H 3656 Session 110 (1993-1994)
H 3656 General Bill, By D. Smith
Similar(S 271)
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Section
38-3-65 so as to allow the Chief Insurance Commissioner to suspend the
driver's license of a driver, for a period not to exceed thirty days, under
certain conditions and circumstances; to amend the 1976 Code by adding Section
38-73-458 so as to prohibit an automobile insurer from raising an insured's
premium based upon the insured's driving record or accident record, or
combination of both of these, or from removing an insured's safe driver
discount under certain conditions and circumstances, if the insured completes
and passes a safe driver course approved by the Commissioner; to amend the
1976 Code by adding Section 56-1-467 so as to provide that in addition to all
other penalties provided by law a person may have his license to drive
suspended for six months if he is convicted of, or pleads guilty or nolo
contendere to, five traffic offenses in a one-year period or is convicted of,
or pleads guilty or nolo contendere to, driving under the influence of alcohol
or drugs two or more times in a one-year period, and provide that this
suspension can be waived only upon a showing to the Commissioner of extreme
hardship and substantial rehabilitation; to amend Section 38-73-450, relating
to fairness of automobile insurance rates or premium charges, burden on
insurer to prove fairness, and factors to be considered by the Commissioner,
so as to require the Commissioner to take into account investment income from
all sources, all profits from every source, including investment income, both
active and passive, and earned interest, prohibit an insurer from claiming
reduced profit by doing, or failing to do, certain things, require that any
profit of an insurer exceeding ten percent per annum be refunded to its
insureds unless the insurer can demonstrate extreme and compelling hardship
justifying the refund of a lesser sum, and provide that a request for any rate
increase or premium increase may be denied or disapproved by taking into
account as a factor the inefficiency of the insurer or sufficient insurer
profit;
03/08/93 House Introduced and read first time HJ-26
03/08/93 House Referred to Committee on Labor, Commerce and
Industry HJ-28
04/20/93 House Tabled in committee
A BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976,
BY ADDING SECTION 38-3-65 SO AS TO ALLOW THE CHIEF
INSURANCE COMMISSIONER TO SUSPEND THE DRIVER'S
LICENSE OF A DRIVER, FOR A PERIOD NOT TO EXCEED
THIRTY DAYS, UNDER CERTAIN CONDITIONS AND
CIRCUMSTANCES; TO AMEND THE 1976 CODE BY ADDING
SECTION 38-73-458 SO AS TO PROHIBIT AN AUTOMOBILE
INSURER FROM RAISING AN INSURED'S PREMIUM BASED
UPON THE INSURED'S DRIVING RECORD OR ACCIDENT
RECORD, OR COMBINATION OF BOTH OF THESE, OR FROM
REMOVING AN INSURED'S SAFE DRIVER DISCOUNT UNDER
CERTAIN CONDITIONS AND CIRCUMSTANCES, IF THE
INSURED COMPLETES AND PASSES A SAFE DRIVER COURSE
APPROVED BY THE COMMISSIONER; TO AMEND THE 1976
CODE BY ADDING SECTION 56-1-467 SO AS TO PROVIDE THAT
IN ADDITION TO ALL OTHER PENALTIES PROVIDED BY LAW
A PERSON MAY HAVE HIS LICENSE TO DRIVE SUSPENDED
FOR SIX MONTHS IF HE IS CONVICTED OF, OR PLEADS
GUILTY OR NOLO CONTENDERE TO, FIVE TRAFFIC OFFENSES
IN A ONE-YEAR PERIOD OR IS CONVICTED OF, OR PLEADS
GUILTY OR NOLO CONTENDERE TO, DRIVING UNDER THE
INFLUENCE OF ALCOHOL OR DRUGS TWO OR MORE TIMES IN
A ONE-YEAR PERIOD, AND PROVIDE THAT THIS SUSPENSION
CAN BE WAIVED ONLY UPON A SHOWING TO THE
COMMISSIONER OF EXTREME HARDSHIP AND SUBSTANTIAL
REHABILITATION; TO AMEND SECTION 38-73-450, RELATING
TO FAIRNESS OF AUTOMOBILE INSURANCE RATES OR
PREMIUM CHARGES, BURDEN ON INSURER TO PROVE
FAIRNESS, AND FACTORS TO BE CONSIDERED BY THE
COMMISSIONER, SO AS TO REQUIRE THE COMMISSIONER TO
TAKE INTO ACCOUNT INVESTMENT INCOME FROM ALL
