The Office of General Counsel issued the following opinion on June 21, 2005, representing the position of the New York State Insurance Department.
Re: An Individual Licensed as an Insurance
Agent and Broker Using a Trade Name to Transact Business in New York State
May the inquirer, who is an individual licensed as an insurance agent and broker for life, accident and health and property/casualty, transact business using a trade name in New York State?
The inquirer may use a trade name to transact business in New York State in his capacity as an individual licensee if he becomes licensed by the Insurance Department under the trade name.
The inquirer wants to use a trade name on his stationary, letterhead and envelopes. The inquirer wants to use his name as part of the trade name.
N.Y. Ins. Law § 2102(a)(1) (McKinney Supp. 2005) states:
No person, firm, association or corporation shall act as an insurance producer or insurance adjuster in this state without having the authority to do so by virtue of a license issued and in force pursuant to the provisions of this chapter.
N.Y. Ins. Law § 2101(k) (McKinney Supp. 2005), defines "producer" to include an insurance agent and broker. After all the licensing requirements are met, the Insurance Department will issue a license to an applicant for an insurance agent or broker license pursuant to N.Y. Ins. Law §§ 2103 or 2104 (McKinney Supp. 2005) under a specific name. A licensee may not transact business under any name other than the name licensed under. Therefore, the inquirer, who is licensed as an individual insurance agent and broker under his own name, must use only that name when transacting business in New York State. However, a licensee may apply to become licensed under a trade name. First, an applicant must write to the Licensing Bureau to request that the specific trade name be saved for up to six months. Correspondence to the Licensing Bureau should be addressed to: Licensing Bureau, New York State Insurance Department, One Commerce Plaza, Albany, NY 12257. Second, the applicant must make the proper filing of certificate(s) with the county clerk(s) pursuant to N.Y. Gen. Bus. Law § 130(1)(a) (McKinney 2004). Third, the applicant may thereafter submit a written application to the Licensing Bureau requesting a separate license to transact business under the trade name or to amend his existing license. Fourth, if the proposed trade name is not similar to an already licensed name and is not confusing in any manner, the license in the trade name may be issued or an existing license may be amended accordingly.1
If the inquirer were to transact business under a trade name that has not been licensed by the Licensing Bureau, he would violate N.Y. Ins. Law § 2102(a)(1) (McKinney Supp. 2005) and may be subject to discipline pursuant to N.Y. Ins. Law § 2110 (McKinney Supp. 2005).
The inquirer should also be aware of N.Y. Gen. Bus. Law § 130(1)(a) (McKinney 2004) which states:
§ 130. Filing of certificates by persons conducting business under assumed name or as partners. 1. No person2 shall hereafter (i) carry on or conduct or transact business in this state under any name or designation other than his or its real name, or (ii) carry on or conduct or transact business in this state as a member of a partnership, unless: (a) Such person, if other than a corporation, limited partnership or limited liability company, shall file in the office of the clerk of each county in which such business is conducted or transacted a certificate setting forth the name or designation under which and the address within the county at which such business is conducted or transacted, the full name or names of the person or persons conducting or transacting the same, including the names of all partners, with the residence address of each such person, and the age of any person less than eighteen years of age. Each certificate shall be executed and duly acknowledged by the person or, if there be more than one, by all of the persons conducting the business.
Further, N.Y. Gen. Bus. Law § 130(2)(a) & (b) (McKinney 2004) provides:
2. (a) No individual, partnership, or unincorporated association shall hereafter use or file a certificate for the use of any name or designation to carry on or conduct or transact business in this state which consists of or includes words, or initials and a word or words, which are or appear to be the full name or names, or the initial or initials and family name of a person or persons, or a colorable simulation thereof, unless:
(1) the words or initials and word or words appearing to be the full name or initials and family name of a person included, are the true full name or the initials and family name of the person or one of the persons conducting the business; or
(2) the words or initials and words so included, which are or appear to be the full name, or the initials and family name, of any person, have a secondary, historic or geographic meaning or connotation apart from that of a name of a person, and the name or designation so used contains a word or words clearly signifying such secondary, historic or geographic meaning or connotation is stated in the certificate; or
(3) the person or persons conducting the business are successors in interest to the person or persons theretofore using such name or names to carry on or conduct or transact business, in which case the certificate filed shall so state.
(b) Paragraph (a) of this subdivision shall not apply to corporations, limited partnerships, or limited liability companies.
For further information one may contact Senior Attorney Robert Freedman at the New York City Office.
1 See N.Y. Ins. Law §§ 1102(g)(1) and 2102(b)(2) (McKinney Supp. 2005).
2 N.Y. Gen. Bus. Law § 130(1-a) (a) (McKinney 2004) states: "(1-a) As used in this section, unless the context otherwise requires: (a) "Person" shall mean an individual, partnership, limited partnership, corporation, limited liability company and unincorporated association; . . . ."