1976 South Carolina Code of Laws
Updated through the end of the 2000 Session
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Title 38 - Insurance
PROPERTY, CASUALTY, AND TITLE INSURANCE GENERALLY
PROPERTY INSURANCE GENERALLY
SECTION 38-75-10. Fire insurance policy shall indicate allocation of premium and location of property.
Every fire insurer doing business in this State shall cause to be plainly written or printed on the face of each fire insurance policy written and issued by it the name of the county entitled to the allocation of the premiums on the business and the location of the property so insured. This information must be incorporated in all daily reports or other evidence furnished by the agent of coverage assumed.
SECTION 38-75-20. Maximum amounts of fire insurance policies; stated values; contributions by coinsurers.
No insurer doing business in this State may issue a fire insurance policy for more than the value stated in the policy or the value of the property to be insured. The amount of insurance must be fixed by the insurer and insured at or before the time of issuing the policy. In case of total loss by fire the insured is entitled to recover the full amount of insurance. In case of a partial loss by fire the insured is entitled to recover the actual amount of the loss but in no event more than the amount of the insurance stated in the contract. If two or more policies are written upon the same property, they are considered to be contributive insurance, and, if the aggregate sum of all such insurance exceeds the insurable value of the property, as agreed by the insurer and the insured, each insurer, in the event of a total or partial loss, is liable for its pro rata share of insurance. This section does not apply to insurance on chattels or personal property.
SECTION 38-75-30. Maximum amounts of fire insurance policies; exceptions for manufacturing property and replacement riders.
Notwithstanding Section 38-75-20, insurers may, at the request of owners of property used principally for manufacturing purposes, including places of residence for occupancy by employees, issue policies wholly exempt from Section 38-75-20. Riders or endorsements may, in consideration of an adequate premium or premium deposit, be attached to policies insuring property, indemnifying the insured for the difference between the actual value stated in the policy and the amount actually expended to repair, rebuild, or replace with new materials of like size, kind, and quality the insured property that has been damaged or destroyed by fire or other perils insured against.
SECTION 38-75-40. Validity of additional or coinsurance clause.
No insurer or agency licensed to do business in this State may issue any policy or contract of insurance covering property in this State which contains any clause or provision requiring the insured to take or maintain a larger amount of insurance than that expressed in the policy or in any way provides that the insured is liable as a coinsurer with the insurer issuing the policy for any part of the loss or damage to the property described in the policy. Any such clause or provision is void. However, such a clause or provision may be used if there is stamped on the filing face of the policy or printed in bold type at the top of the clause the words "coinsurance clause". If there is a difference in the rate for insurance with and without the coinsurance clause, the rates for each must be furnished the insured upon request.
SECTION 38-75-50. Clause limiting or invalidating policies if property is encumbered is void.
Any clause in any policy of insurance purporting or undertaking to limit or invalidate the force of the policy in case of encumbrance by real estate mortgage of the property insured by the policy is void.
SECTION 38-75-60. Cause of action by insurer against tenant.
Notwithstanding any other provision of law, no insurer has a cause of action against a tenant who causes damage to real or personal property leased by the landlord to the tenant when the insurer is liable to the landlord for the damages under an insurance contract between the landlord and the insurer, unless the damage is caused by the tenant intentionally or in reckless disregard of the rights of others.
HAZARD INSURANCE ON MOBILE HOMES
SECTION 38-75-210. Policies may not exceed three years; refund of unearned premiums on cancellation of policies.
Notwithstanding any other provision of law:
(1) No policy of hazard insurance issued or delivered to cover a mobile home risk situate in South Carolina may be written to provide for a policy period in excess of three years.
(2) Every such policy, and the manual of rules and rates of every insurer issuing such policies in this State, shall provide that all premiums held by the insurer in respect to that part of the policy term subsequent to the anniversary date of the then current policy year are considered unearned and must be refunded in full if the policy is cancelled, without respect to whether cancellation is effected by the insured or insurer. In the event of cancellation during the first year of the policy term, refund of premium for that portion of the policy term must be on a pro rata basis if cancellation is effected by the insurer or on the short rate basis if cancellation is effected by the insured. In the event of cancellation during the second year of the policy term, refund of that portion of the unearned premium attributable to the second year must be on a pro rata basis if cancellation is effected by the insurer or on the short rate basis if cancellation is effected by the insured, subject, however, to the provision that the portion of the unearned premium attributable to the third year is considered entirely unearned and must be returned in full regardless of the party responsible for cancellation. In the event of cancellation during the third year of the policy term, refund of that portion of the unearned premium attributable to the third year must be on a pro rata basis if cancellation is effected by the insured.
(3) Upon the cancellation of any such policy, without respect to the party effecting the cancellation, any unearned premium must be returned to the insured or to the mortgagee. If returned to the mortgagee the unearned premium must be applied to any payment then due or to the next payment or payments to become due. No agreement may be made requiring or permitting the mortgagee to apply the returned premiums to the final payment or payments on the indebtedness.
SECTION 38-75-220. Restrictions on amount of insurance that may be written.