SOURCES, ALL PROFITS FROM EVERY SOURCE, INCLUDING
INVESTMENT INCOME, BOTH ACTIVE AND PASSIVE, AND
EARNED INTEREST, PROHIBIT AN INSURER FROM CLAIMING
REDUCED PROFIT BY DOING, OR FAILING TO DO, CERTAIN
THINGS, REQUIRE THAT ANY PROFIT OF AN INSURER
EXCEEDING TEN PERCENT PER ANNUM BE REFUNDED TO ITS
INSUREDS UNLESS THE INSURER CAN DEMONSTRATE
EXTREME AND COMPELLING HARDSHIP JUSTIFYING THE
REFUND OF A LESSER SUM, AND PROVIDE THAT A REQUEST
FOR ANY RATE INCREASE OR PREMIUM INCREASE MAY BE
DENIED OR DISAPPROVED BY TAKING INTO ACCOUNT AS A
FACTOR THE INEFFICIENCY OF THE INSURER OR SUFFICIENT
INSURER PROFIT; TO AMEND SECTION 38-73-455, AS
AMENDED, RELATING TO AUTOMOBILE INSURANCE RATES,
SO AS TO DELETE THE PROVISIONS RELATING TO THE
REINSURANCE FACILITY; TO AMEND SECTION 38-73-735, AS
AMENDED, RELATING TO PLANS FOR CREDITS OR
DISCOUNTS TO AUTOMOBILE INSUREDS, SO AS TO DELETE
THE PROVISIONS AUTHORIZING THE PLANS TO BE CEDED TO
THE REINSURANCE FACILITY; TO AMEND SECTION 38-73-750,
AS AMENDED, RELATING TO THE REQUIREMENT THAT
AUTOMOBILE INSURERS FILE PLANS FOR ALLOCATING
EXPENSES AND PROFIT, SO AS TO DELETE THE REFERENCES
TO THE REINSURANCE FACILITY; TO AMEND SECTION 38-73-760, AS AMENDED, RELATING TO UNIFORM STATISTICAL
PLANS FOR THE AUTOMOBILE INSURANCE BUSINESS, SO AS
TO DELETE THE REFERENCE TO THE REINSURANCE
FACILITY; TO AMEND SECTION 38-77-30, AS AMENDED,
RELATING TO DEFINITIONS PERTAINING TO AUTOMOBILE
INSURANCE, SO AS TO DELETE THE DEFINITION OF THE
REINSURANCE FACILITY; TO AMEND SECTION 38-77-285, AS
AMENDED, RELATING TO THE REQUIREMENT THAT ALL
AUTOMOBILE INSURANCE COVERAGES FOR AN INSURED'S
AUTOMOBILE MUST BE IN ONE POLICY, SO AS TO PROVIDE
FOR THE REQUIREMENT TO APPLY TO INDIVIDUAL
PASSENGER AUTOMOBILES INSTEAD OF VEHICLES CEDED
TO THE REINSURANCE FACILITY; TO PROVIDE THAT
NOTHING IN THIS ACT SHALL BE CONSTRUED TO ELIMINATE
THE MANDATE ON AUTOMOBILE INSURERS DOING BUSINESS
IN THIS STATE TO WRITE INSURANCE FOR ALL OR FOR SELF-INSURED PLANS APPROVED BY THE COMMISSIONER TO
COMPLY WITH THE FINANCIAL RESPONSIBILITY STATUTES
OF THIS STATE, AND TO PROVIDE THAT NOTHING IN THIS
ACT SHALL BE CONSTRUED TO ELIMINATE COMPULSORY
INSURANCE FOR ALL DRIVERS AND COMPLIANCE WITH THE
FINANCIAL RESPONSIBILITY STATUTES; TO REQUIRE THE
COMMISSIONER TO APPROVE A TEN PERCENT REDUCTION IN
RATE OR PREMIUM CHARGES USED BY AUTOMOBILE
INSURERS; AND TO REPEAL SECTIONS 38-73-1420 AND 38-73-1425, RELATING TO THE REINSURANCE FACILITY AND OTHER
MATTERS, 38-77-920, RELATING TO THE PROVISION THAT
INSURERS AND AGENTS MAY NOT REFUSE ACCEPTANCE OF
AUTOMOBILE INSURANCE AND RELATED MATTERS, 38-77-940, RELATING TO AUTOMOBILE INSURANCE AND AVOIDING
CERTAIN CLASSES OR TYPES OF RISKS AND CANCELING AN
AGENT'S REPRESENTATION, 38-77-950, RELATING TO
UNREASONABLE OR EXCESSIVE USE OF THE REINSURANCE
FACILITY BY AN INSURER, AND 38-77-960, RELATING TO
AUTOMOBILE INSURANCE AGENT'S BUSINESS, AND ARTICLE
5, CHAPTER 77, TITLE 38 RELATING TO THE REINSURANCE
FACILITY.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. The 1976 Code is amended by adding:
"Section 38-3-65. Notwithstanding any other provision of law,
the Chief Insurance Commissioner may suspend the driver's license, for
a period not to exceed thirty days, of any driver who has caused two
accidents in a single calendar year and has in each such accident
received a ticket and pled guilty or nolo contendere, been convicted, or
forfeited bond or, if no ticket was issued, signs a statement on a form
approved by the commissioner admitting fault and indicating that, if a
ticket had been issued, the driver would have pled guilty or nolo
contendere. The driver has twenty days to appeal such suspension, in
writing to the commissioner, and the commissioner may waive the
suspension or reduce the period of suspension below thirty days only
upon a showing by the driver of extreme hardship or compelling special
circumstances.
