No. 27829 (Repeal and Reenact): R590-93. Replacement of Life Insurance and Annuities

DAR File No.: 27829
Filed: 04/15/2005, 04:03
Received by: NL

 

RULE ANALYSIS

Purpose of the rule or reason for the change:

As a result of H.B. 374 which was passed in 2003, the terms "agent" and "agency" were changed to "producer." This rule is being updated to comply with the new language and also to adopt the new National Association of Insurance Commissioner's Model Regulation #613, Life Insurance and Annuities Replacement Model. (DAR NOTE: H.B. 374 is found at UT L 2003 Ch 298, and was effective 05/05/2003.)

 

Summary of the rule or change:

The reenacted text contains the substantive language from the repealed text plus the following new language is added: 1) new trigger involved for completing replacement notice; 2) the notice has been revised to contain consumer education and protection which can now be completed electronically; 3) expanded the time period from 3-5 days for the replacing insurer to notify the existing insurer of the replacement; 4) requires existing insurers to keep record of the replacement notifications; and 5) for direct response business the replacing insurer does not need to delay processing the application if the notice is not completed, but does require a good faith effort.

 

State statutory or constitutional authorization for this rule:

31A-2-201, 31A-23a-402

 

This rule or change incorporates by reference the following material:

Appendix A and Appendix C, Important Notice: Replacement of Life Insurance or Annuities; and Appendix B, Notice Regarding Replacement, from the National Association of Insurance Commissioners, dated 2000

 

Anticipated cost or savings to:

the state budget:

The changes to this rule will have no fiscal impact on the department's or the state's budget. Neither will the changes impact the department's work load significantly. Most of the 500 plus life insurance companies selling insurance in Utah have already changed their filings to comply with this rule.

 

local governments:

Since the rule deals with the relationship between the Insurance Department and life insurers they regulate, this rule will have no fiscal impact on local government.

 

other persons:

There are approximately 374 life insurers who will be required to revise their applications and replacement notices. Many have already made these changes. The only expense will be the loss of preprinted forms for those using paper forms verses electronic. Consumers will not be impacted financially by these changes. The educational information in the notice may help consumers make the best choice for their needs.

 

Compliance costs for affected persons:

There are approximately 374 life insurers who will be required to revise their applications and replacement notices. Many have already made these changes. The only expense will be the loss of preprinted forms for those using paper forms verses electronic. Consumers will not be impacted financially by these changes. The educational information in the notice may help consumers make the best choice for their needs.

 

Comments by the department head on the fiscal impact the rule may have on businesses:

The changes in this rule will have no substantive fiscal impact on Utah businesses. D. Kent Michie, Commissioner

 

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Insurance
Administration
Room 3110 STATE OFFICE BLDG
450 N MAIN ST
SALT LAKE CITY UT 84114-1201

 

Direct questions regarding this rule to:

Jilene Whitby at the above address, by phone at 801-538-3803, by FAX at 801-538-3829, or by Internet E-mail at [e-mail]

 

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

05/31/2005

 

Interested persons may attend a public hearing regarding this rule:

5/24/2005 at 11:00 AM, State Office Building (behind the Capitol), 450 N Main, Room 1112, Salt Lake City, UT

 

This rule may become effective on:

06/01/2005

 

Authorized by:

Jilene Whitby, Information Specialist

 

 

RULE TEXT

R590. Insurance, Administration.

[R590-93. Replacement of Life Insurance and Annuities.

R590-93-1. Authority.

This rule is adopted and promulgated by the Insurance Commissioner pursuant to Subsection 31A-2-201(3), Utah Code, which empowers the Commissioner of Insurance to make reasonable rules necessary for, or as an aid to, the effectuation of any provision of the Insurance Code, and to define acts and practices reasonably found to be unfair or deceptive.

The issuance or offer to issue any insurance, as defined herein, which is a replacement of existing insurance, as defined herein, shall, if not done in compliance with the terms of this rule, be deemed a misrepresentation in violation of Subsection 31A-23-302(1)(a)(i), Utah Code, and provide unfair inducement which is prohibited by Subsection 31A-23-302(8), Utah Code.