No insurer transacting a mobile home insurance business in this State and writing hazard insurance covering loss from physical damage to the mobile homes may issue a policy for more than the value stated in the policy or the value of the property to be insured. The amount of insurance must be fixed by the insurer and insured at or before the time of issuing the policy. In case of total loss as a result of a hazard insured against, the insured is entitled to recover the full amount of insurance. In case of partial loss the insured is entitled to recover the actual amount of loss but in no event more than the amount of insurance stated in the contract. If two or more such policies are written upon the same property and covering the same interests, they are considered to be contributive insurance, and, if the aggregate sum of all such insurance exceeds the insurable value of the property, as agreed by the insured and insurer, each insurer, in the event of a total or partial loss, is liable for its pro rata share of insurance. This section does not preclude an agreement by an insurer with its insured to effect replacement in the event of total loss of the mobile home as a result of a hazard insured against if the insured has maintained insurance of a given percentage in relationship to the market value of the mobile home.
SECTION 38-75-230. Information required on contracts for purchase of mobile homes.
Any contract to purchase a mobile home shall on its face:
(1) clearly include the provisions of Section 38-75-210, and
(2) clearly inform the purchaser that it is a violation of the law of this State for the seller of a mobile home or for any person lending money upon the security thereof to require or to attempt to require that hazard insurance be purchased from any particular insurer or agent and shall include the address of the office of the department of the Insurance with instructions to report any violation or attempted violation to his office.
WIND AND HAIL INSURANCE
SECTION 38-75-310. Definitions.
In this article, unless the context otherwise requires:
(1) "Essential property insurance" means insurance against direct loss to property as defined and limited in the wind and hail insurance policy and forms approved by the director or his designee; and after January 1, 1995, at the request of the insured, coverage for:
(a) actual loss of business income; or
(b) additional living expense; or
(c) fair rental value loss.
Prior to November 1, 1994, the South Carolina Wind and Hail Underwriting Association must file with the Department for approval additional policy forms defining the terms of and providing coverage for actual loss of business income, additional living expense and fair rental value loss.
(2) "Association" means the South Carolina Wind and Hail Underwriting Association established pursuant to the provisions of this article.
(3) "Plan of operation" means the plan of operation of the association approved or promulgated by the department pursuant to the provisions of this article.
(4) "Insurable property" means immovable property at fixed locations in coastal areas of the State as that term is hereinafter defined, or tangible personal property located therein, which property is determined by the association to be in an insurable condition as determined by reasonable underwriting standards, but not to include farm or manufacturing property, or motor vehicles which are eligible to be licensed for highway use. Any structure commenced on or after September 15, 1971, not built in substantial compliance with the Southern Standard Building Code, including the design-wind requirements therein, is not an insurable risk under the terms of this article. Any structure commenced on or after September 15, 1971, shall comply with any construction and zoning requirements affecting the structure, promulgated or adopted pursuant to the requirements of the Federal Flood Insurance Program.
(5) "Coastal area" means:
(a) all areas in Beaufort County and Colleton County which are east of the west bank of the intracoastal waterway;
(b) the following areas in Georgetown County: all areas between the Harrell Siau Bridge and Murrells Inlet which are east of a line paralleling and lying one hundred fifty feet east of U.S. Highway No. 17 Business, all areas in Murrells Inlet which are east of U.S. Highway No. 17 Business, and Cedar Island, North Island, and South Island;
(c) all areas in Horry County east of a line paralleling and lying one hundred fifty feet east of U. S. Highway No. 17 Business;
(d) the following areas in Charleston County: Edingsville Beach, Kiawah Island, Botany Bay Island, Folly Island, Seabrook Island, Morris Island, and all areas north of the city of Charleston which are east of the west bank of the intracoastal waterway.
(6) "Net direct premiums" means gross direct premiums excluding reinsurance assumed and ceded written on property other than farm or manufacturing in this State for fire and extended coverage insurance, including the fire and extended coverage components of homeowners policy and commercial multiple peril package policies, less return premiums upon canceled contracts, dividends paid or credited to policyholders, or the unused or unabsorbed portion of premium deposits.
(7) "Seacoast area" means all areas within Horry, Georgetown, Berkeley, Charleston, Dorchester, Colleton, Beaufort, and Jasper Counties.
SECTION 38-75-320. Declaration of purpose.
The purpose of this article is to provide a method whereby wind and hail insurance may be obtained more easily and equitably in the coastal areas of this State.
SECTION 38-75-330. South Carolina Wind and Hail Underwriting Association created; members.
There is created the South Carolina Wind and Hail Underwriting Association, an unincorporated association whose responsibilities, liability, and regulations are governed and defined by this article, consisting of all private insurers authorized to write and engage in writing property insurance within this State on a direct and statewide basis, but excluding insurers whose writings are limited to property wholly owned by parent, subsidiary, or allied organizations, or insurers whose writings are limited to property wholly owned by religious organizations, provided, however, as a condition of exemption from membership such insurers providing property insurance for insurable property in the coastal area as defined by this article shall also provide essential property insurance for such risks. Every such insurer must be a member of the association and must remain a member of the association so long as the association is in existence as a condition of its authority to continue to transact the business of insurance in this State.
SECTION 38-75-340. Plan of operation.
