Chapter 746 — Trade
Practices
2011 EDITION
TRADE PRACTICES
INSURANCE
GENERAL PROVISIONS
746.005 Trade
practices exempted from prohibitions
746.015 Discrimination;
noncompliance; hearing
746.018 Discrimination
in issuance of burglary, theft, robbery or casualty policies prohibited
746.025 Securities
or other contracts as inducement to insurance
746.035 Inducements
not specified in policy
746.045 Rebates
746.055 Title
insurance commissions, rebates and discounts
746.065 Personal
or controlled insurance
746.075 Misrepresentation
generally
746.085 Regulating
replacement of life insurance; compensation of insurance producers; rules
746.100 Misrepresentation
in insurance applications or transactions
746.110 False,
deceptive or misleading statements
746.115 Advertisements
in languages other than English
746.120 Illegal
dealing in premiums
746.125 Limitation
on coverage of eye care services
746.130 Insurance
connected to sale or rental of property; prohibition; exceptions; charges
746.135 Genetic
tests and information; rules
746.140 Sale
of life insurance with securities; written proposal; application of securities
law
746.145 Workers’
compensation insurance; combination of group of employers; purpose; conditions
746.147 Workers’
compensation insurance; quoting premiums
746.150 Other
insurance; combination of experience of group of persons or risks; purpose;
rules; conditions
746.155 Applicability
of ORS 746.145 and 746.150
746.160 Practices
injurious to free competition
746.195 Insurance
on property securing loan or credit; certain practices by depository
institutions prohibited
746.201 Depository
institution to obtain required property insurance when borrower does not;
notice required
746.213 Definitions
for ORS 746.213 to 746.219
746.215 Regulation
of depository institutions with regard to insurance sales or solicitations
746.217 Disclosures
to customers
746.219 Investigatory
powers
746.220 Debtor’s
option in furnishing credit life or credit health insurance
746.222 Prohibition
on referral of individual to Medical Insurance Pool
746.230 Unfair
claim settlement practices
746.240 Undefined
trade practices injurious to public prohibited
746.260 Driving
record not to be considered in issuance of motor vehicle insurance
746.265 Purposes
for which abstract of nonemployment driving record
may be considered
746.270 Use
of past investment or predicted future investment experience in sale of
variable life insurance policies
746.275 Definitions
for ORS 746.275 to 746.300
746.280 Designation
of particular motor vehicle repair shop by insurer prohibited; notice;
limitation of costs
746.285 Notice
of prohibition in motor vehicle repair shops; size; location
746.287 Insurer
requirement of installation of aftermarket crash part in vehicle
746.289 Insurer
offer of crash part warranty
746.290 Notice
of prohibition in policies and by adjusters
746.292 Motor
vehicle repair shops; invoices; estimates; warranties; prohibited practices
746.295 Proof
and amount of loss under motor vehicle liability policies; determination by
insurer
746.300 Liability
of insurers and motor vehicle repair shops for damages; attorney fees
746.305 Rules
746.308 Violation
of provisions regarding totaled vehicles as violation of Insurance Code
UNAUTHORIZED INSURANCE
746.310 Representing
or aiding unauthorized insurer prohibited; insurance producer liable to insured
746.320 Service
of process equivalent to personal service on unauthorized foreign or alien
insurer
746.330 Judgment
by default after service of process under ORS 746.320
746.340 Conditions
to be met by defendant unauthorized insurer before filing motions or pleadings
746.350 Attorney
fee allowable to prevailing party
746.360 Exceptions
to application of unauthorized insurer service of process law
746.370 Records
of insureds
PREMIUM FINANCING
746.405 Definitions
for ORS 746.405 to 746.530
746.422 Inquiries
from director to premium finance company
746.425 Applicability
of ORS 746.405 to 746.530
746.465 Records
required of premium finance companies; form; inspection
746.470 Prohibition
against interfering with premium financing recommendation
746.475 Premium
finance agreements; contents; form; delivery; notice to insurer
746.485 Regulation
of service charge for premium financing; method of computation; prepayment
746.495 Delinquency
charges regulated
746.505 Cancellation
of policy by premium finance company; notice required; effective date of
cancellation
746.515 Return
of unearned premiums on cancellation
746.525 Agreement
effective as security interest
746.530 Attorney
fees
USE AND DISCLOSURE OF INSURANCE
INFORMATION
746.600 Definitions
for ORS 746.600 to 746.690
746.605 Purpose
746.606 Information
privacy standards for health insurers
746.607 Use
and disclosure of personal information
746.608 Rules
746.609 Exemptions
for health insurers
746.610 Application
of ORS 746.600 to 746.690
746.611 Personal
representative of deceased person
746.612 No
right of action
746.615 Pretext
interviews prohibited
746.620 Notice
of insurance information practices; rules
746.625 Marketing
and research surveys
746.630 Authorization
for disclosure of certain information; forms; revocation
746.632 Genetic
information used for treatment; authorization; disclosure
746.635 Investigative
consumer reports
746.640 Access
to recorded personal information
746.645 Correction,
amendment or deletion of recorded personal information
746.650 Reasons
for adverse underwriting decisions
746.655 Information
concerning previous adverse underwriting decisions
746.660 Basing
adverse underwriting decision on previous adverse decision
746.661 Use
of credit history or insurance score
746.662 Filing
of insurance scoring models
746.663 Cancellation
or nonrenewal of personal insurance policies based on credit history or insurance
score
746.665 Limitations
and conditions on disclosure of certain information
746.668 Relationship
of ORS 746.620, 746.630 and 746.665 to federal Fair Credit Reporting Act
746.670 Investigatory
powers
746.675 Service
of process on out-of-state insurance-support organizations
746.680 Remedies
746.685 Liability
for disclosure of information
746.686 Use
of prior claim or inquiry in determination to issue or renew homeowner
insurance policy; rules
746.687 Cancellation
of homeowner insurance policy
746.688 Use
of loss history reports; notice to consumer
746.690 Obtaining
information under false pretenses prohibited
PENALTIES
746.991 Penalties
GENERAL PROVISIONS
746.005 Trade practices exempted from
prohibitions. Nothing in this chapter shall apply to
wet marine and transportation insurance or prohibit any of the following
practices:
(1)
In the case of life insurance policies, paying bonuses to policyholders or
otherwise abating their premiums in whole or in part out of surplus accumulated
from nonparticipating insurance, provided that any such bonuses or abatement of
premiums shall be fair and equitable to policyholders and for the best
interests of the insurer and its policyholders;
(2)
In the case of industrial life insurance policies, making allowance to
policyholders who have continuously for a specified period made premium
payments directly to an office of the insurer, in an amount which fairly
represents the saving in collection expense;
(3)
Readjustment of the rate of premium for a group life or health insurance policy
based on the loss or expense experience thereunder,
at the end of the first or any subsequent policy year, which may be made
retroactive only for such policy year;
(4)
Extension of credit for payment of premiums without any service charge or
interest by the insurer or insurance producer for a period of not more than 90
days after the end of the month in which the policy becomes effective;
(5)
Practices authorized pursuant to ORS 733.220 and 733.230;
(6)
The issuing of life or health insurance policies on a salary savings, bank
draft, preauthorized check or payroll deduction plan or similar plan at a
reduced rate reasonably related to the savings made by use of such plan; or
(7)
The issuing of life or health insurance policies at rates less than the usual
premium rates for such policies, or using modifications of premium rates based
on amount of insurance, if such issuance or modification does not result in
reduction in premium rates in excess of savings in administration and issuance
expenses reasonably attributable to such policies. [Formerly 736.825; 1983
c.740 §254; 2003 c.364 §133]
746.010
[Amended by 1961 c.256 §1; 1967 c.359 §507; renumbered 743.702]
746.015 Discrimination; noncompliance;
hearing. (1) No person shall make or permit any
unfair discrimination between individuals of the same class and equal
expectation of life, or between risks of essentially the same degree of hazard,
in the availability of insurance, in the application of rates for insurance, in
the dividends or other benefits payable under insurance policies, or in any
other terms or conditions of insurance policies.
(2)
Discrimination by an insurer in the application of its underwriting standards
or rates based solely on an individual’s physical disability is prohibited,
unless such action is based on sound actuarial principles or is related to
actual or reasonably anticipated experience. For purposes of this subsection, “physical
disability” shall include, but not be limited to, blindness, deafness, hearing
or speaking impairment or loss, or partial loss, of function of one or more of
the upper or lower extremities.
(3)
Discrimination by an insurer in the application of its underwriting standards
or rates based solely upon an insured’s or applicant’s attaining or exceeding
65 years of age is prohibited, unless such discrimination is clearly based on
sound actuarial principles or is related to actual or reasonably anticipated
experience.
(4)(a)
An insurer may not, on the basis of the status of an insured or prospective
insured as a victim of domestic violence or sexual violence, do any of the
following:
(A)
Deny, cancel or refuse to issue or renew an insurance policy;
(B)
Demand or require a greater premium or payment;
(C)
Designate domestic violence or sexual violence, physical or mental injuries
sustained as a result of domestic violence or sexual violence or treatment
received for such injuries as a preexisting condition for which coverage will
be denied or reduced;
(D)
Exclude or limit coverage for losses or deny a claim; or
(E)
Fix any lower rate for or discriminate in the fees or commissions of an
insurance producer for writing or renewing a policy.
(b)
The fact that an insured or prospective insured is or has been a victim of
domestic violence or sexual violence shall not be considered a permitted
underwriting or rating criterion.
(c)
Nothing in this subsection prohibits an insurer from taking an action described
in paragraph (a) of this subsection if the action is otherwise permissible by
law and is taken in the same manner and to the same extent with respect to all insureds and prospective insureds
without regard to whether the insured or prospective insured is a victim of
domestic violence or sexual violence.
(d)
An insurer that complies in good faith with the requirements of this subsection
shall not be subject to civil liability due to such compliance.
(e)
For purposes of this subsection, “domestic violence” means the occurrence of
one or more of the following acts between family or household members:
(A)
Attempting to cause or intentionally or knowingly causing physical injury;
(B)
Intentionally or knowingly placing another in fear of imminent serious physical
injury; or
(C)
Committing sexual abuse in any degree as defined in ORS 163.415, 163.425 and
163.427.
(f)
For purposes of this subsection, “sexual violence” means the commission of a
sexual offense described in ORS 163.305 to 163.467, 163.427 or 163.525.
