2006 New York Code - Adjusters; Licensing And Duties.

 
    §  2108.  Adjusters;  licensing and duties. (a) (1) Adjusters shall be
  licensed as independent adjusters or as public adjusters.
    (2)  The  superintendent  may  prescribe  the  types  of   independent
  adjusters'  licenses  according to the kind or kinds of insurance claims
  which the licensee is to be authorized to investigate and adjust.
    (3) No adjuster shall act on behalf of an insurer unless  licensed  as
  an  independent  adjuster,  and  no  adjuster  shall act on behalf of an
  insured unless licensed as a public adjuster.
    (4) No insurer, agent or other representative of an insurer shall  pay
  any  fees  or  other  compensation  to  any person, firm, association or
  corporation for acting as an independent adjuster except to  a  licensed
  independent  adjuster  or  to  a  person  excepted  from  the  licensing
  requirement pursuant to subsection  (g)  of  section  two  thousand  one
  hundred one of this article.
    (b)  The holder of a license under this section may act as an adjuster
  without any other or additional license.
    (c) (1) The superintendent may issue an independent adjuster's license
  or a public adjuster's license  to  any  person,  firm,  association  or
  corporation,  hereinafter  designated  as  licensee,  who,  or which, is
  trustworthy and competent to act as an adjuster in  such  manner  as  to
  safeguard  the  interests of the people of this state and who, or which,
  has complied with the prerequisites herein prescribed.
    (2) A license issued to a corporation may name as  sub-licensees  only
  the  officers and directors of such corporation, and a license issued to
  a firm or association may name  as  sub-licensees  only  the  individual
  members  of such firm or association. Each sub-licensee named as such in
  the license issued  to  a  firm,  association  or  corporation  must  be
  qualified  to obtain a license as an independent adjuster or as a public
  adjuster, as the case may be, and for each such sub-licensee a fee  must
  be  paid  at  the times and at the rate hereinafter specified. Each such
  sub-licensee shall be authorized, pursuant to such license, to act as an
  independent adjuster or as a public adjuster, as the case may  be,  only
  on behalf of the licensee.
    (3)  Every  individual  applicant for a license under this section and
  every proposed sub-licensee shall be eighteen years of age  or  over  at
  the time of the issuance of such license.
    (d) (1) Before any such license or any renewal thereof shall be issued
  by  the  superintendent  there  shall  be  filed in his office a written
  application therefor. Such application shall be in the form or forms and
  supplements and contain information the superintendent prescribes.
    (2) Each person or individual signing  such  application  shall,  with
  such  application,  submit to the superintendent fingerprints of his two
  hands recorded in such manner as may be specified by the  superintendent
  or  his  authorized representative. Before approving such application it
  shall be the duty of the superintendent or his authorized representative
  to compare such fingerprints with fingerprints filed with  the  division
  of criminal justice services. Such fingerprints may also be submitted to
  the  federal  bureau  of  investigation  for a national criminal history
  record check.
    (3) No such license shall be issued to any person who  has  ever  been
  convicted  of  a felony, or of any crime or offense involving fraudulent
  or dishonest practices; nor shall a licensee under this  section  employ
  any  person  who  has ever been convicted of a felony or such a crime or
  offense.
    (4) This subsection  shall  not  prevent  the  employment  of  or  the
  issuance  of  a license to any person who, subsequent to his conviction,
  shall have received executive pardon therefor removing this  disability,
  or  who  has received a certificate of good conduct granted by the board
  of parole pursuant to the provisions of the executive law to remove  the
  disability  under  this  section  because of such conviction or previous
  license revocation occasioned thereby.
    (5)  Such  application  shall  be  approved,  as  to  each  person  or
  individual so signing the same, by not less than five reputable citizens
  of the community in which such applicant resides or transacts  business,
  each  of  whom  shall certify that he has personally known the person or
  individual for a period of at least five years prior to  the  filing  of
  such application, that he has read such application and believes each of
  the  statements  made therein to be true, that such person is honest, of
  good character and competent, and not related or connected to the person
  so certifying by blood or marriage. The certificate of approval shall be
  subscribed by such reputable citizens and affirmed by them as true under
  the penalties of perjury.
