (10 and (2) are met.
For one year following termination for any reason other than those set forth in Subsection C of this section, the agent may renew, for a term of one year, any policies of the insurer in force at termination if the insureds meet current underwriting standards. The agent shall earn a commission for such renewals at a rate not less than the rate in effect prior to termination.
(ORC Ann. 3905.50 (2005)
§ 3905.50. Termination of independent insurance agent contract)
No insurer shall terminate an independent insurance agent contract of agency except by mutual agreement of the parties or upon one hundred eighty days’ written notice to the independent insurance agent.
Such notice shall include specific reasons for the termination of the agent.
During the one hundred eighty day notice period, an independent insurance agent shall not write or bind any new policies on behalf of an insurer without written approval from the insurer. However, during such period, an independent insurance agent, subject to the current underwriting rules, guidelines, commission rates, and practices of the insurer, may renew or effect any necessary changes or endorsements of outstanding policies of insurance that are in force prior to the date of receipt of the notice of termination.
(E) An agent aggrieved by the conduct of an insurer in its breach or termination of a contract of agency may file with the superintendent a request that the superintendent review the action to determine whether it is in accord with this section.
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(40 P.S. § 242 (2005)
§ 242. Cancellation of contract)
No insurer shall terminate its contract with an agent without first providing such agent and the Insurance Commissioner with written notification at least 90 days prior to the date of termination. Such notice shall advise the agent of his right of appeal under subsection (d). Such notification shall set forth the insurer’s reason for the action. Prior to termination due to adverse experience, mix of business or lack of premium volume, it shall be the obligation of the insurer to make a reasonable attempt to rehabilitate such agent as set forth in subsection (f). No insurer shall terminate its contract with an agent due solely to the adverse experience for a period of less than two successive years prior to the notice of rehabilitation as set forth in subsection (f). (1) An insurer shall notify an agent, in writing, that the agent is placed on a rehabilitation program.
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(26 L.P.R.A. § 943 (2002)
§ 943. Termination of agent’s license)
An agent’s license shall be terminated upon request therefor in writing filed with the Commissioner by either the agent or the insurer. If the request for termination is by the insurer, the request shall be accompanied by proof that notice of such request has likewise been mailed to the agent, and no such termination shall become effective until after the agent, in regular course of mails, should have received the notice. Such a request by an insurer may state the causes of such termination, and information so furnished the Commissioner shall be privileged and shall not be used as evidence in any action against the insurer or any of its representatives.
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Art 21.11-1. Cancellation of Agency Contracts by Fire and Casualty Insurance Companies
After an agency contract has been in effect for a period of two years an insurance company writing fire and casualty insurance in this state may not terminate or suspend an agency contract with any appointed agent unless the company gives the agent notice in writing of the termination or suspension at least six months in advance. The company shall renew all contracts for fire and casualty insurance for the agent during a period of six months from the effective date of the termination or suspension, but in the event any risk shall not meet current underwriting standards of the company, the company may decline its renewal, provided that the company shall give the agent not less than 60 days’ notice of its intention not to renew the contract of insurance. .
. When an authorized insurer withdraws from the state or reduces its total annual premium volume by 75 percent or more in any year, such action shall be deemed a termination of the insurer’s agents and the insurer shall comply with the provisions of this article, except that the insurer shall renew all contracts for fire and casualty insurance for the agent for a period of 24 months from the date of the notice of termination or suspension of the agency agreement. This section does not apply to the transfer of the business from an insurer to a company under common ownership admitted to do business in this state with which the agent has an agency contract.
Utah Code Ann. § 31A-23a-115 (2005)
§ 31A-23a-115). Appointment of individual and agency insurance producer, limited line producer, or managing general agent -An insurer shall report to the commissioner, at intervals and in the form the commissioner establishes by rule:
(i) all new appointments; and
(ii) all terminations of appointments.
An insurer shall report to the commissioner the cause of termination of an appointment..
An insurer is immune from civil action, civil penalty, or damages if the insurer complies in good faith with this Subsection (2) in reporting to the commissioner the cause of termination of an appointment.
(22 V.I.C. § 788 (2005)
§ 788. Apprentice agent’s or solicitor’s license; qualifications, application, fee and limitations )
(a) The Commissioner shall issue apprentice agent’s or solicitor’s licenses only to persons who have never sold insurance before and who have never been connected with any insurance company in any position, provided they meet the following qualifications:
(1) is a resident of the Virgin Islands;
(2) is to represent and be employed by but one licensed agent or broker; and
(3) is otherwise qualified under this title.
(b) Such licenses shall be issued upon application by the applicant and at the request of the agent or broker to be represented in such manner as the Commissioner shall prescribe. The fee for said license shall be paid by the agent or broker employing such applicants. The license shall be delivered to and shall remain in the possession of the employing agent or broker and upon termination of such employment the license shall likewise terminate and shall be returned to the Commissioner for cancellation. The license shall be valid for a period of twelve consecutive months only, and, at the end of such period, each person shall be required to obtain an Annual Resident Insurance Agent’s or Solicitor’s license, and the fee shall be pro rated over the remaining portion of the current year ending December 31st.
Hence in V.I. the commissioner issues the license to the appointee and the license empowers the licensee to transact the business of insurance.
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(Rev. Code Wash. (ARCW) § 48.17.591 (2005)
§ 48.17.591. Termination of agency contract )
No insurer authorized to do business in this state may cancel or refuse to renew any policy because that insurer’s contract with the independent agent through whom such policy is written has been terminated by the insurer, the agent, or by mutual agreement.
(2) If an insurer intends to terminate a written agency contract with an independent agent, the insurer shall give the agent not less than one hundred twenty days’ advance written notice of the intent, unless the termination is based upon the agent’s abandonment of the agency, the agent’s gross and willful misconduct, the agent’s loss of license by order of the insurance commissioner, the agent’s sale of, or material change of ownership in, the agency, the agent’s fraud or material misrepresentation relative to the business of insurance, or the agent’s default in payments due the insurer under the terms of the agreement. During the notice period the insurer shall not amend the existing contract without the consent of the agent
The terminating insurer shall permit renewal of all its policies in the agent’s book of business for a period of one year following the effective date of the termination, to the extent the policies meet the insurer’s underwriting standards and the insurer has no other reason for nonrenewal. The rate of commission for any policies renewed under this provision shall be the same as the agent would have received had the agency agreement not been terminated.
The rate of commission for any policies renewed under this provision shall be the same as the agent would have received had the agency agreement not been terminated.
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Wis. Stat. § 628.10 (2005)
628.10. Termination of license. The commissioner can revoke, suspend or cancel the license of an intermediary if the latter does not fulfill certain obligations, or follow certain rules as given under the statute. Nonpayment of fees is one such reason. The intermediary whose license has been revoked can approach the commissioner within 60 days after the suspension date and on satisfactory proof of relevant details, the commissioner can have the intermediary relicensed.
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REMAINING STATES (“see list below” states)
The following states share almost the same rules with regard to termination of agent, time frame involved (which is 30 days after terminating the agent), and the follow up procedure after termination of an agent, the civil immunity, and confidential and privileged status of information exchanged as required by the commissioners in the respective states.