(5)
If the Director of the Department of Consumer and Business Services has reason
to believe that an insurer in the application of its underwriting standards or
rates is not complying with the requirements of this section, the director
shall, unless the director has reason to believe the noncompliance is willful,
give notice in writing to the insurer stating in what manner such noncompliance
is alleged to exist and specifying a reasonable time, not less than 10 days
after the date of mailing, in which the noncompliance may be corrected.
(6)(a)
If the director has reason to believe that noncompliance by an insurer with the
requirements of this section is willful, or if, within the period prescribed by
the director in the notice required by subsection (5) of this section, the
insurer does not make the changes necessary to correct the noncompliance
specified by the director or establish to the satisfaction of the director that
such specified noncompliance does not exist, the director may hold a hearing in
connection therewith. Not less than 10 days before the date of such hearing the
director shall mail to the insurer written notice of the hearing, specifying
the matters to be considered.
(b)
If, after the hearing, the director finds that the insurer’s application of its
underwriting standards or rates violates the requirements of this section, the
director may issue an order specifying in what respects such violation exists
and stating when, within a reasonable period of time, further such application
shall be prohibited. If the director finds that the violation was willful, the
director may suspend or revoke the certificate of authority of the insurer.
(7)
Affiliated workers’ compensation insurers having reinsurance agreements which
result in one carrier ceding 80 percent or more of its workers’ compensation
premium to the other, while utilizing different workers’ compensation rate
levels without objective evidence to support such differences, shall be
presumed to be engaging in unfair discrimination. [1967 c.359 §568; 1977 c.331 §1;
1979 c.140 §1; 1987 c.676 §2; 1987 c.884 §53; 1997 c.564 §1; 1999 c.59 §229;
2003 c.364 §134; 2007 c.70 §319; 2010 c.67 §1]
746.018 Discrimination in issuance of
burglary, theft, robbery or casualty policies prohibited.
(1) In cities of 300,000 or more, and except as provided in subsection (3) of
this section, no insurer shall make or permit any unfair discrimination between
risks of essentially the same degree of hazard in the issuance of burglary and
theft or robbery insurance policies or casualty insurance policies which insure
against liability to persons arising out of the use or control of real or
personal property other than motor vehicles.
(2)
Property insured or persons insured against liability arising out of use or
control of real or personal property other than motor vehicles, if comparable
in other respects in exposures to the peril insured against, shall not be
deemed to be of different hazard solely because of the geographic location of
the property or the place of residence or business of the person to be insured.
(3)
Notwithstanding subsection (1) of this section an insurer may make or permit
discrimination between risks of essentially the same degree of hazard in the
issuance of insurance policies described in subsection (1) of this section if
the insurer, at the time of the discrimination, insures a percentage of the
similar risks at least equal to the ratio that its premiums for the respective
line of business as reported in the annual statement required by ORS 731.574
for the second preceding calendar year bears to the total premium for the same
line of business as reported by all insurers in the annual statements required
by ORS 731.574 for the second preceding calendar year, within a square one mile
on each side centered upon the location of the property, insurance in regard to
which the insurer declines to issue. [1971 c.522 §2; 1973 c.9 §1]
746.020
[Amended by 1965 c.610 §13; repealed by 1967 c.359 §704]
746.025 Securities or other contracts as
inducement to insurance. No person shall sell, agree or
offer to sell, or give or offer to give, directly or indirectly in any manner
whatsoever, shares of stock, securities, bonds, special or advisory board
contracts or agreements of any form or nature promising returns and profits as
an inducement to insurance. No insurer engaging in or permitting its
representatives to engage in such practices in this or any other state may be
authorized to do business in this state. [Formerly 739.535]
746.030
[Amended by 1961 c.256 §2; 1967 c.359 §508; renumbered 743.705]
746.035 Inducements not specified in
policy. Except as otherwise expressly provided
by the Insurance Code, no person shall permit, offer to make or make any
contract of insurance, or agreement as to such contract, unless all agreements
or understandings by way of inducement are plainly expressed in the policy
issued thereon. [1967 c.359 §570]
746.040
[Amended by 1961 c.256 §3; repealed by 1967 c.359 §704]
746.045 Rebates.
No person shall personally or otherwise offer, promise, allow, give, set off,
pay or receive, directly or indirectly, any rebate of or rebate of part of the
premium payable on an insurance policy or the insurance producer’s commission
thereon, or earnings, profit, dividends or other benefit founded, arising,
accruing or to accrue on or from the policy, or any other valuable
consideration or inducement to or for insurance on any domestic risk, which is
not specified in the policy. [1967 c.359 §571; 2003 c.364 §135]
746.050
[Amended by 1961 c.256 §4; repealed by 1967 c.359 §704]
746.055 Title insurance commissions,
rebates and discounts. With respect to title insurance,
no commissions, rebates or discounts shall be paid, allowed or permitted to any
person having an interest in or lien upon real property which is the subject of
the title insurance involved, or to any person acting for or on behalf of a
person with such an interest or lien. [Formerly 748.086]
746.060
[Repealed by 1961 c.256 §5]
746.065 Personal or controlled insurance.
(1) As used in this section, “personal or controlled insurance” means insurance
covering an insurance producer or:
(a)
The spouse of the insurance producer, the employer of the insurance producer or
the employer’s spouse, or any group of employees under a group policy issued to
the employer of the insurance producer;
(b)
Any person related to the insurance producer, to the spouse of the insurance
producer, to the employer of the insurance producer or to the employer’s spouse
within the second degree by blood or marriage;
(c)
If the employer of the insurance producer is a corporation, any person directly
or indirectly owning or controlling a majority of the voting stock or
controlling interest in such corporation;
(d)
If the employer of the insurance producer is a partnership or association, any
person owning any interest in such partnership or association;
(e)
If the insurance producer is a corporation, any person directly or indirectly
owning or controlling a majority of the voting stock or controlling interest in
the insurance producer, and any corporation which is likewise directly or
indirectly controlled by the person who so directly or indirectly controls the
insurance producer; or
(f)
If the insurance producer is a corporation, any corporation making consolidated
returns for United States income tax purposes with any corporation described in
paragraph (e) of this subsection.
(2)
If premiums on personal or controlled insurance transacted by an insurance
producer payable in one calendar year exceed the premiums or with respect to
life and health insurance twice the premiums, on other insurance transacted by
the insurance producer payable in the same year, the receipt of commissions
upon the excess is an unlawful rebate.
(3)
This section shall not apply to an individual licensee who:
(a)
Is licensed during all of such calendar year individually as an insurance
producer;
(b)
During such calendar year conducts an individual insurance producer business,
not being designated to exercise the powers conferred by an insurance producer’s
license issued to any firm or corporation nor owning any interest in any firm
or corporation transacting an insurance producer business;
(c)
Has been continuously licensed in some manner as an insurance producer, and has
been active as such, for at least 25 years; and
(d)
Is at least 65 years of age at the beginning of such calendar year.
(4)
This section does not apply to the writing, issuing or soliciting by a seller
of personal property of insurance covering the personal property sold by the
seller on an installment contract whereunder the
title to the property is reserved by the seller.
(5)
This section shall not apply to an insurance producer, whether an individual,
firm or corporation, if:
(a)
The insurance producer is controlled or owned by a nonprofit professional
association and offers professional liability and related business and personal
umbrella or excess liability insurance exclusively to members of the
association; and
(b)
The primary function of the association is other than marketing insurance. [1967
c.359 §573; 1987 c.774 §147; 1989 c.701 §73; 2003 c.364 §136]
746.070
[Repealed by 1961 c.256 §5]
746.075 Misrepresentation generally.
(1) A person may not engage, directly or indirectly, in any action described in
subsection (2) of this section in connection with:
(a)
The offer or sale of any insurance; or
(b)
Any inducement or attempted inducement of any insured or person with ownership
rights under an issued life insurance policy to lapse, forfeit, surrender,
assign, effect a loan against, retain, exchange or convert the policy.
(2)
Subsection (1) of this section applies to the following actions:
(a)
Making, issuing, circulating or causing to be made, issued or circulated, any
estimate, illustration, circular or statement misrepresenting the terms of any
policy issued or to be issued or the benefits or advantages therein or the
dividends or share of surplus to be received thereon;
(b)
Making any false or misleading representation as to the dividends or share of
surplus previously paid on similar policies;
(c)
Making any false or misleading representation as to the financial condition of
any insurer, or as to the legal reserve system upon which any life insurer
operates;
(d)
Using any name or title of any policy or class of policies misrepresenting the
true nature thereof;
(e)
Employing any device, scheme or artifice to defraud;
(f)
Obtaining money or property by means of any untrue statement of a material fact
or any omission to state a material fact necessary in order to make the
statement, in light of the circumstances under which it was made, not
misleading;
(g)
Engaging in any other transaction, practice or course of business that operates
as a fraud or deceit upon the purchaser, insured or person with policy
ownership rights; or
(h)
Materially misrepresenting the provider network of an insurer offering managed
health insurance or preferred provider organization insurance as defined in ORS
743.801, including its composition and the availability of its providers to
enrollees in the plan. [1967 c.359 §574; 2001 c.266 §7]
746.080
[Amended by 1967 c.359 §509; renumbered 743.708]
746.085 Regulating replacement of life
insurance; compensation of insurance producers; rules.
In addition to all other powers of the Director of the Department of Consumer
and Business Services with respect thereto, the director may issue rules:
(1)
Requiring persons who replace, or offer or propose to replace, existing life
insurance, to leave with the policyholder written, signed and dated statements
which fully and correctly compare the terms, conditions and benefits of an
existing policy with the proposed policy; and
(2)
Limiting the commission or compensation payable to an insurance producer on
account of a life insurance policy that provides a nonforfeiture
value sold to replace an existing life insurance policy that provides a nonforfeiture value to the commission or compensation the
insurance producer would have received if both the replaced and the replacement
insurance policies had been carried by the insurer which issues the replacement
policy. [1967 c.359 §575; 1971 c.231 §35; 2003 c.364 §137]
746.090
[Repealed by 1967 c.359 §704]
746.100 Misrepresentation in insurance applications
or transactions. No person shall make a false or
fraudulent statement or representation on or relative to an application for
insurance, or for the purpose of obtaining a fee, commission, money or benefit
from an insurer or insurance producer. [Formerly 736.460; 2003 c.364 §138]
746.110 False, deceptive or misleading
statements. No person shall make, publish,
disseminate, circulate, or place before the public, or cause, directly or
indirectly, to be made, published, disseminated, circulated, or placed before
the public, in a newspaper, magazine or other publication, or in the form of a
notice, circular, pamphlet, letter or poster, or over any radio or television
station, or in any other way, an advertisement, announcement or statement
containing any assertion, representation or statement with respect to the
business of insurance or with respect to any person in the conduct of the
insurance business, which is untrue, deceptive or misleading. [Formerly
736.608]
746.115 Advertisements in languages other
than English. (1) An insurer or licensee who
advertises in a language other than English is not required to provide an
insurance policy in any language other than English so long as the
advertisement states clearly that the policy that is purchased is available
only in English.