The association must operate pursuant to a plan of operation which shall set forth the number, qualifications, terms of office, and manner of election of the members of the board of directors and shall provide for the efficient, economical, fair, and nondiscriminatory administration of the association and for the prompt and efficient provision of essential property insurance in the coastal areas of the State so as to promote orderly community development in those areas and to provide means for the adequate maintenance and improvement of the property in such areas. The plan may include the establishment of necessary facilities, management of the association, plan for the assessment of members to defray losses and expenses, reasonable underwriting standards, commissions to be paid to agents or brokers, procedures for the acceptance and cession of reinsurance, procedures for determining the amounts of insurance to be provided to specific risks, time limits and procedures for processing applications for insurance, and for any other provisions considered necessary by the director or his designee to carry out the purposes of this article.
Insurance effected pursuant to this article shall have limits of liability provided in the plan of operation. The director or his designee shall approve the limits. Excess insurance is not permitted until the maximum available under the plan has been purchased. Thereafter, excess insurance may be purchased and must be included for the purpose of meeting any coinsurance requirement.
The directors of the association may, subject to the approval of the director or his designee, amend the plan of operation at any time. The director or his designee shall review the plan of operation, including the rate structure and loss experience, not less than once in each calendar year. After review of the plan the director or his designee may amend the plan upon approval of the directors of the association.
SECTION 38-75-350. Application for coverage; issuance of policy.
(a) Any person having an insurable interest in insurable property is entitled to apply to the association for coverage and for an inspection of the property. The application must be made on behalf of the applicant by a licensed broker or agent authorized by him. Applications must be submitted on forms prescribed by the association and approved by the director or his designee. The application shall contain a statement as to whether or not there are any unpaid premiums due from the applicant for fire insurance on the property. The term "insurable interest" as used in this section includes any lawful and substantial economic interest in the safety or preservation of property from loss, destruction, or pecuniary damage.
(b) If the association determines that the property is insurable and that there is no unpaid premium due from the applicant for prior insurance on the property, the association upon receipt of the premium, or such portion thereof as is prescribed in the plan of operation, shall cause to be issued a policy of essential property insurance for a term of at least one year.
(c) If the association, for any reason, denies an application and refuses to cause to be issued an insurance policy on insurable property to any applicant or takes no action on an application within the time prescribed in the plan of operation, the applicant may appeal to the director or his designee and the director or a member of his staff designated by him, after reviewing the facts, may direct the association to issue or cause to be issued an insurance policy to the applicant. In carrying out its duties pursuant to this section, the director or his designee may request, and the association shall provide, any information the director or his designee considers necessary to a determination concerning the reasons for the denial or delay of the application.
SECTION 38-75-360. Powers of Association.
The Association, pursuant to the provisions of this article and the plan of operation, and with respect to essential property insurance on insurable property, has the power on behalf of its members:
(a) To cause to be issued policies of insurance to applicants.
(b) To assume reinsurance from its members.
(c) To cede reinsurance to its members and to purchase reinsurance in behalf of its members.
SECTION 38-75-370. Duties of members of Association; limitation on liability.
All members of the association shall participate in its writings, expenses, profits, and losses in the proportion that the net direct premium of the member written in this State during the preceding calendar year bears to the aggregate net direct premiums written in this State by all members of the association, as certified to the association by the department after review of annual statements, other reports, and other statistics which the department considers necessary to provide the information required and which the department is authorized to obtain from a member of the association. After certification by the department, the association may rely on the member company's annual statement in determining the company's participation in profits and losses for each year.
Each member's participation in the association must be determined annually in the same manner as the initial determination. An insurer authorized to write and engage in writing insurance, the writing of which requires the insurer to be a member of the association pursuant to Section 38-75-330, becomes a member of the association on January first immediately following the authorization. The determination of the insurer's participation in the association must be made as of the date of the membership in the same manner as for all other members of the association. Member insurers shall receive credit annually for essential property insurance voluntarily written in the coastal area and their participation in the writings of the association must be reduced accordingly. The board of directors shall authorize the method of determining the credit. In order to receive credit for essential property voluntarily written in the coastal area, each member company shall submit its requests by March thirty-first of the year for which credit is sought.
The assessment of a member insurer after hearing may be ordered deferred in whole or in part upon application by the insurer if, in the opinion of the director or his designee, payment of the assessment would render the insurer insolvent or in danger of insolvency or would otherwise leave the insurer in a condition so that further transaction of the insurer's business would be hazardous to its policyholders, creditors, members, subscribers, stockholders, or the public. If payment of an assessment against a member insurer is deferred by order of the director or his designee in whole or in part, the amount by which the assessment is deferred must be assessed against other member insurers in the same manner as provided in this section. In its order of deferral, or in necessary subsequent orders, the director or his designee shall prescribe a plan by which the assessment so deferred must be repaid to the association by the impaired insurer with interest at the six-month treasury bill rate adjusted semiannually. Profits, dividends, or other funds of the association to which the insurer is otherwise entitled must not be distributed to the impaired insurer but must be applied toward repayment of an assessment until the obligation has been satisfied. The association shall distribute the repayments, including interest, to the other member insurers on the basis at which assessments were made.
SECTION 38-75-375. Contested assessment or interest levy by association; payment under protest; appeal; exposure to disciplinary procedures.
(A) If a member company perceives an assessment or interest levied by the association to be unjust or illegal, the company shall pay the assessment or interest under protest in writing within thirty days of the assessment or interest charge. Upon receiving this payment, the association shall pay the money collected into the association account and designate the money as having been paid under protest.
