TITLE XXXVII
INSURANCE
Chapter 415-C
CONSUMER GUARANTY CONTRACTS
Section 415-C:1
415-C:1 Definitions. –
In this chapter:
I. "Commissioner" means the insurance commissioner.
II. "Consumer" means a natural person who, for personal or family use and not for commercial or research purposes:
(a) Buys or sells residential real property, or
(b) Buys other than for purposes of resale any tangible personal property that is distributed in commerce and that is normally used for personal, family, or household purposes.
III. "Consumer guaranty contract":
(a) Is an agreement in which one party, for consideration, promises to pay, indemnify, provide a specified or determinable amount or benefit, or to do some act of value for another party, based upon a determinable risk contingency or peril, but which is not insurance or does not warrant full application of the state's insurance statutes or rules.
(b) Includes the following agreements:
(1) Service contracts, also known as extended warranties or warranty service contracts, that apply to motor vehicles, homes, and consumer products.
(2) [Repealed.]
(3) [Repealed.]
(4) Contracts deemed by the commissioner by rule or order subject to this chapter.
(c) Does not include any of the following:
(1) Expressed or implied warranties.
(2) Maintenance agreements.
(3) Motor vehicle road service, tourist service and repairs under RSA 407-C.
(4) Warranties, service contracts, or maintenance agreements offered by public utilities on their transmission devices regulated by the public utilities commission.
(5) Warranties, service contracts, and maintenance agreements that are conditioned upon or otherwise associated with the sale or supply of heating fuel.
(6) Warranties, service contracts, and maintenance agreements sold or offered for sale to persons other than consumers.
(7) Debt cancellation or debt suspension contracts between a creditor and a borrower for the cancellation or suspension of the debt.
(8) Prepaid legal contracts.
IV. "Contract fee" means the total purchase price or consideration paid for a consumer guaranty contract.
V. "Contract holder" means a person who buys a consumer guaranty contract or permitted transferee.
VI. "Maintenance agreement" means a contract of limited duration that provides for scheduled maintenance only.
VII. "Manufacturer" means a person who:
(a) Manufactures or produces the property and sells the property under the person's own name or label;
(b) Is a wholly owned subsidiary of the person who manufactures or produces the property;
(c) Is a corporation which owns 100 percent of the person who manufactures or produces the property;
(d) Manufactures or produces the property and the property is sold under the trade name or label of another person;
(e) Does not manufacture or produce the property but, by written contract, licenses the use of the person's trade name or label to another person that sells the property under the licensor's trade name or label; or
(f) For personal property, does not manufacture or produce the property, but the property is sold under the person's trade name label.
VIII. "Obligor" means a person who is legally obligated to a contract holder under the terms of the consumer guaranty contract. Obligor shall not include service suppliers acting for a registered obligor.
IX. "Person" means an individual, partnership, corporation, incorporated or unincorporated association, joint stock company, reciprocal, syndicate, or any similar entity or combination of entities acting in concert.
X. "Premium" means the consideration paid to an insurer for a reimbursement insurance policy.
XI. [Repealed.]
XII. "Reimbursement insurance policy" means a policy of insurance issued to an obligor and by which an insurer agrees to either provide reimbursement to the obligor under the terms of the insured consumer guaranty contracts issued or sold by the obligor or, in the event of the obligor's non-performance, to pay on behalf of the obligor all covered contractual obligations incurred by the obligor under the terms of the insured consumer guaranty contracts issued or sold by the obligor.
XIII. "Sales representative" means any person who is not an obligor, who sells, solicits, negotiates, or issues consumer guaranty contracts on behalf of an obligor.
XIV. (a) "Service contract" means a contract or agreement for a separately stated consideration, and a specified period of time or usage, covering any consumer good, including, but not limited to, any automobile, household system, or appliance, which promises to provide for the service, repair, replacement, or maintenance of the property necessitated by operational or structural failure due to: a defect in materials or workmanship; normal wear and tear; power surges; or accidental damage from handling. This definition shall apply regardless of the name or label of such contract and regardless of the nature of the service contract obligor. A service contract may provide for the payment of incidental indemnity when service repair or replacement is not feasible or economical or under limited circumstances, including, but not limited to, towing, rental, road hazard, emergency road service, lodging, meals, food loss, or other minor expenses that directly relate to the failure of the consumer good.