(2)
Advertisements regarding an insurance policy in languages other than English
may not be construed to modify the policy in the event of a dispute over the
provisions of the policy. [1997 c.809 §2; 2003 c.249 §1]
Note:
746.115 was added to and made a part of ORS chapter 746 by legislative action
but was not added to any smaller series therein. See Preface to Oregon Revised
Statutes for further explanation.
746.120 Illegal dealing in premiums.
No person shall willfully collect any sum as premium or charge for insurance
which is not then provided, or is not in due course to be provided subject to
acceptance of the risk by the insurer, under an insurance policy issued by an
insurer in conformity to the Insurance Code. [1967 c.359 §579]
746.125 Limitation on coverage of eye care
services. (1) As used in this section:
(a)
“Health care service contractor” has the meaning given that term in ORS
750.005.
(b)
“Independent practice association” has the meaning given that term in ORS
743.801.
(2)
An insurer or a health care service contractor that has a contract with an
independent practice association to provide eye care services may not limit
coverage of eye care services only to services provided by a physician if the
eye care services are covered services and are within the lawful scope of
practice of a licensed optometrist. [2005 c.442 §2]
Note:
746.125 was added to and made a part of ORS chapter 746 by legislative action
but was not added to any smaller series therein. See Preface to Oregon Revised
Statutes for further explanation.
746.130 Insurance connected to sale or
rental of property; prohibition; exceptions; charges.
(1) No insurer shall participate in any plan to offer or effect in this state,
as an inducement to the purchase or rental by the public of any property or
services, any insurance for which there is no separate charge to the insured.
No person shall arrange the sale of any such insurance.
(2)
Subsection (1) of this section does not apply to:
(a)
Home protection insurance or other insurance offered as a guarantee of the
performance of property and designed to protect the purchasers or users of such
property;
(b)
Title insurance; or
(c)
Credit life or credit health insurance as defined in ORS 743.371.
(3)
The charge for any insurance incidental to the purchase or rental by the public
of any property or services shall be in accordance with rates on file with the
Director of the Department of Consumer and Business Services. [1967 c.359 §580;
1969 c.336 §16; 1981 c.247 §20; 1993 c.265 §9]
746.135 Genetic tests and information;
rules. (1) If a person asks an applicant for
insurance to take a genetic test in connection with an application for
insurance, the use of the test shall be revealed to the applicant and the
person shall obtain the specific authorization of the applicant using a form
adopted by the Director of the Department of Consumer and Business Services by
rule.
(2)
A person may not use favorable genetic information to induce the purchase of
insurance.
(3)
A person may not use genetic information to reject, deny, limit, cancel, refuse
to renew, increase the rates of, affect the terms and conditions of or
otherwise affect any policy for hospital or medical expenses.
(4)
A person may not use genetic information about a blood relative to reject,
deny, limit, cancel, refuse to renew, increase the rates of, affect the terms
and conditions of or otherwise affect any policy of insurance.
(5)
For purposes of this section, “blood relative,” “genetic information” and “genetic
test” have the meanings given those terms in ORS 192.531. [1995 c.680 §8; 2001
c.588 §17]
746.140 Sale of life insurance with
securities; written proposal; application of securities law.
(1) Every insurer or insurance producer soliciting an offer to buy or selling
life insurance in correlation with the sale of securities shall furnish the
prospect with a clear and unambiguous written proposal prior to the signing of
the application by the applicant.
(2)
The written proposal shall be dated and signed by the insurance producer, or by
the insurer if no insurance producer is involved, and left with the prospect.
The written proposal shall be on a form which has been filed with the Director
of the Department of Consumer and Business Services. If a sale is made of both
life insurance and securities, a duplicate copy of the written proposal left
with the buyer shall be retained by the insurer for a period of not less than
three years.
(3)
Each such proposal shall:
(a)
State the name of the insurer in which the life insurance is to be written;
(b)
State that the prospect has the right to purchase the life insurance only, the
securities only or both the life insurance and the securities;
(c)
Contain no misrepresentations or false, deceptive or misleading words, figures
or statements;
(d)
State all material facts without which the proposal would have the capacity or
tendency to mislead or deceive; and
(e)
Set forth all matters pertaining to life insurance, including premium charges,
separately from matters not pertaining to life insurance.
(4)
This section shall not be construed to affect the application of any other
provision of law concerning or regulating securities. [Formerly 739.562; 2003
c.364 §139]
746.145 Workers’ compensation insurance;
combination of group of employers; purpose; conditions.
(1) Notwithstanding ORS 737.600, but subject to all other rate filing
requirements of ORS chapter 737, an insurer may combine for dividend purposes
the experience of a group of employers covered for workers’ compensation
insurance by the insurer, subject to applicable rules adopted by the Director
of the Department of Consumer and Business Services, if:
(a)
All the employers in the group are members of an organization.
(b)
The employers in the group constitute at least 50 percent of the employers in
the organization, unless the number of covered workers in the group exceeds
500, in which case the employers in the group must constitute at least 25
percent of the employers in the organization.
(c)
The grouping of employers is likely to substantially improve accident
prevention, claims handling for the employers and reduce expenses.
(2)
This section does not apply to an organization of employers for which
organization a workers’ compensation policy was lawfully issued before October
4, 1977. The policy required by ORS 656.419 shall contain for each employer
covered thereby the information required by ORS 656.419 (2). When an employer
becomes an insured member of the organization the insurer shall, within 30 days
after the date insured membership commenced, file a notice thereof with the
director. [1977 c.405 §3; 1983 c.706 §3; 1990 c.1 §5; 2003 c.170 §11; 2007
c.241 §29]
746.147 Workers’ compensation insurance;
quoting premiums. An insurer or insurance producer
offering workers’ compensation insurance in Oregon shall not quote projected
net insurance premiums based upon figures that are discretionary or terms that
are not guaranteed in the workers’ compensation insurance policy. [1999 c.868 §3;
2003 c.364 §140]
Note:
746.147 was added to and made a part of ORS chapter 746 by legislative action
but was not added to any smaller series therein. See Preface to Oregon Revised
Statutes for further explanation.
746.150 Other insurance; combination of
experience of group of persons or risks; purpose; rules; conditions.
(1) For property, inland marine, casualty or surety insurance, an insurer may
combine for dividend purposes the experience of a group of persons or risks any
of which are within this state, except for workers’ compensation insurance done
in compliance with ORS 746.145 and subject to rules adopted by the Director of
the Department of Consumer and Business Services.
(2)
The director shall make reasonable rules regarding such dividend groupings as
an aid to the effectuation and enforcement of the Insurance Code. Such rules
shall have as their purpose the prevention of misrepresentation, unfair
discrimination and other unfair trade practices, and may among other things
require that:
(a)
Such a grouping comprises substantially homogeneous risks.
(b)
The organization under the auspices of which such a grouping is made has been
in existence for at least two years and was formed for purposes other than that
of obtaining insurance.
(c)
A substantial improvement in loss prevention or claims handling will be a
likely result of such a grouping.
(d)
Information regarding eligibility for participation in the grouping and the
system for allocation of dividends among the participants be filed with the
director.
(3)
An insurer shall not unfairly discriminate in the allocation of dividends among
the participants in such a dividend grouping.
(4)
The system for allocation of dividends among the participants may provide for
allocation at a fixed percentage of premiums, or may provide for variations in
the percentage of premiums paid as dividends, or may provide for other
variations in determining the amounts of dividends allocated to participants.
The variations may be based on loss or expense factors or on other reasonable
considerations, such as risk size, risk location or industry or trade hazard
classification, that have a probable effect on losses or expenses.
(5)
Failure to apply in a consistent manner the dividend allocation system
specified in an insurer’s dividend declaration shall be prima facie evidence of
unfair discrimination. [1977 c.405 §4; 1983 c.706 §4; 1999 c.59 §230]
746.155 Applicability of ORS 746.145 and
746.150. ORS 746.145 and 746.150 do not apply to
groupings or combinations of persons or risks by way of common ownership or
common use and control as permitted under ORS 737.600. [1977 c.405 §2]
746.160 Practices injurious to free
competition. Except as otherwise expressly provided
by law, no person, either within or outside of this state, directly or
indirectly, shall enter into any contract, understanding or combination with
any insurer or manager, agent or representative thereof for the purpose of, nor
shall any such persons or insurers, jointly or severally do any act or engage
in any practice for the purpose of:
(1)
Controlling the rates to be charged, or the commissions or other compensations
to be paid, for insuring any risk or class of risks in this state;
(2)
Discriminating against or differentiating from any insurer, manager or agent,
by reason of the plan or method of transacting business or the affiliation or nonaffiliation with any board or association of insurers,
managers, agents or representatives; or
(3)
Doing anything which is detrimental to free competition in the business or
injurious to the insuring public. [Formerly 736.615]
746.170
[Formerly 736.705; repealed by 1977 c.742 §9]
746.180
[Formerly 736.715; repealed by 2003 c.363 §16]
746.182 [1987
c.846 §18; 1989 c.701 §74; 1995 c.334 §5; 1997 c.831 §§6,6a; 2001 c.191 §57;
2001 c.377 §52; repealed by 2003 c.363 §16]
746.185 [1977
c.742 §2; 1985 c.762 §189; 1997 c.631 §551; 2001 c.377 §52a; repealed by 2003
c.363 §16]
746.190
[Formerly 736.725; repealed by 1977 c.742 §9]
746.191 [1977
c.742 §3; 2003 c.14 §451; repealed by 2003 c.363 §16]
746.195 Insurance on property securing
loan or credit; certain practices by depository institutions prohibited. (1)
A depository institution may not:
(a)
Solicit the sale of insurance for the protection of real or personal property
after a person indicates interest in securing a loan or credit extension, until
the depository institution has agreed to make the loan or credit extension;
(b)
Refuse to accept a written binder issued by an insurance producer as proof that
temporary insurance exists covering the real or personal property that is the
subject matter of, or security for, a loan or extension of credit, and that a
policy of insurance will be issued covering that property. A written binder
issued by an insurance producer or insurer covering real or personal property
that is the subject matter of, or security for, a loan or extension of credit
shall be effective until a policy of insurance is issued in lieu thereof,
including within its terms the identical insurance bound under the binder and
the premium therefor, or until notice of the
cancellation of the binder is received by the borrower and the depository
institution extending credit or offering the loan. When a depository
institution closes on a binder under ORS 742.043, the insurance producer or
insurer issuing the binder shall be bound to provide a policy of insurance,
equivalent in coverage to the coverage set forth in the binder, within 60 days
from the date of the binder. The provisions of this paragraph do not apply when
prohibited by federal or state statute or regulations; or
(c)
Use or disclose to any other insurance producer, other than the original
insurance producer, the information relating to a policy of insurance furnished
by a borrower unless the original insurance producer fails to deliver a policy
of insurance within 60 days prior to expiration to the depository institution
without first procuring the written consent of the borrower.