The provisions of this section are in addition to, and not in lieu of, any
other provision of law providing for driver license suspension and
appeal procedures."
SECTION 2. The 1976 Code is amended by adding:
"Section 38-73-458. Notwithstanding any other provision of
law, subject to appeal rights and limitations as provided by law no
automobile insurer may raise an insured's premium based upon the
insured's driving record or accident record, or a combination of the
insured's driving record and accident record, or remove an insured's safe
driver discount if the insured has had no traffic tickets or accidents for
which he received a ticket and was convicted, pled guilty or nolo
contendere, or forfeited bond in the preceding ten years prior to the
three-year period of having the combination of accidents or traffic
tickets described above, if the insured completes and passes a safe-driver
course approved by the Chief Insurance Commissioner. The benefit of
this provision may be utilized by an insured only one time.
The intent of this section is to provide relief to drivers with a lengthy
history of accident-free and ticket-free driving."
SECTION 3. The 1976 Code is amended by adding:
"Section 56-1-467. (A) In addition to all other penalties
provided by law of any nature whatever, a person may have his license
to drive suspended for six months if:
(1) he is convicted of, or pleads guilty or nolo contendere to, five
traffic offenses in a one-year period; or
(2) he is convicted of, or pleads guilty or nolo contendere to,
driving under the influence of alcohol or drugs (Section 56-5-2930) two
or more times in a one-year period.
(B) The suspension provided for in subsection (A) can be waived
only upon a showing to the Chief Insurance Commissioner of extreme
hardship and substantial rehabilitation."
SECTION 4. Section 38-73-450(b) of the 1976 Code is amended to
read:
"(b) In the approval of automobile insurance rates and in
determining whether the final rates or premium charges for automobile
insurance are adequate, not excessive, and not unfairly discriminatory,
the commissioner shall take into account investment income from
all sources, including income from unearned premium and loss
reserves as well as all profits from every source,
including investment income, both active and passive, and
earned interest. Every insurer writing automobile insurance in this
State shall file with the commissioner, in a form the commissioner
orders, complete financial records showing the amount of profit, in
accordance with this subsection, on every line of automobile
insurance during the previous year and shall also file records showing
profits or losses from such investment income, and all other sources,
in accordance with this subsection, which records shall include,
but shall not be limited to, investment income or profit on net
realized and unrealized capital gains. However, unrealized capital gains
or losses may not be considered in the rate-making process."
SECTION 5. Section 38-73-450 of the 1976 Code is amended by
adding:
"(c) No insurer may claim reduced profit under subsection (b)
by:
(1) artificially allocating funds to salaries, dividends, or other
payouts so as to reduce profit; or
(2) failing to include all sources of income, including investment
income, both active and passive, and earned interest.
(d) Any profit of an insurer exceeding ten percent per annum must
be refunded to its insureds unless the insurer is able to demonstrate by
clear and convincing evidence, after a hearing before the Chief
Insurance Commissioner allowing all interested persons and
representatives of consumer groups to speak and present evidence, that
extreme and compelling hardship will occur to the extent that the insurer
cannot continue to do business unless a lesser sum is refunded to its
insureds.
(e) A request for any rate increase or premium increase by an insurer
may be denied or disapproved by taking into account as a factor (1)
inefficiency of the insurer for any valid reason or based upon excessive
overhead or based upon premiums and income collected compared with
claims paid out or based upon excessive salaries, benefits, sales
commissions, or other compensation to executives, employees, officers,
directors, or managers at all levels or based upon excessive amounts
paid out to defend or litigate claims or based upon delay in paying valid
claims; or (2) sufficient insurer profit such that a rate increase or
premium increase is not in the best interest of the public."
