Representative Curtis Oda proposes the following substitute bill:


1     
INSURANCE ADJUSTER AMENDMENTS

2     
2015 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Curtis Oda

5     
Senate Sponsor: ____________

6     

7     LONG TITLE
8     General Description:
9          This bill modifies the Insurance Code to address insurance adjusters.
10     Highlighted Provisions:
11          This bill:
12          ▸     modifies definitions;
13          ▸     removes certain adjusters from the exemption from licensing;
14          ▸     grants rulemaking to commissioner to provide for the transition of licensing certain
15     company adjusters;
16          ▸     addresses out-of-state adjusters;
17          ▸     incorporates property and casualty company adjusters within chapter addressing
18     adjusters;
19          ▸     provides exemptions with regard to the examination requirement for licensing;
20          ▸     addresses emergency licenses; and
21          ▸     makes technical and conforming amendments.
22     Money Appropriated in this Bill:
23          None
24     Other Special Clauses:
25          This bill provides a special effective date.

26     Utah Code Sections Affected:
27     AMENDS:
28          31A-26-102, as last amended by Laws of Utah 2014, Chapters 290 and 300
29          31A-26-201, as last amended by Laws of Utah 2010, Chapter 10
30          31A-26-202, as last amended by Laws of Utah 2008, Chapter 382
31          31A-26-203, as last amended by Laws of Utah 2012, Chapter 253
32          31A-26-204, as last amended by Laws of Utah 2009, Chapter 349
33          31A-26-207, as last amended by Laws of Utah 2014, Chapters 290 and 300
34          31A-26-209, as last amended by Laws of Utah 2004, Chapter 173
35          31A-26-212, as enacted by Laws of Utah 1985, Chapter 242
36          31A-26-304, as enacted by Laws of Utah 1985, Chapter 242
37          31A-26-310, as last amended by Laws of Utah 2003, Chapter 252
38     

39     Be it enacted by the Legislature of the state of Utah:
40          Section 1. Section 31A-26-102 is amended to read:
41          31A-26-102. Definitions.
42          As used in this chapter, unless expressly provided otherwise:
43          (1) "Company adjuster" means [a person] an individual:
44          (a) who is employed by an insurer or third party administrator as a regular salaried
45     employee and not as an independent contractor; and
46          (b) whose regular duties include insurance adjusting.
47          (2) "Designated home state" means the state or territory of the United States or the
48     District of Columbia:
49          (a) in which an insurance adjuster does not maintain the adjuster's principal:
50          (i) place of residence; or
51          (ii) place of business;
52          (b) if the resident state, territory, or District of Columbia of the adjuster does not
53     license adjusters for the line of authority sought, the adjuster has qualified for the license as if
54     the person were a resident in the state, territory, or District of Columbia described in
55     Subsection (2)(a), including an applicable:
56          (i) examination requirement;

57          (ii) fingerprint background check requirement; and
58          (iii) continuing education requirement; and
59          (c) the adjuster has designated the state, territory, or District of Columbia as the
60     designated home state.
61          (3) "Home state" means:
62          (a) a state or territory of the United States or the District of Columbia in which an
63     insurance adjuster:
64          (i) maintains the adjuster's principal:
65          (A) place of residence; or
66          (B) place of business; and
67          (ii) is licensed to act as a resident adjuster; or
68          (b) if the resident state, territory, or the District of Columbia described in Subsection
69     (3)(a) does not license adjusters for the line of authority sought, a state, territory, or the District
70     of Columbia:
71          (i) in which the adjuster is licensed;
72          (ii) in which the adjuster is in good standing; and
73          (iii) that the adjuster has designated as the adjuster's designated home state.
74          (4) "Independent adjuster" means [an insurance adjuster] a person required to be
75     licensed under Section 31A-26-201, who engages in insurance adjusting as a representative of
76     one or more insurers.
77          (5) "Insurance adjusting" or "adjusting" means directing or conducting the
78     investigation, negotiation, or settlement of a claim under an insurance policy, on behalf of an
79     insurer, policyholder, or a claimant under an insurance policy.
80          (6) "Organization" means a person other than a natural person, and includes a sole
81     proprietorship by which a natural person does business under an assumed name.
82          (7) "Portable electronics insurance" [is as] means the same as that term is defined in
83     Section 31A-22-1802.
84          (8) "Property and casualty company adjustor" means a company adjustor who:
85          (a) is required beginning January 1, 2016, to be licensed under Section 31A-26-201;
86     and
87          (b) engages in insurance adjusting of property and casualty insurance.

