GA Code § 33-23-4 (2021)
2021 Georgia Code|Title 33 - Insurance|Chapter 23 - Licensing|Article 1 - Agents, Agencies, Subagents, Counselors, and Adjusters|§ 33-23-4. License Required; Restrictions on Payment or Receipt of Commissions; Positions Indirectly Related to Sale, Solicitation, or Negotiation of Insurance Excluded From Licensing Requirements

    A person shall not sell, solicit, or negotiate insurance in this state for any class or classes of insurance unless such person is licensed for that line of authority in accordance with this article and applicable regulations.   Any individual who sells, solicits, or negotiates insurance in this state shall be licensed as an agent.   Any business entity that sells, solicits, or negotiates insurance in this state shall be licensed as an agency.   Any individual defined as an adjuster under paragraph (1) of subsection (a) of Code Section 33-23-1 who for a fee, commission, salary, or other compensation investigates, settles, or adjusts claims arising under insurance contracts on behalf of the insurer or the insured shall be licensed as either an independent adjuster or a public adjuster.     No insurer or agent doing business in this state shall pay, directly or indirectly, any commissions or any other valuable consideration to any person for services as an agent, subagent, or adjuster within this state, unless such person is duly licensed in accordance with this article.   An insurer may pay a commission or other valuable consideration to a licensed insurance agency in which all employees, stockholders, directors, or officers who sell, solicit, or negotiate insurance contracts are qualified insurance agents, limited subagents, or counselors holding valid licenses as required by the laws of this state; and an agent, limited subagent, or counselor may share any commission or other valuable consideration with such a licensed insurance agency.   No person other than a duly licensed adjuster, agent, limited subagent, or counselor shall pay or accept any commission or other valuable consideration except as provided in subsections (b) and (c) of this Code section.   This Code section shall not prevent the payment or receipt of renewal or deferred commissions by any agency or a person on the grounds that the licensee has ceased to be an agent, limited subagent, or counselor nor prevent the receipt or payment of any commission by an individual who has been issued a temporary license pursuant to this chapter.   Any individual who has been licensed as an agent for ten consecutive years or more and who does not perform any of the functions specified in paragraph (3) of subsection (a) of Code Section 33-23-1 other than receipt of renewal or deferred commissions shall be exempt from the requirement to maintain at least one certificate of authority; provided, however, that if such individual wishes to again perform any of the other functions specified in said paragraph, such individual must obtain approval from the Commissioner and comply with the requirements of this article and applicable rules and regulations, including without limitation the requirements for certificate of authority.   Any person who willfully violates this Code section shall be guilty of a misdemeanor and, upon conviction thereof, shall be subject to punishment as provided in Code Section 17-10-3, relating to punishment for misdemeanors.     Nothing in this article shall be construed to require an insurer to obtain an insurance agent's license. As used in this Code section, the term "insurer" does not include an insurer's officers, directors, employees, subsidiaries, or affiliates.   A license as an insurance agent shall not be required of the following:   An officer, director, or employee of an insurer or of an insurance agent or agency, provided that the officer, director, or employee does not receive any commission on policies written or sold to insure risks residing, located, or to be performed in this state and:       The officer, director, or employee's activities are executive, administrative, managerial, clerical, or a combination of these, and are only indirectly related to the sale, solicitation, or negotiation of insurance;    The officer, director, or employee's function relates to underwriting, loss control, inspection, or the processing, adjusting, investigating, or settling of a claim on a contract of insurance; or   The officer, director, or employee is acting in the capacity of a special agent or agency supervisor assisting insurance agents where the person's activities are limited to providing technical advice and assistance to licensed insurance producers and do not include the sale, solicitation, or