The Office of General Counsel issued the following informal opinion on February 12, 2002, representing the position of the New York State Insurance Department.
Re: Wholesale Insurance Broker Fees
1) Where an insurance broker utilizes the services of another insurance broker (hereinafter referred to as the "wholesale broker") for the placement of insurance, and the wholesale broker charges the insurance broker a placement fee for such service, may the insurance broker pass such fee on to its insured as a service fee?
2) May a wholesale broker refuse to forward the premium submitted by the insurance broker on behalf of the insured to the insurer because the payment does not include the wholesaler brokers fee?
1) No, because the service is actually being provided by the wholesale broker, and the fee is actually being charged, albeit indirectly, by the wholesale broker. Thus, in order for the fee to be charged to the insured, the wholesale broker must obtain a written memorandum, signed by the insured, specifying the amount and purpose of such fee, pursuant to N.Y. Ins. Law § 2119(c) and (d) (McKinney 2000).
2) No, because acting in such manner would be inconsistent with the wholesale brokers fiduciary responsibilities under N.Y. Ins. Law § 2120 (McKinney 2000).
The inquiries were based on the following scenario: an insurance broker uses the services of another insurance broker (which is referred to herein as a "wholesale broker" for purposes of clarity) for the placement of insurance. The wholesale broker charges the insurance broker a fee for its services in placing the insurance. The insurance broker passes this fee on to the insured in the form of a service fee.
N.Y. Ins. Law § 2101(c) (McKinney 2000) states, in relevant part:
In this article, "insurance broker" means any person, firm, association or corporation who or which for any compensation, commission or other thing of value acts or aids in any manner in soliciting, negotiating or procuring the making of any insurance or annuity contract or in placing risks or taking out insurance, on behalf of an insured, other than himself or itself or on behalf of any licensed insurance broker[.] (emphasis added.)
Thus, the Insurance Law includes in its definition of an insurance broker a wholesale broker.
N.Y. Ins. Law § 2119(c) and (d) (McKinney 2000) states, in relevant part:
(c)(1) No insurance broker may receive any compensation, other than commissions deductible from premiums on insurance policies or contracts, from any insured or prospective insured for or on account of the negotiation or procurement of, or other services in connection with, any contract of insurance made or negotiated in this state or for any other services on account of such insurance policies or contracts, including adjustment of claims arising therefrom, unless such compensation is based upon a written memorandum, signed by the party to be charged, and specifying or clearly defining the amount or extent of such compensation.
(2) A copy of every such memorandum shall be retained by the broker for not less than three years after such services have been fully performed.
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(d) No insurance broker shall, in connection with the negotiation, procurement, issuance, delivery or transfer in this state of any contract of insurance made or negotiated in this state, directly or indirectly charge, or receive from, the insured or prospective insured therein any greater sum than the rate of premium fixed therefor by the insurer obligated as such therein, unless such broker has a right to compensation for services created in the manner specified in subsection (c) hereof. (emphasis added.)
In Citron v. Curiale, 273 A.D.2d 183, 710 N.Y.S.2d 67 (1st Dept 2000), appeal denied 95 N.Y.2d 766, 716 N.Y.S.2d 640 (2000), the Appellate Division stated, with reference to the petitioner, a wholesale broker that the Department determined had violated N.Y. Ins. Law § 2119: "Petitioners argument that he was not acting as an insurance broker in these transactions because he purportedly did not deal directly with insureds is without merit because direct dealing with insureds is not an element of the applicable definition of insurance broker (Insurance Law § 2101[c])."
Hence, in order for the insured to be charged the wholesale brokers fee, the wholesale broker must obtain a written memorandum, signed by the insured, specifying the amount and purpose of such fee, pursuant to N.Y. Ins. Law § 2119(c) and (d) (McKinney 2000). For practical purposes, the insurance broker may present the insured with the wholesale brokers written memorandum for signing, and, after the memorandum has been signed by the insured, forward the memorandum to the wholesale broker, who must retain the signed memorandum for no less than three years pursuant to § 2119(c)(2).
Despite an insureds failure to pay a placement fee to the wholesale broker, the wholesale broker must forward the premium payment sent by the insurance broker on behalf of the insured to the insurer or its agent where the wholesale broker has agreed to place the insurance prior to obtaining its fee. N.Y. Ins. Law § 2120 (McKinney 2000) imposes a fiduciary duty upon insurance brokers (and agents) with respect to funds received or collected by them, including remittance of policy premiums.
For further information you may contact Senior Attorney Sally Geisel at the New York City Office.