N.Y. ISC Law § 1101 — New York Code / Act ISC / Article 11 / Section 1101
Definitions; doing an insurance business
Status: in_force

§ 1101. Definitions; doing an insurance business. (a) In this article:\n(1) "Insurance contract" means any agreement or other transaction\nwhereby one party, the "insurer", is obligated to confer benefit of\npecuniary value upon another party, the "insured" or "beneficiary",\ndependent upon the happening of a fortuitous event in which the insured\nor beneficiary has, or is expected to have at the time of such\nhappening, a material interest which will be adversely affected by the\nhappening of such event.\n  (2) "Fortuitous event" means any occurrence or failure to occur which\nis, or is assumed by the parties to be, to a substantial extent beyond\nthe control of either party.\n  (3) "Contract of warranty, guaranty or suretyship" means an insurance\ncontract only if made by a warrantor, guarantor or surety who or which,\nas such, is doing an insurance business.\n  (b) (1) Except as otherwise provided in this subsection, any of the\nfollowing acts in this state, effected by mail from outside this state\nor otherwise, by any person, firm, association, corporation or\njoint-stock company shall constitute doing an insurance business in this\nstate and shall constitute doing business in the state within the\nmeaning of section three hundred two of the civil practice law and\nrules:\n  (A) making, or proposing to make, as insurer, any insurance contract,\nincluding either issuance or delivery of a policy or contract of\ninsurance to a resident of this state or to any firm, association, or\ncorporation authorized to do business herein, or solicitation of\napplications for any such policies or contracts;\n  (B) making, or proposing to make, as warrantor, guarantor or surety,\nany contract of warranty, guaranty or suretyship as a vocation and not\nas merely incidental to any other legitimate business or activity of the\nwarrantor, guarantor or surety;\n  (C) collecting any premium, membership fee, assessment or other\nconsideration for any policy or contract of insurance;\n  (D) doing any kind of business, including a reinsurance business,\nspecifically recognized as constituting the doing of an insurance\nbusiness within the meaning of this chapter; or\n  (E) doing or proposing to do any business in substance equivalent to\nany of the foregoing in a manner designed to evade the provisions of\nthis chapter.\n  (2) Notwithstanding the foregoing, the following acts or transactions,\nif effected by mail from outside this state by an unauthorized foreign\nor alien insurer duly licensed to transact the business of insurance in\nand by the laws of its domicile, shall not constitute doing an insurance\nbusiness in this state, but section one thousand two hundred thirteen of\nthis chapter shall nevertheless be applicable to such insurers:\n  (A) transactions by any life insurance company organized and operated,\nwithout profit to any private shareholder or individual, exclusively for\nthe purpose of aiding any charitable, religious, educational or\nscientific institution organized and operated, without profit to any\nprivate shareholder or individual, by issuing insurance or annuity\ncontracts directly from its home office, without agents or\nrepresentatives in this state, only to or for the benefit of such\ninstitutions and to individuals engaged in their service;\n  (B) transactions with respect to group life, group annuity, group\naccident and health or blanket accident and health insurance (other than\nany transaction with respect to a group annuity contract funding\nindividual retirement accounts or individual retirement annuities, as\ndefined in section four hundred eight of the Internal Revenue Code,\nfunding annuities in accordance with subdivision (b) of section four\nhundred three of such code or providing a plan of retirement annuities\nunder which the payments are derived wholly from funds contributed by\nthe persons covered):\n  (i) where such groups conform to the definitions of eligibility\ncontained in;\n  (I) the following paragraphs of subsection (b) of section four\nthousand two hundred sixteen of this chapter:\n  (aa) paragraph (1) or (2);\n  (bb) paragraph (3), if, with respect to those credit transactions\nentered into in this state, the policy fully conforms with the\nrequirements of sections three thousand two hundred one, three thousand\ntwo hundred twenty and four thousand two hundred sixteen of this\nchapter;\n  (cc) paragraphs (4), (5), (6), (7), (8), (9) and (10).\n  (II) the following subparagraphs of paragraph (1) of subsection (c) of\nsection four thousand two hundred thirty-five of this chapter:\n  (aa) subparagraph (A), (B), (C) or (D);\n  (bb) subparagraph (E), if, with respect to those credit transactions\nentered into in this state, the policy fully conforms with the\nrequirements of sections three thousand two hundred one, three thousand\ntwo hundred twenty-one and four thousand two hundred thirty-five of this\nchapter;\n  (cc) subparagraphs (F), (G) and (H).