    (e)  (1)  The  superintendent  shall,  in  order  to   determine   the
  trustworthiness  and  competency  to  act  as  a public adjuster of each
  individual  applicant  for  such   license,   and   of   each   proposed
  sub-licensee,  except  in  the  case of a renewal license, require every
  such  individual  to  take  and  pass,  to  the  satisfaction   of   the
  superintendent,  a  personal written examination. No individual shall be
  deemed qualified to take the examination without having demonstrated  by
  evidence  satisfactory  to  the  superintendent  that  (A) the applicant
  possesses a minimum of one year experience in  the  insurance  business,
  with  involvement  in  sales, underwriting or claims or other experience
  considered sufficient  by  the  superintendent,  or  (B)  the  applicant
  successfully  completed  forty  hours  of  formal  training in a course,
  program of instruction or seminars approved by the superintendent.
    (2) The superintendent may, in his discretion and on such terms as  he
  prescribes, dispense with such examination in the case of any individual
  applicant  or  proposed  sub-licensee  who  shall previously have held a
  public adjuster's license issued subsequent to January  first,  nineteen
  hundred thirty-six.
    (f)   (1)   The  superintendent  shall,  in  order  to  determine  the
  trustworthiness and competency to act as an independent adjuster of each
  individual  applicant  for  such   license,   and   of   each   proposed
  sub-licensee,  except  in  the  case of a renewal license, require every
  such  individual  to  take  and  pass,  to  the  satisfaction   of   the
  superintendent,  a  personal written examination. The superintendent may
  prescribe the types of written examinations according  to  the  kind  or
  kinds  of  insurance  claims  which  the  applicant is to be licensed to
  investigate and adjust.
    (2) Any person who at any time served with the  armed  forces  of  the
  United  States,  and  who  immediately  prior  to entering such military
  service had been continuously engaged in bona  fide  operation  in  this
  state  as an independent adjuster for a period of five years, may within
  one year after the termination of such military service  file  with  the
  superintendent  an  application  in such form as he prescribes, and upon
  the payment of  the  requisite  license  fee  may  be  licensed  by  the
  superintendent as an independent adjuster without being required to take
  and pass such examination.
    (3)  The  superintendent  may also, in the superintendent's discretion
  and on such terms the  superintendent  prescribes,  dispense  with  such
  examination  in  the  case  of  any  individual  applicant  or  proposed
  sub-licensee who shall previously have held  an  independent  adjuster's
  license  provided  the  applicant applies within two years following the
  date of termination of such license.
    (g) The superintendent may, in his discretion require an applicant for
  a license under this section to present evidence, in  such  form  as  he
  prescribes, that such applicant has been employed, for a period which he
  deems  reasonable,  by  an  insurer, an independent adjuster or a public
  adjuster, in the performance  of  duties  which  in  his  opinion  would
  provide  the  applicant with a satisfactory preliminary training for the
  duties and responsibilities which would devolve upon him as  a  licensee
  under this section.
    (h)  (1)  Any  person  who  has  had at least five years experience in
  adjusting claims as an employee of an authorized insurer  and  has  made
  application  for  a  license  as  an independent adjuster, or any person
  holding a valid estimator's license issued by the commissioner of  motor
  vehicles  and  has  made  application  for  a  license as an independent
  adjuster within  ninety  days  of  the  expiration  of  the  estimator's
  license,  may  file  with  the  superintendent,  in  such  form  as  the
  superintendent prescribes, a written application for a temporary  permit
  to  adjust  claims, during the pendency of the application for a license
  as an independent adjuster, as:
    (i) an employee of a licensed independent adjuster; or
    (ii) in the case of an auto body repair estimator, an employee  of  an
  authorized  insurer  or  any  adjustment bureau or association owned and
  maintained by insurers to  adjust  or  investigate  motor  vehicle  body
  damage losses.
