NEW YORK STATE
INSURANCE DEPARTMENT

REGULATION NO. 160
(11 NYCRR 220)

HOLOCAUST VICTIMS INSURANCE CLAIMS AND REPORTS

        I, NEIL D. LEVIN, Superintendent of Insurance of the State of New York, pursuant to the authority granted by Sections 201, 301, 2701(d), 2703(a)(2), 2710 and Article 27 of the Insurance Law, and Chapter 259 of the Laws of 1998, do hereby promulgate the following new Part 220 of Title 11 of the Official Compilation of Codes, Rules and Regulations of the State of New York (Regulation 160), to take effect upon publication in the State Register. A new Part 220, entitled "Holocaust Victims Insurance Claims and Reports", is added. Part 220 shall read as follows:

Section 220.1 Purpose
    220.2 Standards for diligent and expeditious investigation of claims
    220.3 Standards for alternative documentation; making and assessment of claims
    220.4 Interest on proceeds
    220.5 Reports to the Superintendent of Insurance
    220.6 Relief from filing reports
    220.7 Suspension of reporting requirements
    220.8 Document and record retention

Section 220.1 Purpose.

(a) Chapter 259 of the Laws of 1998, entitled the "Holocaust Victims Insurance Act of 1998," added Article 27 to the New York Insurance Law. The Act provides for insurance claims assistance to be provided to Holocaust victims (defined in section 2701(a) of the Insurance Law as "any person, claimant, or the estate, heir, legatee, descendent, survivor, beneficiary, or other such successor-in-interest of such person") who lost their lives or property as a result of discriminatory laws, policies or actions during the period between January 1, 1929 and December 31, 1945, in areas under Nazi influence. Chapter 259, which was signed into law on July 8, 1998, became effective immediately. The affected insurance policies include, but are not limited to, any form of life, accident and health, annuities, property, casualty, education or dowry insurance (as provided in section 2701(c)).

(b) While the Act establishes a framework by which New York State can assist in the resolution of Holocaust victim claims, it is important to acknowledge the global context of this issue, involving, as it does, Holocaust victims and their heirs, insurers and regulators in several different countries and jurisdictions. New York State has been involved in efforts to address this issue in a comprehensive fashion through the creation of an international body that will be empowered to evaluate and resolve outstanding claims.

(c) On April 8, 1998, a Memorandum of Intent was executed by the Superintendent of Insurance ("superintendent"), other insurance regulators in the United States, and representatives of worldwide Jewish organizations and insurance companies. The Memorandum of Intent contemplates the establishment of an international commission, which will be empowered to evaluate and resolve outstanding claims, with its members drawn from United States insurance regulators, European insurance companies and regulators, and non-governmental Jewish and Holocaust survivor organizations. Thereafter, a Memorandum of Understanding was executed which further describes the structure and processes that the international commission will use. Chapter 259 encourages insurers to participate in the actions of the proposed international commission to resolve outstanding Holocaust victim claims in an expeditious and equitable fashion.

(d) The purpose of this Part is to provide for the implementation of the provisions of Article 27, and to facilitate, monitor and verify compliance with the Act by insurers and claimants alike.

(e) Section 2703 of the Insurance Law requires insurers who are organized, registered, licensed or accredited to do an insurance business in New York State to implement certain standards and procedures in the handling of Holocaust victim claims, including standards and procedures to be specified by regulation. The claims handling directive contained in section 2703 covers all claims arising from an occurrence during the period between January 1, 1929 and December 31, 1945.

(f) Section 2705(a) of the Insurance Law requires such insurers or their holding companies to report to the superintendent their plan for complying with the provisions of Article 27. The report of this plan, required by section 2705(a), is the first of a series of reports required by Article 27. Under section 2705(b), insurers are also obligated to file an annual report on January 30, 1999 and for each of the following ten years providing the information specified in that subsection. Reports under section 2705(b) apply to policies issued during the period between January 1, 1920 and December 31, 1945. Reports also extend to the files of all companies who are members of the same holding company system, even if those members do not conduct business in New York State.

