UNFAIR INSURANCE TRADE PRACTICES
417:1 Purpose of Chapter.
The purpose of this chapter is to regulate trade practices in the business of insurance, in accordance with the intent of Congress as expressed in the Act of Congress of March 9, 1945 (Public Law 15, 79th Congress), by defining or providing for the determination of all such practices which constitute in this state unfair methods of competition or unfair or deceptive acts or practices and by prohibiting the trade practices so defined or determined.
Source. 1947, 189:1, par. 1, eff. June 12, 1947.
I. The term "person" shall mean any individual, corporation, association, partnership, reciprocal exchange, inter-insurer, Lloyd's insurers, fraternal benefit society and any other legal entity, engaged in the business of insurance, including agents, brokers, and adjusters.
II. "Commissioner" shall mean the commissioner of insurance of this state.
III. "Creditor or lender" shall include their successors or assigns.
Source. 1947, 189:1. RSA 417:2. 1986, 157:1, eff. May 28, 1986.
417:3 Unfair Methods Prohibited.
No person shall engage in this state in any trade practice which is defined in this chapter or determined pursuant to this chapter as an unfair method of competition or an unfair or deceptive act or practice in the business of insurance.
Source. 1947, 189:1, par. 3, eff. June 12, 1947.
417:4 Unfair Methods, Acts, and Practices Defined.
The following are hereby defined as unfair methods of competition and unfair and deceptive acts and practices in the business of insurance:
I. Misrepresentations. Misrepresenting, directly or indirectly, in the offer or sale of any insurance or in connection with any inducement or attempted inducement of any insured or person with ownership rights under an issued insurance policy to lapse, forfeit, surrender, assign, effect a loan against, retain, exchange, or convert the policy, by:
(a) Making, issuing, circulating, or causing to be made, issued or circulated any estimate, illustration, circular, or statement misrepresenting the terms of any policy issued or to be issued or the benefits or advantages therein or the dividends or share of surplus to be received thereon;
(b) Making any incomplete comparison of insurance policies;
(c) Making any false or misleading representation as to the dividends or share of surplus previously paid on similar policies;
(d) Making any false or misleading representation as to the financial condition of any insurer, or as to the legal reserve system upon which any life insurer operates;
(e) Using any name or title of any policy or class of policies misrepresenting the true nature thereof;
(f) Employing any device, scheme, or artifice to defraud;
(g) Obtaining money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statement made, in light of the circumstances under which it was made, not misleading; the burden of establishing truthfulness or completeness shall be upon the party stating or omitting to state a material fact; or
(h) Engaging in any other transaction, practice, or course of business which operates as a fraud or deceit upon the purchaser, insured, or person with policy ownership rights.
II. Misrepresentation in Insurance Applications or Transactions. Making false or fraudulent statements or representations on or relative to an application for insurance, for the purpose of obtaining a fee, commission, money or benefit from an insurer, agent, or individual.
III. False Information and Advertising Generally.
(a) Making, publishing, disseminating, circulating, or placing before the public, or causing, directly or indirectly, to be made, published, disseminated, circulated, or placed before the public, in a newspaper, magazine, or other publication, or in the form of a notice, circular, pamphlet, letter, or poster, or over any radio or television station, or in any other way, an advertisement, announcement, or statement containing any assertion, representation, or statement with respect to any insurer, its financial condition, or the terms of any contracts issued or to be issued or the benefits or advantages promised thereby, or the dividends or share of the surplus to be received thereon or with respect to any person in the conduct of such person's insurance business, which is untrue, incomplete, deceptive, or misleading.
(b) The burden of establishing truth and completeness shall be on the person making, publishing, circulating or placing said advertisement, announcement, or statement before the public.
IV. Defamation. Making, publishing, disseminating, or circulating, directly or indirectly, or aiding, abetting, or encouraging the making, publishing, disseminating, or circulating of any oral or written statement or any pamphlet, circular, article or literature which is false or maliciously critical of or derogatory to the financial condition of an insurer, and which is calculated to injure any person engaged in the business of insurance.
V. Boycott; Coercion and Intimidation.
(a) Entering into any agreement to commit or by any concerted action committing any act of boycott or individually or by any concerted action entering into any agreement to commit or committing any act of coercion or intimidation resulting or tending to result in unreasonable restraint of, or a monopoly in, the business of insurance.
(b) Except as contained in the policy no insurer, corporation, partnership, or individual shall make any contract or agreement with any person insured or to be insured except as initiated by or agreed to by the person insured or to be insured that the whole or any part of the insurance which is subject to the provisions of this title, shall be placed by any particular corporation, partnership, or individual or be written by or in any particular company or insurer, or by or in any group of companies or insurers or by any agent or group of agents. Any contracts made in contravention of this section shall be null and void.
VI. False Financial Statements. Knowingly filing with any supervisory or other public official or knowingly making, publishing, disseminating, circulating, or delivering to any person; or knowingly placing before the public, or causing directly or indirectly, to be made, published, disseminated, circulated, delivered to any person, or placed before the public, any false statement of financial condition of an insurer; or knowingly making any false entry in any book, report, or statement of any insurer or knowingly misleading any public official to whom such insurer is required by law to report, or who has authority by law to examine into its condition or into any of its affairs or knowingly omitting to make a true entry of any material fact pertaining to the business of such insurer in any book, report or statement of such insurer.
VII. Stock Operations and Advisory Board Contracts. Issuing or delivering, or permitting agents, officers, or employees to issue or deliver, agency company stock or other capital stock, or benefit certificates or shares in any common-law corporation, or securities or any special or advisory board contracts or other contracts of any kind promising returns and profits as an inducement to insurance.
VIII. Unfair Discrimination.
(a) Making or permitting any unfair discrimination between individuals of the same class and equal expectation of life in the rates charged for any contract of life insurance or of life annuity or in the dividends or other benefits payable thereon, or in any other of the terms and conditions of such contract.
