Chapter 12 - Unauthorized Insurers - Prohibitions, Process And Advertising
CHAPTER 12 - UNAUTHORIZED INSURERS - PROHIBITIONS, PROCESS ANDADVERTISING
ARTICLE 1 - GENERAL PROVISIONS
26-12-101. "Industrial insured" defined.
(a) As used in this chapter:
(i) "Industrial insured" means an insured:
(A) Which procures the insurance of any risk other than lifeand annuity contracts through the services of a full-time employee acting as aninsurance manager or buyer or the services of a regularly and continuouslyretained qualified insurance consultant;
(B) Whose aggregate annual premiums for insurance on all riskstotal at least twenty-five thousand dollars ($25,000.00); and
(C) Which has at least twenty-five (25) full-time employees.
26-12-102. Representing or aiding unauthorized insurers prohibited;exceptions.
(a) No person in this state shall:
(i) Act as agent for, or otherwise represent or aid on behalfof another, any insurer not then authorized to transact insurance in thisstate, in the:
(A) Solicitation, negotiation, procurement or carrying out ofinsurance or annuity contracts or the renewal thereof;
(B) Forwarding of applications for insurance;
(C) Dissemination of information as to coverage or rates;
(D) Inspection of risks;
(E) Fixing of rates;
(F) Investigation or adjustment of claims or losses; or
(G) Collection or forwarding of premiums.
(ii) In any other manner represent or assist that insurer intransacting insurance with respect to subjects of insurance resident, locatedor to be performed in this state.
(b) This section does not apply to:
(i) Matters the commissioner authorizes under W.S. 26-12-201through 26-12-206;
(ii) Surplus lines insurance and other transactions for whichthe insurer is not required to have a certificate of authority pursuant to W.S.26-3-102;
(iii) A licensed adjuster or attorney-at-law representing anunauthorized insurer in his professional capacity;
(iv) Persons in this state compensated solely by salary, whosecure and furnish information for the purpose of enrolling individuals in, orissuing certificates under, or otherwise assisting in administering group life,group or blanket disability or annuity contracts lawfully solicited, issued anddelivered in and pursuant to the laws of a state in which the insurer isauthorized to transact business;
(v) Transactions in this state involving contracts of insuranceissued to one (1) or more industrial insureds.
26-12-103. Suits by unauthorized insurers prohibited.
Asto transactions not permitted under W.S. 26-3-102, no unauthorized insurershall institute or file or cause to be instituted or filed, any suit, action orproceeding in this state to enforce any right, claim or demand arising out ofany insurance transaction in this state, until the insurer obtains acertificate of authority to transact that insurance in this state.
ARTICLE 2 - UNAUTHORIZED INSURERS PROCESS ACT
26-12-201. Short title; interpretation of article.
(a) This article constitutes and may be cited as the"Unauthorized Insurers Process Act".
(b) This article shall be so interpreted as to carry out itsgeneral purpose to make uniform the laws of those states which enact it.
26-12-202. Commissioner as agent for service.
(a) Solicitation, carrying out or delivery of any insurancecontract, by mail or otherwise, within this state by an unauthorized insurer,or the performance within this state of any other service or transactionconnected with insurance by or on behalf of the insurer:
(i) Constitutes the insurer's appointment of the commissionerand his successors in office as its attorney, upon whom may be served alllawful process issued within this state in any action or proceeding against theinsurer arising out of any such contract or transaction; and
(ii) Signifies the insurer's agreement that any such service ofprocess has the same legal effect and validity as personal service of processupon it in this state.
26-12-203. Service of process generally.
(a) Service of process upon any insurer pursuant to W.S.26-12-202 shall be made in accordance with W.S. 26-3-122, and service ofprocess is sufficient if it complies with that section.
(b) Service of process in any such action, suit or proceeding,in addition to the manner provided in subsection (a) of this section, is validif:
(i) Served upon any person within this state, who in this stateon behalf of the insurer, is:
(A) Soliciting insurance;
(B) Making any contract of insurance or issuing or deliveringany policies or written contracts of insurance; or
(C) Collecting or receiving any premium for insurance; and
(ii) Otherwise complies with W.S. 26-3-122(d).
(c) No plaintiff or complainant is entitled to a judgment bydefault under this section until the expiration of thirty (30) days from thedate of the filing of the affidavit of compliance.
(d) Nothing in this section limits or abridges the right toserve any process, notice or demand upon any insurer in any other mannerpermitted by law.
26-12-204. Exemptions from service of process provisions.