(2)
As used in this section, “depository institution” means a financial institution
as that term is defined in ORS 706.008. [1977 c.742 §4; 1987 c.916 §10; 2003
c.363 §12; 2003 c.364 §144a]
746.200
[Formerly 736.735; repealed by 1977 c.742 §9]
746.201 Depository institution to obtain
required property insurance when borrower does not; notice required.
(1) In a contract or loan agreement, or in a separate document accompanying the
contract or loan agreement and signed by the mortgagor, borrower or purchaser,
that provides for a loan or other financing secured by the mortgagor’s,
borrower’s or purchaser’s real or personal property and that authorizes the
secured party to place insurance on the property when the mortgagor, borrower
or purchaser fails to maintain the insurance as required by the contract or
loan agreement or the separate document, a warning in substantially the
following form shall be set forth in 10-point type:
______________________________________________________________________________
WARNING
Unless
you provide us with evidence of the insurance coverage as required by our
contract or loan agreement, we may purchase insurance at your expense to protect
our interest. This insurance may, but need not, also protect your interest. If
the collateral becomes damaged, the coverage we purchase may not pay any claim
you make or any claim made against you. You may later cancel this coverage by
providing evidence that you have obtained property coverage elsewhere.
You
are responsible for the cost of any insurance purchased by us. The cost of this
insurance may be added to your contract or loan balance. If the cost is added
to your contract or loan balance, the interest rate on the underlying contract
or loan will apply to this added amount. The effective date of coverage may be
the date your prior coverage lapsed or the date you failed to provide proof of
coverage.
The
coverage we purchase may be considerably more expensive than insurance you can
obtain on your own and may not satisfy any need for property damage coverage or
any mandatory liability insurance requirements imposed by applicable law.
______________________________________________________________________________
(2)
Substantial compliance by a secured party with subsection (1) of this section
constitutes a complete defense to any claim arising under the laws of this
state challenging the secured party’s placement of insurance on the real or
personal property in which the secured party has a security interest, for the
protection of the secured party’s interest in the property.
(3)
Nothing contained in this section shall be construed to require any secured
party to place or maintain insurance on real or personal property in which the
secured party has a security interest, and the secured party shall not be
liable to the mortgagor, borrower or purchaser or to any other party as a
result of the failure of the secured party to place or maintain such insurance.
(4)
The failure of a secured party prior to January 1, 1996, to include in a
contract or loan agreement, or in a separate document accompanying the contract
or loan agreement, the notice set forth in subsection (1) of this section shall
not be admissible in any court or arbitration proceeding or otherwise used to
prove that a secured party’s actions with respect to the placement or
maintenance of insurance on real or personal property in which the secured
party has a security interest are or were unlawful or otherwise improper. A
secured party shall not be liable to the mortgagor, borrower or purchaser or to
any other party for placing such insurance in accordance with the terms of an
otherwise legal contract or loan agreement with the mortgagor, borrower or
purchaser entered into prior to January 1, 1996. [1977 c.742 §5; 1995 c.313 §3;
2003 c.363 §13]
746.205 [1977
c.742 §6; repealed by 2003 c.363 §16]
746.210
[Formerly 736.745; repealed by 1977 c.742 §9]
746.211 [1977
c.742 §7; 1987 c.916 §11; repealed by 2003 c.363 §16]
746.213 Definitions for ORS 746.213 to
746.219. As used in ORS 746.213 to 746.219:
(1)
“Affiliate” means any company that controls, is controlled by or is under
common control with another company.
(2)
“Customer” means an individual who purchases, applies to purchase or is
solicited to purchase insurance products primarily for personal, family or
household purposes.
(3)
“Depository institution” means a financial institution as that term is defined
in ORS 706.008. [2003 c.363 §2]
Note:
746.213 to 746.219 were added to and made a part of the Insurance Code by
legislative action but were not added to ORS chapter 746 or any series therein.
See Preface to Oregon Revised Statutes for further explanation.
746.215 Regulation of depository
institutions with regard to insurance sales or solicitations.
(1) A depository institution or an affiliate of a depository institution that
lends money or extends credit may not:
(a)
As a condition precedent to the lending of money or extension of credit, or any
renewal thereof, require that the person to whom the money or credit is
extended, or whose obligation a creditor is to acquire or finance, negotiate
any policy or renewal thereof through a particular insurer or group of insurers
or insurance producer or group of insurance producers.
(b)
Reject an insurance policy solely because the policy has been issued or
underwritten by a person who is not associated with the depository institution
or affiliate when insurance is required in connection with a loan or the
extension of credit.
(c)
As a condition for extending credit or offering any product or service that is
equivalent to an extension of credit, require that a customer obtain insurance
from a depository institution or an affiliate of a depository institution, or
from a particular insurer or insurance producer. This paragraph does not
prohibit a depository institution or an affiliate of a depository institution
from informing a customer or prospective customer that insurance is required in
order to obtain a loan or credit, that loan or credit approval is contingent
upon the procurement by the customer of acceptable insurance or that insurance
is available from the depository institution or an affiliate of the depository
institution.
(d)
Unreasonably reject an insurance policy furnished by the customer or borrower
for the protection of the property securing the credit or loan. A rejection is
not considered unreasonable if it is based on reasonable standards that are
uniformly applied and that relate to the extent of coverage required and to the
financial soundness and the services of an insurer. The standards may not
discriminate against any particular type of insurer or call for rejection of an
insurance policy because the policy contains coverage in addition to that
required in the credit transaction.
(e)
Require that any customer, borrower, mortgagor, purchaser, insurer or insurance
producer pay a separate charge in connection with the handling of any insurance
policy required as security for a loan on real estate, or pay a separate charge
to substitute the insurance policy of one insurer for that of another. A charge
prohibited in this paragraph does not include the interest that may be charged
on premium loans or premium advancements in accordance with the terms of the
loan or credit document. This paragraph does not apply to charges that would be
required when the depository institution or an affiliate of a depository
institution is the licensed insurance producer providing the insurance.
(f)
Require any procedures or conditions of an insurer or insurance producer not
customarily required of insurers or insurance producers affiliated or in any
way connected with the depository institution.
(g)
Use an advertisement or other insurance promotional material that would cause a
reasonable person to mistakenly believe that the federal government or the
state is responsible for the insurance sales activity of, or stands behind the
credit of, the depository institution or its affiliate.
(h)
Use an advertisement or other insurance promotional material that would cause a
reasonable person to mistakenly believe that the federal government or the
state guarantees any returns on insurance products or is a source of payment on
any insurance obligation of or sold by the depository institution or its
affiliate.
(i) Act as an insurance producer unless properly licensed in
accordance with ORS 744.062, 744.063 or 744.064.
(j)
Pay or receive any commission, brokerage fee or other compensation as an
insurance producer, unless the depository institution or affiliate holds a
valid insurance producer license for the applicable class of insurance.
However, an unlicensed depository institution or affiliate may make a referral
to a licensed insurance producer if the depository institution or affiliate
does not negotiate, sell or solicit insurance. In the case of a referral of a
customer, however, the unlicensed depository institution or affiliate may be
compensated for the referral only if the compensation is a fixed dollar amount
for each referral that does not depend on whether the customer purchases the
insurance product from the licensed insurance producer. Any depository
institution or affiliate that accepts deposits from the public in an area in
which such transactions are routinely conducted in the depository institution
may receive for each customer referral no more than a one-time, nominal fee of
a fixed dollar amount for each referral that does not depend on whether the
referral results in a transaction.
(k)
Solicit or sell insurance, other than credit insurance or flood insurance,
unless the solicitation or sale is completed through documents separate from
any credit transactions.
(L)
Except as provided in ORS 746.201, include the expense of insurance premiums,
other than credit insurance premiums or flood insurance premiums, in the
primary credit transaction without the express written consent of the customer.
(m)
Solicit or sell insurance unless the insurance sales activities of the
depository institution or affiliate are, to the extent practicable, physically
separated from areas where retail deposits are routinely accepted by depository
institutions.
(n)
Solicit or sell insurance unless the depository institution or affiliate
maintains separate and distinct books and records relating to the insurance
transactions, including all files relating to and reflecting consumer
complaints.
(2)
A depository institution or an affiliate of a depository institution that lends
money or extends credit and that solicits insurance primarily for personal,
family or household purposes shall disclose to the customer in writing that the
insurance related to the credit extension may be purchased from an insurer or
insurance producer of the customer’s choice, subject only to the depository
institution’s right to reject a given insurer or insurance producer as provided
in subsection (1)(d) of this section. The disclosure shall inform the customer
that the customer’s choice of insurer or insurance producer will not affect the
credit decision or credit terms in any way, except that the depository
institution may impose reasonable requirements concerning the creditworthiness
of the insurer and the extent of coverage chosen as provided in subsection
(1)(d) of this section. [2003 c.363 §3; 2005 c.22 §497]
Note: See
note under 746.213.
746.217 Disclosures to customers.
(1) A depository institution that sells insurance, and any person that sells
insurance on behalf of a depository institution, or on the premises of a
depository institution where the depository institution is engaged in the
business of taking deposits or making loans, shall disclose to the customer in
writing, when practicable and in a clear and conspicuous manner, prior to a
sale, that the insurance:
(a)
Is not a deposit;
(b)
Is not insured by the Federal Deposit Insurance Corporation or any other
federal government agency;
(c)
Is not guaranteed by the depository institution or an affiliate of the
depository institution if applicable, or any person that is selling insurance
if applicable; and
(d)
When appropriate, involves investment risk, including the possible loss of
value.
