Delaware Surplus Lines Insurance Exam

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Here are 14 in-depth Q&A study notes to help you prepare for the exam.

Explain the process by which the Delaware Insurance Commissioner can examine the affairs of a surplus lines broker, and what recourse does the broker have if they disagree with the Commissioner’s findings?

The Delaware Insurance Commissioner has broad authority to examine the affairs of any surplus lines broker operating within the state, as outlined in Title 18, Delaware Code, Section 1711. This examination can occur as often as the Commissioner deems necessary, typically to ensure compliance with state regulations and financial solvency. The Commissioner will typically provide written notice to the broker prior to the examination. The examination may include a review of financial records, policy documentation, and business practices. If a surplus lines broker disagrees with the findings of the Commissioner’s examination, they have the right to request a hearing to contest the findings. This request must be made within a specified timeframe, usually 30 days, as outlined in the Commissioner’s regulations. At the hearing, the broker can present evidence and arguments to challenge the Commissioner’s conclusions. The Commissioner will then issue a final order based on the evidence presented. The broker can further appeal the Commissioner’s final order to the Delaware Superior Court, as provided under Delaware law regarding administrative appeals.

Delaware regulations require surplus lines brokers to file reports detailing their surplus lines placements. What specific information must be included in these reports, and what are the potential consequences for failing to file these reports accurately and on time?

Delaware regulations, particularly Title 18, Delaware Code, Section 1906, mandate that surplus lines brokers file detailed reports regarding their surplus lines placements. These reports must include the identity of the insured, a description of the coverage, the gross premium charged, the name and address of the surplus lines insurer, and the amount of commission paid to the broker. The report must also include a statement indicating that the insurance was procured from an unauthorized insurer because coverage was unavailable from authorized insurers. Failure to file these reports accurately and on time can result in significant penalties. The Delaware Insurance Commissioner has the authority to impose fines, suspend or revoke the broker’s license, and take other disciplinary actions as deemed necessary. The specific amount of the fines can vary depending on the severity and frequency of the violations, but can be substantial, potentially reaching several thousand dollars per violation. Furthermore, repeated or egregious violations can lead to criminal charges in certain circumstances.

Discuss the implications of the Nonadmitted and Reinsurance Reform Act (NRRA) on the regulation of surplus lines insurance in Delaware, particularly concerning premium tax allocation and regulatory oversight.

The Nonadmitted and Reinsurance Reform Act (NRRA), a component of the Dodd-Frank Wall Street Reform and Consumer Protection Act, significantly altered the regulation of surplus lines insurance across the United States, including in Delaware. The NRRA established a uniform system for the allocation of premium taxes and regulatory oversight. Under the NRRA, only the home state of the insured can collect premium taxes on surplus lines insurance. This means that if a Delaware-based company purchases surplus lines insurance, Delaware is the only state that can collect premium taxes, regardless of where the risk is located. The NRRA also preempts states other than the insured’s home state from regulating surplus lines insurance transactions. This aims to streamline regulatory oversight and reduce compliance burdens for surplus lines brokers and insurers. However, Delaware retains the authority to regulate surplus lines brokers operating within the state and to ensure that they comply with Delaware’s specific requirements, such as licensing, reporting, and financial responsibility. The NRRA has led to increased efficiency and uniformity in the surplus lines market, but it also requires Delaware to coordinate with other states to ensure effective regulation.

Explain the “diligent effort” requirement for surplus lines brokers in Delaware. What documentation is required to demonstrate that a diligent effort was made to secure coverage from admitted insurers before placing business with a surplus lines insurer?