Section 220.2 Standards for diligent and expeditious investigation of claims.

(a) Any insurer organized, registered, licensed, or accredited to do an insurance business in New York State shall diligently and expeditiously investigate any claim arising from an occurrence during the period between January 1, 1929 and December 31, 1945 which is made by an individual that the insurer knows, or reasonably should have known, is a Holocaust victim as defined in section 2701(a) of the Insurance Law.

(b) All claims by Holocaust victims and all available evidence relating thereto shall be reviewed by an insurer in a diligent and expeditious manner in accordance with the standards of proof described in section 220.3 of this Part. In reviewing claims, an insurer shall give due consideration to any facts which tend to establish the bona fides of the claim, including in particular any circumstances which indicate that the person is a Holocaust victim as defined in section 2701(a) of the Insurance Law. The review process to be established by the insurer shall include, but not be limited to, the following actions:

(1) Holocaust claims unit. The insurer shall establish a Holocaust claims unit staffed with personnel fully familiar with the standards of proof described in section 220.3 of this Part.

(2) Contact person and inquiries. The insurer shall designate a named contact person to handle inquiries related to Holocaust victim claims. The contact person’s name and telephone number shall be made a part of the annual filing with the superintendent required by section 2705 of the Insurance Law and section 220.5(e) of this Part. The contact person shall be fully familiar with the standards of proof described in section 220.3 of this Part. In responding to any inquiry by a claimant or other party, the contact person shall inform the person making the inquiry of the existence of the New York State Holocaust Claims Processing Office and shall provide the then current toll-free telephone number of such Office. The providing of such information shall be in addition to and not in substitution for any other action required to be taken by the insurer.

(3) Research of policies issued. In order to facilitate matching of Holocaust victim claims with insurer records, each insurer shall diligently research its records related to insurance policies as defined in section 2701(c) of the Insurance Law which were issued through December 31, 1945. Based on this research, the insurer shall compile the following information regarding policies issued to Holocaust victims that remain unpaid or were paid to or expropriated or seized by a government located in an area that was or had been under Nazi influence that was not the named beneficiary of such insurance policy:

-- Type of policy – life, accident and health, annuities, property, casualty, education, dowry, or other;

-- Insured name or names;

-- Policy owner’s name or names, if applicable;

-- Policy beneficiary’s name or names, if applicable;

-- Policy effective dates and issue dates;

-- Policy limits, face amount or pay-out value;

-- Whether a claim was made to the insurer; name of claimant or claimants;

-- Whether a claim was denied; if denied, date and reason for denial;

-- Claims paid arising from an occurrence during the period between January 1, 1929 and December 31, 1945;

-- Dates any claims were paid;

-- Names of payee or payees;

-- Whether a claim, surrender value, benefits or proceeds under the policy were paid to a government located in an area that was or had been under Nazi influence, and if so, in what manner;

-- Whether a claim, surrender value, benefits or proceeds under the policy were expropriated or seized by a government located in an area that was or had been under Nazi influence, and if so, in what manner;

-- Whether attempts were made by the insurer to locate the beneficiaries of any such insurance polices for which no claim of benefits has been made.

(4) Research of abandoned, expropriated or seized property. To further aid Holocaust victims in their rightful recovery of insurance proceeds, each insurer shall also research its records for evidence of assets or funds turned over to various jurisdictions as abandoned, expropriated or seized property, to locate any such information relevant to policies issued to Holocaust victims. The insurer shall compile the same categories of information as required by section 220.2(b)(3) of this Part, to the extent applicable, together with the identity of the jurisdiction to which the assets or funds were turned over, the date the assets or funds were turned over, and the value thereof. Such information shall be submitted to the superintendent upon request.

(5) Expeditious treatment of claims.

(i) Insurance claims of Holocaust victims shall be treated in an expeditious manner pursuant to the standards set forth in this paragraph. The provisions of Part 216 of this Title (Regulation 64) shall not apply to such claims.