\n  (III) section four thousand two hundred thirty-seven (except\nsubparagraph (F) of paragraph three of subsection (a) thereof) or four\nthousand two hundred thirty-eight (except paragraphs six and seven of\nsubsection (b) thereof) of this chapter; and\n  (ii) where the master policies or contracts were lawfully issued\nwithout this state in a jurisdiction where the insurer was authorized to\ndo an insurance business;\n  (C) transactions involving the continuance or servicing of life or\naccident and health insurance policies or annuity contracts lawfully\nissued or delivered in this state by an authorized insurer and occurring\nsubsequent to the termination of such insurer's authority to do an\ninsurance business in this state. Notwithstanding the foregoing, the\nsuperintendent's approval granted pursuant to section one thousand one\nhundred five of this article may authorize transactions involving the\ncontinuance or servicing of life insurance policies or annuity contracts\nto be effected from outside this state by telephone, video call,\nfacsimile, web portal, electronic transfer of funds, or by any other\nelectronic means approved by the superintendent, provided that the\ninsurer shall not have any other contact or interaction with a person in\nthis state other than as specified and in the manner provided in this\nparagraph;\n  (D) transactions with respect to policies or annuity contracts\nlawfully issued without this state occurring subsequent to issue, if, at\nthe time of issue, such policies or contracts covered subjects of\ninsurance or risks not resident or located in this state.\nNotwithstanding the foregoing, transactions described in this\nsubparagraph involving the continuance or servicing of life insurance\npolicies or annuity contracts may be effected from outside this state by\ntelephone, video call, facsimile, web portal, electronic transfer of\nfunds, or by any other electronic means approved by the superintendent,\nprovided that the insurer shall not have any other contact or\ninteraction with a person in this state other than as specified and in\nthe manner provided in this paragraph;\n  (E) transactions with respect to policies of insurance on risks\nlocated or resident within or without this state (except master policies\nor contracts of group insurance which are subject to the requirements of\nsubparagraph (B) hereof), which policies are principally negotiated,\nissued and delivered without this state in a jurisdiction in which the\ninsurer is authorized to do an insurance business;\n  (F) transactions authorized by section two thousand one hundred five\nof this chapter with respect to excess lines insurance;\n  (G) transactions with respect to the reinsurance of risks of\nauthorized insurers to the extent that such reinsurance is permitted by\nthis chapter;\n  (H) transactions with respect to insurance contracts negotiated or\nplaced pursuant or otherwise subject to subsection (b), (c), (j) or (k)\nof section two thousand one hundred seventeen of this chapter;\n  (I) transactions with respect to any policy of insurance or annuity\ncontract issued prior to September first, nineteen hundred seventy.\n  (3) Notwithstanding the foregoing, the making of an agreement pursuant\nto which a lessor of personal property, a creditor making a loan or\nother credit transaction on personal property or, in the absence of a\nwaiver by the lessor or creditor, the lessor's or creditor's assignee\nwaives the obligation of the lessee or debtor for the gap amount, as\nsuch term is defined in paragraph fifty-two of subsection (a) of section\none hundred seven of this chapter, shall not constitute, or be deemed to\nconstitute, the doing of an insurance business if:\n  (i) the lessor or creditor or, in the absence of a waiver by the\nlessor or creditor, the assignee waives any and all obligations of the\nlessee or debtor for the gap amount and the lessee or debtor is\ndischarged from any and all further obligation to pay the gap amount;\n  (ii) the waiver applies only in the event of a total loss of the\npersonal property occasioned by its theft or physical damage;\n  (iii) in the event the lessor, creditor or assignee purchases lessor\nor creditor gap insurance, the charge to the lessee or debtor for the\nwaiver does not exceed the cost of the lessor or creditor gap insurance\ncoverage; provided, however, that nothing contained herein shall be\nconstrued to prohibit the lessor from including the charge for the\nwaiver in the capitalized cost as that term is defined in subdivision\neleven of section three hundred thirty-one of the personal property law.\n  (3-a) Notwithstanding the foregoing, the marketing, sale, offer for\nsale, issuance, making, proposing to make or administration of a service\ncontract pursuant to article seventy-nine of this chapter or warranty,\nservice contract or maintenance agreement conditioned upon or otherwise\nassociated with the sale or supply of heating fuel shall not constitute\ndoing an insurance business in this state.