NEW YORK STATE
INSURANCE DEPARTMENT

ELEVENTH AMENDMENT TO REGULATION NO. 64
(11 NYCRR 216)

UNFAIR CLAIMS SETTLEMENT PRACTICES AND CLAIM COST CONTROL MEASURES

I, Gregory V. Serio, Superintendent of Insurance of the State of New York, pursuant to the authority granted by Sections 201, 301, 2601, and 3412 of the Insurance Law, do hereby promulgate the following Eleventh Amendment to Part 216 of Title 11 of the Official Compilation of Codes, Rules and Regulations of the State of New York (Regulation No. 64), to take effect upon publication in the State Register, to read as follows:

(Matter in brackets deleted, matter underlined is new)

Section 216.8 is hereby amended to read as follows:

216.8 Verification and reporting requirements applicable to losses arising under automobile physical damage policies and reporting of third-party property damage losses

(a) Preamble. The purpose of this section is to implement the provisions of section 3412 of the Insurance Law, which provides for measures to be applied by insurers and a central organization engaged in loss prevention in order to prevent payment of fraudulent claims arising under automobile physical damage policies. Such measures shall include: reporting of data on private passenger automobiles involved in total losses to a central organization engaged in loss prevention, as designated by the superintendent; verification procedures to be applied by insurers prior to the payment of total theft losses; restrictions on the insured's retention of salvage; restrictions and procedures for insurer's disposition of salvage; the insurer's right to retrieve located stolen or abandoned vehicles; and notification by insurers to law enforcement agencies, when the insurer or the central organization suspects improper or fraudulent action on the part of the insured, or others involved in the loss settlement process.

(b) Applicability. This section shall apply to all losses involving private passenger automobiles of the current model year and the preceding six model years and older private passenger automobiles with an actual cash value of $ 5,000 or more, prior to the loss. A private passenger automobile shall mean a four-wheel private passenger vehicle, station wagon, van, jeep-type vehicle, sport utility vehicle, or pickup truck.

(c) Central organization. The central organization [is hereby] shall be designated [to be the National Insurance Crime Bureau, hereinafter referred to as NICB.] by the superintendent. For purposes of this Part, "central organization" shall also include any entity that is acceptable to the superintendent with which the central organization contracts to assist in executing its responsibilities pursuant to this Part. All insurers licensed to write automobile physical damage insurance in this State are hereby required to become members of the [NICB] central organization, for the purpose of compliance with this section.

(d) Reporting and follow-up requirements. Insurers shall report all private passenger automobiles involved in losses to the [NICB] central organization, as follows:

(1) All total theft losses shall be reported immediately, but no more than two business days following notice of claim, as defined in section 216.1(d) of this Part. If the insurer has not received any acknowledgment or communication from the [NICB] central organization within 10 calendar days following its submission of the total theft report to the [NICB] central organization, the insurer shall immediately communicate with the [NICB] central organization to determine the status of its report.

(2) All other first- and third-party losses, however sustained, where damage to the claimant's vehicle exceeds $ 2,500 shall be reported to the [NICB] central organization no later than five calendar days after the sale of salvage, or, if the insured or claimant is permitted to retain the vehicle, no later than five calendar days after the date of loss payment.

(3) The [NICB] central organization shall be responsible for recording any special vehicle identification number (VIN) issued by the Commissioner of Motor Vehicles, which data will be forwarded to the [NICB] central organization pursuant to section 431(2) of the Vehicle and Traffic Law.

(e) Verification procedures required prior to paying a total theft loss. Notwithstanding the provisions of section 216.7(b) and (c) of this Part, an insurer shall comply with [NICB] central organization verification procedures prior to its payment of a total theft loss, subject to the rules provided for in this section.

(1) The insurer shall defer the payment of a claim for five calendar days following receipt of the acknowledgment from the [NICB] central organization of the insurer's total theft report. If no further communication is received from the [NICB] central organization during this five-day period indicating unresolved questionable circumstances, the insurer shall continue with the processing of the claim in accordance with the provisions of this Part.

(2) If the [NICB] central organization verification procedure indicates insurance coverage by more than one insurer or a previously unrecovered theft loss, the insurers shall promptly investigate and resolve such discrepancy.

(3) If the [NICB] central organization verification procedure reveals an erroneous vehicle identification number (VIN) and the [NICB] central organization is unable to clear up such discrepancy internally, a questionnaire will be sent to the insurer by the [NICB] central organization. This questionnaire shall be returned to the [NICB] central organization within five business days of receipt by the insurer. Should [NICB] central organization and insurer efforts, after due diligence, be unsuccessful in resolving the VIN error after a 30-day period from date of report of loss to the insurer on a vehicle that has been inspected pursuant to Part 67 of this Title, the insurer shall proceed with the processing of the loss in accordance with the provisions of this Part.

(4) Subject to the provisions of subdivision (h) of this section, if the [NICB] central organization certification procedure indicates that the theft loss may be fraudulent, the insurer shall suspend processing of the loss. The [NICB] central organization shall then cooperate [in promptly investigating the matter] with any investigation.

(f) Salvage. Insurers shall, except where the insured is permitted to retain the automobile as part of the claim settlement, take possession of the certificate of title, properly endorsed to them, and take possession of the salvage, if any, whenever a loss is determined by the insurer to be a total loss or a constructive total loss. Insurers, in disposing of the salvage, shall fully comply with the requirements of section 429 of the Vehicle and Traffic Law.