(2)
The requirements of subsection (1) of this section apply:
(a)
To an affiliate of a depository institution only to the extent that it sells
insurance on the premises of a depository institution where the depository
institution is engaged in the business of taking deposits or making loans or on
behalf of a depository institution.
(b)
When an individual purchases insurance primarily for personal, family or
household purposes and only to the extent that the disclosure would be
accurate.
(3)
For the purpose of subsection (1) of this section, a person is selling
insurance on behalf of a depository institution, whether on the premises of the
depository institution or at another location, if either one of the following
applies:
(a)
The person represents to the customer that the sale of the insurance is by or
on behalf of the depository institution; or
(b)
The depository institution refers a customer to the person that sells insurance
and the depository institution has a contractual arrangement to receive
commissions or fees derived from the sale of insurance resulting from the
referral. [2003 c.363 §4]
Note: See
note under 746.213.
746.219 Investigatory powers.
(1) The Director of the Department of Consumer and Business Services may
examine and investigate the insurance activities of any person that the
director believes may be in violation of ORS 746.213, 746.215 or 746.217. Upon
request and reasonable notice, a person shall make its insurance books and
records available to the director and the director’s staff for inspection. An
affected person may submit to the director a complaint or material pertinent to
the enforcement of ORS 746.213, 746.215 and 746.217.
(2)
Nothing in ORS 746.213, 746.215 or 746.217 prevents a depository institution or
an affiliate of a depository institution that lends money or extends credit or
other lender or seller from placing insurance on real or personal property in
the event the customer, borrower, mortgagor or purchaser fails to provide
insurance required under the terms of the loan or credit document.
(3)
ORS 746.213, 746.215 and 746.217 do not apply to credit-related insurance. [2003
c.363 §5]
Note: See
note under 746.213.
746.220 Debtor’s option in furnishing
credit life or credit health insurance. When credit
life insurance or credit health insurance, as defined in ORS 743.371, is
required as additional security for any indebtedness, the debtor shall, upon
request to the creditor, have the option of furnishing the required amount of
insurance through existing policies of insurance owned or controlled by the
debtor or of procuring and furnishing the required coverage through any
authorized insurer. [Formerly 739.615]
746.222 Prohibition on referral of
individual to Medical Insurance Pool. No insurer or
licensee under the Insurance Code shall refer an individual to the Oregon
Medical Insurance Pool, established under ORS 735.600 to 735.650, for coverage
offered by the pool or arrange for the individual to apply to the pool for the
purpose of separating the individual from health insurance benefits offered or
provided in connection with a group health benefit plan. [1993 c.130 §5; 1999
c.987 §20]
746.225 [1975
c.469 §2; repealed by 1979 c.140 §3]
746.230 Unfair claim settlement practices.
(1) No insurer or other person shall commit or perform any of the following
unfair claim settlement practices:
(a)
Misrepresenting facts or policy provisions in settling claims;
(b)
Failing to acknowledge and act promptly upon communications relating to claims;
(c)
Failing to adopt and implement reasonable standards for the prompt
investigation of claims;
(d)
Refusing to pay claims without conducting a reasonable investigation based on
all available information;
(e)
Failing to affirm or deny coverage of claims within a reasonable time after
completed proof of loss statements have been submitted;
(f)
Not attempting, in good faith, to promptly and equitably settle claims in which
liability has become reasonably clear;
(g)
Compelling claimants to initiate litigation to recover amounts due by offering
substantially less than amounts ultimately recovered in actions brought by such
claimants;
(h)
Attempting to settle claims for less than the amount to which a reasonable
person would believe a reasonable person was entitled after referring to
written or printed advertising material accompanying or made part of an
application;
(i) Attempting to settle claims on the basis of an
application altered without notice to or consent of the applicant;
(j)
Failing, after payment of a claim, to inform insureds
or beneficiaries, upon request by them, of the coverage under which payment has
been made;
(k)
Delaying investigation or payment of claims by requiring a claimant or the
physician of the claimant to submit a preliminary claim report and then
requiring subsequent submission of loss forms when both require essentially the
same information;
(L)
Failing to promptly settle claims under one coverage of a policy where
liability has become reasonably clear in order to influence settlements under
other coverages of the policy; or
(m)
Failing to promptly provide the proper explanation of the basis relied on in
the insurance policy in relation to the facts or applicable law for the denial
of a claim.
(2)
No insurer shall refuse, without just cause, to pay or settle claims arising
under coverages provided by its policies with such
frequency as to indicate a general business practice in this state, which
general business practice is evidenced by:
(a)
A substantial increase in the number of complaints against the insurer received
by the Department of Consumer and Business Services;
(b)
A substantial increase in the number of lawsuits filed against the insurer or
its insureds by claimants; or
(c)
Other relevant evidence.
(3)(a)
No health maintenance organization, as defined in ORS 750.005, shall
unreasonably withhold the granting of participating provider status from a
class of statutorily authorized health care providers for services rendered
within the lawful scope of practice if the health care providers are licensed
as such and reimbursement is for services mandated by statute.
(b)
Any health maintenance organization that fails to comply with paragraph (a) of
this subsection shall be subject to discipline under ORS 746.015.
(c)
This subsection does not apply to group practice health maintenance
organizations that are federally qualified pursuant to Title XIII of the Health
Maintenance Organization Act. [1967 c.359 §588a; 1973 c.281 §1; 1989 c.594 §1]
746.240 Undefined trade practices injurious
to public prohibited. No person shall engage in this
state in any trade practice that, although not expressly defined and prohibited
in the Insurance Code, is found by the Director of the Department of Consumer
and Business Services to be an unfair or deceptive act or practice in the
transaction of insurance that is injurious to the insurance-buying public. [1967
c.359 §589; 1973 c.281 §2]
746.250 [1967
c.359 §590; repealed by 1973 c.281 §3]
746.260 Driving record not to be
considered in issuance of motor vehicle insurance.
(1) Except as provided in subsection (4) of this section, when an individual
applies for a policy or a renewal of a policy of casualty insurance providing
automobile liability coverage, uninsured motorist coverage, automobile medical
payments coverage or automobile physical damage coverage on an individually
owned passenger vehicle including pickup and panel trucks and station wagons,
an insurer shall not consider either the employment driving record or the nonemployment driving record of the individual in
determining whether the policy will be issued or renewed or in determining the
rates for the policy. An insurer shall not cancel such policy or discriminate
in regard to other terms or conditions of the policy based upon the employment
driving record or the nonemployment driving record of
the individual.
(2)
As used in this section, “employment driving record” and “nonemployment
driving record” mean the employment driving record and nonemployment
driving record described in ORS 802.200.
(3)
This section is not intended to affect the enforcement of the motor vehicle
laws.
(4)
An insurer may use the abstract of the individual’s nonemployment
driving record as authorized under ORS 746.265. [1973 c.113 §2; 1979 c.662 §2;
1983 c.338 §969; 1987 c.5 §6]
746.265 Purposes for which abstract of nonemployment driving record may be considered.
(1) Subject to subsection (2) of this section, when an individual applies for a
policy or a renewal of a policy of casualty insurance providing automobile
liability coverage, uninsured motorist coverage, automobile medical payments
coverage or automobile physical damage coverage on an individually owned
passenger vehicle including pickup and panel trucks and station wagons, the
insurer may consider the abstract of the nonemployment
driving record of the individual under ORS 802.220:
(a)
For the purpose of determining whether to issue or renew the individual’s
policy.
(b)
For the purpose of determining the rates of the individual’s policy.
(2)
For the purposes specified in subsection (1) of this section, an insurer
issuing or renewing a policy described in subsection (1) of this section shall
not consider any:
(a)
Accident or conviction for violation of motor vehicle laws that occurred more
than three years immediately preceding the application for the policy or
renewal of the policy;
(b)
Diversion agreements under ORS 813.220 that were entered into more than three
years immediately preceding the application for the policy or renewal of the
policy; or
(c)
Suspension of driving privileges pursuant to ORS 809.280 (6) or (8) if the
suspension is based on a nondriving offense.
(3)
Subsection (2) of this section does not apply if an insurer considers the nonemployment driving record of an individual under ORS
802.220 for the purpose of providing a discount to the individual. [1987 c.5 §5;
1989 c.853 §1; 1991 c.860 §7; 1999 c.59 §231; 2001 c.327 §1; 2011 c.355 §25]
746.270 Use of past investment or
predicted future investment experience in sale of variable life insurance
policies. No person shall make or use in the
offer or sale of a variable life insurance policy any illustrations of benefits
payable that include projections of past investment experience into the future
or predictions of future investment experience. This section is not intended to
prohibit use of hypothetical assumed rates of investment return to illustrate
possible levels of benefits. [1973 c.435 §26]
746.275 Definitions for ORS 746.275 to
746.300. As used in ORS 746.275 to 746.300:
(1)
“Adjuster” means a person authorized to do business under ORS 744.505 or
744.515.
(2)
“Motor vehicle liability insurance policy” means an insurance policy which
provides automobile liability coverage, uninsured motorist coverage, automobile
medical payments coverage or automobile physical damage coverage on motor
vehicles, but does not include any insurance policy:
(a)
Covering garage, automobile sales agency, repair shop, service station or
public parking place operation hazards; or
(b)
Issued principally to cover personal or premises liability of an insured, even
though such insurance may also provide some incidental coverage for liability
arising out of the ownership, maintenance or use of a motor vehicle on the
premises of such insured or on the ways immediately adjoining such premises.
(3)
“Motor vehicle body and frame repair shop” means a business or a division of a
business organized for the purpose of effecting repairs to motor vehicles which
have been physically damaged. [1977 c.785 §1]
Note:
746.275 to 746.300 and 746.991 were enacted into law by the Legislative
Assembly but were not added to or made a part of ORS chapter 746 or any series
therein by legislative action. See Preface to Oregon Revised Statutes for
further explanation.
746.280 Designation of particular motor
vehicle repair shop by insurer prohibited; notice; limitation of costs.
(1) An insurer may not require that a particular person make the repairs to the
insured’s motor vehicle as a condition for recovery by the insured under a
motor vehicle liability insurance policy.