88          [(8)] (9) "Public adjuster" means a person required to be licensed under Section
89     31A-26-201, who engages in insurance adjusting as a representative of insureds and claimants
90     under insurance policies.
91          Section 2. Section 31A-26-201 is amended to read:
92          31A-26-201. Requirement of license.
93          (1) Except as provided in Subsection (2):
94          (a) a person may not perform, offer to perform, or solicit the opportunity to perform an
95     act of insurance adjusting without a valid license under Section 31A-26-203; and
96          (b) a person may not use the insurance adjusting services of another if the person
97     knows or should know that the one providing these services does not have a license as required
98     by law.
99          (2) The following are exempt from the license requirement of Subsection (1), when
100     acting in the indicated capacity:
101          (a) an individual engaged in insurance adjusting as a regular salaried employee of, and
102     not an independent contractor for, an insurer, except beginning January 1, 2016, a property and
103     casualty company adjuster;
104          (b) an arbitrator or an umpire selected by the claimant and insurer to decide, alone or
105     with others, whether a claim should be paid and how much should be paid;
106          (c) an attorney at law acting in an attorney-client relationship;
107          (d) an insurance producer, but only as to:
108          (i) a class of insurance for which the insurance producer is licensed under Section
109     31A-23a-106; and
110          (ii) a claim adjusted on the request of an insurer for which the insurance producer is a
111     producer;
112          (e) a regular salaried employee of, and not an independent contractor for, a
113     policyholder or claimant under an insurance policy;
114          (f) an employee of a licensed insurance adjuster who provides only administrative or
115     clerical assistance;
116          (g) an individual who does not do insurance adjusting under Section 31A-26-102, but
117     who is specially employed to obtain facts about a loss for or furnish technical assistance to a
118     licensed adjuster or a company adjuster, including:

119          (i) a photographer;
120          (ii) an estimator;
121          (iii) an appraiser;
122          (iv) a marine surveyor;
123          (v) a private detective;
124          (vi) an engineer; and
125          (vii) a handwriting expert;
126          (h) a holder of a group insurance policy, with respect to administrative activities in
127     connection with that insurance policy, who receives no compensation for the policyholder's
128     services beyond the actual expenses estimated on a reasonable basis;
129          (i) an individual engaged in insurance adjusting as a regular salaried employee of, and
130     not an independent contractor for, an administrator licensed under Chapter 25, Third Party
131     Administrators, except beginning January 1, 2016, a property and casualty company adjuster;
132     or
133          (j) a person who gives advice or assistance without compensation or expectation of
134     compensation, direct or indirect.
135          (3) A claim settlement between an insurer and an insured or a claimant under an
136     insurance policy may not be considered invalid as a result of a violation of this section.
137          (4) The commissioner by rule, made in accordance with Title 63G, Chapter 3, Utah
138     Administrative Rulemaking Act, may provide for the transition of licensing of a property and
139     casualty company adjuster beginning January 1, 2016.
140          (5) (a) A person may not provide insurance adjusting services in this state from an
141     out-of-state location unless that person is licensed under this chapter or exempt from licensure
142     under Subsection (2).
143          (b) This Subsection (5) does not apply to a person providing insurance adjusting
144     services from outside the state as part of a regional claims center affiliated with an insurer if the
145     person is licensed as an insurance adjuster on or after January 1, 2016, in the company
146     insurance adjuster's home state or designated home state.
147          (c) The commissioner by rule, made in accordance with Title 63G, Chapter 3, Utah
148     Administrative Rulemaking Act, may define "regional claims center" consistent with this
149     Subsection (5).

150          Section 3. Section 31A-26-202 is amended to read:
151          31A-26-202. Application for license.
152          (1) (a) The application for a license as an independent adjuster [or], public adjuster, or
153     beginning January 1, 2016, a property and casualty company adjuster shall be:
154          (i) made to the commissioner on forms and in a manner the commissioner prescribes;
155     and
156          (ii) accompanied by the applicable fee, which is not refunded if the application is
157     denied.
158          (b) The application shall provide:
159          (i) information about the applicant's identity, including:
160          (A) the applicant's:
161          (I) Social Security number; or
162          (II) federal employer identification number;
163          (B) the applicant's personal history, experience, education, and business record;
164          (C) if the applicant is a natural person, whether the applicant is 18 years of age or
165     older; and
166          (D) whether the applicant has committed an act that is a ground for denial, suspension,
167     or revocation as set forth in Section 31A-25-208; and
168          (ii) any other information as the commissioner reasonably requires.
169          (2) The commissioner may require documents reasonably necessary to verify the
170     information contained in the application.
171          (3) An applicant's Social Security number contained in an application filed under this
172     section is a private record under Section 63G-2-302.
173          Section 4. Section 31A-26-203 is amended to read:
174          31A-26-203. Adjuster's license required.
175          (1) The commissioner shall issue a license to act as an independent adjuster [or], public
176     adjuster, or beginning January 1, 2016, property and casualty company adjuster to a person
177     who, as to the license [classification] type and line of authority applied for under Section
178     31A-26-204:
179          (a) satisfies the character requirements under Section 31A-26-205;
180          (b) satisfies the applicable continuing education requirements under Section