The “diligent effort” requirement, as stipulated in Title 18, Delaware Code, Section 1904, mandates that a surplus lines broker must make a thorough and good-faith attempt to secure the required insurance coverage from admitted insurers (those licensed in Delaware) before placing the business with a surplus lines insurer (an unauthorized insurer). This requirement is designed to protect consumers by ensuring that they are not unnecessarily exposed to the risks associated with dealing with non-admitted insurers. To demonstrate that a diligent effort was made, the broker must maintain detailed documentation of their efforts. This documentation typically includes: a list of the admitted insurers contacted, the dates of contact, the names of the individuals contacted at each insurer, the reasons for the declinations (i.e., why the admitted insurers were unwilling to provide coverage), and copies of the written declinations received from the admitted insurers. The documentation must clearly show that the broker actively sought coverage from a reasonable number of admitted insurers that would typically write the type of risk in question. The Delaware Insurance Department may request this documentation during audits or investigations to verify compliance with the diligent effort requirement.

Describe the process for a surplus lines insurer to become an eligible non-admitted insurer in Delaware. What financial and regulatory requirements must they meet, and how does Delaware assess their suitability?

To become an eligible non-admitted insurer in Delaware, a surplus lines insurer must meet specific financial and regulatory requirements, as outlined in Title 18, Delaware Code, Section 1905. The insurer must typically demonstrate that it maintains adequate capital and surplus, possesses a satisfactory record of financial solvency, and is properly managed. Specifically, the insurer must typically be licensed in its domiciliary jurisdiction and maintain capital and surplus of at least $45 million. They must also submit an application to the Delaware Insurance Commissioner, providing detailed information about their financial condition, business operations, and management team. Delaware assesses the insurer’s suitability by reviewing its financial statements, regulatory reports, and other relevant information. The Commissioner may also conduct an independent investigation to verify the accuracy of the information provided and to assess the insurer’s overall financial stability and operational integrity. The insurer must also agree to be subject to the jurisdiction of Delaware courts and to comply with Delaware’s surplus lines laws and regulations.

What are the specific requirements in Delaware regarding the disclosure of information to insureds when placing coverage with a surplus lines insurer? What information must be disclosed, and what is the purpose of these disclosure requirements?

Delaware law, specifically Title 18, Delaware Code, Section 1907, imposes strict disclosure requirements on surplus lines brokers to ensure that insureds are fully informed when placing coverage with a surplus lines insurer. The broker must provide the insured with a clear and conspicuous written notice that the insurance is being placed with a non-admitted insurer, which is not subject to the same regulatory oversight and financial protections as admitted insurers. The disclosure must include a statement that the insurer is not licensed in Delaware and is not subject to the protection of the Delaware Insurance Guaranty Association in the event of insolvency. The notice must also explain that the policy may contain different terms and conditions than those typically found in policies issued by admitted insurers. The purpose of these disclosure requirements is to ensure that insureds understand the risks associated with purchasing insurance from a non-admitted insurer and can make informed decisions about their insurance coverage. The disclosure must be provided to the insured prior to the placement of the coverage, and the broker must obtain a signed acknowledgment from the insured confirming that they have received and understood the disclosure.

Discuss the role and responsibilities of the Delaware Insurance Guaranty Association in relation to surplus lines insurance. Under what circumstances, if any, would the Guaranty Association provide coverage for claims against a surplus lines insurer?

The Delaware Insurance Guaranty Association (DIGA) provides a safety net for policyholders of admitted insurance companies that become insolvent. It is established under Title 18, Delaware Code, Chapter 42. However, it is crucial to understand that the DIGA does not provide coverage for claims against surplus lines insurers. This exclusion is a fundamental aspect of the surplus lines market, reflecting the higher risk associated with non-admitted insurers. Because surplus lines insurers are not licensed in Delaware and are not subject to the same regulatory oversight as admitted insurers, they are not required to participate in the DIGA. Consequently, policyholders who purchase insurance from surplus lines insurers do not have the protection of the Guaranty Association in the event of the insurer’s insolvency. This lack of protection is a key risk that insureds must consider when choosing to purchase surplus lines coverage. The disclosure requirements for surplus lines placements, as outlined in Title 18, Delaware Code, Section 1907, specifically require brokers to inform insureds that the policy is not protected by the Delaware Insurance Guaranty Association.