It is hereby recognized and ordered that insurance purchasers have inherent interests and rights in the continuance of existing insurance coverage which may be compromised if purchasers are not allowed sufficient time and provided with sufficient information to enable them to make an informed choice regarding their desire to continue existing insurance or replace it with alternative coverage. This rule is adopted to assure that sufficient time and information shall be provided to all persons so situated and failure to meet the requirements set forth herein shall be deemed to be an unfair and deceptive trade practice by any insurer or any representative of an insurer.

 

R590-93-2. Purpose.

The purpose of this rule is to protect the interests of life insurance and annuity purchasers during a replacement transaction by establishing minimum standards to be observed by insurers and agents in providing adequate and timely information concerning the existing and proposed policies or contracts so that the purchasers may make a better informed decision.

 

R590-93-3. Definition or Replacement.

"Replacement" means any transaction in which new life insurance or a new annuity contract is to be purchased, and it is known or should be known to the proposing agent, or to the proposing insurer if there is no agent, that by reason of such transaction, an existing life insurance policy(ies) or an annuity contract(s) has been or is to be:

A. Lapsed, forfeited, surrendered, exchanged or otherwise terminated;

B. Converted to reduced paid-up insurance, continued as extended term insurance, or otherwise reduced in value by the use of nonforfeiture benefits or other policy values;

C. Amended so as to effect a reduction either in benefits or in the term for which coverage would otherwise remain in force or for which benefits would be paid;

D. Reissued with any reduction in cash value; or

E. Pledged as collateral or subjected to borrowing, whether in a single loan or under a schedule of borrowing over a period of time.

 

R590-93-4. Other Definitions.

A. "Conservation" means any attempt by the existing insurer or its agent to dissuade a policyholder from the replacement of existing insurance. A conservation effort does not include such routine administrative procedures as late payment reminders, late payment offers or reinstatement offers.

B. "Direct-Response Sales" means any sale of insurance where the insurer does not utilize an agent or company representative in the sale or delivery of the policy. Normally the entire transaction is handled by way of correspondence.

C. "Existing Insurance" means any insurance in force including insurance under a binding or conditional receipt, an insurance policy or contract that is within an unconditional refund period or an insurance policy while in the premium grace period.

D. "Existing Insurer" means the insurance company whose policy is or will be changed or terminated in such a manner as described within Section 3, "Definition of Replacement," of this rule.

E. "Insurance" means any life insurance policy or annuity contract issued by an insurance company except as provided within Section 5, "Exemptions," of this rule.

F. "Notice" means the required one-page three-part format which includes the "Explanation", the statement of "Existing Insurance Which May Be Replaced or Changed," and the list of "Items to Consider" followed by signatures and identifying information. A sample "Notice" is incorporated herein by reference (see addendum) and is to be made available by the replacing insurance company. The "Notice" must have imprinted the name, address and telephone number of the replacing insurer.

G. "Replacing Insurer" means the insurance company to which application is made for a new policy or contract which is a replacement of existing insurance.

 

R590-93-5. Exemptions.

Unless otherwise specifically included, this rule shall not apply to:

A. Credit life insurance;

B. Group life insurance or group annuities;

C. Proposed insurance that is to replace insurance applied for under a binding or conditional receipt issued by the same company;

D. Proposed insurance to be provided by the insurer that issued existing insurance where a contractual change or conversion privilege is being exercised; and

E. Proposed insurance offered on a direct response basis to a class or classes of existing policyholders by the same insurer, for the principal purpose of upgrading existing insurance. The rationale and proposed process and related policyholder information must be filed with the Department and approved to qualify for this exemption and the cost benefit to policyholders must be reasonable.

 

R590-93-6. Duties of Agents.

A. In connection with or as part of each application for insurance, an agent must complete and submit to the insurer the required statement from the applicant as well as the agent's own statement as to whether or not replacement may be involved in the transaction.

B. Where a replacement is involved, the agent shall:

1. Present to and leave with the applicant, not later than at the time of taking the application, a properly completed and signed copy of the three-part Notice which includes a list of all existing insurance to be replaced;

2. Submit to the replacing insurer with the application a copy of the properly completed and signed Notice; and

3. Leave with the applicant the original or a copy of written or printed communications used in connection with the presentation.

C. Each agent who uses written or printed communications in a conservation effort shall leave with the policyholder the original or a copy of such materials used. Each agent should explain optional modifications or changes within the existing insurance.