(b) "Service contract" includes a contract or agreement for a separately stated consideration, and a specified period of time or usage that provides for any of the following:
(1) Repair or replacement of tires and/or wheels on an automobile damaged as a result of coming into contact with road hazards including, but not limited to, potholes, rocks, wood debris, metal parts, glass, plastic, curbs, or composite scraps;
(2) Removal of dents, dings, or creases on an automobile that can be repaired using the process of paintless dent removal without affecting the existing paint finish and without replacing automobile body panels, sanding, bonding, or painting;
(3) Repair of chips or cracks in or the replacement of an automobile windshield as a result of damage caused by road hazards; or
(4) Replacement of an automobile key or key-fob if the key or key-fob becomes inoperable or is lost or stolen.
XV. "Service contract holder" means a person who is the purchaser or holder of a service contract.
XVI. "Service supplier" means a person, not employed by the obligor, who is owned by the obligor or contractually obligated to provide on behalf of the obligor services or obligations specified in the consumer guaranty contract to be provided to a contract holder.
XVII. "Warranty" means a warranty made solely by the manufacturer, importer, or seller of property or services without charge, that is not negotiated or separated from the sale of the product and is incidental to the sale of the product, that guarantees indemnity for defective parts, mechanical or electrical breakdown, labor or other remedial measures, such as repair or replacement of the property or repetition of services.
Source. 2004, 224:1. 2015, 207:1, 6, 8, eff. Sept. 4, 2015. 2022, 142:1, 3, I and II, eff. Aug. 6, 2022.
Section 415-C:2
415-C:2 Exemptions. –
I. Manufacturer's service contracts on the manufacturer's products need only comply with RSA 415-C:5, 415-C:6, 415-C:7, 415-C:9, 415-C:10, and RSA 415-C:10-a.
II. Consumer guaranty contracts are not insurance and are exempt from this state's insurance laws, except for the provisions of RSA 400-A:16 through RSA 400-A:25 or as provided by this chapter.
III. For activities related to the marketing, selling, offering for sale, issuing, making, proposing to make, and administration of consumer guaranty contracts, an obligor or related consumer guaranty contract seller, administrator, or other related person shall be exempt from this state's insurance laws, except for the provisions of RSA 400-A:16 through 400-A:25 or as provided by this chapter.
IV. An obligor, administrator, seller, or other related person who provides consumer guaranty contracts and insurance contracts is subject to the state's laws as they apply to the obligor, administrator, seller, or other related person for each type of agreement.
Source. 2004, 224:1. 2009, 215:6, eff. July 15, 2009.
Section 415-C:3
415-C:3 Obligor Registration. –
I. No obligor shall offer, administer, sell, solicit, negotiate, or act under a consumer guaranty contract in this state unless the obligor registers with the commissioner on a form prescribed by the commissioner and pays the registration fee required by RSA 400-A:29, VIII-a(a).
II. An obligor's registration shall include the following:
(a) A certified copy of the obligor's charter and bylaws.
(b) A certificate giving a full statement, under oath of the obligor's president and secretary, that the fiscal requirements stated in this chapter are met.
(c) Other information in relation to the obligor's condition as may be required by the commissioner.
III. Every obligor registration made pursuant to this chapter shall expire on the next June 14 following such registration unless renewed prior to that date. Renewal shall be made by paying an annual renewal fee pursuant to RSA 400-A:29, VIII-a(b) and supplementing the original form for any material change to the registration.
IV. Admitted insurers and unadmitted surplus lines insurers that are approved under RSA 405:24 that register as obligors are exempt from paragraph II of this section and RSA 415-C:4.
Source. 2004, 224:1, eff. Jan. 1, 2005. 2023, 154:3, eff. Sept. 26, 2023.