\n  (4) In the application of this chapter, the fact that no profit is\nderived from the making of insurance contracts, agreements or\ntransactions, or that no separate or direct consideration is received\ntherefor, shall not be deemed conclusively to show that the making\nthereof does not constitute the doing of an insurance business.\n  (5) Notwithstanding the foregoing, an unauthorized insurer, which (A)\nis affiliated with an insurer licensed in this state, and (B) has\nsatisfied all applicable requirements for placements by excess line\nbrokers as set forth in section two thousand one hundred eighteen of\nthis chapter, may provide from an office within the state, services to\nsupport its insurance business. Such services shall not be deemed under\nthis chapter as doing an insurance business in this state. For the\npurposes of this section these services include, but are not limited to,\ncomputer operations, clerical and staffing support, underwriting,\nnegotiating contract terms, quoting premiums, binding coverage, drafting\nand issuing policies and claims handling, investigation and payment,\namong other incidental services. Such services shall not include the\nmarketing, soliciting or advertising by the unauthorized insurer\ndirectly to policyholders. Notwithstanding paragraph two of subsection\n(a) of section two thousand one hundred twenty-two of this chapter, such\nunauthorized insurers shall be permitted to advertise to, and market and\nsolicit through, excess line brokers licensed pursuant to section two\nthousand one hundred five of this chapter. All obligations of such a\nlicensee under article twenty-one of this chapter shall remain in full\nforce and effect. Any document issued by the unauthorized insurer that\nindicates any location within this state in which it conducts its\noperations shall include a prominent notice that the insurer is not\nlicensed by the state of New York, in no smaller than 10 point type, in\naccordance with regulations as may be promulgated by the superintendent.\n  (6) Notwithstanding the foregoing, the election by the president of\nthe civil service commission to provide health benefits directly to New\nYork state health benefit plan participants shall not constitute the\ndoing of insurance business within the meaning of article eleven of the\ninsurance law.\n  (7)(A) Notwithstanding the foregoing, the making of a swap shall not\nconstitute doing an insurance business in this state.\n  (B) For the purposes of this paragraph, "swap" shall have the meaning\nset forth in 7 U.S.C. § 1a.\n  (8) Notwithstanding the foregoing, the maintenance of a website\noutside the state by an unauthorized foreign or alien insurer duly\nlicensed to transact the business of insurance in and by the laws of its\ndomicile, by which a member of a group may self-enroll, through an\nautomated process, in a group life, group annuity, or group accident and\nhealth insurance policy or contract, as defined in paragraphs one, two,\nand three of subsection (a) of section one thousand one hundred thirteen\nof this article, shall not constitute doing an insurance business in\nthis state, but section one thousand two hundred thirteen of this\nchapter nevertheless shall apply to the insurer; provided that:\n  (A) the group conforms to the definition of eligibility contained in:\n  (i) paragraph one, two, four (with respect to a policy issued to a\ntrustee or trustees of a fund established or participated in by two or\nmore employers, one or more labor unions, or by one or more employers or\nlabor unions, provided that all such employers or labor unions are in\nthe same industry), or five of subsection (b) of section four thousand\ntwo hundred sixteen of this chapter;\n  (ii) subparagraph (A), (B), (C), or (D) (with respect to a policy\nissued to a trustee or trustees of a fund established or participated in\nby two or more employers, one or more labor unions, or by one or more\nemployers or labor unions, provided that all such employers or labor\nunions are in the same industry) of paragraph one of subsection (c) of\nsection four thousand two hundred thirty-five of this chapter; or\n  (iii) paragraphs one, two, three or four of subsection (b) of section\nfour thousand two hundred thirty-eight of this chapter, but not\nincluding a group annuity contract: (I) funding individual retirement\naccounts or individual retirement annuities, as defined in section four\nhundred eight of the Internal Revenue Code; (II) funding annuities in\naccordance with subdivision (b) of section four hundred three of such\ncode; or (III) providing a plan of retirement annuities under which the\npayments are derived wholly from funds contributed by the persons\ncovered.\n  (B) the insurer lawfully issued the master policy or contract without\nthis state in a jurisdiction where the insurer was authorized to do an\ninsurance business;\n  (C) the insurer's website clearly states that the insurer is not\nauthorized to transact the business of insurance in this state; and\n  (D) the insurer does not have any other contact or interaction with\nthe member other than as specified and in the manner provided in\nparagraph two of this subsection.\n