    (2)  Notwithstanding the requirement of subsection (f) of this section
  that each individual applicant for an independent adjuster's license  or
  sub-license  shall take and pass a personal written examination in order
  to satisfy the superintendent as to trustworthiness and competency,  the
  superintendent may in the superintendent's discretion, if satisfied that
  the  person applying for such temporary permit has in all other respects
  met the requirements of this section with respect to  the  licensing  of
  independent  adjusters  and  is  qualified by training and experience to
  adjust claims  as  an  employee  of  a  licensed  independent  adjuster,
  authorized  insurer,  or  any adjustment bureau or association owned and
  maintained by insurers to  adjust  or  investigate  motor  vehicle  body
  damage  losses,  issue  such  temporary  permit to be effective for such
  period of time as the superintendent may  specify  therein  but,  in  no
  event,  for  a  period  in  excess  of  one  hundred  twenty  days.  The
  superintendent may summarily suspend  or  revoke  any  temporary  permit
  issued  pursuant  to  this subsection upon ten days notice in writing to
  the permittee of the superintendent's intention to do so,  which  notice
  shall   be  given  in  accordance  with  the  applicable  provisions  of
  subsections (a) and (d) of section three hundred three of this chapter.
    (i) (1) At the time of application for every  adjuster's  license  and
  for  every renewal thereof, there shall be paid to the superintendent by
  each individual applicant and by each proposed  sub-licensee  a  fee  of
  fifty  dollars  for  each  year or fraction of a year in which a license
  shall be valid; except that amounts paid to the  commissioner  of  motor
  vehicles   pursuant   to  subdivision  five  of  section  three  hundred
  ninety-eight-d of the vehicle and traffic law, by any person who held an
  auto body repair estimator license  prior  to  January  first,  nineteen
  hundred ninety-six shall be considered by the superintendent.
    (2)  No  license  fee  shall be required of any person who served as a
  member of the armed forces of the United States  at  any  time  and  who
  shall have been discharged, under conditions other than dishonorable, in
  a current licensing period, for the duration of such period.
    (3) A license fee of fifty dollars for each year or fraction of a year
  in  which a license shall be valid for an independent adjuster's license
  shall cover any  one  or  more  of  the  various  types  of  independent
  adjusters' licenses issued by the department.
    (4) Every individual applying to take any written examination shall at
  the  time  of  applying  therefor  pay  to the superintendent, or at the
  discretion of the superintendent, directly to any organization  that  is
  under contract to provide examination services, an examination fee of an
  amount  which is the actual documented administrative cost of conducting
  said qualifying examination as certified by the superintendent from time
  to time. An examination fee represents an administrative expense and  is
  not  refundable.  If,  however, the applicant or a proposed sub-licensee
  should withdraw his or its application or the superintendent should deny
  his or its application before the license applied  for  is  issued,  the
  superintendent  may refund the fee paid by the applicant for the license
  applied for, excepting any examination fees required  pursuant  to  this
  subsection.
    (j) (1) Every adjuster's license issued pursuant to this section shall
  be  for  a  term  expiring  on  the thirty-first day of December of even
  numbered years, and may be renewed for the ensuing  two  calendar  years
  upon  the  filing  of  an  application in conformity with subsection (d)
  hereof.
    (2) If an application for a renewal license shall have been filed with
  the superintendent by December thirty-first of the year  of  expiration,
  the license sought to be renewed shall continue in full force and effect
  either  until  the issuance by the superintendent of the renewal license
  applied for or until five  days  after  the  superintendent  shall  have
  refused  to  issue  such  renewal license and shall have given notice of
  such refusal to the applicant and to all proposed sub-licensees named in
  such application.
    (3) If such refusal is based on any grounds other than failure to pass
  a written examination and if the applicant or any proposed  sub-licensee
  shall  within  thirty  days  after  such  notice  is  given  notify  the
  superintendent of his or its request for a hearing on such refusal,  the
  superintendent  shall  within  a  reasonable  time after receipt of such
  notice grant such a hearing, and he may, in  his  discretion,  reinstate
  such license.
    (k) Any firm, association or corporation licensed as an adjuster under
  this  section  may at any time make an application to the superintendent
  for the  issuance  of  a  supplemental  license  authorizing  additional
  officers  or directors of such corporation or additional members of such
  firm or association, as the case may be, to act as  sub-licensees,  and,
  if  the  requirements of this section are fully complied with as to each
  of such proposed sub-licensees, the superintendent may  thereupon  issue
  to  such  licensee a supplemental license naming such additional person,
  or persons, as sub-licensees.