Section 415-C:4
415-C:4 Fiscal Requirements. –
An obligor shall provide proof of financial responsibility to the insurance department by:
I. Posting a bond in the amount of at least $25,000 or 5 percent of all consumer guarantee contracts sold in New Hampshire, whichever is greater, up to a maximum of $250,000 and maintaining a reserve account in an amount no less than 40 percent of the gross consideration received for all contract fees from consumer guaranty contracts issued to New Hampshire residents less claims paid;
II. Insuring all consumer guaranty contracts under a reimbursement insurance policy issued by an insurer authorized to issue such insurance in this state; or
III. Demonstrating that the obligor, as either a stand alone company or together with the obligor's parent, maintains a net worth or stockholders' equity of $25,000,000 or more as evidenced by the obligor's annual audited financial statement or form 10K or 20F filed with the United States Securities and Exchange Commission. Proof of the above shall be deemed acceptable if not rejected in writing by the insurance commissioner within 60 days of submission.
Source. 2004, 224:1, eff. Jan. 1, 2005.
Section 415-C:5
415-C:5 Recordkeeping Requirements. –
I. Books and records:
(a) An obligor shall keep accurate accounts, books, and records concerning transactions regulated under this chapter.
(b) An obligor's accounts, books, and records shall include:
(1) Copies of each type of consumer guaranty contract issued.
(2) The name and address of each contract holder to the extent that the contract holder has furnished the name and address.
(3) A list of the locations where consumer guaranty contracts are marketed, sold, offered for sale, issued, made, or proposed to be made.
(4) Claims files that shall contain at least the date and description of all claims or requests for services or expenditures related to the consumer guaranty contracts.
(c) Except as provided in paragraph II, an obligor shall retain all records required under subparagraph (b) pertaining to each consumer guaranty contract holder for at least 3 years after the specified period of coverage has expired.
(d) An obligor may keep all records required under this chapter on a computer disk or other similar technology. If the records are maintained in other than hard copy, the records shall be capable of duplication to legible hard copy at the request of the commissioner.
II. An obligor discontinuing business in this state shall maintain its records until it furnishes the commissioner satisfactory proof that it has discharged all obligations to contract holders in this state.
III. An obligor shall make all accounts, books, and records concerning transactions regulated under this chapter or other pertinent laws available to the commissioner upon request.
Source. 2004, 224:1, eff. Jan. 1, 2005.
Section 415-C:6
415-C:6 Contract Disclosures. –
I. Consumer guaranty contracts shall not be issued, sold, or offered for sale in this state unless the obligor or a sales representative with express authority from the obligor has:
(a) Provided a receipt for, or other written evidence of, the purchase of the consumer guaranty contract to the contract holder; and
(b) Provided a copy of the consumer guaranty contract, including its terms and conditions, to the contract holder within a reasonable period of time from the date of purchase.
II. Consumer guaranty contracts marketed, sold, or offered for sale, issued, made, or proposed to be made in this state shall be dated and written in clear, understandable language and the entire contract shall be printed or typed in easy to read type.
III. Consumer guaranty contracts shall state:
(a) The total purchase price of the consumer guaranty contract. The purchase price is not required to be preprinted on the service contract and may be negotiated at the time of sale with the service contract holder.
(b) The specific products and services to be provided and any limitations, exceptions, or exclusions.
(c) The existence of any deductible amount, if applicable.
(d) Any terms, restrictions, or conditions governing the transferability, cancellation, and termination of the consumer guaranty contract by either the obligor or contract holder.
(e) All of the obligations and duties of the contract holder, such as the duty to meet certain conditions, protect against any further damage, and the requirement for certain service and maintenance.
(f) The procedure for obtaining prior approval, if prior approval is required.
(g) The procedure that the contract holder must take to make claims and receive service under the terms and conditions of the consumer guaranty contract, including a toll-free telephone number for service.
(h) The procedure that a contract holder may take to discuss with the obligor questions or complaints. This procedure shall include a statement substantially similar to the following: "In the event you do not receive satisfaction under this contract, you may contact the New Hampshire insurance department." The statement shall include the current address and phone number of the department.