181     31A-26-206;
182          (c) satisfies the applicable examination requirements under Section 31A-26-207;
183          (d) has not committed an act that is a ground for denial, suspension, or revocation
184     provided for in Section 31A-26-213;
185          (e) if a nonresident, complies with Section 31A-26-208; and
186          (f) pays the applicable fees under Section 31A-3-103.
187          (2) (a) This Subsection (2) applies to the following persons:
188          (i) an applicant for:
189          (A) an independent adjuster's license; [or]
190          (B) a public adjuster's license; or
191          (C) beginning January 1, 2016, a property and casualty company adjuster's license;
192          (ii) a licensed independent adjuster; [or]
193          (iii) a licensed public adjuster[.]; or
194          (iv) beginning January 1, 2016, a licensed property and casualty company adjuster.
195          (b) A person described in Subsection (2)(a) shall report to the commissioner:
196          (i) an administrative action taken against the person, including a denial of a new or
197     renewal license application:
198          (A) in another jurisdiction; or
199          (B) by another regulatory agency in this state; and
200          (ii) a criminal prosecution taken against the person in any jurisdiction.
201          (c) The report required by Subsection (2)(b) shall:
202          (i) be filed:
203          (A) at the time the person applies for an adjustor's license; and
204          (B) if an action or prosecution occurs on or after the day on which the person applies
205     for an adjustor's license:
206          (I) for an administrative action, within 30 days of the final disposition of the
207     administrative action; or
208          (II) for a criminal prosecution, within 30 days of the initial appearance before a court;
209     and
210          (ii) include a copy of the complaint or other relevant legal documents related to the
211     action or prosecution described in Subsection (2)(b).

212          (3) (a) The department may require a person applying for a license or for consent to
213     engage in the business of insurance to submit to a criminal background check as a condition of
214     receiving a license or consent.
215          (b) A person, if required to submit to a criminal background check under Subsection
216     (3)(a), shall:
217          (i) submit a fingerprint card in a form acceptable to the department; and
218          (ii) consent to a fingerprint background check by:
219          (A) the Utah Bureau of Criminal Identification; and
220          (B) the Federal Bureau of Investigation.
221          (c) For a person who submits a fingerprint card and consents to a fingerprint
222     background check under Subsection (3)(b), the department may request concerning a person
223     applying for [an independent or public adjuster's] a license:
224          (i) criminal background information maintained pursuant to Title 53, Chapter 10, Part
225     2, Bureau of Criminal Identification, from the Bureau of Criminal Identification; and
226          (ii) complete Federal Bureau of Investigation criminal background checks through the
227     national criminal history system.
228          (d) Information obtained by the department from the review of criminal history records
229     received under this Subsection (3) shall be used by the department for the purposes of:
230          (i) determining if a person satisfies the character requirements under Section
231     31A-26-205 for issuance or renewal of a license;
232          (ii) determining if a person has failed to maintain the character requirements under
233     Section 31A-26-205; and
234          (iii) preventing a person who violates the federal Violent Crime Control and Law
235     Enforcement Act of 1994, 18 U.S.C. Sec. 1033, from engaging in the business of insurance in
236     the state.
237          (e) If the department requests the criminal background information, the department
238     shall:
239          (i) pay to the Department of Public Safety the costs incurred by the Department of
240     Public Safety in providing the department criminal background information under Subsection
241     (3)(c)(i);
242          (ii) pay to the Federal Bureau of Investigation the costs incurred by the Federal Bureau