D. The current Utah Insurance Department rule(s) regarding the solicitation of life insurance and annuities also apply in replacement and conservation situations. If applicable, Security and Exchange Commission disclosure requirements must also be followed.

 

R590-93-7. Duties of Insurers Represented by Agents.

Each insurer shall:

A. Inform its agents, field representatives or other personnel responsible for compliance with this rule concerning the requirements of this rule.

B. Require with or as a part of each completed application for insurance:

1. A statement in connection with the application signed by the applicant as to whether such proposed insurance will replace existing insurance; and

2. A statement signed by the agent as to whether or not he or she knows replacement is or may be involved in the transaction.

C. Where a replacement is involved, the replacing insurer shall:

1. Require from the agent with the application for insurance a copy of the three-part Notice properly completed and signed;

2. Send to the existing insurer at its home office within three (3) working days of the date the Notice is received, a copy of the Notice advising of the replacement or proposed replacement of existing insurance. Forwarding of the Notice is not required if the replacing insurer and existing insurer are one and the same in name and direct management control;

3. Maintain copies of the Notice, all written communications with respect to replacement, and a replacement register, cross-indexed by replacing agent and existing insurer to be replaced, for at least three years or until the conclusion of the next regular examination by the Insurance Department of its state of domicile, whichever is later;

4. Furnish to the applicant a Policy Summary and/or disclosure material in accordance with the provisions of the current rules concerning the solicitation of insurance. In connection with registered contracts, applicants shall be furnished premium or contract contribution amounts and identification of the appropriate prospectus or offering circular; and

5. Provide the applicant with a right to an unconditional refund of all premiums paid, which right may be exercised within a period of at least twenty (20) days commencing from the date of delivery of the policy or contract.

 

R590-93-8. Duties of Insurers with Respect to Direct-Response Sales.

Each insurer shall:

A. Inform its personnel responsible for compliance with this rule of the requirements of this rule;

B. Require with or as a part of each completed application for insurance a statement signed by the applicant as to whether such proposed insurance will replace existing insurance;

C. Where a replacement is proposed by an insurer in the solicitation of a direct-response sale or it is known by the insurer on the date of application that a replacement will occur:

1. Provide the applicant or prospective applicant with or as part of the application the three-part Notice with the request that the applicant properly complete, sign and return a copy of the Notice with the application;

2. Send to the existing insurer at its home office within three (3) working days of the date of the Notice is received, a copy of the Notice advising of the replacement or proposed replacement of existing insurance. Forwarding the Notice is not required if the replacing insurer and existing insurer are one and the same in name and direct management control;

3. Maintain copies of the Notice, all written communications with respect to replacement, and a replacement register, cross-indexed by existing insurer to be replaced, for at least three years or until the conclusion of the next regular examination by the insurance department of its state of domicile, whichever is later;

4. Furnish to the applicant a Policy Summary and/or disclosure material in accordance with the provisions of current rules concerning the solicitation of insurance. In connection with registered contracts, applicants shall be furnished premium or contract contribution amounts and identification of the appropriate prospectus or offering circular; and

5. Provide the applicant with a right to an unconditional refund of all premiums paid, which right may be exercised at least twenty (20) days commencing from the date of delivery of the policy or contract.

D. Where no replacement is proposed by an insurer in the solicitation of a direct-response sale and the three-part Notice was not included with or as part of the application and returned to the insurer, but it is indicated on the application that a replacement might occur and the insurer plans to issue a policy:

1. Suspend the application process for no longer than ten (10) days;

2. Provide the applicant with the Notice within three (3) days after receipt of the application;

3. Request that the applicant properly complete, sign and return a copy of the Notice within five (5) days; and

4. Continue the process as outlined in Sections 8(C)(2) through 8(C)(5). The insurer may continue the application process after ten (10) days from receipt of application even if a copy of the Notice has not been received.

 

R590-93-9. Duties of Existing Insurer.

Each existing insurer in connection with a voluntary conservation effort, may, or upon request from the policyholder shall, furnish current, complete and detailed summary or ledger statements pertaining to the existing insurance and in accordance with the provisions of current rules concerning the solicitation of insurance. The existing insurer should explain optional modifications or changes within the existing insurance.

 

R590-93-10. Penalties.