(B) A member company paying an assessment or interest under protest shall appeal to the association within thirty days after making the payment. If it is determined in that appeal that the assessment or interest was collected unjustly or illegally, the association shall refund the assessment or interest to the payor.
(C) If a member company fails to pay an assessment or interest within thirty days of the assessment or interest charge by the association, the company is subject to disciplinary procedures pursuant to Section 38-5-120 or 38-5-130.
SECTION 38-75-380. Liability for inspections and statements concerning risk.
There may be no liability on the part of and no cause of action of any nature may arise against the Department or any of its staff or the Association or its agents, employees, or any participating insurer for any inspections made hereunder or any statements made in good faith by them in any reports or communications concerning risk submitted to the Association or at any administrative hearings conducted in connection therewith under the provisions of this article.
SECTION 38-75-385. Liability for acts or omissions under this article.
There is no liability on the part of, and no cause of action of any nature may arise against, any member insurer, the association's agents or employees, the board of directors, or the director, his designees, or his representatives for any act or omission in the performance of their powers and duties under this article. This section does not relieve the association of any of its liability.
SECTION 38-75-386. Essential property insurance; liability for acts and omissions.
No liability on the part of, and no cause of action of any nature may arise against, the director, the Department of Insurance or its staff, the association, any member insurer, the association's agents or employees, its Board of Directors, or the legal representatives of any of the above persons, for any act or omission made in good faith or for any statement made to, or for information provided to, any insurer regarding rates; premiums; classifications; cancellations, determinations, or nonrenewals of coverage; underwriting; inspections; or claims experience history made to facilitate the underwriting of essential property insurance for risks in the coastal area by private insurers or to facilitate competition for the underwriting of essential property insurance for risks in the coastal area among private insurers.
SECTION 38-75-390. Cession of essential property insurance to Association.
Any member of the Association who is designated to receive and write essential property insurance from or through the Association shall one hundred percent cede to the Association that essential property insurance.
SECTION 38-75-400. Rates.
The rates, rating plans, and rating rules applicable to the insurance written by the association are those approved for use of the association by the director or his designee. Surcharges may be used as approved by the director or his designee. Rates may include rules for classification of risks insured hereunder and rate modifications thereof.
SECTION 38-75-410. Appeals; hearings upon appeal.
(A) A person insured pursuant to this article or his representative or a member company who is aggrieved by an act, ruling, or decision of the association:
(1) regarding rates, classification of risks, assessments, voluntary credits, cancellation or termination of policies, or underwriting shall appeal to the director or his designee within sixty days after the act, ruling, or decision;
(2) other than those specified in item (1), may appeal to the director or his designee within thirty days after the act, ruling, or decision.
(B) Hearings held by the director or his designee pursuant to this section must be in accordance with the procedures set forth in Chapter 3, Title 38 and Article 3, Chapter 23, Title 1, "Administrative Procedures".
SECTION 38-75-420. Reports of inspection by Association.
All reports of inspection performed by or on behalf of the Association must be made available to the members of the Association, applicants, agent or broker, and the Department.
SECTION 38-75-430. Association shall file statement of transactions and the like; additional information.
The Association shall file with the Department by March thirty-first of each year a statement which summarizes the transactions, conditions, operations, and affairs of the Association during the preceding fiscal year ending October thirty-first. The statement shall contain any matters and information prescribed by the Department and must be in the form required by it. The Department may at any time require the Association to furnish to it any additional information with respect to its transactions or any other matter which it considers material to assist it in evaluating the operation and experience of the Association.
SECTION 38-75-440. Examination into affairs of Association.
The Department may make an examination into the affairs of the Association and in undertaking the examination may hold a public hearing. The expense of the examination must be borne and paid by the Association.
SECTION 38-75-450. Regulations.
The department has authority to make reasonable regulations, not inconsistent with law, to enforce, carry out, and make effective the provisions of this article after notice and hearing before the Administrative Law Judge Division.
SECTION 38-75-460. Authority of director to expand area in which association must provide essential property insurance.
The director or his designee may, by written order, temporarily expand the area in which the association must provide essential property insurance. The area may not be expanded further inland than east of the west bank of the intracoastal waterway and may not be expanded to cover the area for more than twelve months. If the director or his designee issues an order that expands the area in which the association provides essential property insurance, he shall notify the General Assembly of that order and he shall recommend, through the Director of the Department of Insurance, to the General Assembly any appropriate statutory changes in the law concerning the definition of "coastal area" which he believes needs to be enacted.
ADVISORY COMMITTEE TO THE DIRECTOR AND THE SOUTH CAROLINA BUILDING CODES COUNCIL AND LOSS MITIGATION GRANT PROGRAM
SECTION 38-75-470. Appointment of advisory committee; duties; membership.