(b) Making or permitting any unfair discrimination between individuals of the same class and of essentially the same hazard in the amount of premium, policy fees, or rates charged for any policy or contract of health insurance or in the benefits payable thereunder, or in any of the terms or conditions of such contract, or in any other manner whatsoever. Discrimination on the basis of gender identity with respect to the availability of any covered services, medications, supplies, or durable medical equipment is specifically prohibited.
(c) Making any unreasonable distinction or discrimination between persons as to the policy, premiums, or rates charged for policies upon the lives or health of such persons, or in any other manner whatever; demanding or requiring by an insurer a greater premium from any person than is at that time required by such insurer from persons of the same age, sex, general condition of health and prospect of longevity; making, or requiring any rebate, diminution, or discount upon the amount to be paid on such policy in case of death of such person insured; inserting in the policy any condition, making any stipulation whereby such person insured shall bind oneself or one's heirs, executors, administrators and assigns to accept any sum less than the full amount of value of such policy in case of a claim accruing thereon by reason of the death or disability of such person insured, other than such as are imposed on persons in similar cases. Any such stipulations or conditions so made or inserted shall be void.
(d) Making or permitting any unfair distinction or discrimination in any contract of insurance or annuity contract.
(e) Refusing to insure risks solely because of age (except in the case of life, accident or health insurance), place or area or residence, race, color, creed, national origin, ancestry, marital status, lawful occupation including the military service (except in the case of life, accident or health insurance), of anyone who is or seeks to become insured or solely because another insurer has refused to write a policy, or has cancelled or has refused to renew an existing policy in which that person was the name insured or, except in the instance of excess coverages, solely because the insured does not insure collateral primary, personal types of insurance with the insurer. The exemption in this subparagraph shall not permit a mortgage life insurance policy or certificate to cease, cancel or terminate solely on the basis of the mortgagor's age, until the mortgagor has reached the age of 80.
(f) Refusing to insure or to continue to insure, or limiting the amount, extent or kind of coverage available solely because the applicant who is also the proposed insured has been or may become the victim of domestic abuse or violence. Nothing in this subparagraph shall prohibit an insurer from underwriting a risk on the basis of the physical or medical history or condition of the proposed insured, or other relevant factors relating to the proposed insured, at the time of application regardless of the underlying cause of the condition and in accordance with subparagraph (a) of this paragraph. No insurer shall be held criminally or civilly liable for any cause of action which may result from compliance with this subparagraph.
(g) Charging a higher premium for private passenger automobile or homeowner insurance solely on the basis of information obtained from a credit rating, a credit history, or a credit scoring model.
(h) For life coverage, annuity contracts, or disability coverage, refusing to insure or to continue to insure, or limiting the amount, extent, or kind of coverage based on the applicant who is also the proposed insured having filled a prescription for an opioid antagonist, when that prescription is not relevant to the applicant's health, but rather is designed to promote the health of someone else. For any such prescription, the carrier shall inquire with the applicant as to the reason for the prescription and may request documentation that verifies the applicant's response prior to issuing an underwriting decision.
(a) Except as otherwise expressly provided by law, knowingly permitting or offering to make or making any contract of insurance or agreement as to such contract other than as plainly expressed in the contract issued thereon, or paying or allowing, or giving or offering to pay, allow, or give, directly or indirectly, as inducement to such insurance, or annuity, any rebate of premiums payable on the contract, or any special favor or advantage in the dividends or other benefits thereon, or any valuable consideration or inducement whatever not specified in the contract; or giving, or selling, or purchasing or offering to give, sell, or purchase as inducement to such insurance or annuity or in connection therewith any stocks, bonds, or other securities of any insurance company or other corporation, association, or partnership, or any dividends or profits accrued thereon, or anything of value whatsoever not specified in the contract.
(b) Nothing in paragraphs VIII or IX(a) shall be construed as including within the definition of discrimination or rebates any of the following practices:
(1) Paying bonuses to policyholders or otherwise abating their premiums in whole or in part out of surplus accumulated from nonparticipating insurance, provided that any such bonuses or abatement of premiums shall be fair and equitable to policyholders and for the best interests of the company and its policyholders;
(2) In the case of life insurance policies issued on the industrial debit plan making allowance to policyholders who have continuously for a specified period made premium payments directly to an office of the insurer in an amount which fairly represents the saving in collection expenses;
(3) Readjustment of the rate of premium for a group insurance policy based on the loss or expense experience thereunder, at the end of the first or any subsequent policy year of insurance thereunder, which may be made retroactive only for such policy year;
(4) Issuing insurance policies covering bona fide employees of the insurer at a rate less than the rate charged other persons in the same class;
(5) Issuing policies on a salary saving, payroll deduction, preauthorized, postdated, automatic check or draft plans at a reduced rate commensurate with the savings made by the use of such plan;
(6) Paying commissions or other compensation to duly licensed agents or brokers, or allowing or returning to participating policyholders, members or subscribers, dividends, savings, or unabsorbed premium deposits;
(7) Paying by an insurance agent of part or all of commissions on public insurance to a nonprofit association of insurance agents, which is affiliated with a recognized state or national insurance agents' association, to be used in whole or in part for one or more civic enterprises;
(8) Reduction of premium rate for policies of large amounts, but not exceeding savings in issuance and administration expenses reasonably attributable to such policies as compared with policies of similar plan issued in smaller amounts;
(9) An insurance company paying to another insurance company or to any person who is a duly authorized producer, or an insurance company or such a person from receiving a commission in respect to any policy under which the entity or he or she is insured;
(10) An insurance company issuing non-participating life insurance paying bonuses to policyholders or otherwise abating their premiums in whole or in part out of surplus accumulated from non-participating insurance;
(11) Value added service, activity, or product offered or provided without a fee, or at a reduced fee, if the provision of such value added service, activity, or product does not violate any other applicable statute or rule, and is:
(A) Available to all insureds on an objective and fair basis; and
(B) Directly related to the firm's servicing of the insurance policy, annuity contract, or brokerage agreement, or offered or undertaken to provide risk control for the benefit of the client;
(12) For the purposes of subparagraph (11), "value added service, activity, or product" may include the following:
(A) Risk assessments or mitigation.