A. Pursuant to the provisions of Sections 31A-2-308, 31A-23-216 and 31A-23-217, Utah Code, violations of this rule shall subject licensees to the following penalties:

1. Any insurer found in violation of this rule may be charged an administrative forfeiture of not more than $1,000 for each separate violation. Additionally, willful violation of this rule could subject the insurer to censorship against its certificate of authority.

2. Any individual or organizational licensee found in violation of this rule may be charged an administrative forfeiture of not more than $1,000 for each separate violation. Additionally, willful violation of this rule could subject the individual or organizational licensee to be placed on probation, license suspension or revocation.

B. Any action on the part of an agent, insurer, or representative to discourage the policyholder from reading, completing or signing the three-part Notice shall be deemed a violation of this rule.

C. Policyholders have the right to replace existing insurance after indicating in or as part of the application for insurance that such is not their intention; however, patterns of such action by policyholders who purchase replacing policies from the same insurer or agent shall be deemed prima facie evidence of the insurer's or agent's knowledge that replacement was intended in connection with the sale of those policies, and such patterns or action shall be deemed prima facie evidence of the insurer's or agent's violation of this rule.

D. This rule does not prohibit the use of additional material other than that which is required that is not in violation of this rule or any other Utah statute or rule.

 

R590-93-11. Relationship to Other Statutes and Rules.

If any portion of this rule is inconsistent with any provision of any statute or other rule dealing with life insurance or annuity marketing practices or disclosure, said inconsistent portion shall be interpreted so as to provide the greatest information or protection to the policyholder.

 

R590-93-12. Severability.

If any section, term, or provision of this rule shall be adjudged invalid for any reason, such judgment shall not affect, impair or invalidate any other section, term, or provision of this rule and the remaining sections, terms, and provisions shall be and remain in full force.

 

R590-93-13. Effective Date.

This rule shall be effective May 26, 1989.

 

KEY: insurance law

1989

Notice of Continuation April 28, 2004

31A-2-201]

R590-93. Replacement of Life Insurance and Annuities.

R590-93-1. Authority.

This rule is promulgated pursuant to Subsection 31A-2-201(3)(a) wherein the commissioner may make rules to implement the provisions of Title 31A and pursuant to Subsection 31A-23a-402(8), which allows the commissioner to define methods of competition and acts and practices found to be unfair or deceptive.

 

R590-93-2. Purpose and Scope.

(1) The purpose of this rule is:

(a) to regulate the activities of insurers and producers with respect to the replacement of existing life insurance and annuities; and

(b) to protect the interests of life insurance and annuity purchasers by establishing minimum standards of conduct to be observed in replacement or financed purchase transactions. It will:

(i) assure that purchasers receive information with which a decision can be made in the purchaser's own best interest;

(ii) reduce the opportunity for misrepresentation and incomplete disclosure; and

(iii) establish penalties for failure to comply with requirements of this rule.

(2) Unless otherwise specifically included, this rule shall not apply to transactions involving:

(a) credit life insurance;

(b) group life insurance or group annuities where there is no direct solicitation of individuals by an insurance producer. Direct solicitation shall not include any group meeting held by an insurance producer solely for the purpose of educating or enrolling individuals or, when initiated by an individual member of the group, assisting with the selection of investment options offered by a single insurer in connection with enrolling that individual. Group life insurance or group annuity certificates marketed through direct response solicitation shall be subject to the provisions of Section R590-93-8;

(c) group life insurance and annuities used to fund prearranged funeral contracts;

(d) an application to the existing insurer that issued the existing policy or contract when a contractual change or a conversion privilege is being exercised; or, when the existing policy or contract is being replaced by the same insurer pursuant to a program filed with and approved by the commissioner;

(e) proposed life insurance that is to replace life insurance under a binding or conditional receipt issued by the same company;

(f)(i) policies or contracts used to fund:

(A) an employee pension or welfare benefit plan that is covered by the Employee Retirement and Income Security Act (ERISA);

(B) a plan described by Sections 401(a), 401(k) or 403(b) of the Internal Revenue Code, where the plan, for purposes of ERISA, is established or maintained by an employer;

(C) a governmental or church plan defined in Section 414, a governmental or church welfare benefit plan, or a deferred compensation plan of a state or local government or tax exempt organization under Section 457 of the Internal Revenue Code; or

(D) a nonqualified deferred compensation arrangement established or maintained by an employer or plan sponsor.

