GA Code § 33-23-35 (2021)
2021 Georgia Code|Title 33 - Insurance|Chapter 23 - Licensing|Article 1 - Agents, Agencies, Subagents, Counselors, and Adjusters|§ 33-23-35. Reporting and Disposition of Premiums

  An agent, limited subagent, or any other representative of an insurer or of any other person in the effectuation of an insurance contract shall report to the insurer or its agent the premium for the contract and the amount shall be shown in the contract. Each willful violation of this subsection shall constitute a misdemeanor.   All funds representing premiums received or return premiums due the insured by any agent or subagent shall be accounted for in the licensee's fiduciary capacity, shall not be commingled with the licensee's personal funds, and shall be promptly accounted for and paid to the insurer, insured, or agent as entitled to such funds.Nothing contained in this Code section shall be deemed to require any agent or subagent to maintain a separate bank deposit for the funds of each principal, if the funds so held for each principal are reasonably ascertainable from the books of accounts and records of the agent or subagent.   Any violation of this Code section shall constitute grounds or cause for action by the Commissioner, including, but not limited to, probation, suspension, or revocation of the license.Each and every act by a licensee shall also constitute grounds for fines and penalties, which amounts shall be set by rule or regulation of the Commissioner. Any willful violation of this Code section shall constitute a misdemeanor unless such amounts involved exceed $1,000.00, whereby such violation shall constitute a felony.     (Code 1981, §33-23-35, enacted by Ga. L. 1992, p. 2830, § 1; Ga. L. 2001, p. 925, § 1; Ga. L. 2008, p. 1076, § 18/SB 113; Ga. L. 2019, p. 386, § 15/SB 133.)    The 2019 amendment,  effective July 1, 2019, substituted "$1,000.00" for "$500.00" in the third sentence of subsection (c).   Cross references.   - Theft by conversion, § 16-8-4.   JUDICIAL DECISIONS   Editor's notes.   - In light of the similarity of the statutory provisions, decisions under former Code Section 33-23-79 are included in the annotations to this Code section.    Insurance premium deposited to bank account of agent represented "trust funds" in possession of the agent on behalf of the insured and the bank's setoff against the account in the amount of an unpaid loan to the agent was improper. Bank of Spalding County v. Pound, 213 Ga. App. 324, 444 S.E.2d 375 (1994).   Assignment of unearned return premiums to financing company creates fiduciary duty.    - When the contract entered into by an insured and a premium finance company provided for the assignment of any and all unearned return premiums and dividends to the financing company, the assignment created a fiduciary relationship between the parties pursuant to subsection (b) of former § 33-23-79 (see O.C.G.A. § 33-23-35(b)), and the failure on the part of the insured to pay a returned premium to the financing company, for whatever reason, was a breach of this fiduciary duty such that the debt for this amount was nondischargeable in bankruptcy. National Premium Budget Plan Corp. v. Nicholson, 55 Bankr. 645 (Bankr. N.D. Ga. 1985) (decided under former O.C.G.A. § 33-23-79).   Prompt accounting for refunds.    - In a proceeding on revocation of an insurance agent's license, evidence that the agent waited between 48 and 57 days after depositing checks before sending premium refunds to clients supported a finding that the refunds were not "promptly accounted for" as required by O.C.G.A. § 33-23-35. Commissioner of Ins. v. Stryker, 218 Ga. App. 716, 463 S.E.2d 163 (1995).   Fiduciary relationship between broker and insurer.    - When parties A, B and C arrange that C will provide insurance to A, and A will give B money for the purpose of paying C, B owes fiduciary duties to both A and C; accordingly, the fact that the parties' relationship arises from a contract does not preclude the possibility of a tort claim if the elements of the claim are otherwise established. Unified Servs., Inc. v. Home Ins. Co., 218 Ga. App. 85, 460 S.E.2d 545 (1995).   Fiduciary status of agents.    - Bankruptcy debtors who administered employment benefit plans were fiduciaries for purposes of nondischargeability of debts to the plans under 11 U.S.C. § 523(a)(4) as licensed insurance agents, since O.C.G.A. § 33-23-35(b) created an express statutory trust, and the debtors' administration of the plans through a corporation did not abrogate the debtors' fiduciary status as individuals under O.C.G.A. § 33-23-1. Nat'l Air Traffic Controllers Assoc. v. Davenport (In re Davenport), Bankr. (Bankr. N.D. Ga. Sept. 6, 2007).    Cited in Herring v. Standard Guar. Ins. Co., 238 Ga. 261, 232 S.E.2d 544 (1977); Seibels, Bruce & Co. v. England, 63 Bankr. 76 (Bankr. N.D. Ga. 1986); Hubbard v. Stewart, 651 F. Supp. 294 (M.D. Ga. 1987); Surety Group, Inc. v. Ragsdale, 197 Ga. App. 437, 398 S.E.2d 718 (1990); Moseley v. Coastal Plains Gin Co., 199 Ga. App. 99, 404 S.E.2d 123 (1991).