(B) Risk control tools.
(C) Claims assistance.
(D) Legislative updates.
(E) Administration consulting;
(13) The giving of a promotional item or items to a consumer in connection with marketing of contracts of insurance provided the item or items have a fair market value of $100 or less per consumer, per year;
(14) Contests, sweepstakes, raffles, or drawings, conducted in connection with the marketing or promotion of insurance products, if:
(A) There is no participation cost to entrants; and
(B) The contest, sweepstake, raffle, or drawing is open to consumers who are not policyholders and the consumer is not required to purchase a policy in order to be eligible to enter the contest, sweepstake, raffle, or drawing or receive a prize;
(15) The rebate of all or part of a producer's commission on the sale of commercial insurance as defined in RSA 412 provided the insurer expressly provides for such rebate in rate filings approved by the commissioner and the reduction of the commission is not disclosed to the insured either directly or indirectly;
(16) The payment or assignment of all or part of a producer's commission on the sale of insurance to an employee of the producer.
(c) Knowingly receiving or accepting, directly or indirectly, any rebate of premium or part thereof, or agents, or brokers commission thereon payable on any policy of insurance or annuity contract or any favor or advantage, a share in the dividend, or other benefit to accrue thereon, or receiving anything of value as an inducement to such insurance or contract or in connection therewith which is not specified, promised, or provided for in the policy or contract, except as provided in paragraph IX(b).
(d) Nothing in this chapter shall be construed as including within the definition of securities as inducement to purchase insurance, the selling or offering for sale, contemporaneously with life insurance or annuities, of mutual fund shares or face amount certificates of regulated investment companies under offerings registered with the securities and exchange commission and the state of New Hampshire pursuant to RSA 421-B where such shares or such face amount certificates or such insurance or annuities may be purchased independently of and not contingent upon purchase of the other, at the same price and upon the same terms and conditions as were purchased independently.
X. Title Insurance Commissions, Rebates and Discounts. Paying, allowing, or permitting commissions, rebates, or discounts to any person having an interest in or lien upon real property, which is the subject of the title insurance involved, or to any person acting for or on behalf of a person with such an interest or lien.
XII. Collecting Proper Premium. Knowingly collecting as premium or charge for insurance any sum in excess of or less than the premium or charge applicable to such insurance and as specified in the policy, in accordance with the applicable classifications and rates as filed with and approved by the commissioner, except a premium finance charge, consultant's fee, policy fee, and/or service fee as allowed by law or regulation; or, in cases where classifications, premiums, or rates are not required by this title to be so filed and approved, such premiums and charges shall not be in excess of or less than those specified in the policy and as fixed by the insurer. This provision shall not be deemed to prohibit the charging and collecting, by surplus line brokers of the amount of applicable state and federal taxes in addition to the premium required by the insurer. Nor shall it be deemed to prohibit the charging and collecting, by an insurer, of amounts actually to be expended for medical examination of an applicant for insurance or for reinstatement of an insurance policy. Nor shall it be deemed to prohibit the charging or collecting by an insurance agent or broker of a reasonable service charge or fee as may be determined by regulation.
XIII. Separate Charge for Insurance. Arranging or participating in any plan to offer or effect in this state as an inducement to the purchase or rental by the public of any property or services, any insurance for which there is no separate charge to the insured. This section does not apply to:
(a) Insurance offered as a guarantee of the performance of goods, and designed to protect the purchasers or users of such goods;
(b) Title insurance;
(c) Towing and labor services of motorist service clubs.
XIV. Coverage Reduction. Reduction by an insurance company authorized to do business in this state of liability limits or increasing premiums on any policy during its term, without the consent of the insured.
XV. Unfair Claim Settlement Practices by Insurers.
(a) Any of the following acts by an insurer, if committed without just cause and not merely inadvertently or accidentally, shall constitute unfair claim settlement practices:
(1) Knowingly misrepresenting to claimants or insureds pertinent facts or policy provisions relating to coverages at issue;
(2) Failing to acknowledge and act promptly upon communications with respect to claims arising under insurance policies;
(3) Failing to adopt and implement standards for the prompt and reasonable investigation of claims arising under insurance policies;
(4) Not attempting in good faith to effectuate prompt, fair and equitable settlements or compromises of claims in which liability has become reasonably clear;
(5) Compelling claimants to institute litigation to recover amounts due under insurance policies by offering substantially less than the amounts ultimately recovered in actions brought by them;
(6) Adopting or making known to insureds or claimants a policy of appealing from arbitration awards in favor of insureds or claimants for the purpose of compelling them to accept settlements or compromises less than the amount awarded in arbitration;
(7) Attempting settlement or compromise of a claim on the basis of an application which was altered without notice to, or knowledge or consent of the insured;
(8) Attempting to settle or compromise a claim for less than the amount which the insured had been led to believe the insured was entitled to by written or printed advertising material accompanying or made part of an application;
(9) Attempting to delay the investigation or payment of claims by requiring an insured and the insured's physician to submit a preliminary claim report and then requiring the subsequent submission of formal proof of loss forms, both of which submissions contain substantially the same information;
(10) Making any claim payment not accompanied by a statement setting forth the benefits included within the claim payment;
(11) Failing to affirm or deny coverage of claims within a reasonable time after proof of loss forms have been submitted;
(12) Refusing payment of a claim solely on the basis of an insured's request to do so without making an independent evaluation of the insured's liability based upon all available information;
(13) Failure of an insurer to maintain a complete record of all complaints which it has received, whether or not they were deemed valid, the time it took to process the complaint, and the disposition thereof; or
(14) Knowingly underestimating the value of any claim by an insurer or by an adjuster representing the insurer.