(2)
Prior to providing a recommendation that a particular person make repairs to
the insured’s motor vehicle, the person adjusting the claim on behalf of the
insurer shall inform the insured of the rights conferred by subsection (1) of
this section by communicating in a statement substantially similar to the
following:
______________________________________________________________________________
OREGON
LAW PROHIBITS US FROM REQUIRING YOU TO GET REPAIRS TO YOUR VEHICLE AT A
PARTICULAR MOTOR VEHICLE REPAIR SHOP. YOU HAVE THE RIGHT TO SELECT THE MOTOR
VEHICLE REPAIR SHOP OF YOUR CHOICE.
______________________________________________________________________________
(3)
If an insured elects to have the motor vehicle repaired at a motor vehicle
repair shop other than a shop recommended by the insurer, the insurer may not
limit the cost of repairs necessary to return the motor vehicle to a preloss condition relative to safety, function and
appearance other than as stated in the policy or as otherwise allowed by law.
(4)
If an insured accepts the insurer’s recommendation, the insurer shall provide,
electronically or in printed form, a statement to the insured within three
business days after the date of acceptance in substantially the following form:
______________________________________________________________________________
WE
HAVE RECOMMENDED A MOTOR VEHICLE REPAIR SHOP. IF YOU AGREE TO USE OUR
RECOMMENDED REPAIR SHOP, YOUR VEHICLE WILL RECEIVE REPAIRS RETURNING IT TO A
PRELOSS CONDITION RELATIVE TO SAFETY, FUNCTION AND APPEARANCE AT NO ADDITIONAL
COST TO YOU OTHER THAN AS STATED IN THE INSURANCE POLICY OR AS OTHERWISE
ALLOWED BY LAW.
______________________________________________________________________________
[1977 c.785 §2; 2007 c.506 §1]
Note: See
note under 746.275.
746.285 Notice of prohibition in motor
vehicle repair shops; size; location. A person
operating a motor vehicle body and frame repair shop shall display in a
conspicuous place in the shop a sign in bold face type in letters at least two
inches high reading substantially as follows:
______________________________________________________________________________
PURSUANT
TO OREGON INSURANCE LAW, AN INSURANCE COMPANY MAY NOT REQUIRE THAT REPAIRS BE
MADE TO A MOTOR VEHICLE BY A PARTICULAR PERSON OR REPAIR SHOP.
______________________________________________________________________________
[1977 c.785 §3]
Note: See
note under 746.275.
746.287 Insurer requirement of
installation of aftermarket crash part in vehicle.
(1) Without the consent of the owner of the vehicle, an insurer may not
require, directly or indirectly, that a motor vehicle body and frame repair
shop supply or install any aftermarket crash part unless the part has been
certified by an independent test facility to be at least equivalent to the part
being replaced.
(2)
For purposes of this section, an aftermarket crash part is at least equivalent
to the part being replaced if the aftermarket crash part is the same kind of
part and is at least the same quality with respect to fit, finish, function and
corrosion resistance. [1987 c.622 §3]
Note: See
note under 746.275.
746.289 Insurer offer of crash part
warranty. Any insurer which offers a motor
vehicle insurance policy that provides coverage for repair of the vehicle shall
make available to its insured a crash part warranty for crash parts not made by
the original equipment manufacturer as described in ORS 746.292 when the
insured requests one. [1987 c.622 §4]
Note:
746.289 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 746, ORS 746.275 to 746.300 or any other series
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.
746.290 Notice of prohibition in policies
and by adjusters. (1) An adjuster establishing
loss under a motor vehicle liability insurance policy shall advise the insured
of the provisions of ORS 746.280.
(2)
Every motor vehicle liability insurance policy issued in this state after
December 31, 1977, and any extension or renewal after that date of a policy
issued before that date shall be accompanied by a statement in clear and
conspicuous language approved by the director of:
(a)
The rights and responsibilities of the insured when a claim is submitted; and
(b)
The provisions of ORS 746.280. [1977 c.785 §4]
Note: See
note under 746.275.
746.292 Motor vehicle repair shops;
invoices; estimates; warranties; prohibited practices.
(1) All work done by a motor vehicle body and frame repair shop shall be
recorded on an invoice and shall describe all service work done and parts
supplied. If any used parts are supplied, the invoice shall clearly state that
fact. If any component system installed is composed of new and used parts, such
invoice shall clearly state that fact. One copy of the invoice shall be given
to the customer and one copy shall be retained by the motor vehicle body and
frame repair shop.
(2)
Before commencing repair work and upon the request of any customer, a motor
vehicle body and frame repair shop shall make an estimate in writing of the
parts and labor necessary for the repair work, and shall not charge for the
work done or parts supplied in excess of the estimate without the consent of
such customer.
(3)(a)
If crash parts to be used in the repair work are supplied by the original
equipment manufacturer, the parts shall be accompanied by a warranty that guarantees
the customer that the parts meet or exceed standards used in manufacturing the
original equipment.
(b)
If crash parts to be used in the repair work are not supplied by the original
equipment manufacturer, the estimate shall include a statement that says:
______________________________________________________________________________
This
estimate has been prepared based on the use of a motor vehicle crash part not
made by the original equipment manufacturer. The use of a motor vehicle crash
part not made by the original equipment manufacturer may invalidate any
remaining warranties of the original equipment manufacturer on that motor
vehicle part. The person who prepared this estimate will provide a copy of the
part warranty for crash parts not made by the original equipment manufacturer
for comparison purposes.
______________________________________________________________________________
(4)
No motor vehicle body and frame shop may:
(a)
Supply or install used parts, or any component system composed of new and used
parts, when new parts or component systems are or were to be supplied or
installed.
(b)
Supply or install, without the owner’s consent, any aftermarket crash part
unless the part has been certified by an independent test facility to be at
least equivalent to the part being replaced. For purposes of this paragraph, an
aftermarket crash part is at least equivalent to the part being replaced if the
aftermarket crash part is the same kind of part and is at least the same
quality with respect to fit, finish, function and corrosion resistance.
(c)
Charge for repairs not actually performed, or add the cost of repairs not
actually to be performed to any repair estimate.
(d)
Refuse any insurer, or its insured, or their agents or employees, reasonable
access to any repair facility for the purpose of inspecting or reinspecting the damaged vehicle during usual business
hours.
(5)
As used in ORS 746.287 and this section, “aftermarket crash part” means a motor
vehicle replacement part, sheet metal or plastic, that constitutes the visible
exterior of the vehicle, including an inner or outer panel, is generally
repaired or replaced as the result of a collision and is not supplied by the
original equipment manufacturer. [1977 c.785 §5; 1987 c.622 §1]
Note: See
note under 746.275.
746.295 Proof and amount of loss under
motor vehicle liability policies; determination by insurer.
Nothing in ORS 746.275 to 746.300 or 746.991 shall prohibit an insurer from
establishing proof of loss requirements for motor vehicle liability insurance
policies, investigating and determining the amount of an insured’s loss through
its agents or employees or negotiating with any person for the repair of such
loss. [1977 c.785 §6]
Note: See
note under 746.275.
746.300 Liability of insurers and motor
vehicle repair shops for damages; attorney fees.
An insured whose insurer violates ORS 746.280 or 746.290, or a customer whose
motor vehicle body and frame repair shop violates ORS 746.292, may file an
action to recover actual damages or $100, whichever is greater, for each
violation. The court may award reasonable attorney fees to the prevailing party
in an action under this section. [1977 c.785 §7; 1981 c.897 §102; 1995 c.618 §129]
Note: See
note under 746.275.
746.305 Rules.
The Director of the Department of Consumer and Business Services may adopt
rules to carry out the provisions of ORS 746.275 to 746.300 and 746.991. [1987
c.622 §5]
Note:
746.305 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 746 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
746.307 [1989
c.947 §4; renumbered 743.724 in 1991]
746.308 Violation of provisions regarding
totaled vehicles as violation of Insurance Code.
An insurer that violates ORS 819.014 or 819.018 shall be considered to have
violated a provision of the Insurance Code. [1991 c.820 §7]
Note:
746.308 was enacted into law by the Legislative Assembly but was not added to
or made a part of ORS chapter 746 or any series therein by legislative action.
See Preface to Oregon Revised Statutes for further explanation.
UNAUTHORIZED INSURANCE
746.310 Representing or aiding
unauthorized insurer prohibited; insurance producer liable to insured.
(1) No person shall in this state directly or indirectly with respect to
domestic risks act as insurance producer for or otherwise transact insurance
for any insurer not then authorized to transact such insurance in this state.
(2)
In the event of failure of any unauthorized insurer to pay any claim or loss
within the provisions of such insurance policy, any insurance producer who
assisted or in any manner aided in the procurement of such insurance policy
knowing it to be procured through an unauthorized insurer shall be liable to
the insured for the full amount of the claim or loss.
(3)
This section does not apply to:
(a)
Matters authorized to be done by the Director of the Department of Consumer and
Business Services under ORS 746.320 to 746.360.
(b)
Insurance written under a surplus line license in compliance with ORS 735.400
to 735.495.
(c)
Any transaction with respect to reinsurance when transacted by an insurer duly
authorized by its state of domicile to transact the class of insurance involved.
(d)
A licensed adjuster or attorney at law representing such an insurer from time
to time in such occupational or professional capacity. [1967 c.359 §591; 1969
c.336 §17; 1987 c.774 §140; 1991 c.810 §27; 2003 c.364 §145]
746.320 Service of process equivalent to
personal service on unauthorized foreign or alien insurer.
(1) When an unauthorized insurer does any of the acts specified in subsection
(2) of this section in this state, by mail or otherwise, the doing of such acts
shall constitute an appointment by such insurer of the Director of the
Department of Consumer and Business Services, and the successor in office, as
its lawful attorney upon whom all process may be served in any action begun by
or on behalf of an insured or beneficiary and arising out of policies of
insurance between the insurer and persons residing or authorized to do business
in this state. Subject to subsection (4) of this section, the doing of any such
act shall signify the insurer’s consent that service of process upon the
director is of the same legal force and effect as personal service of process
upon such insurer within this state.
(2)
The acts referred to in subsection (1) of this section are:
(a)
Issuing or delivering policies of insurance to persons residing or authorized
to do business in this state.
(b)
Soliciting applications for policies of insurance from such persons.
(c)
Collecting premiums, membership fees, assessments or other considerations under
policies of insurance from such persons.
(d)
Any other transaction of business arising out of policies of insurance with
such persons.
