California Insurance Code Section 1763 (diligent search before placing surplus line insurance)
Published by California Legislative Counsel (leginfo.legislature.ca.gov). Jurisdiction CA.
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Section 1763(a) permits a surplus line broker to solicit and place insurance for a home state insured with nonadmitted insurers only if that insurance cannot be procured from insurers admitted for the particular class or classes of insurance and that actually write the particular type of insurance in this state.
claim ca-ins-code-1763#c1Section 1763(a) makes each surplus line broker responsible to ensure that a diligent search is made among insurers that are admitted to transact and are actually writing the particular type of insurance in this state before procuring the insurance from a nonadmitted insurer.
claim ca-ins-code-1763#c2Section 1763(a) requires the surplus line broker to file with the commissioner, within 60 days of placing any insurance for a home state insured with a nonadmitted insurer, a written report that shall be kept confidential, including the name and address of the insured, verification that the insured is a home state insured, the identity of the insurer or insurers, a description of the subject and location of the risk, the amount of premium charged, and a copy of the declarations page or of the broker's certificate or binder.
claim ca-ins-code-1763#c3Section 1763(a) requires the broker to file a standardized form prescribed by the commissioner setting forth the diligent efforts to place the coverage with admitted insurers and the results of those efforts, signed by a person licensed under the code who made the diligent search or who supervised an unlicensed person or persons who actually conducted it.
claim ca-ins-code-1763#c4Section 1763(b) provides that it is prima facie evidence that a diligent search among admitted insurers has been made if the standardized form establishes that three admitted insurers that actually write the particular type of insurance in this state have declined the risk, or that fewer than three admitted insurers actually write the particular type of insurance.
claim ca-ins-code-1763#c5Section 1763(b) permits the commissioner to review the form for the accuracy of the information on it, including whether the listed insurers actually write that type of insurance and whether the three insurers declined the risk, and to take disciplinary action against the person signing the form for any misrepresentation made through negligence or as the result of an intentional act.
claim ca-ins-code-1763#c6Section 1763(a) provides that the insurance shall not be placed with a nonadmitted insurer for the purpose of procuring a rate lower than the lowest rate that will be accepted by any admitted insurer, except as provided in subdivision (c).
claim ca-ins-code-1763#c7Section 1763(c) provides that it shall be conclusively presumed that insurance is placed in violation of the section if it is actually placed with a nonadmitted insurer at a lower rate or lower premium than the lowest obtainable from an admitted insurer, unless at the time the insurance attaches a statement is filed with the commissioner describing the insurance, specifying the rate and the nearest procurable rates from admitted insurers, and explaining why the insurance must be placed with a nonadmitted insurer even though it is available from an admitted insurer.
claim ca-ins-code-1763#c8Section 1763(c) provides that unless the commissioner notifies the filing broker within five days that the placement appears to violate the section, the broker may maintain the insurance in effect, and that a broker who is ordered to terminate the insurance within 10 days of such a notice and fails or refuses to do so violates the section.
claim ca-ins-code-1763#c9Section 1763(e) defines type of insurance, for purposes of the section, as the hazard or combination of hazards covered by a contract of insurance.
claim ca-ins-code-1763#c10Section 1763(g) provides that the section does not apply to an extension of coverage by a nonadmitted insurer of or for the same risks and to the same insured under an existing surplus lines policy, that such an extension may not exceed 90 days in the aggregate during any 12-month period, that it may not include a change in coverage, terms, conditions or limits, and that any additional premium shall be determined pro rata on the same rate as the existing policy.
claim ca-ins-code-1763#c11Section 1763(h)(1) provides that the diligent search requirement does not apply to a commercial insured as defined in Insurance Code section 1760.1(b) when the surplus line broker has disclosed in writing to the commercial insured that surplus insurance may or may not be available from the admitted market that may provide greater protection with more regulatory oversight, and the commercial insured has subsequently requested in writing that the broker procure or place surplus insurance from a nonadmitted insurer.
claim ca-ins-code-1763#c12Section 1763(h)(2) makes the surplus line broker responsible to ensure that the applicant is a commercial insured, and provides that a broker who reasonably relies on information provided in good faith by the applicant, whether directly or through a producer, is deemed to be in compliance with that requirement.
claim ca-ins-code-1763#c13Section 1763(d) provides that statements filed under the section are not subject to public inspection unless the commissioner determines that the public interest or the welfare of the filing broker requires that a statement be made public.
claim ca-ins-code-1763#c14Section 1763(f) provides that the section does not apply to insurance issued or delivered in this state to a home state insured by a nonadmitted Mexican insurer through a surplus line broker affording coverage exclusively in the Republic of Mexico on property located, or operations conducted, temporarily or permanently within the Republic of Mexico.
claim ca-ins-code-1763#c15
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Reviewer notes
The three-declination test in subdivision (b) is prima facie evidence rather than a definition of diligent search, and subdivision (b) lets the commissioner go behind the form to check whether the insurers named actually write the type at all. The commercial-insured exemption in (h) is the part most often stated without its two conditions, both of which must be in writing.