(b) Evidence as to numbers and types of complaints to the insurance department against an insurer, and said department's complaint experience with other insurers writing similar lines of insurance, shall be admissible in evidence in an administrative or judicial proceeding brought under this title, provided that no insurer shall be deemed in violation of this section solely by reason of the numbers and types of such complaints.
XVI. Coercion in Requiring Insurance.
(a) No creditor or lender engaged in the business of financing the purchase of real or personal property or of lending money on the security of real or personal property may require, as a condition to such financing or lending, or as a condition to the renewal or extension of any such loan or to the performance of any other act in connection with such financing or lending, that the purchaser or borrower, or the purchaser's or borrower's successors shall negotiate through a particular insurance company or companies, insurance agent or agents, broker or brokers, type of company or types of companies, any policy of insurance or renewal of a policy insuring such property. This provision does not prevent the exercise by any mortgagee of the right to approve on a reasonable nondiscriminatory basis only insurance companies authorized to do business in this state, selected by the borrower.
(b) There shall be no interference either directly or indirectly with such borrower's, debtor's or purchaser's free choice of an agent and of an insurer which complies with the foregoing requirements, and the creditor or lender may not refuse the policy so tendered by the borrower, debtor or purchaser. Upon notice of any refusal of such tendered policy, the insurance commissioner shall order the creditor or lender to accept the tendered policy, if the commissioner determines that the refusal is not in accordance with the foregoing requirements of this subparagraph. Failure to comply with such an order of the insurance commissioner is a violation of this section.
(c) Whenever the instrument requires that the purchaser, mortgagor, or borrower furnish insurance of any kind on real or personal property which is being conveyed or which is collateral security to a loan, the mortgagee or lender shall refrain from disclosing or using any and all such insurance information to its own advantage and to the detriment of either the borrower, purchaser, mortgagor, insurer, or company or agency complying with the requirements relating to insurance.
(d) Notwithstanding any other law to the contrary, a creditor or lender of a loan secured by an interest in real property shall not require the borrower to keep the mortgaged property insured under a property insurance policy in a sum in excess of the value of the buildings on the real property.
(e) Notwithstanding any other law to the contrary, no creditor or lender shall require as a condition to closing a loan that the borrower provide an original insurance policy at said closing; provided, however, that the creditor or lender may require the borrower to produce at closing a binder showing the borrower as a named insured and creditor or lender as mortgagee, and confirming that insurance has been issued, is in force, and will remain in full force until a copy of the final policy is delivered to the creditor or lender or until the creditor or lender has received notice of cancellation in accordance with the policy conditions.
(f) No insurer may automatically write insurance on a debtor who has contracted credit based on the principle that the insurance is applicable unless specifically rejected by the debtor, unless the premium or such other identifiable charge as may be applicable is paid in full by the creditor.
XVII. Complaint Handling Procedures Applicable to Insurance Companies.
(a) Failing to maintain a procedural means within the company, headed by a responsible officer, to process and respond adequately to policyholders' and certificate holders' complaints.
(b) Failing to record and assemble all records of policyholders' and certificate holders' complaints in a central location to facilitate periodic review by insurance departments.
(c) Failing to record, maintain and produce, when requested by appropriate authority, a summary of all complaints received, whether or not they were deemed valid, the time it took to process the complaints, and the disposition thereof.
(d) Failing to provide within this state reasonable means whereby any person aggrieved by the application of an insurer's rating system, claims practices, sales practices or underwriting procedures may be heard, in person or by an authorized representative, upon the person's written request to review the manner in which such procedures were applied in connection with insurance afforded or tendered to the person.
XVIII. Conflict of Interest. Failing to establish a reasonable procedure whereby insurance company officers, directors, trustees or responsible employees can disclose to the company board of directors or trustees any material interest or affiliation likely to conflict with their official duties.
XIX. Human Immunodeficiency Virus. No person engaged in the business of insurance in this state shall test for the presence of an antibody or antigen to a human immunodeficiency virus other than in accordance with the provisions of this paragraph. Such persons shall not be subject to any provision of RSA 141-F.
(a) No person may test any individual in connection with an application for insurance for the presence of an antibody or antigen to a human immunodeficiency virus unless such individual gives written consent on a form designed by the commissioner of the department of health and human services with consultation and approval by the commissioner of insurance. The form shall contain information about the medical interpretations of positive and negative test findings, disclosure of test results, and the purpose for which the test results may be used.
(b) If the laboratory analysis is performed within this state, only laboratories certified by the department of health and human services shall be used to test for the presence of an antibody or antigen to a human immunodeficiency virus. If the laboratory analysis is conducted without this state, only laboratories licensed by the United States Department of Health and Human Services under the Clinical Laboratory Improvement Amendments of 1988, as amended, shall be used to perform such tests.
(c) In the event of a positive test result on a blood, urine, or oral specimen, or a positive test result on an FDA approved test, a person who tests for the presence of an antibody or antigen to a human immunodeficiency virus shall disclose the test results, but only to:
(1) The individual tested;
(2) Such other person or entity as the individual tested may authorize by written consent to receive the test results, which consent shall be clearly identifiable as part of the form described in subparagraph (a) of this paragraph.
(d) Notwithstanding the provisions of subparagraph (c), if the test results are positive or indeterminate and the individual tested has not given written consent authorizing a physician to receive the test results, such individual shall be urged, at the time the individual is informed of the positive or indeterminate test results, to contact the commissioner of the department of health and human services for appropriate counseling.