The Director of Insurance shall appoint an advisory committee to the director and the South Carolina Building Codes Council to study issues associated with the development of strategies for reducing loss of life and mitigating property losses due to hurricane, earthquake, and fire. The advisory committee also must consider the costs associated with these strategies to individual property owners. The advisory committee must include:
(1) one representative from Clemson University involved with wind engineering;
(2) one representative from an academic institution involved with the study of earthquakes;
(3) one representative from the Department of Insurance;
(4) one representative from an insurer writing property insurance in South Carolina;
(5) one representative from the Department of Commerce;
(6) one representative from the Federal Emergency Management Association;
(7) one representative from the Homebuilders Association;
(8) one representative from the Manufactured Housing Institute of South Carolina;
(9) one representative from the State Fire Marshal's office;
(10) one representative from the South Carolina Emergency Preparedness Division;
(11) one representative from the State Flood Mitigation Program;
(12) three at-large members appointed by the director; and
(13) three at-large members appointed by the Governor.
Members shall serve for terms of two years and shall receive no per diem, mileage, or subsistence. Vacancies must be filled in the same manner as the original appointment.
Within thirty days after its appointment, the advisory committee shall meet at the call of the Director of Insurance. The advisory committee shall elect from its members a chairman and a secretary and shall adopt rules not inconsistent with this chapter. Meetings may be called by the chairman on his own initiative and must be called at the request of three or more members of the advisory committee. All members shall be notified by the chairman of the time and place of the meeting at least seven days in advance of the meeting. All meetings must be open to the public. At least two-thirds vote of those members in attendance at the meeting shall constitute an official decision of the advisory committee.
SECTION 38-75-480. Loss mitigation grant program; establishment; purpose.
(A) There is established within the Department of Insurance a loss mitigation grant program. Funds may be appropriated to the grant program, and any funds so appropriated shall be used for the purpose of making grants to local governments or for the study and development of strategies for reducing loss of life and mitigating property losses due to hurricane, flood, earthquake, and fire. Grants to local governments shall be for the following purposes:
(1) implementation of building code enforcement programs including preliminary training of inspectors;
(2) conducting assessments to determine need for and desirability of making agreements to provide enforcement services pursuant to Section 6-9-60;
(3) providing technical assistance to and acting as an information resource for local governments in the development of proactive hazard mitigation strategies as they relate to reducing the loss of life and mitigating property losses due to natural hazards to include hurricane, flood, earthquake, and fire.
Funds may be appropriated for a particular grant only after a majority affirmative vote on each grant by the advisory committee.
(B) The Department of Insurance may make application and enter into contracts for and accept grants in aid from federal and state government and private sources for the purposes of:
(1) implementation of building code enforcement programs including preliminary training of inspectors;
(2) conducting assessments to determine need for and desirability of making agreements to provide enforcement services pursuant to Section 6-9-60; and
(3) study and development of strategies for reducing loss of life and mitigating property losses due to hurricane, flood, earthquake, and fire.
LEGAL INSURANCE [DELETED]
SECTIONS 38-75-510, 38-75-520. Repealed by 2000 Act No. 328, Section 4, eff July 1, 2000.
SECTIONS 38-75-510, 38-75-520. Repealed by 2000 Act No. 328, Section 4, eff July 1, 2000.
CANCELLATION, NONRENEWAL, AND RENEWAL OF PROPERTY INSURANCE AND CASUALTY INSURANCE
SECTION 38-75-710. Scope of article.
This article applies to all property insurance and casualty insurance, as defined in Section 38-1-20, except for automobile insurance and any other type of property or casualty insurance as to which there are specific statutory provisions of law governing cancellation, nonrenewal, or renewal of policies. This article further applies to policies issued by licensed insurers and to policies issued by eligible surplus lines insurers.
SECTION 38-75-720. Definitions.
For the purposes of this article:
(1) "Renewal" or "to renew" means the issuance of or the offer to issue by an insurer a policy succeeding a policy previously issued and delivered by the same insurer or an insurer within the same group of insurers, or the issuance of a certificate or notice extending the term of an existing policy for a specified period beyond its expiration date.
(2) "Nonpayment of premium" means the failure or inability of the named insured to discharge when due any obligation in connection with the payment of premiums on a policy of insurance subject to this article, whether such payment is payable directly to the insurer or its agent or indirectly payable under a premium finance plan or extension of credit.
(3) "Cancellation" means termination of a policy at a date other than its expiration date.
(4) "Expiration date" means the date upon which coverage under a policy ends. It also means, for a policy written for a term longer than one year or with no fixed expiration date, each annual anniversary date of such policy.
(5) "Nonrenewal" means termination of a policy at its expiration date.
SECTION 38-75-730. Restrictions on cancellation of policies and renewals; notice of cancellation; exceptions.
(a) No insurance policy or renewal thereof may be cancelled by the insurer prior to the expiration of the term stated in the policy, except for one of the following reasons:
(1) nonpayment of premium;
(2) material misrepresentation of fact which, if known to the company, would have caused the company not to issue the policy;
(3) substantial change in the risk assumed, except to the extent that the insurer should reasonably have foreseen the change or contemplated the risk in writing the policy;
(4) substantial breaches of contractual duties, conditions, or warranties; or
(5) loss of the insurer's reinsurance covering all or a significant portion of the particular policy insured, or where continuation of the policy would imperil the insurer's solvency or place that insurer in violation of the insurance laws of this State. Prior to cancellation for reasons permitted in this item (5), the insurer shall notify the director or his designee, in writing, at least sixty days prior to such cancellation and the director or his designee shall, within thirty days of such notification, approve or disapprove such action.
