New York State Seal
STATE OF NEW YORK
INSURANCE DEPARTMENT
25 BEAVER STREET
NEW YORK, NEW YORK 10004

George E. Pataki
Governor

Gregory V. Serio
Superintendent

The Office of General Counsel issued the following opinion on December 9, 2003, representing the position of the New York State Insurance Department.

Re: Application of N.Y. Ins. Law § 3426(g)(2) (McKinney 2000)

Questions Presented:

1. Under both currently effective and expired policies, must an insurer mail or deliver the loss information set forth in N.Y. Ins. Law § 3426(g)(2) (McKinney 2000) upon the written request of a first-named insured (or such insured’s authorized agent or broker)?

2. What fee, if any, may the insurer charge for providing the first-named insured (or its authorized agent or broker) with the requested loss information?

Conclusions:

1. Yes. Under both currently effective and expired policies, the insurer must mail or deliver the loss information set forth in N.Y. Ins. Law § 3426(g)(2) (McKinney 2000) to the first-named insured (or such first-named insured’s authorized agent or broker) upon such written request. Please note that § 3426(g)(2) does not require an insurer to provide loss information for periods of time beyond the record retention requirements of N.Y. Comp. Codes R. & Regs. tit. 11, Part 243 (1996) (Regulation 152).

2. The insurer may not charge a fee for providing the first-named insured (or its authorized agent or broker) with any loss information required by § 3426(g)(2), but may charge a reasonable fee for any additional information that the insurer provides in compliance with the insured’s request. N.Y. Ins. Law § 3426(g)(3) (McKinney 2000). The Superintendent has not issued a regulation or guideline regarding what an insurer may charge as a reasonable fee. In the absence of such regulation or guideline, the insurer may charge a customary fee subject to the Insurance Department’s review.

Facts:

No further facts are provided.

Analysis:

N.Y. Ins. Law § 3426(g)(2) (McKinney 2000) provides:

(2) Upon written request by the first-named insured or such insured's authorized agent or broker, the insurer shall mail or deliver the following loss information covering a period of years specified by the superintendent by regulation or the period of time coverage has been provided by the insurer, whichever is less, within twenty days of such request:

(A) Information on closed claims, including date and description of occurrence, and any payments;

(B) Information on open claims, including date and description of occurrence, and amounts of any payments; and

(C) Information on notice of any occurrences, including date and description of occurrence.

Accordingly, under both currently effective and expired policies, an insurer must mail or deliver the loss information set forth in N.Y. Ins. Law § 3426(g)(2) (McKinney 2000) upon the written request of a first-named insured (or such insured’s authorized agent or broker). Please note that § 3426(g)(2) does not require an insurer to provide loss information for periods of time beyond the record retention requirements of N.Y. Comp. Codes R. & Regs. tit. 11, Part 243 (1996) (Regulation 152).

N.Y. Ins. Law § 3426(g)(3) (McKinney 2000) provides:

(3) The insurer may charge a reasonable fee as determined by the superintendent only for such information provided upon request, but not for such information (even in the absence of a request therefor) required to be provided.

Thus, an insurer may not charge a fee for providing its first-named insured (or its authorized agent or broker) with the loss information required by § 3426(g)(2), but may charge a reasonable fee for any additional information that the insurer provides in compliance with the insured’s request. N.Y. Ins. Law § 3426(g)(3) (McKinney 2000). Please note that the Superintendent has not issued a regulation or guideline regarding what an insurer may charge as a reasonable fee. In the absence of such regulation or guideline, the insurer may charge a customary fee subject to the Insurance Department’s review.

For further information you may contact Senior Attorney Kristian Earl Lynch at the New York City Office.