(3)
Service of process upon the director shall be made by delivering to and leaving
with the director, or with any clerk on duty in the office, two copies of such
process. Immediately after service of process, the director shall send one of
such copies to the defendant insurer at its principal office. The director
shall keep a record of all processes served upon the director under this
section.
(4)
Service of process in the manner provided in this section gives jurisdiction
over the person of an insurer provided:
(a)
Notice of such service and a copy of the process are sent by registered mail or
by certified mail with return receipt by the plaintiff, or the attorney of the
plaintiff, to the defendant insurer at its principal office within 10 days
after the date of service; and
(b)
The defendant insurer’s receipt, or receipt issued by the post office with
which the letter is registered or certified, showing the name of the sender of
the letter and the name and address of the person to whom the letter is
addressed and an affidavit of the plaintiff, or the attorney of the plaintiff,
showing compliance with this section are filed with the clerk of the court in
which the action against such insurer is pending on or before the date on which
such insurer is required to appear, or within such further time as the court
may allow.
(5)
Nothing contained in this section shall limit or abridge the right to serve any
process upon an insurer in any other manner then permitted by law. [Formerly
736.252; 1991 c.249 §71]
746.330 Judgment by default after service
of process under ORS 746.320. Until the
expiration of 30 days from the date of filing an affidavit of compliance under
ORS 746.320, no plaintiff or complainant shall be entitled to a judgment by
default in any action in which service of process is made in the manner
provided in such section. [Formerly 736.254]
746.340 Conditions to be met by defendant
unauthorized insurer before filing motions or pleadings.
(1) Except as provided in subsection (3) of this section, before any
unauthorized insurer may file or cause to be filed any motion or pleading in an
action started against it by service of process in the manner provided in ORS
746.320, the defendant insurer shall either:
(a)
Procure a certificate of authority to transact insurance in this state; or
(b)
Deposit cash or securities or file a bond with good and sufficient sureties,
approved by the court, with the clerk of the court in which such action is
pending in an amount, fixed by the court, sufficient to secure the payment of
any judgment which may be entered in such action. However, the court may in its
discretion make an order dispensing with such deposit or bond where the insurer
makes a showing satisfactory to such court that the insurer maintains in a
state of the United States funds or securities, in trust or otherwise,
sufficient and available to satisfy any final judgment which may be entered in
such action.
(2)
The court may order such postponement as may be necessary to give such insurer
reasonable opportunity to comply with subsection (1) of this section and to
prepare its defense in such action.
(3)
Nothing in ORS 746.320 to 746.360 shall be construed to prevent a defendant
unauthorized insurer from filing a motion to set aside service of process made
in the manner provided in ORS 746.320 on the ground that such insurer has not
done any of the acts described in subsection (2) of such section. [Formerly
736.256]
746.350 Attorney fee allowable to
prevailing party. In any action against an
unauthorized insurer in which service of process was made in the manner
provided in ORS 746.320, the court may award reasonable attorney fees to the
prevailing party. [Formerly 736.258; 1981 c.897 §103; 1995 c.618 §130]
746.360 Exceptions to application of
unauthorized insurer service of process law. ORS
746.320 to 746.360 do not apply to an action against an unauthorized insurer
arising out of any policy of:
(1)
Reinsurance or wet marine and transportation insurance;
(2)
Insurance effected in compliance with ORS 735.400 to 735.495;
(3)
Insurance against legal liability arising out of ownership, operation or
maintenance of any property having a permanent situs
outside the state; or
(4)
Insurance against loss of or damage to any property having a permanent situs outside this state, where such policy contains a
provision designating the Director of the Department of Consumer and Business
Services or a bona fide resident of this state as the insurer’s lawful attorney
upon whom all process may be served in any action begun by or on behalf of an
insured or beneficiary and arising out of policies of insurance between the
insurer and persons residing or authorized to do business in this state. [Formerly
736.260; 2005 c.185 §6]
746.370 Records of insureds.
In order that the Director of the Department of Consumer and Business Services
may effectively administer ORS 746.310 to 746.370, every person for or by whom
insurance has been placed with an unauthorized insurer shall, upon the director’s
order, produce for examination all policies and other documents evidencing the
insurance, and shall disclose to the director the amount of premiums paid or
agreed to be paid for the insurance. [1967 c.359 §597]
PREMIUM FINANCING
746.405 Definitions for ORS 746.405 to
746.530. As used in ORS 746.405 to 746.530,
unless the context requires otherwise:
(1)
“Premium finance agreement” means an agreement by which an insured or
prospective insured promises to pay to a premium finance company or to its
assignee the amount advanced or to be advanced under the agreement to an
insurer or to an insurance producer in payment of premiums on an insurance
policy together with a service charge. No mortgage, conditional sale contract
or other security agreement covering property which authorizes the lienholder to pay or advance premiums for insurance with
respect thereto shall be deemed to be a premium finance agreement.
(2)
“Premium finance company” means a person engaged in the business of entering
into premium finance agreements with insureds or of
acquiring such premium finance agreements from insurance producers or other
premium finance companies. [1969 c.639 §2; 2003 c.364 §146]
746.415 [1969
c.639 §3; repealed by 1993 c.265 §14]
746.420 [1989
c.700 §22; repealed by 1993 c.265 §14]
746.422 Inquiries from director to premium
finance company. In the manner provided in ORS
731.296, the Director of the Department of Consumer and Business Services may
address inquiries to a premium finance company, and a premium finance company
shall reply to such inquiries. [1993 c.265 §11]
746.425 Applicability of ORS 746.405 to
746.530. ORS 746.405 to 746.530 do not apply to:
(1)
Any insurer authorized to transact business in this state who finances
insurance premiums on domestic risks with a service charge no greater than that
provided in ORS 746.485 and 746.495;
(2)
Any bank, trust company, savings and loan association, credit union or other
lending institution authorized to transact business in this state that does not
possess or acquire any right, title or interest with respect to the insurance
policy for which the premiums are financed other than in the proceeds thereof
in the event of loss;
(3)
The inclusion of a charge for insurance in connection with an installment sale
in accordance with ORS 83.010 to 83.820 and 83.990; or
(4)
Insurance producers financing only their own accounts and whose aggregate
charge for financing does not exceed one and one-half percent per month on the
outstanding balance. [1969 c.639 §4; 1981 c.412 §22; 2003 c.364 §147]
746.435
[Amended by 1969 c.639 §5; 1971 c.231 §36; 1989 c.700 §19; repealed by 1993
c.265 §14]
746.445 [1969
c.639 §6; 1989 c.700 §20; repealed by 1993 c.265 §14]
746.455 [1969
c.639 §7; 1971 c.231 §37; repealed by 1993 c.265 §14]
746.460 [1989
c.700 §23; repealed by 1993 c.265 §14]
746.465 Records required of premium
finance companies; form; inspection. (1) Every
premium finance company shall maintain records of its premium finance
transactions and the records shall be open to examination and investigation by
the Director of the Department of Consumer and Business Services. The director
may at any time require the company to bring such records as the director may
direct to the director’s office for examination.
(2)
Every premium finance company shall preserve its records of such premium
finance transactions, including cards used in a card system, for at least three
years after making the final entry in respect to any premium finance agreement.
The preservation of records in photographic form shall constitute compliance
with this requirement. [1969 c.639 §8]
746.470 Prohibition against interfering
with premium financing recommendation. No insurer
shall interfere in any way with the right of any person soliciting or procuring
an application for its insurance policies to recommend to an insured any
premium finance company. [1983 c.239 §5]
746.475 Premium finance agreements;
contents; form; delivery; notice to insurer. (1) A premium
finance agreement shall:
(a)
Be dated, signed by the insured or by any person authorized in writing to act
in behalf of the insured, and the printed portion thereof shall be in at least
eight-point type;
(b)
Contain the name and place of business of the insurance producer negotiating
the related insurance policy, the name and residence or the place of business
of the insured as specified by the insured, the name and place of business of
the premium finance company to which payments are to be made, a description of
the insurance policies involved and the amount of the premium therefor; and
(c)
Set forth the following items where applicable:
(A)
The total amount of the premiums.
(B)
The amount of the down payment.
(C)
The principal balance (the difference between items (A) and (B)).
(D)
The amount of the service charge.
(E)
The balance payable by the insured (sum of items (C) and (D)).
(F)
The number of payments required, the amount of each payment expressed in
dollars, and the due date or period thereof.
(2)
The items set out in subsection (1)(c) of this section need not be stated in
the sequence or order in which they appear in such paragraph, and additional
items may be included to explain the computations made in determining the
amount to be paid by the insured.
(3)
The premium finance company or the insurance producer shall deliver to the
insured, or mail to the insured at the address shown in the agreement, a
complete copy of the agreement.
(4)
A premium finance company shall give notice of its financing to the insurer not
later than the 30th day after the date the premium financing agreement is
received by the premium finance company. A notice given under this subsection
shall be effective whether or not the insured’s policy number is set forth in
the notice. [1969 c.639 §9; 1971 c.231 §38; 1983 c.239 §3; 2003 c.364 §148]
746.485 Regulation of service charge for
premium financing; method of computation; prepayment.
(1) A premium finance company shall not charge, contract for, receive, or
collect a service charge other than as permitted by ORS 746.405 to 746.530.
(2)
The service charge is to be computed on the balance of the premiums due (after
subtracting the down payment made by the insured in accordance with the premium
finance agreement) from the effective date of the insurance coverage, for which
the premiums are being advanced, to and including the date when the final
payment of the premium finance agreement is payable.
(3)
The service charge shall not exceed interest at a rate authorized under this
subsection plus an additional charge of 10 percent of the amount financed or
$50, whichever amount is less, per premium finance agreement. The additional
charge need not be refunded upon cancellation or prepayment. The rate of
interest charged by a premium finance company on the amount of financed premium
shall not exceed the nominal annual rate of five percentage points in excess of
the discount rate, and any surcharge thereon, on 90-day commercial paper in
effect at the Federal Reserve Bank in the Federal Reserve District which
includes Oregon on the effective date of the insurance coverage or 18 percent,
whichever is greater.