(ii) Each insurer shall establish procedures to commence an investigation of a claim filed by such a claimant, or a claimant's authorized representative, within 15 business days of receipt of notice of the claim. Within 30 business days after receipt by the insurer of a notice of claim and any statements, affidavits or other evidence filed in support of the claim, the insurer shall advise the claimant, or the claimant's authorized representative, in writing, of the acceptance or rejection of the claim by the insurer. If the insurer needs more time to investigate the claim, it shall so notify the claimant, or the claimant's authorized representative, within 30 business days after receipt of the notice of claim and shall request any further necessary statements, affidavits or evidence consistent with the standards set forth in section 220.3 of this Part. Such notification shall include the reason why additional time is needed for investigation. If the claim remains unsettled, unless the matter is in litigation or arbitration, the insurer shall, 90 days from the date of the initial letter setting forth the need for further time to investigate, and every 90 days thereafter, send to the claimant, or the claimant's authorized representative, a letter setting forth the reason why additional time is needed for investigation. In any case where the claim is rejected, the insurer shall notify the claimant, or the claimant's authorized representative, in writing, of its specific reason for rejecting the claim. In any case where there is no dispute as to one or more elements of a claim, payment for such element(s) shall be made notwithstanding the existence of disputes as to other elements of the claim where such payment can be made without prejudice to either party. Any notice rejecting any element of a claim shall contain the following statement prominently set out:

"Should you wish to receive further advice on this matter, you may write to the New York State Holocaust Claims Processing Office, at 2 Rector Street, New York, New York 10006."

(6) The provisions of paragraph (b) of this section shall be deemed to be complied with by an insurer if the insurer is participating in the international commission or successor entity and the criteria set forth in section 220.7 of this Part are being met by the insurer and the international commission or successor entity; and the superintendent has found that the insurer is fully complying with the standards for diligent and expeditious investigation of claims established by such commission or successor entity.

Section 220.3 Standards for alternative documentation; making and assessment of claims.

(a) Except as provided in subdivision (d) of this section, the making and assessment of claims shall be governed by the principles set forth in this section, which implements section 2703(a)(2) of the Insurance Law.

(b) In making a claim, a Holocaust victim:

(1) shall show that it is plausible, in the light of all the special circumstances involved, including but not limited to the destruction caused by World War II, the Holocaust, and the lengthy period of time that has passed since the insurance policy in question was obtained, that the claimant is entitled, either in whole or in part, to the benefits of the insurance policy under consideration;

(2) shall submit all relevant documentary and non-documentary evidence in the claimant's possession or under the claimant's control that may reasonably be expected to be submitted in view of the circumstances of that particular claim, including but not limited to the history of the claimant and the claimant’s family and the history of the policyholder (if the policyholder is not the claimant), subject to paragraph (10) of this subdivision;

(3) shall comply with any reasonable request by the insurer for the submission of evidence necessary to verify the claim, as limited by subdivision (c) of this section and paragraph (10) of this subdivision;

(4) shall cooperate with the insurer in expediting the assessment of the claim, in particular by complying with any reasonable request by the insurer for any necessary explanation of the evidence submitted in support of the claim, provided that no insurer may require any claimant to supply any explanation which is beyond the claimant’s own personal ability to provide;

(5) shall disclose the identity of any person known to the claimant whom the claimant believes or may have reasonable grounds to believe may have a valid claim to the benefits of the policy under consideration;

(6) shall disclose whether the claimant or, to the claimant's knowledge, any other person has applied for, or received, any compensation or reparations from any government in respect of the policy under consideration;

(7) may voluntarily and at the claimant's own expense engage the services of any attorney, accountant, translator or other expert or advisor in order to assist the claimant in preparing and submitting the claim and to supply any explanation of evidence reasonably requested by an insurer, but is not obligated to do so;