(ii) Notwithstanding Subsection (i), this rule shall apply to policies or contracts used to fund any plan or arrangement that is funded solely by contributions an employee elects to make, whether on a pre-tax or after-tax basis, and where the insurer has been notified that plan participants may choose from among two or more insurers and there is a direct solicitation of an individual employee by an insurance producer for the purchase of a contract or policy. As used in this subsection, direct solicitation shall not include any group meeting held by an insurance producer solely for the purpose of educating individuals about the plan or arrangement or enrolling individuals in the plan or arrangement or, when initiated by an individual employee, assisting with the selection of investment options offered by a single insurer in connection with enrolling that individual employee;

(g) where new coverage is provided under a life insurance policy or contract and the cost is borne wholly by the insured's employer or by an association of which the insured is a member;

(h) existing life insurance that is a non-convertible term life insurance policy that will expire in five years or less and cannot be renewed;

(i) immediate annuities that are purchased with proceeds from an existing contract. Immediate annuities purchased with proceeds from an existing policy are not exempted from the requirements of this rule; or

(j) structured settlements.

(3) Registered contracts shall be exempt from the requirements of Subsections R590-93-6(1)(c) and R590-93-7(2) with respect to the provision of illustrations or policy summaries; however, premium or contract contribution amounts and identification of the appropriate prospectus or offering circular shall be required instead.

 

R590-93-3. Definitions.

In addition to the definitions of Section 31A-1-301, the following definitions shall apply for the purposes of this rule.

(1) "Direct-response solicitation" means a solicitation through a sponsoring or endorsing entity or individually solely through mails, telephone, the Internet or other mass communication media.

(2) "Existing insurer" means the insurance company whose policy or contract is or will be changed or affected in a manner described within the definition of "replacement."

(3) "Existing policy or contract" means an individual life insurance policy, hereinafter referred to as policy, or annuity contract, hereinafter referred to as contract, in force, including a policy under a binding or conditional receipt or a policy or contract that is within an unconditional refund period.

(4) "Financed purchase" means the purchase of a new policy involving the actual or intended use of funds obtained by the withdrawal or surrender of, or by borrowing from values of an existing policy to pay all or part of any premium due on the new policy. For purposes of a regulatory review of an individual transaction only, if a withdrawal, surrender or borrowing involving the policy values of an existing policy is used to pay premiums on a new policy owned by the same policyholder and issued by the same company within four months before or 13 months after the effective date of the new policy, it will be deemed prima facie evidence of the policyholder's intent to finance the purchase of the new policy with existing policy values. This prima facie standard is not intended to increase or decrease the monitoring obligations contained in Subsection R590-93-5(1)(d).

(5) "Illustration" means a presentation or depiction that includes non-guaranteed elements of a policy of life insurance over a period of years as defined in R590-177, Life Insurance Illustrations Rule.

(6) "Notice" means Appendix A and Appendix C, Important Notice: Replacement of Life Insurance or Annuities, and Appendix B, Notice Regarding Replacement, from the National Association of Insurance Commissioners, dated 2000 and which are incorporated herein by reference. The notice is to be made available by the replacing insurer and must be imprinted with the name, address, and telephone number of the replacing insurer.

(7)(a) "Policy summary" for policies or contracts other than universal life policies, means a written statement regarding a policy or contract which shall contain to the extent applicable, but need not be limited to, the following information:

(i) current death benefit;

(ii) annual contract premium;

(iii) current cash surrender value;

(iv) current dividend;

(v) application of current dividend; and

(vi) amount of outstanding loan.

(b) "Policy summary" for universal life policies, means a written statement that shall contain at least the following information:

(i) the beginning and end date of the current report period;

(ii) the policy value at the end of the previous report period and at the end of the current report period;

(iii) the total amounts that have been credited or debited to the policy value during the current report period, identifying each by type, e.g., interest, mortality, expense and riders;

(iv) the current death benefit at the end of the current report period on each life covered by the policy;

(v) the net cash surrender value of the policy as of the end of the current report period; and

(vi) the amount of outstanding loans, if any, as of the end of the current report period.

(8) "Replacing insurer" means the insurance company that issues or proposes to issue a new policy or contract that replaces an existing policy or contract or is a financed purchase.