(b) Cancellation under item (1) of subsection (a) of this section is not effective unless written notice of cancellation has been delivered or mailed to the insured and the agent of record, if any, not less than ten days prior to the proposed effective date of cancellation. Cancellation under items (2) through (5) of subsection (a) of this section is not effective unless written notice of cancellation has been delivered or mailed to the insured and the agent of record, if any, not less than thirty days prior to the proposed effective date of cancellation. The notice must be given or mailed to the insured and the agent at their addresses shown in the policy or, if not reflected therein, at their last known addresses. Any notice of cancellation shall state the precise reason for cancellation. Proof of mailing is sufficient proof of notice.
(c) Subsections (a) and (b) of this section do not apply to any insurance policy which has been in effect for less than ninety days and is not a renewal of a previously existing policy. The policy may be cancelled for any reason by furnishing to the insured at least thirty days' written notice of cancellation, except where the reason for cancellation is nonpayment of premium, in which case not less than ten days' written notice must be furnished.
SECTION 38-75-740. Restrictions on nonrenewal of policies.
(a) No insurance policy may be nonrenewed by an insurer except in accordance with the provisions of this section, and any nonrenewal attempted which is not in compliance with this section is ineffective.
(b) A policy written for a term of one year or less may be nonrenewed by the insurer at its expiration date by giving or mailing written notice of nonrenewal to the insured and the agent of record, if any, not less than thirty days prior to the expiration date of the policy.
(c) Subject to subsection (c) of Section 38-75-760, a policy written for a term of more than one year or for an indefinite term may be nonrenewed by the insurer at its anniversary date by giving or mailing written notice of nonrenewal to the insured and the agent of record, if any, not less than thirty days prior to the anniversary date of the policy.
(d) The notice required by this section must be given or mailed to the insured and the agent at their addresses shown in the policy or, if not reflected therein, at their last known addresses. Proof of mailing is sufficient proof of notice.
(e) Any notice of nonrenewal shall state the precise reason for nonrenewal.
SECTION 38-75-750. Requirements for renewal of policies.
(a) If an insurer intends to renew a policy, the insurer shall furnish renewal terms and a statement of the amount of premium or estimated premium due for the renewal policy period in the manner required by this section.
(b) If the policy being renewed (hereinafter "original policy") is written for a term of one year or less, the renewal terms and statement of premium or estimated premium due must be furnished to the insured not less than thirty days prior to the expiration date of the original policy.
(c) If the original policy is written for a term of more than one year or for an indefinite term, the renewal terms and statement of premium or estimated premium due must be furnished to the insured not less than thirty days prior to the anniversary date of the original policy.
(d) The insurer may satisfy its obligation to furnish renewal terms and statement of premium or estimated premium due by either of the following methods:
(1) mailing or delivering renewal terms and statement to the insured at his address shown in the policy or, if not reflected therein, at his last known address, not less than thirty days prior to expiration or anniversary; or
(2) mailing or delivering renewal terms and statement to the agent of record, if any, not less than forty-five days prior to expiration or anniversary, along with instructions that the agent furnish the renewal terms and statement to the insured not less than thirty days prior to expiration or anniversary.
(e) If the insurer fails to furnish the renewal terms and statement of premium or estimated premium due in the manner required by this section, the insured may elect to cancel the renewal policy within the thirty-day period following receipt of the renewal terms and statement of premium or estimated premium due. Earned premium for any period of coverage must be calculated pro rata based upon the premium applicable to the original policy and not the premium applicable to the renewal policy.
SECTION 38-75-760. Unlawful practices involving cancellation, nonrenewal, or renewal of policies.
(a) It is unlawful for any insurer to cancel, nonrenew, or renew a policy of insurance except in compliance with the requirements of this article.
(b) Midterm cancellation of an entire block, line, or class of business is presumed to be unfair, inequitable, and contrary to the public interest and is unlawful.
(c) If a policy has been issued for a term longer than one year and for additional premium consideration renewal of the policy or an annual premium has been guaranteed, it is unlawful for the insurer to refuse to renew the policy or to increase the annual premium during the term of that policy.
SECTION 38-75-770. Notice requirements for eligible surplus lines insurers.
For eligible surplus lines insurers, the timely giving of all notices required by this article to the licensed broker who placed the insurance and represents the insured is considered notice to the insured.
SECTION 38-75-780. Exemption from liability for action taken in performance of powers and duties of this article; exceptions.
There is no liability on the part of and no cause of action of any nature may arise against the director or his designees, any insurer, or the authorized representatives, agents, and employees of either or any firm, person, or corporation furnishing to the insurer information as to reasons for cancellation or refusal to write or renew, for any statement made by any of them in complying with this article, or for the providing of information pertaining thereto, unless the person asserting the cause of action establishes that the person against whom the cause of action is asserted was motivated by express malice or gross negligence.
SECTION 38-75-790. Nonrenewal of homeowners insurance.
No insurer may nonrenew a policy of homeowners insurance because the insured has filed a claim with that insurer for damages resulting from an act of God.
SECTION 38-75-905. Definitions.