negotiation of insurance;   A person who meets the criteria set forth in paragraph (1), (4), or (6) of subsection (b) of Code Section 33-23-1;   An employer or association or its officers, directors, or employees or the trustees of an employee trust plan to the extent that the employers, officers, employees, directors, or trustees are engaged in the administration or operation of a program of employee benefits for the employer's or association's own employees or the employees of its subsidiaries or affiliates, which program involves the use of insurance issued by an insurer, so long as the employers, associations, officers, directors, employees, or trustees are not in any manner compensated, directly or indirectly, by the company issuing the contracts;   Employees of insurers or organizations employed by insurers who are engaging in the inspection, rating, or classification of risks or in the supervision of the training of insurance agents and who are not individually engaged in the sale, solicitation, or negotiation of insurance;   A person whose activities in this state are limited to advertising without the intent to solicit insurance in this state through communications in printed publications or other forms of electronic mass media whose distribution is not limited to residents of the state, provided that the person does not sell, solicit, or negotiate insurance that would insure risks residing, located, or to be performed in this state;   A person who is not a resident of this state who sells, solicits, or negotiates a contract of insurance for commercial property and casualty risks to an insured with risks located in more than one state insured under that contract, provided that the person is otherwise licensed as an insurance agent to sell, solicit, or negotiate insurance in the state where the insured maintains its principal place of business and the contract of insurance insures risks located in that state; or   A salaried, full-time employee who counsels or advises his or her employer relative to the insurance interests of the employer or of the subsidiaries or business affiliates of the employer provided that the employee does not sell or solicit insurance or receive a commission.    (Code 1981, §33-23-4, enacted by Ga. L. 1992, p. 2830, § 1; Ga. L. 1996, p. 705, § 9; Ga. L. 1997, p. 1296, § 4; Ga. L. 2001, p. 925, § 1; Ga. L. 2008, p. 1076, § 2/SB 113; Ga. L. 2014, p. 181, § 3/HB 610; Ga. L. 2016, p. 255, § 1/SB 290; Ga. L. 2017, p. 774, § 33/HB 323; Ga. L. 2019, p. 386, § 5/SB 133.)    The 2019 amendment,  effective July 1, 2019, substituted "this article" for "this chapter" near the end of paragraph (a)(1) and in the proviso of subsection (f); substituted "such person" for "the person" in the middle of paragraph (a)(1); and deleted "currently" following "counselors holding" in the middle of subsection (c).   Law reviews.   - For article surveying developments in Georgia insurance law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 143 (1981).   JUDICIAL DECISIONS   Editor's notes.   - In light of the similarity of the statutory provisions, decisions under former Code 1933, § 56-803 and former Code Section 33-23-2 are included in the annotations to this Code section.   Equal protection claim.    - Bidding insurer's summary judgment motion was properly granted as to the insurer's equal protection claim against a county as the county did not exercise arbitrary power but acted rationally and reasonably in rejecting all bids across the board after it was discovered that a consultant lacked a counselor's license under O.C.G.A. §§ 33-23-1.1 and33-23-4; because of the taint to the process, all bids were rejected, no classification was created at all, and all similarly situated persons were treated alike. Benefit Support, Inc. v. Hall County, 281 Ga. App. 825, 637 S.E.2d 763 (2006), cert. denied, No. S07C0306, 2007 Ga. LEXIS 214 (Ga. 2007).   Deduction of premiums authorized.    - Consent form authorizing a common carrier to deduct insurance premiums and certain administrative fees from delivery commissions paid to a commercial trucking company for the delivery of freight was not voided by O.C.G.A. § 33-23-4(e). Seals v. Hygrade Distrib. & Delivery Sys., Inc., 249 Ga. App. 574, 549 S.E.2d 412 (2001).   Noncompliance as bar to recovery on claims.    - Failure to comply with the statutory scheme governing life insurance agents will bar any recovery on the basis of a contractual claim. This strict rule has been held to be necessary to compel compliance with the licensure requirement. Management Comp. Group/Southeast, Inc. v. United Sec. Emp. Programs, Inc., 194 Ga. App. 99, 389 S.E.2d 525 (1989) (decided under former O.C.G.A. § 33-23-2).   