(9) "Registered contract" means a variable annuity contract or variable life insurance policy subject to the prospectus delivery requirements of the Securities Act of 1933.

(10) "Replacement" means a transaction in which a new policy or contract is to be purchased, and it is known or should be known to the proposing producer, or to the proposing insurer if there is no producer, that by reason of the transaction, an existing policy or contract has been or is to be:

(a) lapsed, forfeited, surrendered or partially surrendered, assigned to the replacing insurer or otherwise terminated;

(b) converted to reduced paid-up insurance, continued as extended term insurance, or otherwise reduced in value by the use of nonforfeiture benefits or other policy values;

(c) amended so as to effect either a reduction in benefits or in the term for which coverage would otherwise remain in force or for which benefits would be paid;

(d) reissued with any reduction in cash value; or

(e) used in a financed purchase.

(11) "Sales material" means a sales illustration and any other written, printed or electronically presented information created, or completed or provided by the company or producer and used in the presentation to the policy or contract holder related to the policy or contract purchased.

 

R590-93-4. Duties of Producers.

(1) A producer who initiates an application shall submit to the insurer, with or as part of the application, a statement signed by both the applicant and the producer as to whether the applicant has existing policies or contracts. If the answer is "no," the producer's duties with respect to replacement are complete.

(2) If the applicant answered "yes" to the question regarding existing coverage referred to in Subsection (1), the producer shall present and read to the applicant, not later than at the time of taking the application, the Notice regarding replacements in the form as described in Appendix A or other substantially similar form approved by the commissioner. However, no approval shall be required when amendments to the Notice are limited to the omission of references not applicable to the product being sold or replaced. The Notice shall be signed by both the applicant and the producer attesting that the Notice has been read aloud by the producer or that the applicant did not wish the Notice to be read aloud, in which case the producer need not have read the Notice aloud, and left with the applicant. With respect to an electronically completed application and Notice, the producer is not required to leave a copy of the electronically completed Notice with the applicant.

(3) The Notice shall list each existing policy or contract contemplated to be replaced, properly identified by name of insurer, the insured or annuitant, and policy or contract number if available; and shall include a statement as to whether each policy or contract will be replaced or whether a policy will be used as a source of financing for the new policy or contract. If a policy or contract number has not been issued by the existing insurer, alternative identification, such as an application or receipt number, shall be listed.

(4) In connection with a replacement transaction the producer shall leave with the applicant at the time an application for a new policy or contract is completed the original or a copy of all sales material. With respect to electronically presented sales material, it shall be provided to the policy or contract holder in printed form no later than at the time of policy or contract delivery.

(5) Except as provided in Subsection R590-93-6(3), in connection with a replacement transaction the producer shall submit to the insurer to which an application for a policy or contract is presented, a copy of each document required by this section, a statement identifying any preprinted or electronically presented company approved sales materials used, and copies of any individualized sales materials, including any illustrations related to the specific policy or contract purchased.

 

R590-93-5. Duties of Insurers that Use Producers.

Each insurer shall:

(1) maintain a system of supervision and control to insure compliance with the requirements of this rule that shall include at least the following:

(a) inform its producers of the requirements of this rule and incorporate the requirements of this rule into all relevant producer training manuals prepared by the insurer;

(b) provide to each producer a written statement of the company's position with respect to the acceptability of replacements providing guidance to its producer as to the appropriateness of these transactions;

(c) a system to review the appropriateness of each replacement transaction that the producer does not indicate is in accord with Subsection (b) above;

(d) procedures to confirm that the requirements of this rule have been met;

(e) procedures to detect transactions that are replacements of existing policies or contracts by the existing insurer, but that have not been reported as such by the applicant or producer. Compliance with this rule may include, but shall not be limited to, systematic customer surveys, interviews, confirmation letters, or programs of internal monitoring;

(2) have the capacity to monitor each producer's life insurance policy and annuity contract replacements for that insurer, and shall produce, upon request, and make such records available to the department. The capacity to monitor shall include the ability to produce records for each producer's:

(a) life replacements, including financed purchases, as a percentage of the producer's total annual sales for life insurance;

(b) number of lapses of policies by the producer as a percentage of the producer's total annual sales for life insurance;

(c) annuity contract replacements as a percentage of the producer's total annual annuity contract sales;