As used in this article, unless the context otherwise requires:
(1) "Associate" means any one of the following:
(a) a business organized for profit in which a producer of title business is a director, officer, partner, employee, or owner of one percent or more of the equity capital thereof;
(b) an employee of a producer of title business;
(c) a franchisor or franchisee of a producer of title business;
(d) a spouse, parent, or child of a producer of title business;
(e) a person, other than an individual, that controls, is controlled by, or is under common control with, a producer of title business;
(f) a person with whom a producer of title business or any associate of such producer has any agreement, arrangement, or understanding or pursues any course of conduct, the purpose or substantial effect of which is to evade the provisions of this article.
(2) "Financial interest" means any interest, legal or beneficial, that entitles the holder directly or indirectly to one percent or more of the net profits or net worth of the entity in which the interest is held.
(3) "Producer of title business" or "producer" means any person, including any officer, director, or owner of five percent or more of the equity or capital of any person engaged in this State in the trade, business, occupation, or profession of any one of the following:
(a) buying or selling interests in real property;
(b) making loans secured by interests in real property;
(c) acting as broker, agent, representative, or attorney of a person who buys or sells any interest in real property or who lends or borrows money with such interest as security.
SECTION 38-75-910. Limitation of risk on title insurance.
No insurer transacting title insurance business in this State may expose itself to any one risk in an amount exceeding fifty percent of the aggregate amount of its total capital and surplus and its reserves other than its loss or claim reserves. As used in this section, the words "any one risk" mean the risk or hazard attaching to or arising in connection with any one piece or parcel of property, whether or not the policy insures other property. Any risk or portion of any risk which has been reinsured as authorized in this title must be deducted in determining the limitation of risk prescribed in this section.
SECTION 38-75-920. Title insurers to maintain reinsurance reserve.
(A) A domestic title insurer shall establish and maintain a reinsurance reserve computed in accordance with this section, and all sums attributed to the reserve are at all times and for all purposes considered unearned portions of the original premiums. This reserve must be reported as a liability of the title insurer in its financial statements.
(B) The reinsurance reserve must be maintained by the title insurer for the protection of holders of title insurance policies. Except as provided in this section, assets equal in value to the reinsurance reserve are not subject to distribution among creditors or stockholders of the title insurer until all claims of policyholders or claims under reinsurance contracts have been paid in full, and all liability on the policies or reinsurance contracts has been paid in full and discharged or lawfully reinsured.
(C) A foreign or alien title insurer licensed to transact title insurance business in this State shall maintain at least the same reserves on title insurance policies issued on properties located in this State as are required of domestic title insurers, unless the laws of jurisdiction of domicile of the foreign or alien title insurer require a higher amount.
(D) The reinsurance reserve consists of:
(1) the amount of the reinsurance reserve on the effective date of this act; and
(2) one dollar and fifty cents a policy and, in addition, a sum equal to twelve and one-half cents for each one thousand dollars of net retained liability under each title insurance policy on a single risk written on properties located in this State written after the effective date of this act.
(E) Amounts placed in the reinsurance reserve in any year in accordance with item (2) of subsection (D) of this section must be deducted in determining the net profit of the title insurer for that year.
(F) A title insurer shall release from the reinsurance reserve a sum equal to ten percent of the amount added to the reserve during a calendar year on July first of each of the five years following the year in which the sum was added and shall release from the reinsurance reserve a sum equal to three and one-third percent of the amount added to the reserve during that year on each succeeding July first until the entire amount for that year has been released. The amount of the reinsurance reserve or similar unearned premium reserve maintained before the effective date of this act must be released in accordance with the law in effect before the effective date of this act.
SECTION 38-75-930. Insolvency of domestic title insurer.
(A) If a domestic title insurer becomes insolvent, is in the process of liquidation or dissolution, or is in the possession of the director or his designee:
(1) the amount of the assets of the title insurance company equal to the reinsurance reserve then remaining may be used with the written approval of the director or his designee to pay for reinsurance of the liability of each title insurer upon all outstanding title insurance policies or reinsurance agreements to the extent for which claims for losses by the holders are not then pending. The balance of the assets, if any, equal to the reinsurance reserve then may be transferred to the general assets of the title insurer;
(2) the assets net of the reinsurance reserve must be available to pay claims for losses sustained by holders of title insurance policies then pending or arising up to the time reinsurance is effected. If claims for losses exceed other assets of the title insurer, the claims, when established, must be paid pro rata out of the surplus assets attributable to the reinsurance reserve, to the extent of the surplus, if any.
(B) If reinsurance is not obtained, assets equal to the reinsurance reserve and assets constituting minimum capital, or so much as remains after outstanding claims have been paid, constitute a trust fund to be held and invested by the director or his designee for twenty years, out of which claims of policyholders must be paid as they arise. The balance, if any, of the trust fund shall revert to the general assets of the title insurer at the expiration of twenty years.
SECTION 38-75-940. Loss and loss expense reserves.
(A) All title insurers licensed in this State shall establish and maintain reserves against unpaid losses and loss expenses.
(B) Upon receiving written notice from or on behalf of the insured of a title defect in or lien or adverse claim against the title of the insured that may result in a loss or cause expense to be incurred in the proper disposition of the claim, the title insurer shall determine the amount to be added to the reserve which shall reflect a careful estimate of the loss or loss expense likely to result by reason of the claim.
(C) Reserves required under this section may be revised from time to time and must be redetermined at least once each year.