(8) shall not submit any evidence in support of a claim which the claimant knows, or reasonably should know, is falsified, forged, or materially misleading;

(9) shall answer truthfully and to the best of the claimant's knowledge any reasonable question asked by the insurer regarding the evidence submitted in support of a claim; and

(10) may submit a copy or reproduction of any original document within the claimant's possession or control, provided that the claimant, upon request, shall exhibit the original document or an authenticated copy or reproduction of the original document, at a time and place that is mutually convenient to the claimant and the insurer. For the purposes of this section, a copy or reproduction may be authenticated according to the applicable procedure provided by the law of the place where the original document is located, or by being attested by a notary public as being a true copy or reproduction.

(c) In assessing a claim by a Holocaust victim, an insurer shall allow claimants to provide alternative documentation which does not meet the usual standards of proof which would be required by the insurer to substantiate the claim, and:

(1) shall not reject a document as being insufficiently probative of any fact necessary to establish the claim if the evidence provided by the document of that fact is plausible in the light of all the special circumstances involved, including but not limited to the destruction caused by World War II, the Holocaust, and the lengthy period of time that has passed since the insurance policy under consideration was obtained;

(2) shall not unreasonably demand the production of any document or other evidence which, more likely than not, has been destroyed, lost or rendered inaccessible to the claimant;

(3) shall take into consideration any sworn or affirmed statement or affidavit, whether made by the claimant or by any other person having relevant knowledge or authority, which is offered in lieu of any document or which provides evidence of the prior existence, contents or legal effect of a document; and,

(4) shall take into consideration any relevant documentary or non-documentary evidence which may be submitted by a claimant, or which is otherwise available to the insurer, including, but not limited to, photographs; maps; correspondence with an insurer or the agent or representative of an insurer; reports or notices published in any newspaper, gazette or other journal; diaries; family histories; and records held or maintained by any non-governmental community association or government body.

(d) The provisions of this section shall be deemed to be complied with by an insurer if the insurer is participating in the international commission or successor entity and the criteria set forth in section 220.7 of this Part are being met by the insurer and the international commission or successor entity; and the superintendent has found that the insurer is fully complying with the requirements established by such commission or successor entity regarding documentation, making and assessment of claims.

Section 220.4 Interest on proceeds.

(a) Where claims are resolved and settled in accordance with this Part, interest on the proceeds of policies or annuities shall be payable, and shall be calculated as provided by this section, which implements section 2701(d) of the Insurance Law.

(b) Where the policy or annuity states a method for the calculation of interest on proceeds, then that method shall apply.

(c) Where the policy or annuity does not state a method for the calculation of interest on proceeds, then:

(1) in the case of life insurance policies and annuities in respect of which benefits became payable because of the death of the insured or annuitant or the maturity of an endowment or similar contract, the Department has concluded that the legislative approach set forth in section 3214 of the Insurance Law presents an appropriate general guide for determining reasonable interest on proceeds pursuant to section 2701(d) of the Insurance Law. Accordingly, interest upon the principal sum paid to the beneficiary or policyholder shall be computed daily at the applicable rates of interest paid by the insurer over the course of time on proceeds left under the interest settlement option, from the date of the death of an insured or annuitant in connection with a death claim on such a policy of life insurance or contract of annuity and from the date of maturity of an endowment or similar contract to the date of payment and shall be added to and be a part of the total sum paid; and

(2) in all other cases and in respect of all other types of policies or annuities, interest shall be calculated in accordance with a reasonable standard agreed upon by the insurer and the claimant, or, if the superintendent prescribes a standard, according to such standard as the superintendent may prescribe, including those instances in which the insurer and the claimant cannot agree upon a standard.

Section 220.5 Reports to the Superintendent of Insurance.

(a) Every insurer required to submit a report by section 2705(b) of the Insurance Law, or its holding company, shall in such report provide the information required by paragraphs (1) through (3), (5) and (7) of subsection (b) of section 2705. The report shall include the name and telephone number of the contact person designated pursuant to section 220.2(b)(2) of this Part. The report shall be in such format as may be prescribed from time to time by the superintendent by circular letter.