(d) number of transactions that are unreported replacements of existing policies or contracts by the existing insurer detected by the company's monitoring system as required by Subsection R590-93-5(1)(e); and

(e) replacements, indexed by replacing producer and existing insurer;

(3) require with or as a part of each application for life insurance or an annuity a signed statement by both the applicant and the producer as to whether the applicant has existing policies or contracts;

(4) require with each application for life insurance or annuity that indicates an existing policy or contract, a completed Notice regarding replacements as contained in Appendix A;

(5) when the applicant has existing policies or contracts, each insurer shall be able to produce copies of any sales material required by Subsection R590-93-4(5), the basic illustration and any supplemental illustrations related to the specific policy or contract that is purchased, and the producer's and applicant's signed statements with respect to financing and replacement for at least five years after the termination or expiration of the proposed policy or contract;

(6) ascertain that the sales material and illustrations required by Subsection R590-93-4(5) of this rule meet the requirements of this rule and are complete and accurate for the proposed policy or contract;

(7) if an application does not meet the requirements of this rule, notify the producer and applicant and fulfill the outstanding requirements; and

(8) maintain records in any media or by any process that accurately reproduces the actual document.

 

R590-93-6. Duties of Replacing Insurers that Use Producers.

(1) Where a replacement is involved in the transaction, the replacing insurer shall:

(a) verify that the required forms are received and are in compliance with this rule;

(b) with respect to an electronically completed Notice, the replacing insurer shall send a printed copy of the electronically executed Notice to the applicant within five working days of the date the Notice is received by the company;

(c) Notify any other existing insurer that may be affected by the proposed replacement within five business days of receipt of a completed application indicating replacement or when the replacement is identified if not indicated on the application, and mail a copy of the available illustration or the policy summary for the proposed policy or disclosure document for the proposed contract within five business days of a request from an existing insurer;

(d) be able to produce copies of the notification regarding replacement required in Subsection R590-93-4(2), indexed by producer, for at least five years or until the next regular examination by the insurance department of a company's state of domicile, whichever is later; and

(e) provide to the policy or contract holder notice of the right to return the policy or contract within 20 days of the delivery of the contract and receive an unconditional full refund of all premiums or considerations paid on it; such notice may be included in Appendix A or C. This subsection does not preempt the requirements of 31A-22-423.

(2) In transactions where the replacing insurer and the existing insurer are the same or subsidiaries or affiliates under common ownership or control, allow credit for the period of time that has elapsed under the replaced policy's or contract's incontestability and suicide periods up to the face amount of the existing policy or contract. With regard to financed purchases the credit may be limited to the amount the face amount of the existing policy is reduced by the use of existing policy values to fund the new policy or contract.

(3) If an insurer prohibits the use of sales material other than that approved by the company, as an alternative to the requirements made of an insurer pursuant to Subsection R590-93-4(5) with regard to sales materials, the insurer may:

(a) require with each application a statement signed by the producer that:

(i) represents that the producer used only company-approved sales material; and

(ii) states that copies of all sales material were left with the applicant in accordance with Subsection R590-93-4(4); and

(b) within ten days of the issuance of the policy or contract:

(i) notify the applicant by sending a letter or by verbal communication with the applicant by a person whose duties are separate from the marketing area of the insurer, that the producer has represented that copies of all sales material have been left with the applicant in accordance with Subsection R590-93-4(4);

(ii) provide the applicant with a toll free number to contact company personnel involved in the compliance function if such is not the case; and

(iii) stress the importance of retaining copies of the sales material for future reference; and

(c) be able to produce a copy of the letter or other verification in the policy file for at least five years after the termination or expiration of the policy or contract.

 

R590-93-7. Duties of the Existing Insurer.

Where a replacement is involved in the transaction, the existing insurer shall:

(1) retain and be able to produce all replacement notifications received, indexed by replacing insurer, for at least five years or until the conclusion of the next regular examination conducted by the insurance department of its state of domicile, whichever is later;

(2) send a letter to the policy or contract holder of the right to receive information regarding the existing policy or contract values including, if available, an in force illustration or policy summary if an in force illustration cannot be produced. The information shall be provided within five business days of receipt of the request from the policy or contract holder; and

(3) upon receipt of a request to borrow, surrender or withdraw any policy values, send a notice, advising the policy holder that the release of policy values may affect the guaranteed elements, non-guaranteed elements, face amount or surrender value of the policy from which the values are released. The notice shall be sent separate from the check if the check is sent to anyone other than the policyholder. In the case of consecutive automatic premium loans, the insurer is only required to send the notice at the time of the first loan.