IV. If any preexisting condition is excluded from coverage, the consumer guaranty contract must state the basis upon which the service or promised performance may be denied for such preexisting condition.
Source. 2004, 224:1, eff. Jan. 1, 2005.
Section 415-C:7
415-C:7 Prohibited Acts and Terms. –
I. No obligor, its designee, or any other representative of an obligor, including a seller or administrator, shall in connection with the sale, or offer to sell, or any advertisement or in connection with any benefits, advantages, conditions, terms, or services available under a consumer guaranty contract:
(a) Make, publish, print, distribute, issue, circulate, advertise, or place before the public, any statement or representation that is false or misleading;
(b) Mislead by permitting or causing the omission of a material statement that under the circumstances should have been made in order to make the statements that were made not misleading.
(c) Require the purchase of a consumer guaranty contract or represent that the purchase is mandatory.
(d) Create or maintain a fraud.
(e) Use in its name the words insurance, casualty, guaranty, surety, mutual, or any other words descriptive of the insurance, casualty, guaranty or surety business; or a name deceptively similar to the name or description of any insurance or surety corporation, or any other obligor. This section shall not apply to a company that was using any of the prohibited language in its name prior to the effective date of this chapter. However, a company using the prohibited language in its name shall conspicuously disclose in its consumer guaranty contracts a statement substantially as follows: "This agreement is not an insurance contract."
(f) Fail to act promptly upon communications with respect to claims arising under a consumer guaranty contract.
(g) Fail to effectuate fair and equitable settlements or compromises of claims in which liability has become reasonably clear.
(h) Unfairly discriminate based solely on age, place or area of residence, race, color, creed, national origin, ancestry, marital or civil union status, lawful occupation including military service, sex, gender identity, sexual orientation, religion, or blindness or other disability.
(i) Fail to refund unearned contract fees with respect to any cancellation of a consumer guaranty contract with a duration of 12 months or more. Contract fees for contracts with a duration of 12 months or more are earned pro-rata over the length of the contract. Obligors shall not charge a cancellation administrative fee of more than 10 percent of the contract price or $75, whichever is less, for a contract of any duration. All cancellation administrative fees must be disclosed in the contract, regardless of the contract's duration.
II. An obligor shall not make, permit, or cause any practice that:
(a) Fails to perform the services promised under the contract in a timely, competent, or workmanlike manner; or
(b) Has the effect of creating or maintaining a fraud.
III. No consumer guaranty contract issued, sold, or covering property located in this state shall provide that:
(a) The consumer is not a party to the contract;
(b) The obligor has no liability to the consumer;
(c) The consumer does not have the right to bring an action to enforce the terms of the contract or otherwise challenge the denial of a claim which the consumer believes is wrongful. Consumer guaranty contracts may include provisions requiring the parties to submit to alternative dispute resolution, including a provision requiring binding arbitration that would expressly limit the right of the consumer to bring an action in a court of law, if such provision complies with and does not impede the rights of the consumer as provided under RSA 542. All arbitration provisions shall state that they are subject to RSA 542; or
(d) Any civil action or alternative dispute resolution procedure brought in connection with the consumer guaranty contract shall be brought in the courts of a jurisdiction other than New Hampshire.
IV. Nothing in this chapter shall be construed to impair or in any way affect any rule or law applicable to or governing consumer guaranty contracts.
Source. 2004, 224:1. 2008, 255:3. 2015, 207:3, eff. Sept. 4, 2015. 2019, 332:17, eff. Oct. 15, 2019. 2022, 142:2, eff. Aug. 6, 2022.
Section 415-C:8
415-C:8 Reimbursement Insurance Policies. –
I. Consumer guaranty contracts insured under a reimbursement insurance policy shall state:
(a) The name, address, and toll-free number of the reimbursement insurer; and
(b) The obligation of the reimbursement insurer to reimburse or, in the event of the obligor's non-performance, to pay on behalf of the obligor any sums the obligor is legally obligated to pay or shall provide the service which the obligor is legally obligated to undertake according to the obligor's contractual obligations under the consumer guaranty contracts issued or sold by the obligor. In the event the obligor does not provide for covered services within 60 days after the contract holder has submitted proof of loss to the obligor, the contract holder is entitled to apply directly to the reimbursement insurance company for satisfaction.