(b) Pursuant to section 2705(b)(4) of the Insurance Law, if requested by the superintendent, and to the extent consistent with applicable laws and confidentiality obligations, an insurer, or its holding company, shall include in a report filed pursuant to subdivision (a) of this section the names of the owner, beneficiaries, and the face amount or pay-out value of any insurance policy that could possibly be expected to have been issued to a Holocaust victim, as well as the information compiled pursuant to section 220.2(b)(3) of this Part.

(c) An insurer shall maintain in its relevant claim file an explanation of any denial or pending payment of a claim to any person who alleges or has alleged that he or she is a Holocaust victim. An insurer, or its holding company, shall submit such explanation to the superintendent, if requested to do so, pursuant to section 2705(b)(6) of the Insurance Law.

(d) Pursuant to section 2705(b)(8) of the Insurance Law, in the event that an insurer is unable to provide any of the information required by section 2705 of the Insurance Law, the insurer, or its holding company, shall report an explanation of the reasons for such inability, and shall indicate, to the best of its current knowledge and information, why and whether such information may become ascertainable in the future.

(e) Any report required by section 2705(b) of the Insurance Law shall be made no later than January 30, 1999 and annually thereafter for each of the succeeding ten years, with the last report due on January 30, 2009.

(f) Pursuant to section 2705(c) of the Insurance Law, a report shall be certified and affirmed under oath as being true and not misleading, and as containing the most accurate information available at the time of the submission of the report. A certification shall be given by the chief executive officer (or comparable officer) of each insurer and its holding company, if any.

(g) Pursuant to section 2709(a) of the Insurance Law, and subject to the discretion of the superintendent, an insurer may satisfy the requirements of section 2705 of the Insurance Law by filing annually with the superintendent, no later than January 30th, a copy of any report, certificate, or other disclosure of information which it or its holding company has filed in another jurisdiction pursuant to the laws thereof, and which is substantially equivalent to the report or reports which the insurer is required to submit under section 2705 of the Insurance Law, and shall also submit a schedule or index referring to the specific requirements of section 2705 of the Insurance Law and this section which demonstrates that the requirements of both are substantially met by the report, certificate or disclosure filed in the other jurisdiction.

Section 220.6 Relief from filing reports.

(a) This section implements that provision of section 2705(a) of the Insurance Law which states that any insurer which has determined that it does not have any of the information requested in section 2705(b) of the Insurance Law, and which has filed or caused its holding company to file a report stating that they have no such information, may request the superintendent to relieve it from filing any further reports upon providing evidence satisfactory to the superintendent that such insurer has fulfilled its obligations under Article 27 of the Insurance Law.

(b) The superintendent will deem an insurer to have provided satisfactory evidence that it has fulfilled its obligations under Article 27 of the Insurance Law within the meaning of the preceding subdivision if:

(1) the insurer reports:

(i) that the insurer has conducted a thorough search of its files and records in compliance with section 220.2(b) of this Part, in good faith and to the best of its ability;

(ii) that all other members of any holding company system to which the insurer belongs who are or were insurers have also conducted a search applying the same criteria and standards; and

(iii) that after all such searches have been completed, no information of the type described in section 2705(b) of the Insurance Law has been located or identified; and

(2) the insurer and, if relevant, any other members of its holding company system who are or were insurers, make and maintain a record of their said search, and such record or records are available for inspection by the superintendent if requested.

(c) Any relief from filing further reports granted by the superintendent under this section shall extend for such period, and be subject to such conditions, as the superintendent may specify.