    (l) (1) No adjuster's license or renewal license shall  be  issued  to
  any  applicant  unless  there shall be on file with the superintendent a
  bond, executed by such the applicant and by approved  sureties,  in  the
  penal   sum   of  one  thousand  dollars  conditioned  on  the  faithful
  performance by such licensee and by  all  sub-licensees  named  in  such
  license, of their duties as such adjusters.
    (2) Such bond shall be approved as to form by the attorney general and
  as to sufficiency of security by the superintendent.
    (3)  Such  bond  shall  be  made  to  the  state of New York and shall
  specifically authorize recovery by the state of the penal  sum  provided
  therein  in case the adjuster or any sub-licensee shall have been guilty
  of fraudulent or dishonest practices in connection with the  transaction
  of  his  or  its  business as such adjuster or shall have been convicted
  under any of the sections contained in article one hundred fifty of  the
  penal law.
    (m)  If an application for a license under this section be rejected by
  the superintendent, he shall forthwith give notice to the applicant,  or
  to the licensee, as the case may be.
    (n)    Notwithstanding   the   provisions   of   this   section,   the
  superintendent, in order to facilitate the settlement  of  claims  under
  insurance  contracts involving widespread property losses arising out of
  a conflagration or catastrophe common to all such losses,  may  issue  a
  temporary permit for a term not exceeding one hundred twenty days to any
  person, whether he be a resident of this state or a non-resident, to act
  as  an  independent  adjuster  on  behalf  of  an  authorized insurer or
  insurers, provided any such insurer shall execute and file in the office
  of the superintendent a written application for the permit in  the  form
  prescribed  by  the superintendent, which application shall contain such
  information as he may require and shall certify that  the  person  named
  therein  to  be  designated  in  the  temporary  permit  is qualified by
  experience  and  training  to  adjust  claims  arising  under  insurance
  contracts   issued  by  any  insurer.  The  superintendent  may  in  his
  discretion renew such permit for an additional term or terms as  may  be
  necessary to adjust such claims.
    (o)  No  licensee  shall  in  connection  with  the transaction of his
  business as an adjuster make any misrepresentation of  facts  or  advise
  any person on questions of law.
    (p)  No adjuster shall have any right to compensation from any insured
  for or on account of services rendered  to  such  insured  as  a  public
  adjuster  unless  such  right  to  compensation  is based upon a written
  memorandum, signed by the party to be charged, and specifying or clearly
  defining the amount or extent of such compensation.  The  superintendent
  shall establish and prescribe regulations:
    (1)  to  provide  for  a  standard  form  and  terms  of  said written
  memorandum for compensation, including the maximum amount to be charged;
    (2) to provide for compliance  with  article  ten-A  of  the  personal
  property law relating to door to door sales; however, for the purpose of
  this  section, "door to door sale" in addition to the definition thereof
  contained in subdivision one of section four hundred twenty-six  of  the
  personal  property  law,  shall  include  any contract entered into by a
  public adjuster to adjust losses;
    (3) to provide for maintenance of appropriate books and records to  be
  maintained by public adjusters which shall be kept subject to inspection
  and examination by the superintendent; and
    (4) to provide for such other regulations that are deemed necessary by
  the  superintendent  for  the  proper and adequate supervision of public
  adjusters.
    (q) The superintendent may issue a  replacement  for  a  currently  in
  force  license which has been lost or destroyed. Before such replacement
  license shall be issued, there shall be on file in  the  office  of  the
  superintendent  a  written  application  for  such  replacement license,
  affirming under penalty of perjury that the original  license  has  been
  lost or destroyed, together with a fee of fifteen dollars.
    (r) (1) The following continuing education requirements shall apply to
  resident and non-resident persons licensed as public adjusters.
    (2) Resident and non-resident persons licensed as public adjusters and
  any person previously so licensed whose license was not in effect on the
  effective  date  of  this  subsection  and  who  has  subsequently  been
  relicensed pursuant to the provisions of this article, shall  biennially
  satisfactorily  complete  such courses or programs as may be approved by
  the superintendent, as follows:
    (A) Any person holding a license as a public  adjuster  shall,  during
  each  full biennial licensing period, satisfactorily complete courses or
  programs of instruction or attend seminars as may  be  approved  by  the
  superintendent equivalent to fifteen credit hours of instruction.