II. This chapter shall not prevent or limit the right of an insurer which issued a reimbursement insurance policy to seek indemnification or subrogation against an obligor if the issuer pays or is obligated to pay the contract holder sums that the obligor was obligated to pay pursuant to the provisions of the consumer guaranty contract or under a contractual agreement.
III. As applicable, an insurer that issued a reimbursement insurance policy shall not terminate the policy until a notice of termination in accordance with RSA 417-C has been mailed or delivered to the obligor. The termination of a reimbursement insurance policy shall not reduce the obligor's responsibility for consumer guaranty contracts issued by the obligor prior to the date of the termination.
Source. 2004, 224:1. 2015, 207:4, eff. Sept. 4, 2015.
Section 415-C:9
415-C:9 Examination. –
For the purpose of determining an obligor's financial stability and protecting consumer interests in the case of complaint, the commissioner shall have the power to examine under RSA 400-A:37 and to investigate the affairs of every obligor engaged in the business of consumer guaranty contracts in this state to determine compliance or noncompliance with this chapter. The expenses of examinations shall be paid to the state by the company or companies examined.
Source. 2004, 224:1, eff. Jan. 1, 2005.
Section 415-C:10
415-C:10 Penalties. –
The commissioner, after proper notice and opportunity for hearing, may take action to enforce the provisions of this chapter, or rules adopted pursuant to this chapter, and may:
I. Revoke or suspend the obligor's registration.
II. Order the obligor to cease and desist from further consumer guaranty contract operations.
III. Impose a penalty of not more than $1000 for each violation or $10,000 for each violation the commissioner finds to be willful.
IV. Order the obligor to make restitution.
Source. 2004, 224:1, eff. Jan. 1, 2005.
Section 415-C:10-a
415-C:10-a Action Against an Obligor, Designee or Representative of an Obligor. –
I. When an obligor, its designee, or any other representative of an obligor, including a seller or administrator, in any action or proceeding brought by the insurance commissioner has been found to be in violation of this chapter or has been ordered to cease and desist, and said finding or order has become final, any consumer claiming to be adversely affected by the act or practice giving rise to such finding or order, and to whom restitution has not been provided under RSA 415-C:10, IV or to whom the obligor, its designee or representative has not made voluntary restitution acceptable to the consumer within 30 days of the finding or order, may bring suit against said obligor to recover such damages or loss that have been suffered by him or her because of such action or practice.
II. For the sole purposes of providing the consumer with the procedural rights set forth under RSA 541 and RSA 541-A, failure of the commissioner to take action under RSA 415-C:10 within 120 days from the date of the receipt of a complaint from an alleged injured person shall constitute a finding that the alleged act or practice is not in violation of this chapter. This finding may be appealed in accordance with RSA 541. If upon appeal the decision of the commissioner is not upheld, the consumer may proceed under RSA 415-C:10-a, I. This provision shall not bar the commissioner from bringing an enforcement action for violation of this chapter more than 120 days after receipt of a complaint.
Source. 2008, 255:6, eff. Aug. 25, 2008.
Section 415-C:11
415-C:11 Rulemaking. –
The commissioner may adopt rules under RSA 541-A that are reasonable and necessary for the implementation and administration of this chapter, including rules relative to enforcement procedures and procedures governing registration requirements, verification of fiscal responsibility, and examinations by the department.
Source. 2004, 224:1, eff. Jan. 1, 2005.
Section 415-C:12
415-C:12 Severability. –
If any provision of this chapter, or the application of the provision to any person or circumstances, shall be held invalid, the remainder of the chapter, and the application of the provision to persons or circumstances other than those as to which it is held invalid, shall not be affected.
Source. 2004, 224:1, eff. Jan. 1, 2005.