(e) A person who requires the test for the presence of an antibody or antigen to a human immunodeficiency virus shall maintain all test results and records pertaining to test results as confidential and protected against inadvertent or unwarranted intrusion. Such test results obtained by subpoena or any other method of discovery shall not be released or made public outside the proceedings.
(f) The commissioner of insurance shall adopt rules, under RSA 541-A, relative to:
(1) Recordkeeping designed to maintain the confidentiality of an individual tested under this paragraph.
(2) Who may have access to such records and the conditions of such access.
XX. Coercion in Requiring Certain Automobile or Glass Repair.
(a) No insurance company, and no agent or adjuster for such insurance company, that issues or renews in this state any policy of insurance covering, in whole or in part, motor vehicles shall require any insured person or entity under that policy to use a particular company or location for the providing of automobile glass replacement or automobile repair services or products insured in whole or in part by that policy.
(b) No such insurance company, agent or adjuster shall engage in any act or practice of intimidation, coercion, threat, for or against any such insured person or entity to use such a particular company or location to provide such services or products.
(c) Nothing shall prohibit any insurance company, agent or adjuster from providing to such insured person or entity the name of an automobile glass company or automobile repair company with which arrangements may have been made with respect to automobile glass or repair prices or services. If a name is provided, there must be disclosure by the insurance company, agent or adjuster to the insured person or entity that any other automobile glass company or automobile repair company or location may be used at the discretion of the insured person or entity. However, the insurer may limit payment for such work based on the fair and reasonable price in the area by repair shops or facilities providing similar services with the usual and customary guarantees as to materials and workmanship. If an independent repair shop or facility and an insurer are unable to agree on a price, then for the purposes of this section "fair and reasonable price" shall mean the price available from a recognized, competent and conveniently located, independent repair shop or facility which is willing and able to repair the damaged automobile within a reasonable time.
XXI. "Most Favored Nation" or "Equally Favored Nation" Provisions. Using or enforcing any "most favored nation" or "equally favored nation" provision in any contract for medical care provider services. For the purposes of this paragraph "most favored nation" or "equally favored nation" provisions mean a requirement that a provider give the insurer the benefit of any lower fee schedules or charges for services which the provider may subsequently agree to with other persons or entities.
XXIII. Medicare Products and Medicare Supplemental Health Insurance.
(a)(1) Selling, soliciting or negotiating the purchase of Medicare products (Part C and Part D) or Medicare supplemental (Medigap) health insurance in this state through the use of cold lead advertising.
(2) Using an appointment that was made to discuss Medicare products or to solicit the sale of Medicare products in order to solicit sales of life insurance or annuity products.
(3) Soliciting the sale of Medicare products door-to-door prior to receiving an invitation from a consumer.
(b) In this paragraph:
(1) "Cold lead advertising" means making use directly or indirectly of a method of marketing that fails to disclose in a conspicuous manner that a purpose of the marketing is insurance sales solicitation and that a contact will be made by an insurance producer or insurance company.
(2) "Medicare products" means Medicare Part C (Medicare Advantage) and Medicare Part D (prescription drugs).
(3) "Medicare supplemental health insurance" means a group or individual policy of accident and sickness insurance or a subscriber contract of hospital and medical service associations or health maintenance organizations, other than a policy issued pursuant to a contract under section 1876 of the federal Social Security Act 42 U.S.C. section 1395 et seq. or an issued policy under a demonstration project specified in 42 U.S.C. section 1395 ss (g)(1), which is advertised, marketed, or designed primarily as a supplement to reimbursements under Medicare for the hospital, medical, or surgical expenses of persons eligible for Medicare. "Medicare supplemental health insurance" does not include Medicare Advantage plans established under Medicare Part C, Outpatient Prescription Drug plans established under Medicare Part D, or any Health Care Prepayment Plan (HCPP) that provides benefits pursuant to an agreement under section 1833(a)(1)(A) of the Social Security Act.
Source. 1947, 189:1, par. 4. RSA 417:4. 1965, 122:1. 1971, 519:1; 561:7, 8. 1986, 157:2. 1988, 262:10. 1991, 26:1. 1993, 160:1. 1994, 320:1. 1995, 310:181, 182. 1996, 40:1; 238:1-8. 1997, 158:11; 174:1; 282:4. 2000, 206:1. 2003, 144:8. 2004, 245:5, 6. 2006, 196:11. 2007, 30:1. 2009, 96:1, II. 2010, 258:1, eff. Jan. 1, 2011. 2018, 132:4-6, eff. July 29, 2018. 2019, 127:1, eff. Aug. 24, 2019; 314:2, eff. July 1, 2019; 332:20, eff. Jan. 1, 2020. 2020, 37:51, eff. Sept. 27, 2020. 2021, 56:7, eff. July 24, 2021; 171:1, eff. Sept. 28, 2021.
417:5 Power of Commissioner.
The commissioner shall have power to examine and investigate into the affairs of every person engaged in the business of insurance in this state in order to determine whether such person has been or is engaged in any unfair method of competition or any unfair or deceptive act or practice.
Source. 1947, 189:1, par. 5, eff. June 12, 1947.
417:5-a Cumulative Authority.
The enumeration in this chapter of powers vested in the commissioner and of specific unfair methods of competition and unfair or deceptive acts and practices in the business of insurance is not exclusive or restrictive or intended to limit the powers of the commissioner or any court of review but the provisions of such chapter are in all respects cumulative of and supplemental to the insurance code and all other applicable New Hampshire statutes and common law.
Source. 1971, 519:2, eff. Sept. 5, 1971.
417:6 Notice of Hearing.