SECTION 6. Section 38-73-455 of the 1976 Code, as last amended by
Act 113 of 1991, is further amended by deleting subsection (C) which
reads:
"(C) Member companies of an affiliated group of automobile
insurers may not utilize different filed rates for automobile insurance
coverages which they are mandated by law to write. For the purpose of
this section, an affiliated group of automobile insurers includes a group
of automobile insurers under common ownership, management, or
control. Those automobile insurers designated pursuant to Section 38-77-590(a), for automobile insurance risks written by them through
producers designated by the facility governing board pursuant to that
section, shall utilize the rates or premium charges by coverage filed and
authorized for use by the rating organization licensed by the
commissioner pursuant to Article 11, Chapter 73 of this title, which has
the largest number of members or subscribers for automobile insurance
rates. However, those automobile insurers designated pursuant to
Section 38-77-590(a) are not required to use those same rates or
premium charges described in the preceding sentence for risks written
by them through their authorized agents not appointed pursuant to
Section 38-77-590."
SECTION 7. Section 38-73-735 of the 1976 Code, as last amended by
Act 148 of 1989, is further amended to read:
"Section 38-73-735. In addition to risk and territorial
classification plans promulgated or approved under Section 38-73-730,
the commissioner may promulgate plans to afford credits or discounts
to automobile insureds, or he may approve the credit or discount plans
filed with him by insurers of automobile insurance. No automobile
insurance credit or discount plan may be promulgated or approved by
the commissioner unless:
(1) The criteria for determining eligibility for credits or discounts
under the plan are objective, clear, and unequivocal;.
(2) The criteria are based upon factually or statistically supported
data; and.
(3) The credits or discounts provided under the plan will be afforded
by the insurer on a nondiscriminatory basis to all insureds who are
eligible therefor. If an insurance credit or discount plan is
given to an insured pursuant to this section, the policy may be ceded to
the Reinsurance Facility in accordance with the facility's plan of
operation."
SECTION 8. Section 38-73-750 of the 1976 Code, as last amended by
Act 148 of 1989, is further amended to read:
"Section 38-73-750. Automobile insurers shall file with the
State Rating and Statistical Division their plans or systems for allocating
expenses and profit as respects the various kinds or types and
classes of automobile insurance risks and the classes of risks
thereunder. However, no plan or system may be filed which is
inconsistent with the classification of risks promulgated by the
commissioner. No plan or system may be filed or approved if the
purpose or effect is to discriminate unfairly or unreasonably in respect
to the allocation of expenses or profit between classes of risks or if the
purpose or effect is to impose a burden or detriment upon the South
Carolina Reinsurance Facility or to secure to the insurer using the
plan or system an unfair or unreasonable competitive advantage to the
detriment of the South Carolina Reinsurance Facility or other
insurers. The commissioner after due notice and hearing, shall
disapprove and disallow the further use of an inconsistent,
discriminatory, burdensome, or competitively unfair plan or system for
the allocation of expenses and profit."
SECTION 9. Section 38-73-760 of the 1976 Code, as last amended by
Act 148 of 1989, is further amended to read:
"Section 38-73-760. (A) The commissioner, through the State
Rating and Statistical Division, shall fix, establish, and promulgate any
uniform statistical plan that may be necessary or appropriate for
the gathering and compilation of statistical data from insurers, rating
organizations, or advisory organizations transacting or otherwise
engaged in the automobile insurance business in the State. In
promulgating any a uniform statistical plan
consideration may be given to the extent reasonable or practicable to the
rules and forms of the plans used for rating systems in other states. Upon
the promulgation of any a statistical plan for automobile
insurance in this State, the same it must be adopted and
used by every automobile insurer in this State South
Carolina, and every automobile insurer shall constitute the State
Rating and Statistical Division its statistical agent for automobile
insurance in this State.
