The outline's "Producer regulation" bullet lists controlled business, shared commissions, payment to unlicensed entities, commissions and fees, appointments, advertising, the guaranty association's advertising rule, illustrations, and replacement. This chapter takes them in that order. Most of it is conduct: what you can pay, to whom, what you must tell the customer, and what the insurer must file.
4.1 Appointments and terminations
Being licensed is not the same as being allowed to sell for a company. R.S. 22:1558 says "An insurance producer shall not act as an agent of an insurer unless the insurance producer becomes an appointed agent of that insurer," with narrow exceptions for surplus lines placed through licensed surplus lines brokers and certain workers' compensation policies. A producer who is not acting as agent of an authorized insurer (a broker placing business) does not need an appointment, and a producer who acts through another licensed producer under that producer's authority does not need one either (22:1558(A)).
The insurer does the filing. To appoint a producer, "the appointing insurer shall file, in a manner prescribed by the commissioner of insurance, a notice of appointment within fifteen days from the date the agency contract is executed." An insurer may appoint a producer to all or some insurers in its holding company group by a single request (22:1558(B)(1)). After receiving the notice, the Commissioner verifies, "within a reasonable time, not to exceed thirty days," that the producer is eligible; if the producer is ineligible, the Commissioner notifies the insurer within fifteen days of that determination (22:1558(B)(2)). The insurer remits the appointment fees from R.S. 22:821 (22:1558(B)(3)). An insurer that fails to file its renewal appointments is fined ten dollars per license named in its appointment form (22:1558(B)(3)).
How long it lasts. An appointment "shall remain in full force and effect until the following date of renewal, unless the license of the appointed producer named therein is revoked by the commissioner ... or until canceled by the insurer upon written notice to the producer with a copy thereof filed with the commissioner" (22:1558(B)(4)). Regulation 109 sets the renewal dates: individual appointments expire January 1 of each year, business entity appointments August 1; the Commissioner invoices insurers at least 30 days before; an unpaid invoice means the appointment expires; and the insurer must terminate any appointment it does not want to renew before the invoice issues (LAC 37:XIII.15517).
Selling for a second company. A licensed producer, "unless otherwise prohibited by contract," may solicit, negotiate, or effect applications with any insurer lawfully doing business in Louisiana other than one the producer is appointed to represent, if the producer is under contract with that insurer; however, "no commissions shall be paid by such insurer to the producer until the appointment has been recorded by the commissioner" (22:1558(C)). A business entity may be the appointee if all persons in it who actively solicit or negotiate hold active producer licenses and are registered under the entity license (22:1558(D)).
Producer of record. If an insurer issues a policy on the application of a producer who is not authorized to represent it, the insurer "shall be deemed to have authorized such producer as producer of record to act on the insurer's behalf," and payment to that producer is payment to the insurer, an agency relationship only for collecting the premium (R.S. 22:1564(A)). For property, casualty, accident, or health insurance, the insurer must recognize the producer of record chosen in writing by the policy owner; a change requested by the insured requires ten calendar days' written notice to the existing producer (22:1564(B)).
Terminations
When an insurer ends a producer's appointment, the report to the Commissioner depends on why (R.S. 22:1559):
| Termination | Report to Commissioner |
|---|---|
| For any reason not set forth in 22:1554 (not a licensing-law ground) | within 30 days after the effective date, stating the circumstances |
| For cause: a reason in 22:1554, or the insurer knows a court, government body, or self-regulatory organization found the producer did something listed there | within 15 days after the effective date |
| Additional reportable facts discovered later | promptly |
Within fifteen days after notifying the Commissioner, the insurer mails a copy to the producer at the last known address; for a for-cause termination it must be sent by certified mail, return receipt requested, or by nationally recognized overnight delivery. The producer then has thirty days after receiving the notification to file written comments with the Commissioner (and send a copy to the insurer), and those comments accompany every copy of the report disclosed (22:1559(D)). An insurer, producer, or the Commissioner is not subject to civil liability for the required statements absent actual malice (22:1559(E)). The documents are confidential and privileged, not subject to public records or subpoena, but the Commissioner may share them with other regulators and the NAIC (22:1559(F)). An insurer or producer that fails to report may be fined up to $5,000 per violation, and one found to have reported with actual malice may be fined up to $5,000 per violation and have its license or certificate suspended or revoked (22:1559(G)).
4.2 Commissions, shared commissions, fees, and payments to unlicensed persons
The Louisiana commission rules reduce to a few sentences, and the exam asks them straight (R.S. 22:1557, 22:1562):
- No commission to an unlicensed person. An insurer or producer "shall not pay, directly or indirectly, any commission, service fee, brokerage, or other valuable consideration to any person or entity for selling, soliciting, or negotiating insurance in this state unless such person or entity holds a valid license" (22:1557(A)(1)). Nor may any unlicensed person or entity accept such compensation (22:1557(A)(2)).
- Renewal or deferred commissions may be paid to a person who "was required to be licensed ... at the time of the sale ... and was so licensed at that time" (22:1557(A)(3)). A producer who retires or whose license expires can still be paid renewal commissions on business sold while licensed.
- Sharing with an agency or with out-of-state licensees. A producer may pay or assign commissions to an insurance agency, or to persons who are not licensed in Louisiana but are licensed in their state of domicile and act only to assist Louisiana-licensed producers in placing business with authorized insurers (22:1557(A)(4)).