Explain the due diligence requirements a Delaware surplus lines broker must undertake when placing insurance with a non-admitted insurer, referencing specific sections of the Delaware Insurance Code. What documentation is required to demonstrate this due diligence, and what are the potential consequences of failing to adequately perform it?

Delaware surplus lines brokers have a responsibility to exercise due diligence in placing insurance with non-admitted insurers. This involves ensuring the insurer is financially stable and reputable. Delaware Insurance Code Section 1910(a) outlines the requirements for placing business with eligible surplus lines insurers. The broker must make a diligent effort to determine that the full amount of insurance cannot be obtained from admitted insurers. This effort should be documented, typically through declinations from admitted insurers or evidence of inquiries made to them. Documentation should include records of communication with admitted insurers, copies of declinations, and a summary of the risks and reasons why admitted insurers were unwilling or unable to provide coverage. Failure to adequately perform due diligence can result in penalties, including fines, suspension, or revocation of the surplus lines broker’s license, as outlined in Delaware Insurance Code Section 1916. Furthermore, the broker could be held liable for losses incurred by the insured if the non-admitted insurer is unable to pay claims due to financial instability that should have been detected through proper due diligence.

Describe the process for filing surplus lines taxes in Delaware, including the applicable tax rate, reporting deadlines, and penalties for late filing or non-payment. What specific information must be included in the surplus lines tax report, and how does the Delaware Department of Insurance utilize this information?

Delaware surplus lines brokers are responsible for collecting and remitting surplus lines taxes on premiums for insurance placed with non-admitted insurers. The tax rate is currently 3% of the gross premium charged, as specified in Delaware Insurance Code Section 1907. Surplus lines tax reports and payments are due to the Delaware Department of Insurance on a quarterly basis, with deadlines typically falling on the last day of the month following the end of the quarter (e.g., April 30th for the quarter ending March 31st). The surplus lines tax report must include detailed information about each policy placed, including the insured’s name and address, the insurer’s name, the policy period, the type of coverage, the gross premium, and the amount of tax due. Penalties for late filing or non-payment can include interest charges and fines, as outlined in Delaware Insurance Code Section 1908. The Delaware Department of Insurance uses this information to monitor surplus lines activity, ensure compliance with regulations, and collect revenue for the state. The data also helps the Department assess the overall health and stability of the surplus lines market in Delaware.

Explain the requirements for maintaining records of surplus lines transactions in Delaware. How long must these records be retained, and what specific information must they contain? What are the potential consequences for failing to maintain adequate records?

Delaware surplus lines brokers are required to maintain complete and accurate records of all surplus lines transactions. These records must be retained for a minimum of five years from the date of the transaction, as mandated by Delaware Insurance Regulation 703. The records must include detailed information about each policy placed, including the insured’s name and address, the insurer’s name and address, the policy period, the type of coverage, the gross premium, the amount of tax collected, and evidence of due diligence in placing the coverage with a non-admitted insurer. Furthermore, the records must include copies of all correspondence with the insured, the insurer, and any other parties involved in the transaction. Failure to maintain adequate records can result in penalties, including fines, suspension, or revocation of the surplus lines broker’s license, as outlined in Delaware Insurance Code Section 1916. The Delaware Department of Insurance may conduct audits of surplus lines brokers’ records to ensure compliance with regulations. Inadequate record-keeping can also hinder the broker’s ability to defend against claims or disputes.

Discuss the role and responsibilities of the Delaware Insurance Commissioner in regulating surplus lines insurance. What powers does the Commissioner have to investigate and discipline surplus lines brokers and insurers? Cite relevant sections of the Delaware Insurance Code.