Whenever the commissioner shall have reason to believe that any such person has been engaged or is engaging in any unfair method of competition or any unfair or deceptive act or practice defined in RSA 417:4, and that a proceeding by the commissioner in respect thereto would be to the public interest, the commissioner shall issue and serve upon such person a statement of the charges and a notice of a hearing to be held at a time and place fixed in the notice, which shall not be less than 10 days after the date of the service of the notice. The notice of the hearing may be in the form of a notice to show cause, stating the proposed action to be taken unless such person shows cause at a hearing to be held as specified in the notice, why the proposed action should not be taken, and stating the basis of the proposed action.
Source. 1947, 189:1, par. 6. RSA 417:6. 1971, 519:3. 1996, 238:9, eff. Jan. 1, 1997.
417:7 Hearing; Witnesses; Production of Books.
At the time and place fixed for such hearing, such person shall have an opportunity to be heard. The commissioner upon such hearing may administer oaths, examine and cross-examine witnesses, receive oral and documentary evidence, and shall have the power to subpoena witnesses, compel their attendance, and require the production of books, papers, records, correspondence, or other documents which the commissioner deems relevant to the inquiry. The commissioner, upon such hearing may, and upon the request of any party shall, cause to be made a written or electronic record of all the evidence offered or introduced and all proceedings had at such hearing. Nothing contained in this chapter shall require the observance at such hearing of formal rules of pleading or evidence.
Source. 1947, 189:1, par. 7. RSA 417:7. 1971, 519:4. 1996, 238:10, eff. Jan. 1, 1997.
Upon good cause shown, the commissioner may permit any person to intervene, appear and be heard at such hearing.
Source. 1947, 189:1, par. 8, eff. June 12, 1947.
417:9 Service of Charges, Etc.
Statements of charges, notices, orders, and other processes of the commissioner under this chapter may be served by anyone duly authorized by the commissioner, either in the manner provided by law for service of process in civil actions, or by registering and mailing a copy thereof to the person affected by such statement, notice, order, or other process at such person's or its residence or principal office or place of business. The verified return by the person so serving such statement, notice, order, or other process, setting forth the manner of such service, shall be proof of the same, and the return postcard receipt for such statement, notice, order, or other process, registered and mailed as provided in this section, shall be proof of the service of the same.
Source. 1947, 189:1, par. 9. 1996, 238:11, eff. Jan. 1, 1997.
417:10 Orders and Penalty.
I. If after hearing or at the expiration of the period set forth in a show cause order issued pursuant to this chapter, any person is found to have violated RSA 417:3, the commissioner may suspend, revoke, or refuse to renew the license of that person. The commissioner, in the commissioner's discretion, in addition to or in lieu of such suspension, revocation, or refusal to renew, may impose upon that person an administrative penalty of not more than $2,500 for each method of competition, act, or practice found to be in violation of RSA 417:3. The commissioner shall collect the amount so imposed and may bring an action in the name of the state to enforce collection.
II. In lieu of the monetary penalties provided for under paragraph I, the commissioner, after hearing, may order relief for actual economic losses to restore, in whole or in part, any individual consumer, as opposed to a group or class of consumers, in interest to the position that the consumer formerly occupied either by the return of that which the consumer formerly had or by receipt of its equivalent in money. Unless the parties agree, an order of relief under this paragraph shall not exceed $2,500 for each method of competition, act, or practice found to be in violation of RSA 417:3 and where a pattern of conduct or practice has been established. Relief may be ordered under this paragraph only when the consumer in interest has agreed that such relief shall constitute a waiver of any action for the same cause that might otherwise be filed before an administrative agency or any court. Relief ordered under this paragraph shall not apply to disputes regarding claims or losses.
Source. 1947, 189:1, par. 10. RSA 417:10. 1971, 519:5. 1996, 238:12. 2004, 210:3, eff. Aug. 10, 2004.
Any party to the proceedings aggrieved by any order or decision of the insurance commissioner pursuant to RSA 417:10 shall be entitled to an appeal to the supreme court in accordance with the provisions of RSA 541, except that in the case of a fine imposed by any order or decision, the party aggrieved shall be entitled to an appeal to the superior court in the county in which the party resides, if a resident, or, if a nonresident, in the Merrimack county superior court and a trial de novo in said court.
Source. 1947, 189:1, par. 11. RSA 417:11. 1971, 519:6; 561:12. 1996, 238:13, eff. Jan. 1, 1997.
417:12 Procedure as to Undefined Unfair Acts and Practices.
I. Whenever the commissioner shall have reason to believe that any person engaged in the business of insurance is engaging in this state in any method of competition or in any act or practice in the conduct of such business which is not defined in RSA 417:4 nor which has been determined pursuant to this section to be an unfair method of competition, or an unfair or deceptive act or practice in the business of insurance and that such method of competition is unfair or that such act or practice is unfair or deceptive, and that a proceeding by the commissioner in respect thereto would be in the public interest, the commissioner shall issue and serve upon such person a statement of the charges and a notice of hearing to be held at a time and place fixed in the notice, which shall not be less than 10 days after the date of the service of the notice. The notice of the hearing may be in the form of a notice to show cause, stating the proposed action to be taken unless such person shows cause at a hearing to be held as specified in the notice, why the proposed action should not be taken, and stating the basis of the proposed action.
II. At the expiration of the period set forth in the show cause order issued pursuant to paragraph I, or if after such hearing, the commissioner shall determine that the method of competition or the act or practice in question is in violation of this chapter and if such method of competition, act, or practice has not been discontinued, the commissioner shall reduce the findings to writing and shall issue and cause to be served on the person charged with the violation an order requiring such person to cease and desist from engaging in such method of competition, act or practice.
III. Upon showing by any person that such person has an interest likely to be affected adversely, the commissioner shall permit such person to intervene, appear and be heard at such hearing by counsel or in person.
IV. An order of the commissioner to cease and desist shall become final:
(a) Upon the expiration of the period set forth in the show cause order; or
(b) Upon receipt of the order by the person involved.