- Public-body insurance committees. A member of an insurance advisory committee of a state agency, school board, levee board, or similar body may not split or share commissions with a producer outside the committee without express official authorization; the penalty is a fine of $1,000 to $5,000 per violation, up to two years in prison, or both, and a conviction is grounds for discipline (22:1557(B)).
- Criminal penalty for paying an unlicensed person. No insurer or producer may give "any valuable consideration or compensation to any person or business entity not duly licensed as an insurance producer" for service rendered in selling, soliciting, negotiating, or effecting insurance on a Louisiana risk (the prohibition does not apply to reinsurance). Conviction brings a fine of $2,000 to $50,000, imprisonment up to three years, or both, plus grounds for immediate suspension or revocation (22:1562(A), (B)). Agency profits may be distributed to the owners of a licensed producer business entity if the entity complied with the registration rules and the owners were not convicted of a felony or moral-turpitude crime or had a license revoked or suspended (22:1562(A)(2)). That is why a licensed agency's unlicensed owner can share in profits only under those conditions.
- No signing blank. It is unlawful for any producer "to sign any policy of insurance endorsement in blank" (22:1562(F)).
- Quoted premium. A premium quoted by the insurer must be "a specific dollar amount ... inclusive of all fees, charges, premiums, or other consideration," and no one in the chain may charge or receive a fee not included in the quoted premium and the premium in the delivered policy, with listed exceptions (R.S. 22:855(A), (B)(1)).
- Fees on health business. A health insurance issuer must set one or more schedules of commission for each health product, applied uniformly to all producers in the same schedule and payable to all producers licensed and appointed to sell the issuer's health products; a producer may also negotiate a fee directly with the insured, plan sponsor, or employer, but must give a separate written notice, signed by the named insured, that the same policy may be bought online or through a health care navigator and that buying from the agent may mean a fee the insured would not otherwise pay (R.S. 22:1568; the fee rule in 22:855(B)). ERISA-governed employee welfare plans are excluded from the uniform commission schedule rule (22:1568(A)).
- Life producer is the insurer's agent. No life insurer may provide in an application, policy, or certificate that the person soliciting the insurance is the agent of the person insured, or that the solicitor's acts or representations bind the insured (R.S. 22:903). The soliciting producer is the insurer's agent, not the insured's.
Controlled business
In Louisiana: the 25% test. The Department "shall not grant, renew, reinstate, or permit to continue any license if the license is being or will be used by the applicant or licensee for the sole purpose of writing controlled business." Controlled business is (a) insurance written on the interests of the licensee, the licensee's immediate family, or the licensee's employer, and (b) insurance covering the licensee, immediate family members, or a corporation, association, or partnership of which the licensee or immediate family is an officer, director, substantial stockholder, partner, associate, or employee. A license is deemed to be used for controlled business "if the Department of Insurance determines that during any twelve-month period the aggregate commissions earned from the controlled business has exceeded twenty-five percent of the aggregate commissions earned on all business written" in the same period. Insurance written in connection with credit transactions is not controlled business (R.S. 22:1544(C)). Procuring a license for the purpose of writing controlled business is also a disciplinary ground (22:1554(A)(12)).
4.3 The Louisiana Life and Health Insurance Guaranty Association
The Louisiana Life and Health Insurance Guaranty Association Law is in R.S. 22:2081 and following. The association pays covered claims when a member insurer becomes impaired or insolvent. A member insurer is an insurer or health maintenance organization licensed, or holding a certificate of authority, to transact in Louisiana any kind of insurance or HMO business for which coverage is provided by the Act (22:2084). The association covers residents who own policies or are beneficiaries, assignees, or payees (22:2083(A)), and applies to direct non-group life insurance, health insurance, annuities, certificates under direct group policies and contracts, supplemental contracts, and unallocated annuity contracts issued by member insurers (22:2083(B)(1)). It does not cover, among other things, any portion of a policy not guaranteed by the insurer or where the risk is borne by the policyholder, and it does not cover Medicare or Medicaid benefits (22:2083(B)(2)).
In Louisiana: the limits. With respect to any one life, regardless of the number of policies or contracts, the association's benefits may not exceed the lesser of the contractual obligations or: $300,000 in life insurance death benefits, but not more than $100,000 in net cash surrender and net cash withdrawal values for life insurance; $500,000 in health insurance benefits; $250,000 in the present value of annuity benefits, including net cash surrender and withdrawal values. In no event will the association be liable to expend more than $500,000 in the aggregate with respect to any one individual (R.S. 22:2083(C), (D)). Read: 300 / 100 / 500 / 250 / 500.
The advertising ban. No person, including a member insurer, agent, or affiliate, may "make, publish, disseminate, circulate, or place before the public" any advertisement or statement, written or oral, that uses the existence of the Louisiana Life and Health Insurance Guaranty Association for the purpose of sales solicitation or inducement to purchase any covered insurance (R.S. 22:2098(A)). The law also requires a summary document describing the association to be delivered to the policy owner before or at delivery of the policy; it carries a conspicuous disclaimer that names the association and the insurance department, warns that the association may not cover the policy or, if it does, subject to substantial limitations and exclusions, says that the insurer and its agents are prohibited from using the existence of the association for sales, and emphasizes that the policy or contract holder should not rely on coverage under the association when selecting an insurer (22:2098(B), (C)). If an insurer or agent delivers a covered-type policy that the statute excludes from coverage, it must give a separate written notice at or before delivery that clearly states the policy is not covered (22:2098(D)).