The Delaware Insurance Commissioner plays a crucial role in regulating surplus lines insurance to protect Delaware consumers and ensure the financial stability of the insurance market. The Commissioner has broad powers to investigate and discipline surplus lines brokers and insurers, as outlined in the Delaware Insurance Code. Section 311 of the Delaware Insurance Code grants the Commissioner the authority to examine the affairs of any insurer or broker doing business in Delaware. This includes the power to subpoena witnesses, administer oaths, and compel the production of documents. If the Commissioner finds that a surplus lines broker or insurer has violated any provision of the Insurance Code, they may impose penalties, including fines, suspension, or revocation of licenses, as specified in Section 1916. The Commissioner also has the authority to issue cease and desist orders to prevent unfair or deceptive practices. Furthermore, the Commissioner can seek injunctive relief in court to enforce compliance with the Insurance Code. The Commissioner’s oversight helps to ensure that surplus lines insurance is placed responsibly and that consumers are protected from unscrupulous actors.

What are the specific requirements in Delaware for a risk to be eligible for placement in the surplus lines market? Detail the “diligent effort” requirement and provide examples of what constitutes sufficient and insufficient effort.

In Delaware, a risk is eligible for placement in the surplus lines market only if it cannot be placed with an admitted insurer authorized to do business in the state. This is known as the “diligent effort” requirement, outlined in Delaware Insurance Code Section 1910(a). The surplus lines broker must demonstrate that they have made a reasonable attempt to find coverage from admitted insurers before placing the risk with a non-admitted insurer. Sufficient effort would include obtaining written declinations from multiple admitted insurers who normally write similar risks, documenting inquiries made to admitted insurers and their reasons for declining coverage, and demonstrating that the broker has thoroughly researched the market for available coverage. Insufficient effort would include only contacting one or two admitted insurers, failing to document inquiries or declinations, or simply assuming that coverage is unavailable without making a reasonable attempt to find it. The broker must be able to provide evidence of their diligent effort to the Delaware Department of Insurance upon request.

Explain the disclosure requirements that a Delaware surplus lines broker must adhere to when dealing with a client. What information must be provided to the client, and when must this information be disclosed? What are the potential consequences of failing to comply with these disclosure requirements?

Delaware surplus lines brokers have specific disclosure requirements to ensure clients are aware they are purchasing insurance from a non-admitted insurer. Delaware Insurance Code Section 1911 mandates that the broker must inform the client, in writing, that the insurance policy is being placed with a non-admitted insurer, which is not subject to the same regulatory oversight and protections as admitted insurers. This disclosure must be made prior to the placement of the insurance. The disclosure must also include a statement that the Delaware Insurance Guaranty Association will not cover claims if the non-admitted insurer becomes insolvent. The disclosure should be clear, conspicuous, and easily understood by the client. Failing to comply with these disclosure requirements can result in penalties, including fines, suspension, or revocation of the surplus lines broker’s license, as outlined in Delaware Insurance Code Section 1916. Furthermore, the broker could be held liable for losses incurred by the insured if the client was not properly informed about the risks of purchasing insurance from a non-admitted insurer.

Discuss the implications of the Nonadmitted and Reinsurance Reform Act (NRRA) on Delaware surplus lines insurance regulations. How has the NRRA affected the taxation and regulation of surplus lines insurance in Delaware, particularly concerning multi-state risks?

The Nonadmitted and Reinsurance Reform Act (NRRA), part of the Dodd-Frank Wall Street Reform and Consumer Protection Act, significantly impacted the regulation of surplus lines insurance nationwide, including in Delaware. The NRRA established a system of state-based regulation, with the insured’s home state having sole authority to regulate and tax surplus lines insurance for multi-state risks. Prior to the NRRA, multiple states could potentially regulate and tax the same surplus lines policy, leading to confusion and inefficiencies. Under the NRRA, Delaware, as the insured’s home state, has the sole authority to regulate and tax surplus lines insurance for risks located in Delaware, even if the policy covers properties or activities in other states. This has simplified the process for surplus lines brokers and insurers, reducing compliance costs and promoting greater efficiency. Delaware continues to collect surplus lines taxes on premiums for risks located in the state, as outlined in Delaware Insurance Code Section 1907. The NRRA has also promoted greater uniformity in surplus lines regulation across states, fostering a more stable and predictable market.

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