Notwithstanding clause did not run afoul of section.    - Court's interpretation of the notwithstanding clause did not run afoul of O.C.G.A. § 33-23-4 when the consultant did not charge the client for the client's services based on a percentage of the commissions received by the client, but charged a per hour fee for its services, the parties agreed to a $20,000 quarterly fee for the services, and separately, the parties agreed to a limitation on the amount that the consultant was able to recover. Thus, the receipt of commission payments was not a condition precedent to the payment of outstanding balances. Hessmorganhouse, LLC v. Kingdom Group of Cos., LLC, F.3d (11th Cir. June 24, 2020)(Unpublished).   Policy not voided by issuance by unlicensed agent.   - While the law prohibits the issuance of policies by an unlicensed agent, the law does not void such insurance. Chatham County Hosp. Auth. v. John Hancock Mut. Life Ins. Co., 325 F. Supp. 614 (S.D. Ga. 1971) (decided under former Code 1933, § 56-803).   License not required.   - District court erred in holding that a plaintiff would not be harmed absent a preliminary injunction barring enforcement of certain restrictive covenants because under Georgia law, a party did not need a license to sell insurance in order to operate an insurance brokerage business and hire others to carry out insurance sales. MacGinnitie v. Hobbs Group, LLC, 420 F.3d 1234 (11th Cir. 2005).   Bid preparation costs for unlicensed consultant.    - Summary judgment was properly entered for a county on a bidding insurer's claim for reimbursement of the insurer's bid preparation costs due to the county's rejection of the insurer's bid as no contract was awarded to an unqualified bidder since all the bids were rejected when it was discovered that the county's consultant lacked an insurance counselor's license under O.C.G.A. §§ 33-23-1.1 and33-23-4. Benefit Support, Inc. v. Hall County, 281 Ga. App. 825, 637 S.E.2d 763 (2006), cert. denied, No. S07C0306, 2007 Ga. LEXIS 214 (Ga. 2007).   Effect on RICO actions.    - Failure of an insurance company to file a policy with the Georgia Insurance Department and the failure of the company's agent to have a certificate of authority issued by the company before selling the policy to insureds were not predicate acts for purposes of the Racketeer Influenced and Corrupt Organizations Act, O.C.G.A. § 16-14-1 et seq. Security Life Ins. Co. v. Clark, 229 Ga. App. 593, 494 S.E.2d 388 (1997), aff'd in part and rev'd in part, 270 Ga. 165, 509 S.E.2d 602 (1998). But see Clark v. Security Life Ins. Co. of Am., 270 Ga. 165, 509 S.E.2d 602 (1998); Security Life Ins. Co. of Am. v. Clark, 273 Ga. 44, 535 S.E.2d 234 (2000); Williams General Corporation v. Stone, 280 Ga. 631, 632 S.E.2d 376 (2006).    Damages under O.C.G.A. § 51-1-6. - Summary judgment was properly entered for a consultant and a consulting firm on a bidding insurer's claim under O.C.G.A. § 51-1-6 after all of the bids for a county contract were rejected because the consultant lacked a license under O.C.G.A. §§ 33-23-1.1 and33-23-4 as the statutes requiring insurance counselors to be licensed and mandating that licensed individuals meet certain qualifications were designed to protect the insurance counselor's clients and not to protect or benefit providers of insurance; the generic statement that O.C.G.A. § 33-23-5(a) was "for the protection of the people of (Georgia)" did not expand the intent of the statute requiring licensure for counselors to benefit businesses that provided insurance. Benefit Support, Inc. v. Hall County, 281 Ga. App. 825, 637 S.E.2d 763 (2006), cert. denied, No. S07C0306, 2007 Ga. LEXIS 214 (Ga. 2007).    Cited in Sollek v. Laseter, 126 Ga. App. 137, 190 S.E.2d 148 (1972); Long v. Century Fin., 167 Ga. App. 196, 306 S.E.2d 87 (1983); Olukoya v. American Ass'n of Cab Cos., 219 Ga. App. 508, 465 S.E.2d 715 (1995); Am. Cent. Ins. Co. v. Lee, 273 Ga. 880, 548 S.E.2d 338 (2001).   OPINIONS OF THE ATTORNEY GENERAL   Editor's notes.   - In light of the similarity of the statutory provisions, opinions under former Code 1933, § 56-801 are included in the annotations to this Code section.    Adjuster for life, accident, and health insurance is not required to procure license.  1962 Op. Att'y Gen. p. 285 (decided under former Code 1933, § 56-801).    Licensed insurance agent can pay commissions into a corporation of which the agent is an employee.  1962 Op. Att'y Gen. p. 286 (decided under former Code 1933, § 56-801).   RESEARCH REFERENCES   Am. Jur. 2d.   - 43 Am. Jur. 2d, Insurance, § 161 et seq.   C.J.S.   - 44 C.J.S., Insurance, §§ 67 et seq., 146, 147.