243     of Investigation in providing the department criminal background information under
244     Subsection (3)(c)(ii); and
245          (iii) charge the person applying for a license or for consent to engage in the business of
246     insurance a fee equal to the aggregate of Subsections (3)(e)(i) and (ii).
247          (4) The commissioner may deny a license application to act as an independent adjuster
248     [or], public adjuster, or beginning January 1, 2016, a property and casualty company adjuster to
249     a person who, as to the license [classification] type and line of authority applied for under
250     Section 31A-26-204:
251          (a) fails to satisfy the requirements in this section; or
252          (b) commits an act that is a ground for denial, suspension, or revocation provided for in
253     Section 31A-26-213.
254          (5) Notwithstanding the other provisions of this section, the commissioner may:
255          (a) issue a license to an applicant for a license for a title insurance [classification] line
256     of authority only with the concurrence of the Title and Escrow Commission; or
257          (b) renew a license for a title insurance [classification] line of authority only with the
258     concurrence of the Title and Escrow Commission.
259          Section 5. Section 31A-26-204 is amended to read:
260          31A-26-204. License types.
261          A resident or nonresident license issued under this chapter shall be issued under the
262     classifications described under Subsections (1)[, (2), and (3)] through (4). A classification
263     describes the matters to be considered under a prerequisite education or examination required
264     of license applicants under Sections 31A-26-206 and 31A-26-207.
265          (1) [Independent] An independent adjuster license [classifications include] type
266     includes the following lines of authority:
267          (a) accident and health insurance, including related service insurance under Chapter 7,
268     Nonprofit Health Service Insurance Corporations, or Chapter 8, Health Maintenance
269     Organizations and Limited Health Plans;
270          (b) property and casualty insurance, including a surety or other bond;
271          (c) crop insurance; and
272          (d) workers' compensation insurance.
273          (2) [Public] A public adjuster license [classifications include] type includes the

274     following lines of authority:
275          (a) accident and health insurance, including related service insurance under Chapter 7
276     or 8;
277          (b) property and casualty insurance, including a surety or other bond;
278          (c) crop insurance; and
279          (d) workers' compensation insurance.
280          (3) Beginning January 1, 2016, a property and casualty company adjuster license type
281     includes the following lines of authority:
282          (a) property and casualty insurance, including a surety or other bond; and
283          (b) workers' compensation insurance.
284          [(3)] (4) (a) The commissioner may by rule:
285          (i) recognize other independent adjuster [or], public adjuster, or beginning January 1,
286     2016, a property and casualty company adjuster license [classifications] lines of authority as to
287     other kinds of insurance not listed under Subsection (1); and
288          (ii) create a license [classifications] line of authority that [grant] grants only part of the
289     authority arising under another license [class] line of authority.
290          (b) Notwithstanding Subsection [(3)] (4)(a), for purpose of title insurance, the Title and
291     Escrow Commission may make the rules provided for in Subsection [(3)] (4)(a), subject to
292     Section 31A-2-404.
293          Section 6. Section 31A-26-207 is amended to read:
294          31A-26-207. Examination requirements.
295          (1) The commissioner may require applicants for a particular [class] type of license
296     under Section 31A-26-204 to pass an examination as a requirement to receiving a license. The
297     examination shall reasonably relate to the specific license [class] line of authority for which it
298     is prescribed. The examinations may be administered by the commissioner or as specified by
299     rule.
300          (2) The commissioner shall waive the requirement of an examination for a nonresident
301     applicant who:
302          (a) applies for an insurance adjuster license in this state;
303          (b) has been licensed for the same line of authority in another state; and
304          (c) (i) is licensed in the state described in Subsection (2)(b) at the time the applicant

305     applies for an insurance [producer] adjuster license in this state; or
306          (ii) if the application is received within 90 days of the cancellation of the applicant's
307     previous license:
308          (A) the prior state certifies that at the time of cancellation, the applicant was in good
309     standing in that state; or
310          (B) the state's [producer] database records, maintained by the National Association of
311     Insurance Commissioners or the National Association of Insurance Commissioner's affiliates or
312     subsidiaries, [indicates that the producer] indicate the adjuster is or was licensed in good
313     standing for the line of authority requested.
314          (3) (a) To become a resident licensee in accordance with Sections 31A-26-202 and
315     31A-26-203, a person licensed as an insurance [producer] adjuster in another state who moves
316     to this state shall make application within 90 days of establishing legal residence in this state.
317          (b) A person who becomes a resident licensee under Subsection (3)(a) may not be
318     required to meet prelicensing education or examination requirements to obtain any line of
319     authority previously held in the prior state unless:
320          (i) the prior state would require a prior resident of this state to meet the prior state's
321     prelicensing education or examination requirements to become a resident licensee; or
322          (ii) the commissioner imposes the requirements by rule.
323          (4) The requirements of this section only apply to an applicant who is a natural person.
324          (5) The requirements of this section do not apply to:
325          (a) a member of the Utah State Bar; [or]
326          (b) an applicant for the crop insurance license [class] line of authority who has
327     satisfactorily completed:
328          (i) a national crop adjuster program, as adopted by the commissioner by rule; or
329          (ii) the loss adjustment training curriculum and competency testing required by the
330     Federal Crop Insurance Corporation Standard Reinsurance Agreement through the Risk
331     Management Agency of the United States Department of Agriculture[.];
332          (c) a property and casualty company adjuster who acted as a company adjuster for 10
333     consecutive years before January 1, 2016; or
334          (d) a property and casualty company adjuster who completes a claims certification
335     offered by a nationally recognized educational program for claims adjusters approved by the