    (B)  During  the  same  calendar  year  biennial  licensing  period, a
  licensee may use accumulated continuing education credits  to  meet  the
  requirements  of  similar classes of licenses including those authorized
  by subsection (b) of section two thousand one hundred three, section two
  thousand one hundred four, section two thousand  one  hundred  seven  of
  this  article with respect to general insurance consultants, and section
  two thousand one hundred eight of this article with  respect  to  public
  adjusters.
    (C)  Excess  credit  hours  accumulated  during any biennial licensing
  period shall not carry forward to the next biennial licensing period for
  that same class of license.
    (3) (A) The courses or programs of instruction successfully completed,
  which shall  be  deemed  to  meet  the  superintendent's  standards  for
  continuing education shall be:
    (i)  Courses,  programs  of  instruction  or  seminars, approved as to
  method and content by  the  superintendent,  covering  portions  of  the
  principal  branches  of  insurance  related  to  the  kinds of insurance
  covered  by  the  public  adjusting  license,  and  given  by  a  degree
  conferring college or university whose curriculum is registered with the
  state  education  department  at  the  time the person takes the course,
  whether such course be given as part of such curriculum  or  separately,
  or  by any other institution, association, trade association or insurer,
  which maintains equivalent standards of instruction and which shall have
  been approved for such purpose by the superintendent.
    (ii) Continuing  education  as  required  by  the  state  in  which  a
  non-resident  licensee  resides  and  maintains  an office, provided the
  superintendent deems them equivalent to New  York  continuing  education
  requirements.  If  the  state in which the non-resident licensee resides
  and maintains an office has no continuing education requirements, or the
  superintendent does not deem them equivalent, the licensee must  satisfy
  New York continuing education requirements.
    (B)  The  number  of  credit  hours assigned to each of the courses or
  programs of instruction set forth in paragraph one  of  this  subsection
  shall be determined by the superintendent.
    (4)  A  person  who  teaches any approved course of instruction or who
  lectures at any approved seminar, and who is subject to these continuing
  education requirements shall be granted the same number of credit  hours
  as  would be granted to a person taking and successfully completing such
  course, seminar or program, provided that such  credit  hours  shall  be
  credited  only  once  per  approved course during any biennial licensing
  period.
    (5) Every person subject to these  continuing  education  requirements
  shall  furnish,  in  a  form satisfactory to the superintendent, written
  certification attesting to the course or programs of  instruction  taken
  and   successfully  completed  by  such  person,  and  executed  by  the
  sponsoring organization or its authorizing representative.
    (6) (A) Any person failing to  meet  applicable  continuing  education
  requirements shall not be eligible to renew the license.
    (B)  Any person whose license was not renewed shall not be eligible to
  become relicensed during the next biennial licensing period  until  that
  person  has  demonstrated to the satisfaction of the superintendent that
  continuing education requirements for the last biennial licensing period
  were met.
    (C) Any person whose license was not renewed pursuant to  subparagraph
  (A)  of  this paragraph, who accumulates sufficient credit hours for the
  prior licensing period to qualify for relicensing in the biennial period
  following such non-renewal, may not apply those same credit hours toward
  the continuing education requirements for the current biennial licensing
  period.
    (7)  (A)  Any entity eligible to provide continuing education courses,
  programs of instruction, or seminars shall  file  for  approval  by  the
  superintendent  on  a  biennial  basis,  to  conform  with  its areas of
  instruction, a provider organization application and a course submission
  application for each course, program, and seminar.
    (B) The provider organization application shall include the  names  of
  all  instructors  to be used during the contract period, and instructors
  may be added during the  period  by  notifying  the  superintendent  and
  paying the appropriate filing fee.
    (C)  The  completed applications shall be returned in a timely manner,
  as specified by the superintendent with a non-refundable filing  fee  of
  two hundred dollars per organization, fifty dollars per course, program,
  and seminar, and fifty dollars per instructor.
    (D)  Approval  of  the  application  shall be at the discretion of the
  superintendent.
    (8) Each licensee shall pay a biennial fee of ten dollars per license,
  for continuing education certificate filing and  recording  charges,  to
  the superintendent, or, at the direction of the superintendent, directly
  to  an  organization  under  contract  to  provide  continuing education
  administrative services.