Should You Wish to Complain About Us to the New York State Department of Financial Services

If I'm going to reactivate this blog (and I am) I might as well start by updating this May 2008 posting.

You insurers who do business in New York know, of course, that New York Insurance Regulation 64  (11 NYCRR Part 216) requires certain letters to "prominently set out" a certain paragraph advising those to whom your letters are addressed that they may complain about you or your coverage decision to New York's insurance regulator, known since October 2011 as the New York State Department of Financial Services.

It only took that department approximately 20 months after its creation to update all regulatory references to the previous regulator -- the New York State Insurance Department -- including what I like to refer to as the "consumer advisory paragraph" of Regulation 64.  That paragraph now reads:

Should you wish to take this matter up with the New York State Department of Financial Services, you may file with the Department either on its website at http://www.dfs.ny.gov/consumer/fileacomplaint.htm or you may write to or visit the Consumer Assistance Unit, Financial Frauds and Consumer Protection Division, New York State Department of Financial Services, at: One State Street, New York, NY 10004; One Commerce Plaza, Albany, NY 12257; 163B Mineola Boulevard, Mineola, NY 11501; or Walter J. Mahoney Office Building, 65 Court Street, Buffalo, NY 14202.

A number of New York insurers apparently remain uncertain, however, of what kinds of letters must actually include that advisory paragraph. Under Regulation 64, there are only two kinds of letters that must do so:

1. letters "rejecting any element of a claim involving personal property insurance" (11 NYCRR § 216.6[h]); and
2. letters explaining or rejecting any element of a claim for auto physical damage (11 NYCRR § 216.7[d][3]).

Let's take these in reverse order. Everyone knows what an "auto physical damage" claim is, right? We're talking first-party, not third-party claims. Indeed, § 216.7 begins by stating that “[t]his section is applicable to claims arising under motor vehicle collision or comprehensive coverages”. Thus, by implication, letters regarding third-party property damage claims need not include the advisory paragraph. Notice also that § 216.7(d)(3) is somewhat broader in its scope than § 216.6(h) in that the advisory paragraph must be included in both coverage rejection and explanation letters.

Which brings us to letters "rejecting any element of a claim involving personal property insurance", the first type of letter in which the advisory paragraph must be included. A letter rejecting an element of a personal property claim is not:

• an acknowledgement letter;
• an ROR letter;
• a non-waiver agreement;
• a letter written solely to explain personal property coverage or payments;
• a letter forwarding payment to an insured;
• a liability coverage declination letter; or
• every single letter that leaves the insurer's office addressed to an insured or claimant.

In a January 6, 2004 opinion letter, the NYS Insurance Department's OGC (Office of General Counsel) opined:

The term "personal property insurance" in Section 216.6(h) limits the applicability of subdivision (h) to personal lines property insurance. Thus, subdivision (h) is not applicable to commercial lines property insurance or to liability insurance.

Letters rejecting commercial lines property insurance -- no advisory paragraph required.
Letters rejecting (disclaiming/denying) liability coverage -- no advisory paragraph required.

See?

Nearly six years later I'm still seeing the advisory paragraph being included in letters in which it is not required.  If you don't care about your consumer complaint ratios, then keep on keeping on.  If you question whether the paragraph belongs in a certain letter even after reading the above, email me.  We'll  figure it out.