(d) Any relief from filing further reports granted by the superintendent under this section shall expire upon the happening of any event which alters the insurer’s status to one in which it would be obligated by section 2705 of the Insurance Law to file further reports were it not for the relief previously granted, including but not limited to such events as: (i) the insurer or any member of its holding company system discovering or acquiring by any manner the information described in section 2705(b) of the Insurance Law; (ii) the insurer or any member of its holding company system assuming liability on policies issued to, or claims made by, Holocaust victims; (iii) the insurer becoming a member of a holding company system which includes another member or members that have information which must be reported under the said section; and (iv) the insurer or any member of its holding company system acquiring another insurer which has such information.

(e) Notwithstanding any relief from filing further reports which may be granted under this section, the superintendent may, from time to time, request such information from an insurer as the superintendent may reasonably deem necessary to facilitate, monitor and verify compliance with Article 27 of the Insurance Law by the insurer.

Section 220.7 Suspension of reporting requirements.

(a) This section implements section 2709(b), (c) and (d) of the Insurance Law.

(b) Pursuant to section 2709(b) of the Insurance Law and subject to the limitations stated in section 2709, the superintendent may, in his or her discretion, suspend the application of section 2705 to an insurer upon a determination that the insurer, a subsidiary of such insurer, or any member of the holding company system that includes such insurer has furnished adequate proof that the conditions for such suspension as specified in section 2709(b) have been met, namely:

(1) the insurer or a subsidiary of the insurer or any member of the holding company system that includes such insurer has subjected itself in good faith to the authority of the international commission described in section 220.1 of this Part, or of any successor thereto;

(2) the insurer or a subsidiary of the insurer or any member of the holding company system that includes such insurer has meaningfully participated in such commission or successor entity in a manner reasonably calculated to effect the prompt investigation and resolution of the claims of Holocaust victims; and

(3) the superintendent finds that the commission or successor entity is effectively moving toward the swift and equitable resolution of all claims made against the insurer by Holocaust victims.

(c) Any suspension made by the superintendent under this section shall be valid for one year and may be renewed annually, in the discretion of the superintendent, for further one year periods pursuant to section 2709(c) of the Insurance Law; provided, however, that the superintendent in his or her discretion may provide for a suspension of less than one year, taking into account the progress of the international commission or successor entity and the consequences of further delay in promptly investigating and resolving the claims of Holocaust victims.

(d) Pursuant to section 2709(d) of the Insurance Law, the superintendent, in his or her discretion, may discontinue any suspension granted under this section if a reasonable determination is made by the superintendent that the insurer, its subsidiary or division, or the member of the holding company system that includes such insurer, as applicable, is not cooperating fully with the said commission or its successor, or that such commission or successor entity is not effective in promptly investigating and resolving claims made by Holocaust victims.

Section 220.8 Document and record retention.

(a) In order to facilitate the investigation of claims and the protection of records or other materials pertaining to Holocaust victims as addressed in section 2703(c) of the Insurance Law, no records or other materials which pertain to any claim made by a Holocaust victim shall be destroyed or altered by any person, notwithstanding the provisions of Part 243 of this Title (Regulation 152), until the superintendent otherwise directs; nor shall such records or materials be dealt with by any person in any way which would prevent their discovery.

(b) Any analysis, summary, index, record of a search, or investigative report created at any time by an insurer or any member of its holding company system which contains or

reflects any information of the type described in section 2705(b) of the Insurance Law shall be retained until the superintendent otherwise directs, and shall not be tampered with or altered by any person in any way which would make it false, misleading or incomplete, or be concealed.

        I, NEIL D. LEVIN, Superintendent of Insurance of the State of New York, do hereby certify that the foregoing is the new 11 NYCRR 220 (Regulation 160) promulgated by me on May 12, 1999, pursuant to the authority granted by Sections 201, 301, 2701(d), 2703(a)(2), 2710 and Article 27 of the Insurance Law, and Chapter 259 of the Laws of 1998, to take effect upon publication in the State Register.

        Pursuant to Section 202(6) of the State Administrative Procedure Act, prior notice of the proposed new part was published in the State Register on March 24, 1999. No other publication or prior notice is required by statute.

 

__________________________
Neil D. Levin
Superintendent of Insurance
 
May 12, 1999