NY Ins L § 2108 (2021)
2021 New York Laws ISC - Insurance Article 21 - Agents, Brokers, Adjusters, Consultants and Intermediaries 2108 - 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) Except in the case of an application for a license to  act  as  an independent  adjuster,  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  or  she  has personally  known the person or individual for a period of at least five years prior to the filing of such application, that he or she  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 (A) shall have been discharged, under conditions other than dishonorable, or (B) has a qualifying condition, as  defined  in  section  three  hundred fifty  of the executive law, and has received a discharge other than bad conduct or dishonorable from such service, or (C) is a  discharged  LGBT veteran, as defined in section three hundred fifty of the executive law, and has received a discharge other than bad conduct or dishonorable from such  service,  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.  In  the  case  of  a  license  issued  to  a new applicant, the superintendent may issue a license for a term of more  than  two  years, provided however, such term shall not exceed thirty months.  (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, other than an independent adjuster's license, shall be issued to any applicant  unless there  shall  be on file with the superintendent of financial services a bond, executed by such 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.  (s) (1) Every public adjuster shall have an affirmative duty to act on behalf and in the best interests of the insured when negotiating for  or effecting  the  settlement  of  an  insurance  claim  for the insured or otherwise acting as a public adjuster.  (2) (A) No public adjuster  shall  receive  any  compensation,  either directly  or  indirectly, for a referral of the insured to an individual or entity for services, work or repairs, relating to any insurance claim for which the public adjuster represents the insured or  has  negotiated or  effected  a  settlement,  unless the compensation is prominently and clearly disclosed to the insured in the written memorandum described  in subsection  (p) of this section. Any such compensation received shall be deemed to be compensation from the insured and, in combination with  any other  compensation  received  from  the  insured,  shall not exceed the maximum amount that the adjuster  may  charge  in  accordance  with  the regulations required pursuant to subsection (p) of this section.  (B)  No  public  adjuster who has a financial or ownership interest in the individual or entity that performs the services, work,  or  repairs, shall refer the insured to the individual or entity unless the financial or  ownership  interest  is  prominently  and  clearly  disclosed to the insured in the written memorandum described in subsection  (p)  of  this section.  If a public adjuster refers an insured to an individual who is related  to  the individual by blood or affinity to the second degree of consanguinity,  or  to  an  entity  owned  or  controlled  by  such   an individual,  for  services,  work, or repairs, relating to any insurance claim for which the  public  adjuster  represents  the  insured  or  has negotiated  or  effected  a  settlement,  then the public adjuster shall disclose the relationship to  the  insured  in  the  written  memorandum described in subsection (p) of this section.