(B) The statistical plan may be promulgated so as to provide for
any and all the statistical and financial data necessary
or appropriate to the implementation of the policy of this chapter or
Chapter 77 of this title or to yield statistical data reasonably and fairly
related to any of the purposes of this article, including,
but not limited to, the fixing, establishing, and promulgating of:
(1) risk and territorial classification plans for automobile
insurance;
(2) determining the pure loss rate level indications for
automobile insurance in South Carolina this State based
upon all South Carolina loss experience and assisting in the translating
of this information into usable form for insurance consumers in terms of
the final rates or premium charges of each insurer of automobile
insurance,;
(3) determining the reasonability of loss adjustment
expenses, other expenses, and profit factors applied by insurers
to their pure loss components in arriving at their final rates or premium
charges for automobile insurance both for purposes of
ensuring that the final rates or premium charges are adequate, not
excessive, and not unfairly discriminatory and for ensuring that
improper and undue burdens are not imposed upon the South Carolina
Reinsurance Facility by way of excessive ceding commissions to ceding
insurers;
(4) determining the amount, validity, and propriety of
class and territorial differentials applied to the general pure loss rate
levels and testing not less than annually the appropriateness of the
existing differentials in the light of the most recent available loss
experience data;
(5) determining the amount, validity, and propriety of
surcharges and discounts referable to any a uniform
merit rating plan or system which may have been promulgated by the
commissioner or which may be under consideration for promulgation,
the appropriateness of the surcharges and discounts in the light of the
most recent available loss experience data;
(6) determining the propriety or validity of any
a plan for the classification of risks which may be in effect or
under consideration based upon the propensities of motor vehicles or
classes or types of motor vehicles or their equipment to shield occupants
from death or serious injury as a result of crash or based upon the
relative invulnerability of the motor vehicles or classes or types of motor
vehicles to extensive damage as a result of crash or their repairability at
modest expense; or
(7) obtaining data relevant to studies being made or to be
made by the State Rating and Statistical Division in connection with
any of the foregoing the provisions of this
subsection or in connection with means and methods for providing
appropriate rates for insurance consumers or fostering and encouraging
competition among insurers.
(C) The functions and responsibilities of the State Rating and
Statistical Division acting as statistical agent for automobile insurers
may must not be delegated, except that the
commissioner may, as the result of competitive bidding,
may make an agreement with some suitable person, firm,
corporation, or other organization for the gathering, compilation,
recordation, or computerization of the statistical data. However, these
functions are always subject to the supervision, direction, and control of
the commissioner and the examination and oversight of insurers in
respect to their obligations to furnish statistical data to him remain the
direct responsibility of the commissioner and may never
must not be delegated other than to the State Rating and
Statistical Division.
(D) Any A merit rating plan or system promulgated
by the commissioner pursuant to the authority contained in
subsection (B) likewise extends to and includes automobile
collision insurance. However, nothing contained in this
subsection (d) requires that the same percentage or dollar
amounts for discounts or surcharges apply to collision coverage nor does
it require that surcharges already assessed in respect to the liability
coverages of the policy again be assessed in respect to the collision
coverage afforded by the same policy.
(E) The commissioner shall require all insurers transacting automobile
insurance business in this State to assess surcharges and grant safe driver
discounts of no less than twenty percent.
(F) All policies of automobile insurance issued in South Carolina
must show on the initial policy or on an attachment to the initial policy
and on all premium invoices or attached to all premium invoices, in a
form to be approved by the commissioner, the amount of
any a surcharge, (including loss of safe
driver discount) that may be, applicable to the policy as
a result of any a merit rating plan or system
promulgated by the commissioner. Also to be included, presented in
a fashion that is readily understandable, is The reason for the
applicable surcharge or the loss of safe driver discount must be
included and presented in a readily understandable fashion. The
amount of the applicable safe driver discount also must be shown."
SECTION 10. Section 38-77-30 of the 1976 Code, as last amended
by Act 443 of 1992, is further amended by deleting item (5) which reads:
"(5) `Facility' means the unincorporated, nonprofit, legal
entity created by this chapter to reinsure policies of automobile
insurance known as the South Carolina Reinsurance Facility."
SECTION 11. Section 38-77-285 of the 1976 Code, as last
amended by Act 146 of 1991, is further amended to read:
"Section 38-77-285. All automobile insurance coverages
written by an insurer for an insured's automobile must be written in the
same policy except that all automobile insurance policies in
effect on the effective date of this section may continue in force until the
expiration date of the policy. This section applies only to insurance
policies covering vehicles eligible to be ceded to the Reinsurance
Facility individual passenger automobiles."
SECTION 12. (A) Nothing in this act may be construed to eliminate
the mandate imposed on automobile insurers doing business in this State
to write insurance for all (Article 3, Chapter 77, Title 38 of the 1976
Code) or for self-insured plans approved by the Chief Insurance
Commissioner to comply with the financial responsibility statutes of this
State.
(B) Nothing in this act may be construed to eliminate compulsory
insurance for all drivers and compliance with the financial responsibility
statutes of this State.
SECTION 13. Upon the effective date of this act the Chief Insurance
Commissioner shall approve a ten percent reduction in rate or premium
charges used by automobile insurers.
SECTION 14. Sections 38-73-1420, 38-73-1425, 38-77-920, 38-77-940, 38-77-950, and 38-77-960, and Article 5, Chapter 77, Title 38 of
the 1976 Code are repealed.
SECTION 15. Except as otherwise specifically provided, this act
takes effect July 1, 1994, except the Reinsurance Facility may operate
until July 1, 1996.
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