336     commissioner.
337          Section 7. Section 31A-26-209 is amended to read:
338          31A-26-209. Form and contents of license.
339          (1) Licenses issued under this chapter shall be in the form the commissioner prescribes
340     and shall set forth:
341          (a) the name, address, and telephone number of the licensee;
342          (b) the license [classifications] types and lines of authority under Section 31A-26-204;
343          (c) the date of license issuance; and
344          (d) any other information the commissioner considers advisable.
345          (2) An adjuster doing business under any other name than the adjuster's legal name
346     shall notify the commissioner prior to using the assumed name in this state.
347          (3) (a) An organization shall be licensed as an agency if the organization acts as:
348          (i) an independent adjuster; or
349          (ii) a public adjuster.
350          (b) The agency license issued under Subsection (3)(a) shall set forth the names of all
351     natural persons licensed under this chapter who are authorized to act in [those] the capacities
352     listed in Subsection (3)(a) or beginning January 1, 2016, as a property and casualty company
353     adjuster for the organization in this state.
354          Section 8. Section 31A-26-212 is amended to read:
355          31A-26-212. Emergency license.
356          (1) In the event of a catastrophe or emergency [which] that arises out of a disaster, act
357     of God, riot, civil commotion, conflagration, or other similar occurrence, the commissioner
358     shall, upon application, issue emergency licenses to persons who are not licensed [adjusters.
359     An] under this chapter.
360          (2) A person shall apply for an emergency license [shall be applied for] within a week
361     of beginning claims adjustment. [It]
362          (3) To be eligible for an emergency license the applicant shall:
363          (a) be licensed in the applicant's home state or designated home state; or
364          (b) meet criteria that the commissioner may establish by rule, made in accordance with
365     Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
366          (4) An emergency license may remain in force for not more than 90 days, unless

367     extended by the commissioner before it expires for an additional period of not more than 90
368     additional days.
369          (5) The insurer who contracts with an [independent] adjuster who is [so] licensed
370     under this section is responsible for all [his] the adjuster's claims practices while [so] engaged
371     as an adjuster, as if [he] the adjuster were a regular salaried employee.
372          (6) The fee for an emergency license is the same as the fee required of other licensed
373     adjusters, unless the commissioner waives the fee.
374          Section 9. Section 31A-26-304 is amended to read:
375          31A-26-304. Prohibition of conflicting roles.
376          A person licensed concurrently as both an independent and a public adjuster or
377     beginning January 1, 2016, a property and casualty company adjuster, and public adjuster may
378     not represent both the insurer and the insured in the same transaction.
379          Section 10. Section 31A-26-310 is amended to read:
380          31A-26-310. Compensation of insurer's or insured's claims adjuster.
381          (1) (a) Except as provided in Subsection (2), an insurer or an insured may not pay a
382     person who is representing the insurer or insured in connection with an insurance claim
383     adjustment on any basis that is dependent, in whole or in part, upon the amounts paid an
384     insured or claimant under an insurance policy.
385          (b) Subsection (1)(a) includes payments to:
386          (i) an employee of:
387          (A) the insurer; or
388          (B) the insured;
389          (ii) an independent contractor; [or]
390          (iii) a public adjuster[.]; or
391          (iv) beginning January 1, 2016, a property and casualty company adjuster.
392          (2) Subsection (1) does not prohibit a compensation arrangement:
393          (a) based upon the overall profitability of the insurer;
394          (b) based upon the discovery or proof of fraudulent insurance claims; or
395          (c) conforming to an order or rule of the commissioner that addresses the compensation
396     of persons engaged in insurance adjusting on behalf of:
397          (i) an insurer; or

398          (ii) an insured.
399          Section 11. Effective date.
400          This bill takes effect on July 1, 2015.