 

R590-93-8. Duties of Insurers with Respect to Direct Response Solicitations.

(1) In the case of an application that is initiated as a result of a direct response solicitation, the insurer shall require, with or as part of each completed application for a policy or contract, a statement asking whether the applicant, by applying for the proposed policy or contract, intends to replace, discontinue or change an existing policy or contract. If the applicant indicates a replacement or change is not intended or if the applicant fails to respond to the statement, the insurer shall send the applicant, with the policy or contract, the Notice regarding replacement in Appendix B, or other substantially similar form approved by the commissioner.

(2) If the insurer has proposed the replacement or if the applicant indicates a replacement is intended and the insurer continues with the replacement, the insurer shall:

(a) provide to applicants or prospective applicants with the policy or contract a Notice, as described in Appendix C, or other substantially similar form approved by the commissioner. In these instances the insurer may delete the references to the producer, including the producer's signature, and references not applicable to the product being sold or replaced, without having to obtain approval of the form from the commissioner. The insurer's obligation to obtain the applicant's signature shall be satisfied if it can demonstrate that it has made a diligent effort to secure a signed copy of the Notice referred to in this subsection. The requirement to make a diligent effort shall be deemed satisfied if the insurer includes in the mailing a self-addressed postage prepaid envelope with instructions for the return of the signed Notice referred to in this section; and

(b) comply with the requirements of Subsection R590-93-6(1)(c), if the applicant furnishes the names of the existing insurers, and the requirements of Subsections R590-93-6(1)(d), R590-93-6(1)(e), and R590-93-6(2).

 

R590-93-9. Violations and Penalties.

(1) Any failure to comply with this rule shall be considered a violation of 31A-23a-402. Examples of violations include:

(a) any deceptive or misleading information set forth in sales material;

(b) failing to ask the applicant in completing the application the pertinent questions regarding the possibility of financing or replacement;

(c) the intentional incorrect recording of an answer;

(d) advising an applicant to respond negatively to any question regarding replacement in order to prevent notice to the existing insurer; or

(e) advising a policy or contract holder to write directly to the company in such a way as to attempt to obscure the identity of the replacing producer or company.

(2) Policy and contract holders have the right to replace existing life insurance policies or annuity contracts after indicating in or as a part of applications for new coverage that replacement is not their intention; however, patterns of such action by policy or contract holders of the same producer shall be deemed prima facie evidence of the producer's knowledge that replacement was intended in connection with the identified transactions, and these patterns of action shall be deemed prima facie evidence of the producer's intent to violate this rule.

(3) Where it is determined that the requirements of this rule have not been met, the replacing insurer shall provide to the policy holder an in force illustration if available or a policy summary for the replacement policy or disclosure document for the replacement contract and the appropriate Notice regarding replacements in Appendix A or C.

(4) Violations of this rule shall subject the violators to penalties that may include the revocation or suspension of a producer's or company's license, monetary fines and the forfeiture of any commissions or compensation paid to a producer as a result of the transaction in connection with which the violations occurred. In addition, where the commissioner has determined that the violations were material to the sale, the insurer may be required to make restitution, restore policy or contract values and pay interest at the legal rate as provided in Title 15 of the Utah Code on the amount refunded in cash.

 

R590-93-10. Relationship to Other Statutes and Rules.

If any portion of this rule is inconsistent with any provision of any statute or other rule dealing with life insurance or annuity marketing practices or disclosure, said inconsistent portion shall be interpreted so as to provide the greatest information or protection to the policyholder.

 

R590-93-11. Severability.

If any section, term, or provision of this rule shall be adjudged invalid for any reason, such judgment shall not affect, impair or invalidate any other section, term, or provision of this rule and the remaining sections, terms, and provision shall be and remain in full force.

 

R590-93-12. Enforcement Date.

The commissioner will begin enforcing this rule September 1, 2005.

 

KEY: life insurance, annuity replacement

2005

31A-2-201

31A-23a-402