(a) W.S. 26-12-202 and 26-12-203 do not apply to surplus lineinsurance lawfully carried out under chapter 11, or to reinsurance, or to anyaction or proceeding against an unauthorized insurer arising out of any of thefollowing if the policy or contract contains a provision designating thecommissioner as its attorney for the acceptance of service of lawful process inany action or proceeding instituted by or on behalf of an insured orbeneficiary arising out of that policy, or if the insurer enters a generalappearance in any such action:
(i) Wet marine and transportation insurance;
(ii) Insurance on subjects located, resident or to be performedwholly outside this state, or on vehicles or aircraft owned and principallygaraged outside this state;
(iii) Insurance on property or operations of railroads engaged ininterstate commerce; or
(iv) Insurance on aircraft or cargo of that aircraft, or againstliability, other than employer's liability, arising out of the ownership,maintenance or use of that aircraft.
26-12-205. Defense of action by unauthorized insurer.
(a) Before an unauthorized insurer files or causes to be filedany pleading in any action or proceeding instituted against it under W.S.26-12-202 and 26-12-203, that insurer shall:
(i) Procure a certificate of authority to transact insurance inthis state; or
(ii) Deposit with the clerk of the court in which the action orproceeding is pending cash or securities, or file with the clerk a bond withgood and sufficient sureties, to be approved by the court, in an amount thecourt fixes sufficient to secure the payment of any final judgment which may berendered in the action, except that the court may make an order dispensing withthe deposit or bond if the insurer shows to the court's satisfaction that it:
(A) Maintains in a state of the United States funds orsecurities sufficient and available to satisfy any final judgment which may beentered in the action or proceeding; and
(B) Will pay any final judgment entered therein withoutrequiring suit to be brought on the judgment in the state where the funds orsecurities are located.
(b) The court in any action or proceeding in which service ismade in the manner provided in W.S. 26-12-203 may order a postponement asnecessary to afford the defendant reasonable opportunity to comply with theprovisions of subsection (a) of this section and to defend the action.
(c) Nothing in subsection (a) of this section prevents an unauthorizedinsurer from filing a motion to quash or to set aside the service of anyprocess made in the manner provided in W.S. 26-12-203 on the ground either:
(i) That the unauthorized insurer did not engage in any of theacts enumerated in W.S. 26-12-202; or
(ii) That the person on whom service was made pursuant to W.S.26-12-203 was not engaged in any of the acts enumerated in W.S. 26-12-202.
26-12-206. Attorney fees in actions against unauthorized insurer.
Inany action against an unauthorized insurer, if the insurer fails for thirty(30) days after demand prior to the commencement of the action to make paymentin accordance with the terms of the contract, and it appears to the court thatthe refusal is without reasonable cause, the court shall allow to the plaintiffa reasonable attorney fee and include that fee in any judgment that may berendered in the action. The fee shall not be less than one hundred dollars($100.00). Failure of an insurer to defend any such action is prima facieevidence that its failure to make payment was without reasonable cause.
ARTICLE 3 - UNAUTHORIZED INSURERS FALSE ADVERTISING PROCESSACT
26-12-301. Short title.
Thisarticle constitutes and may be cited as the "Unauthorized Insurers FalseAdvertising Process Act".
26-12-302. False advertising prohibited; notification by commissionerof misrepresentation.
Nounauthorized insurer, in any manner, shall misrepresent to any person in thisstate as to its financial condition or the terms of any contract issued or tobe issued by it or the advantages thereof, or the dividends or share of thesurplus to be received thereon. If the commissioner believes that anyunauthorized insurer is misrepresenting any of the items specified in thissection, he shall notify the insurer and the insurance supervisory official ofthe insurer's domiciliary state or province by registered or certified mail.
26-12-303. Enforcement by commissioner; penalty for violation.
(a) If within thirty (30) days following the giving of thenotice specified in W.S. 26-12-302 the insurer has not ceased dissemination ofany false advertising, and if the commissioner believes that the insurer issoliciting, issuing or delivering contracts of insurance to residents of thisstate or collecting premiums on those contracts or performing any othertransaction in connection with that insurance, and that a proceeding by him inrespect to those matters would be in the public interest, he shall take actionagainst the insurer under W.S. 26-13-117.
(b) If pursuant to the proceeding the commissioner finds thatthe dissemination of false advertising is continuing, he shall order theinsurer to desist therefrom and shall mail a copy of the order by certified orregistered mail to the insurer at its principal place of business last ofrecord with the commissioner and to the insurance supervisory official of theinsurer's domiciliary state or province. Each violation after mailing of thedesist order subjects the insurer to a penalty of two thousand dollars ($2,000.00),to be recovered by a civil action the commissioner brings against the insurer.Service of process upon the insurer in the action may be made upon thecommissioner pursuant to W.S. 26-12-202 and 26-12-203 or in any other lawfulmanner.