(1) An insured shall not be permitted to retain the insured vehicle if the salvage value of the vehicle after the loss aggregates 10 percent or less of the actual cash value of the vehicle prior to the loss, unless the insurer is satisfied that the insured intends to retain the automobile for the insured's own use.

(2) Unless the conditions set forth in section 430.2 of the Vehicle and Traffic Law are met, insurers shall not, directly or indirectly, transfer within or without this State any vehicle for salvage, except to an automobile dealer, a vehicle dismantler, or a scrap processor licensed, registered or certified in accordance with the provisions of the Vehicle and Traffic Law, or such person meeting licensing, registration or certification requirements of the state in which such person does business. An insurer or its agents shall not purchase salvage vehicles or used major component parts of motor vehicles except from a registered vehicle dismantler or a licensed automobile dealer.

(g) [NICB] Central organization recording and reporting recovery of stolen or abandoned vehicles. The [NICB] central organization shall be responsible for receiving and recording reports received from police and other law enforcement agencies of located stolen or abandoned vehicles pursuant to section 3412(f) of the Insurance Law. The [NICB] central organization shall promptly transmit such information to the insurer providing automobile physical damage coverage, if any, on the located vehicle. The insurer shall immediately notify the insured of the location where the vehicle has been stored for safekeeping.

(h) Reporting requirement and cooperation with law enforcement agencies. (1) The [NICB] central organization and each insurer authorized to issue automobile comprehensive insurance policies covering losses incurred to private passenger vehicles shall, upon the request of any appropriate law enforcement agency or insurance organization engaged in automobile loss prevention, release information in its possession resulting from an investigation conducted by it pertaining to such comprehensive loss, including information as such agency or organization deems related to its investigation. Should the [NICB] central organization or the insurer be of the opinion that the loss was caused by any criminal or fraudulent act of any person or organization, or that an improper action occurred in the disposition of an automobile subject to the provisions of this section, the [NICB] central organization or the insurer shall notify the Insurance Department's Frauds Bureau and any other appropriate law enforcement agency or insurance organization engaged in automobile loss prevention of that opinion, and shall notify the Insurance Department or Department of Motor Vehicles of any improper action of their respective licensees or registrants.

(2) In the absence of fraud or bad faith, there shall be no liability on the part of, and no cause of action of any nature shall arise against, the [NICB] central organization, or the insurer, or any person acting on their behalf:

(i) for any such information it furnished;

(ii) for its assistance in any such investigation; or

(iii) for any report or notification made pursuant to the provisions of this section.

(3) Any information or evidence furnished pursuant to this subdivision shall be held in confidence by the appropriate agency or insurance organization engaged in automobile loss prevention, until such information is required to be released pursuant to a criminal proceeding, or if such agency or organization shall be served a summons or subpoena to testify as to any information or evidence in its possession regarding such automobile comprehensive loss in any civil action where an insured or other person is seeking recovery under a policy against an insurer for such automobile comprehensive loss.

(i) Required amendatory endorsement. For all policies providing automobile physical damage coverage issued or renewed to be effective on and after October 1, 1979, insurers shall adopt one of the following procedures:

(1) amend the policy by adding thereto the endorsement as set out in this subdivision, which is hereby deemed approved upon filing with the Insurance Department;

(2) submit for Insurance Department approval the insurer's own substantially similar endorsement; or

(3) submit for Insurance Department approval the insurer's basic policy form incorporating the substance of the endorsement set out in this subdivision.

An insurer which adopts one of the procedures set forth in this subdivision may subsequently submit filings under either of the other procedures.

MANDATORY PHYSICAL DAMAGE COVERAGE ENDORSEMENT

(NEW YORK)

Notwithstanding any conflicting provisions applicable to the physical damage coverages of this policy, it is agreed that the following condition is added:

Recovery of Stolen or Abandoned Automobiles

In the event an automobile to which the physical damage coverages of this policy apply is stolen or abandoned, the company or its authorized representative(s) shall, when notified of the location of the automobile, have the right to take custody of the automobile for safekeeping.

Instruction

This endorsement must be attached to, incorporated in or overprinted upon all policies covering private passenger automobiles issued or delivered in New York.

(j) Existing policies. All policies in force on and after the effective date of this Part providing automobile physical damage coverage shall be deemed to include the provisions of the endorsement set forth in subdivision (i) of this section.

I, Gregory V. Serio, Superintendent of Insurance of the State of New York, do hereby certify that the foregoing is the Eleventh Amendment to Part 216 of Title 11 of the Official Compilation of Codes, Rules and Regulations of the State of New York (Regulation No. 64), entitled "Unfair Claims Settlement Practices and Claim Cost Control Measures", promulgated by me on July 6, 2004, pursuant to the authority granted by Sections 201, 301, 2601, and 3412 of the Insurance Law, to take effect upon publication in the State Register.

Pursuant to the provisions of the State Administrative Procedure Act, prior notice of the proposed amendment was published in the State Register on May 19, 2004. No other publication or prior notice is required by statute.

__________________________________________

Gregory V. Serio
Superintendent of Insurance

July 6, 2004