V. Any party aggrieved by any order or decision of the insurance commissioner pursuant to this section shall be entitled to an appeal in accordance with the provisions of RSA 541.
Source. 1947, 189:1, par. 12. RSA 417:12. 1971, 519:7. 1996, 238:14, eff. Jan. 1, 1997.
If any person violates a cease and desist order issued by the commissioner pursuant to RSA 417:12, the commissioner may suspend, revoke, or refuse to renew the license of that person. The commissioner in the commissioner's discretion, in addition to or in lieu of such suspension, revocation, or refusal to renew, may impose upon that person an administrative penalty of not more than $2,500 for each method of competition, act, or practice found to be in violation of this chapter pursuant to RSA 417:12. The commissioner shall collect the amount so imposed and may bring an action in the name of the state to enforce collection.
Source. 1947, 189:1, par. 13. RSA 417:13. 1971, 519:8. 1996, 238:15, eff. Jan. 1, 1997.
417:14 Procedure Additional.
The powers vested in the commissioner by this chapter shall be in addition to any other powers to enforce any penalties, fines or forfeitures authorized by law with respect to the methods, acts and practices hereby declared to be unfair or deceptive.
Source. 1947, 189:1, par. 14, eff. June 12, 1947.
417:15 Failure to Obey Subpoena.
In case of refusal of any person to comply with any subpoena issued under this chapter or to testify to any matter to which such person may be lawfully interrogated, the superior court of Merrimack county or the county where said party resides on application of the commissioner may issue an order requiring such person to comply with such subpoena and to testify. Any failure to obey such order of the court may be punished by the court as contempt of court.
Source. 1947, 189:1, par. 15. 1996, 238:16, eff. Jan. 1, 1997.
417:16 Immunity From Prosecution.
If any person shall ask to be excused from attending and testifying or from producing any books, papers, records, correspondence, or other documents at any hearing on the ground that the testimony or evidence required of such person may tend to be self-incriminating or subject such person to a penalty or forfeiture, and shall notwithstanding be directed to give such testimony or produce such evidence, the person must nonetheless comply with such direction, but shall not thereafter be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which such person may testify or produce evidence pursuant thereto, and no testimony so given or evidence produced shall be received against the person upon any criminal action, investigation or proceeding; provided, however, that no such individual so testifying shall be exempt from prosecution or punishment for any perjury committed by such individual while so testifying and the testimony or evidence so given or produced shall be admissible against the individual upon any criminal action, investigation or proceeding concerning such perjury, nor shall the individual be exempt from the refusal, revocation, or suspension of any license, permission or authority conferred, or to be conferred, pursuant to the insurance law of this state. Any such individual may execute, acknowledge, and file in the office of the commissioner a statement expressly waiving such immunity or privilege in respect to any transaction, matter, or thing specified in such statement and thereupon the testimony of such person or such evidence in relation to such transaction, matter, or thing may be received or produced before any judge or justice, court, tribunal, grand jury or otherwise, and if so received or produced such individual shall not be entitled to any immunity or privilege on account of any testimony such individual may so give or evidence so produced.
Source. 1947, 189:1, par. 16. 1996, 238:17, eff. Jan. 1, 1997.
Any domestic insurance company may have as a director a person who is also a director of another insurance company, which may be a foreign or domestic company; provided, however, that if the effect is to substantially lessen competition generally in the insurance business or to tend to create a monopoly therein, it shall be deemed a violation of this chapter. In the administration and enforcement of this section the commissioner shall have the powers and duties conferred and imposed upon the commissioner by other applicable sections of this chapter with respect to violations of it.
Source. 1949, 47:1. 1996, 238:18, eff. Jan. 1, 1997.
Consumer Interests and Insurance Unfair Trade Practices
As used in this subdivision the following words shall have the following meaning:
I. "Insurance unfair trade practices law" and similar phrases means those practices prohibited by RSA 417.
II. "Consumer" means any natural person who is offered or supplied goods or services for personal, family, or household purposes.
III. "Supplier" means any individual, corporation, association, partnership, reciprocal exchange, inter-insurer, Lloyd's insurer, fraternal benefit society, and any other legal entity engaged in the business of insurance, including agents, brokers, and adjusters.
IV. "State insurance supervisory authority" means the New Hampshire insurance commissioner, or other official charged with the responsibility of regulating the insurance business in the state in question.
Source. 1971, 519:9, eff. Sept. 5, 1971.
417:19 Action Against Supplier.
I. When a supplier, 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 may bring suit against said supplier to recover any damages or loss suffered because of such action or practice.
II. For the sole purpose 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 417:6 or RSA 417:12 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 petitioner may proceed under RSA 417:19, I. Nothing contained in this section shall be construed to limit the commissioner's authority to pursue any legal or regulatory action pursuant to this chapter or any provision in title XXXVII.
Source. 1971, 519:9. 2009, 178:5, eff. Sept. 11, 2009.
417:20 Administration of Actions.
I. Actions under this chapter shall be administered, so far as practicable, to avoid a multiplicity of actions seeking relief for or on behalf of the same consumers.
II. Actions under this chapter shall be administered, so far as practicable, to facilitate voluntary settlements.
III. Whenever a consumer shall prevail in an action brought under RSA 417:19, I, the consumer shall be allowed to recover, in addition to damages, the cost of the suit, including reasonable attorneys' fees. Upon the termination of all suits under this section, the court shall inquire into the reasonableness of attorneys' fees charged to the claimants and revise such fees where necessary to make them reasonable.
Source. 1971, 519:9. 1996, 238:19, eff. Jan. 1, 1997.
417:21 Effect of Finding or Order.