(D) If the director or his designee determines that the loss and loss expense reserves of the title insurer are inadequate, he may require the title insurer to increase the amount of reserves to an amount he considers reasonable.
SECTION 38-75-950. Obtaining reinsurance.
(A) A title insurer may obtain reinsurance for all or any part of its liability under one or more of its title insurance policies or reinsurance agreements and also may reinsure title insurance policies issued by other title insurers on risks located in this State or elsewhere. Reinsurance on policies issued on properties located in this State must be obtained from title insurers licensed to transact title insurance business in this State.
(B) Upon application by a title insurer, the director or his designee may permit the insurer to obtain reinsurance from a title insurer not licensed in this State upon the following conditions:
(1) the title insurer is unable to obtain reinsurance from a title insurer licensed in this State; and
(2) the unlicensed title insurer meets the requirements of approved reinsurers in Section 38-5-60.
SECTION 38-75-960. Financial interest in title insurer or agent.
(A) No title insurer or title insurance agent may accept an order for, issue a title insurance policy to, or provide services to an applicant if it knows or has reason to believe that the applicant was referred to it by any producer of title business or by any associate of the producer where the producer, the associate, or both, have a financial interest in the title insurer or title agent to which business is referred unless the producer has disclosed to the buyer, seller, or lender the financial interest of the producer of title business or associate referring the title business. The disclosure must be made in writing on forms prescribed by the director or his designee. The title insurer or agent shall maintain the disclosure forms for a period of three years.
(B) Each title insurer and title agent shall file with the department, on forms prescribed by the director or his designee, reports setting forth the names and addresses of those persons, if any, who have had a financial interest in the title insurer or title agent during the calendar year who are known or reasonably believed by the title insurer or title agent to be producers of title business or associates of producers.
(1) Each title insurer shall file the report required under this subsection with its application for a license and at any time there is a change in the information provided in the last report.
(2) Each title agent shall file the report required under this subsection with its application for license and at any time there is a change in the information provided in its last report.
(3) Each title insurer or title agent licensed on the effective date of this act, shall file the report required under this subsection within ninety days after the effective date of this act.
SECTION 38-75-970. Premium rates.
(A) Premium rates may not be inadequate, excessive, or unfairly discriminatory.
(B) Rates are excessive if in the aggregate they are likely to produce a long-run profit that is unreasonably high in relation to the riskiness of the class of business, or if expenses are unreasonably high in relation to the services rendered.
(C) Rates are inadequate if they are clearly insufficient, together with investment income attributable to them, to sustain projected losses and expenses or if the continued use of the fees have the effect of substantially lessening competition or the effect of tending to create a monopoly.
(D) Premium rates are unfairly discriminatory if the premium charged for any classification is not reasonably related to the services performed or the risks assumed by the insurer. Within rate classifications, premiums, to a reasonable degree, may be less in the case of smaller insurances and the excess may be charged against larger insurances without rendering the rate unfairly discriminatory.
(E) In making or reviewing rates, due consideration must be given to past and prospective loss experience, to exposure to loss, to underwriting practice and judgment, to past and prospective expenses including amounts paid to or retained by title agents, to investment income, to a reasonable margin for profit and contingencies, and to all other relevant factors both within and outside this State. A five-year experience period is required for all filings of rates provided that the filing of any insurer in existence less than five years must be supported by experience consistent with the period of its existence.
SECTION 38-75-980. Filing of premium rate schedules.
(A) A title insurer shall file with the director or his designee the premium rate schedules it proposes to use in this State. If the director or his designee finds in his review of a filing that it does not violate Section 38-75-970, he shall approve the schedule within sixty days of filing. Before the approval, the director or his designee may conduct public hearings with respect to the filing. Filings that the director or his designee has failed to approve or disapprove within sixty days of filing is considered approved. Upon notice to the title insurer, the period for review of the rate filing may be extended for an additional sixty days.
(B) If after the approval of filing the director or his designee believes that the filing does not meet the requirements of this section or is otherwise contrary to law, or if any party having an interest in the filing makes a written complaint to the director or his designee setting forth specific and reasonable grounds for the complaint, or if any insurer, upon notice of disapproval by the director or his designee of a filing pursuant to this section, should so request, the director or his designee shall hold a hearing within thirty days and give written notice of the hearing to all parties in interest. The director or his designee may confirm, modify, change, or rescind any previous action if warranted by the facts shown at the hearing.
SECTION 38-75-990. Title insurers to make schedules of current premiums and charges available to public.
(A) Each title insurer and title agent shall print and make available to the public schedules of its currently effective premiums and charges.
(B) The schedules shall:
(1) be dated to show the date the premiums and charges became effective;
(2) be kept available to the public during normal business hours in each office of the title insurer or title agent in this State; and
(3) set forth the total premium and charge for each type of title insurance policy or service issued or provided by the title insurer or title agent either by stating the premium or charge for each type of title insurance policy in given amounts of coverage or for each service, or by stating the premium or charge rate a unit amount of coverage, or by a combination of the two.
(C) Each title insurer and title agent shall keep a complete file of its schedules of premiums and charges and of all changes and amendments to those schedules until at least five years after they have ceased to be in effect.
SECTION 38-75-1000. Restrictions on amount of commission.
A title insurer may not pay a commission, directly or indirectly, of greater than sixty percent on a title insurance policy.