NU Online News Service Aug. 20, 3:35 p.m. EDT

A public hearing by the New York Department of Insurance on whether to add coverages to the state's excess and surplus lines "export" list was deemed successful by an agent trade association.

According to the department, the hearing was held pursuant to Section 2118(b)(4) of the state's Insurance Law, authorizing the superintendent to amend the number of declinations required to be obtained prior to making an excess line placement, with respect to particular coverages.

T.J. Derella, a past president of the Professional Insurance Agents of New York and national director of the PIANY, as well as chair of the excess lines association testified at the hearing.

"My take on the meeting is that it was very productive," he told the NU Online News Service. "It's a rare occurrence that we get producer organizations and carrier associations on the same page. It was nice that we were all working together on something instead of working against each other."

The only issue, he said, was "an item on the list for physical damage coverage for certain types of livery business in New York that there was some objection to. But the collective agreed to withdraw that from our proposal–so really there were no major disagreements."

He said the department asked questions about market availability and updates on the non-admitted marketplace, which were answered.

If the department decides to go forward with this, Mr. Derella said, "it's very good for the broker community in that it makes it less onerous to place business in the excess lines marketplace, but while still protecting the consumers' rights–so it's a win-win."

He added that this wouldn't "eviscerate the regulation. It recognizes that there are natural classes of business that are going to be written in the non-admitted marketplace, that the declination process doesn't make any sense."

For example, he said, a bunji-jumping facility "would never be placed in the admitted marketplace, so the idea of making that easily exportable makes a lot of sense."

Not only does it make it easier to get coverage, he added, but it makes it "less onerous from a paperwork point of view. You don't have to go through the full declination process."

He explained that New York requires three declinations from an admitted market before authorizing an excess placement, but that for certain classes there are no admitted markets.

For example, he said, one class discussed was excess disability for large limits. The reality, however, is that nobody is writing those large limits, he noted, adding that "if nobody is writing it, why shouldn't it be on the export list?"

In a hearing in June 2008, retail and wholesale agents urged expansion of the list to eliminate what they said were unnecessary regulatory burdens inherent in the system.

Regulators said at the time that the department would consider the agents' arguments, but would also examine possible negative consequences of allowing agents to place business with carriers not licensed in the state without first receiving declinations from admitted carriers.

Last year, the department formally proposed a regulation to expand the list.

In the final approved version, nine coverages were added where agents do not have to receive declinations from admitted carriers, and 10 additional coverages now require two declinations instead of three. (http://www.property-casualty.com/News/2009/9/Pages/NY-Dept-Finalizes-Rule-To-Expand-Export-List.aspx?k=surplus+lines%2c+phil+gusman%2c+N.Y.)

The coverages currently proposed to be added to the Export List are:

o Auto Physical Damage: Coverage for commercial trucks, black cars, limousines and other commercial passenger transportation vehicles. These are risks characterized by unfavorable underwriting attributes that are deemed unacceptable to licensed insurers.

o Excess Salary Protection (Disability) Insurance: High excess disability coverage and/or disability coverage which licensed insurers are unwilling to write in part due to moral hazards.

o Recreational Liability Insurance: Parachuting, bungee jumping, hunting clubs, fishing clubs, camp grounds, children's camps, gymnastics, spas, athletic teams, dance schools and other clubs, camps and recreational business operations. These are unique risks that licensed insurers are unwilling or unprepared to write.

o Builders Risk Insurance: Coverage for construction projects where the total insured values exceed $10 million. These are high-capacity risks requiring high insurance limits that exceed the capacity of licensed insurers.

o Primary and/or Excess "Liability" Insurance for Vacant or Unoccupied Buildings: Vacant properties are distressed risks characterized by unfavorable underwriting attributes that are deemed unacceptable to licensed insurers. Beyond the vacant property hazard concerns, vacant property can become a liability hazard to the public and municipality (fire, police or utility workers).

o Excess Professional/Errors & Omissions Liability, All Classes: Excess liability coverage where the underlying policy limits and/or self-insured retention is at least $10 million per occurrence. These are high-capacity risks requiring large insurance limits where the buyers tend to be sophisticated and the guaranty or security fund is of limited value.

There was also a request for a reduction in the number of declinations to zero for the following coverage types, currently on the export list requiring two declinations. The request includes primary or excess errors and omissions/miscellaneous professional liability coverage (other than medical malpractice Insurance), including general liability coverage (if included in the same policy) with respect to the following risks or coverages:

o Alcohol and/or drug rehabilitation programs.

o Residential facilities including convalescent centers, nursing homes, and assisted care facilities.

o Day care centers for adults, children or the physically or mentally disabled.

o Halfway house for adults, children and/or the physically or mentally disabled.

o Hospices care service providers.

o Social services agencies.

o Foster care service providers.

o Home health care providers.

Special Reports /

Producer, Carrier Groups Unite For N.Y. Surplus Lines Hearing

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