A final finding or order rendered in any proceeding before the insurance commissioner pursuant to RSA 417:10, to the effect that the defendant has engaged in an unfair insurance practice, shall be prima facie evidence against the defendant in any action or proceeding brought by any consumer against the defendant under the provisions of RSA 417:19, I. This section shall not apply to consent judgments. No consumer may recover more than once from the same supplier for the same act or practices.
Source. 1971, 519:9, eff. Sept. 5, 1971; 561:9, eff. Sept. 10, 1971.
An action under this chapter may be brought in Merrimack county superior court or any district of the United States in which the claim arose or in which the defendant resides, is found, has an agent, is licensed to do business, or is doing business.
Source. 1971, 519:9, eff. Sept. 5, 1971.
Insurance Fraud Investigation Unit
417:23 Insurance Fraud Investigation Unit Established.
There is established in the department of insurance the insurance fraud investigation unit. The unit shall assist the commissioner, or any law enforcement agency, in investigating insurance fraud or other insurance-related criminal activity and in developing and implementing programs to prevent insurance fraud and abuse. The unit shall have the power to subpoena witnesses and administer oaths in any investigation it conducts, and to compel the production of any books, papers or other memoranda or documents by subpoena duces tecum. The unit shall promptly notify the attorney general of any insurance application, claim, or activity which involves criminal conduct. When required by the commissioner and the attorney general, the unit shall cooperate with the attorney general in the investigation and prosecution of criminal violations.
Source. 1993, 357:6. 2000, 260:1, eff. Aug. 11, 2000.
The commissioner shall appoint full-time, classified persons who shall be qualified by training and experience to perform the duties of their positions.
Source. 1993, 357:6. 2003, 144:9, eff. Jan. 1, 2004.
417:25 Attorney General.
When requested by the commissioner, the attorney general may assign an assistant attorney general to assist the unit in the performance of its duties.
Source. 1993, 357:6, eff. July 1, 1993.
417:26 Evidence Collection.
If, by its own inquiries or as a result of complaints, the insurance department has any reason to believe that a person has engaged in, or is engaging in, any criminal activity or any violations involving title XXXVII, it may administer oaths, serve subpoenas ordering the attendance of witnesses or production of material, and collect evidence. Service of such subpoenas and subpoenas duces tecum may be made by:
I. Delivering a duly executed copy to the person to be served or an agent authorized by law to receive service of process;
II. Delivering a duly executed copy to the person's principal place of business or abode in this state, if any; or
III. Mailing a duly executed copy via registered mail, return receipt requested, to the person to be served, or an agent authorized by law to receive service of process.
Source. 1996, 285:1. 2000, 260:2. 2007, 37:1, eff. Jan. 1, 2008.
If material that the unit seeks to obtain by request is located outside the state, the person so requested may make such material available for examination by the unit or its representative at the place where it is located. The unit may designate representatives, including officials of the state in which the material is located, to inspect the material on its behalf, and it may respond to similar requests from officials of other states.
Source. 1996, 285:1, eff. Jan. 1, 1997.
417:28 Reporting of Fraudulent Claims by Insurers.
Any person or entity regulated under title XXXVII which has reason to believe that an insurance fraud or insurance-related criminal activity has been committed shall make a report to the unit within 60 days or within a shorter period under such circumstances as the commissioner may prescribe by rule. No waiver of any such regulated person's or entity's applicable privilege or claim of confidentiality in the documents, materials or information shall occur as a result of such disclosure to the unit. Such report shall be made on a form prescribed by the unit and shall contain the information requested and such additional information as the unit may require. The unit shall review such report and select such claims as, in its judgment, warrant further investigation. In the absence of fraud or malice, no public official or insurance company or person who furnishes information on behalf of the insurance company shall be liable for damages in a civil action or subject to criminal prosecution for any oral or written statement made or any other action taken that is necessary to supply information required pursuant to this section.
Source. 1996, 285:1. 1997, 284:18. 2007, 37:2, eff. Jan. 1, 2008.
417:29 Fraud Unit Material Information Disclosure.
The unit's papers, documents, reports, or evidence relative to the subject of investigation under this section shall remain confidential and shall not be subject to public inspection or disclosure. Further, such papers, documents, reports, or evidence relative to the subject of an investigation under this section shall be privileged and shall not be subject to subpoena, discovery, or disclosure in any proceeding other than the action initiated by the unit, except as specifically authorized in this subdivision. For the purposes of this section, investigative materials shall include the testimony of unit personnel concerning any matter of which they have knowledge pursuant to a pending insurance fraud investigation by the unit.
Source. 1996, 285:1, eff. Jan. 1, 1997.
417:30 Insurer Antifraud Initiatives.
I. Except for insurance companies writing only credit, home warranty, travel, or title insurance, every insurance company licensed to write direct business in this state shall have antifraud initiatives reasonably calculated to detect, prosecute, and prevent fraudulent insurance acts, including a written antifraud plan. This plan shall be furnished to the commissioner, upon request.
II. Antifraud plans submitted to the commissioner shall be privileged and confidential and shall not be a public record and shall not be subject to discovery or subpoena in a civil or criminal action.
III. The provisions of RSA 400-A:36, III shall apply to the furnishing of information by an insurer to the unit or to any other insurer involved in the prevention or detection of fraudulent insurance acts.
IV. If the commissioner finds that an insurer licensed to do business in New Hampshire has failed to execute an antifraud plan, the commissioner may issue a fine or suspend the right of the insurer to do business in this state until such time as that insurer comes into compliance with the provisions of this chapter.
Source. 1997, 284:19. 2000, 260:3, 4. 2007, 37:3, eff. Jan. 1, 2008. 2019, 189:1, 2, eff. July 10, 2019.
The commissioner may adopt rules, pursuant to RSA 400-A:15, I, as necessary for the implementation of this subdivision.
Source. 2007, 37:4, eff. Jan. 1, 2008.