(4)
Any insured may prepay the premium finance agreement in full at any time before
the due date of the final payment. In such event the unearned interest shall be
refunded. The amount of any such refund shall be the total amount of interest
due on the agreement less the interest earned to the installment date nearest
the date of payment, computed by applying the actuarial method based on the
annual percentage rate set forth on the premium finance agreement. [1969 c.639 §10;
1971 c.231 §39; 1983 c.239 §1]
746.495 Delinquency charges regulated.
(1) A premium finance agreement may provide for the payment by the insured of a
delinquency charge for any payment that is in default for a period of 10 days
or more. Such charge may be made for each month or fraction thereof that the
payment is in default. The amount of such charge may be a minimum of $1 and as
a maximum shall be subject to the following limits:
(a)
For delinquent payments of less than $250, five percent of the payment or $5,
whichever is less; or
(b)
For delinquent payments of $250 or more, two percent of the payment.
(2)
If a payment default results in the cancellation of any insurance policy listed
in the agreement, the agreement may provide for the payment by the insured of a
cancellation charge of $5, less any delinquency charges imposed in respect to
the payment in default. [1969 c.639 §11]
746.505 Cancellation of policy by premium
finance company; notice required; effective date of cancellation.
(1) When a premium finance agreement contains a power of attorney enabling the
premium finance company to cancel any insurance policy or policies listed in the
agreement, the insurance policy or policies shall not be canceled by the
premium finance company unless such cancellation is effectuated in accordance
with this section.
(2)
Not less than 10 days’ written notice shall be mailed to the insured of the intent
of the premium finance company to cancel the insurance policy unless the
default is cured within such 10-day period. A copy of such notice shall also be
mailed to the insurance producer indicated on the premium finance agreement.
(3)
After expiration of such 10-day period, the premium finance company may
thereafter in the name of the insured cancel such insurance policy or policies
by mailing to the insurer a notice of cancellation, and the insurance policy
shall be canceled as if such notice of cancellation had been submitted by the
insured, but without requiring the return of the insurance policy or policies.
The premium finance company shall also mail a notice of cancellation to the
insured at the last-known address of the insured and to the insurance producer
indicated on the premium finance agreement.
(4)
All statutory, regulatory and contractual restrictions providing that the
insurance policy may not be canceled unless notice is given to a governmental
agency, mortgagee, or other third party shall apply where cancellation is
effected under the provisions of this section. The insurer shall give the
prescribed notice on behalf of itself or the insured to any governmental
agency, mortgagee, or other third party on or before the second business day after
the day it receives the notice of cancellation from the premium finance company
and shall determine the effective date of cancellation taking into
consideration the number of days’ notice required to complete the cancellation.
[1969 c.639 §12; 1983 c.239 §2; 2003 c.364 §149]
746.515 Return of unearned premiums on
cancellation. (1) Whenever a financed insurance
policy is canceled, the insurer who has been notified as provided in ORS
746.475 (4) shall return whatever gross unearned premiums are due under the
insurance policy to the premium finance company for the account of the insured
or insureds not later than the 30th day after the
date of cancellation. If the insurer elects to return the premium through the
insurance producer, the insurance producer shall transmit the unearned premium
to the premium finance company within the 30-day period. The insurer, on
written notice of any failure of the insurance producer to transmit the premium
and not later than the 30th day after the notice, shall pay the amount of
return premium directly to the premium finance company.
(2)
In calculating the gross unearned premium due under a financed insurance
policy, the insurer shall use the prorate method of calculation.
(3)
In the event that the crediting of return premiums to the account of the
insured results in a surplus over the amount due from the insured, the premium
finance company shall refund such excess to the insured provided that no such
refund shall be required if it amounts to less than $1. [1969 c.639 §13; 1983
c.239 §7; 2003 c.364 §150]
746.525 Agreement effective as security
interest. No filing of the premium finance
agreement shall be necessary to perfect the validity of such agreement as a
secured transaction as against creditors, subsequent purchasers, pledgees, encumbrancers,
successors or assigns. [1969 c.639 §14]
746.530 Attorney fees.
In any action to enforce any right created by ORS 746.405 to 746.530, the
prevailing party may be awarded a reasonable amount, to be fixed by the court,
as attorney fees. The amount may be taxed as part of the cost of the action and
any appeal thereon. [1983 c.239 §6]
USE AND DISCLOSURE OF INSURANCE
INFORMATION
746.600 Definitions for ORS 746.600 to
746.690. As used in ORS 746.600 to 746.690:
(1)(a)
“Adverse underwriting decision” means any of the following actions with respect
to insurance transactions involving insurance coverage that is individually
underwritten:
(A)
A declination of insurance coverage.
(B)
A termination of insurance coverage.
(C)
Failure of an insurance producer to apply for insurance coverage with a
specific insurer that the insurance producer represents and that is requested
by an applicant.
(D)
In the case of life or health insurance coverage, an offer to insure at higher
than standard rates.
(E)
In the case of insurance coverage other than life or health insurance coverage:
(i) Placement by an insurer or insurance producer of a risk
with a residual market mechanism, an unauthorized insurer or an insurer that
specializes in substandard risks.
(ii)
The charging of a higher rate on the basis of information that differs from
that which the applicant or policyholder furnished.
(iii)
An increase in any charge imposed by the insurer for any personal insurance in
connection with the underwriting of insurance. For purposes of this
sub-subparagraph, the imposition of a service fee is not a charge.
(b)
“Adverse underwriting decision” does not mean any of the following actions, but
the insurer or insurance producer responsible for the occurrence of the action
must nevertheless provide the applicant or policyholder with the specific
reason or reasons for the occurrence:
(A)
The termination of an individual policy form on a class or statewide basis.
(B)
A declination of insurance coverage solely because the coverage is not
available on a class or statewide basis.
(C)
The rescission of a policy.
(2)
“Affiliate of” a specified person or “person affiliated with” a specified
person means a person who directly, or indirectly, through one or more intermediaries,
controls, or is controlled by, or is under common control with, the person
specified.
(3)
“Applicant” means a person who seeks to contract for insurance coverage, other
than a person seeking group insurance coverage that is not individually
underwritten.
(4)
“Consumer” means an individual, or the personal representative of the
individual, who seeks to obtain, obtains or has obtained one or more insurance
products or services from a licensee that are to be used primarily for
personal, family or household purposes, and about whom the licensee has
personal information.
(5)
“Consumer report” means any written, oral or other communication of information
bearing on a natural person’s creditworthiness, credit standing, credit
capacity, character, general reputation, personal characteristics or mode of
living that is used or expected to be used in connection with an insurance
transaction.
(6)
“Consumer reporting agency” means a person that, for monetary fees or dues, or
on a cooperative or nonprofit basis:
(a)
Regularly engages, in whole or in part, in assembling or preparing consumer
reports;
(b)
Obtains information primarily from sources other than insurers; and
(c)
Furnishes consumer reports to other persons.
(7)
“Control” means, and the terms “controlled by” or “under common control with”
refer to, the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of a person, whether through
the ownership of voting securities, by contract other than a commercial
contract for goods or nonmanagement services, or
otherwise, unless the power of the person is the result of a corporate office
held in, or an official position held with, the controlled person.
(8)
“Covered entity” means:
(a)
A health insurer;
(b)
A health care provider that transmits any health information in electronic form
to carry out financial or administrative activities in connection with a
transaction covered by ORS 746.607 or by rules adopted under ORS 746.608; or
(c)
A health care clearinghouse.
(9)
“Credit history” means any written or other communication of any information by
a consumer reporting agency that:
(a)
Bears on a consumer’s creditworthiness, credit standing or credit capacity; and
(b)
Is used or expected to be used, or collected in whole or in part, as a factor
in determining eligibility, premiums or rates for personal insurance.
(10)
“Customer” means a consumer who has a continuing relationship with a licensee
under which the licensee provides one or more insurance products or services to
the consumer that are to be used primarily for personal, family or household
purposes.
(11)
“Declination of insurance coverage” or “decline coverage” means a denial, in
whole or in part, by an insurer or insurance producer of an application for
requested insurance coverage.
(12)
“Health care” means care, services or supplies related to the health of an
individual.
(13)
“Health care operations” includes but is not limited to:
(a)
Quality assessment, accreditation, auditing and improvement activities;
(b)
Case management and care coordination;
(c)
Reviewing the competence, qualifications or performance of health care
providers or health insurers;
(d)
Underwriting activities;
(e)
Arranging for legal services;
(f)
Business planning;
(g)
Customer services;
(h)
Resolving internal grievances;
(i) Creating de-identified information; and
(j)
Fundraising.
(14)
“Health care provider” includes but is not limited to:
(a)
A psychologist, occupational therapist, regulated social worker, professional
counselor or marriage and family therapist licensed or otherwise authorized to
practice under ORS chapter 675 or an employee of the psychologist, occupational
therapist, regulated social worker, professional counselor or marriage and
family therapist;
(b)
A physician, podiatric physician and surgeon, physician assistant or
acupuncturist licensed under ORS chapter 677 or an employee of the physician,
podiatric physician and surgeon, physician assistant or acupuncturist;
(c)
A nurse or nursing home administrator licensed under ORS chapter 678 or an
employee of the nurse or nursing home administrator;
(d)
A dentist licensed under ORS chapter 679 or an employee of the dentist;
(e)
A dental hygienist or denturist licensed under ORS chapter 680 or an employee
of the dental hygienist or denturist;
(f)
A speech-language pathologist or audiologist licensed under ORS chapter 681 or
an employee of the speech-language pathologist or audiologist;
(g)
An emergency medical services provider licensed under ORS chapter 682;
(h)
An optometrist licensed under ORS chapter 683 or an employee of the
optometrist;
(i) A chiropractic physician licensed under ORS chapter 684
or an employee of the chiropractic physician;
(j)
A naturopathic physician licensed under ORS chapter 685 or an employee of the
naturopathic physician;
(k)
A massage therapist licensed under ORS 687.011 to 687.250 or an employee of the
massage therapist;
(L)
A direct entry midwife licensed under ORS 687.405 to 687.495 or an employee of
the direct entry midwife;
(m)
A physical therapist licensed under ORS 688.010 to 688.201 or an employee of
the physical therapist;
(n)
A medical imaging licensee under ORS 688.405 to 688.605 or an employee of the
medical imaging licensee;
(o)
A respiratory care practitioner licensed under ORS 688.815 or an employee of
the respiratory care practitioner;
(p)
A polysomnographic technologist licensed under ORS
688.819 or an employee of the polysomnographic
technologist;
(q)
A pharmacist licensed under ORS chapter 689 or an employee of the pharmacist;
(r)
A dietitian licensed under ORS 691.405 to 691.485 or an employee of the
dietitian;
(s)
A funeral service practitioner licensed under ORS chapter 692 or an employee of
the funeral service practitioner;
(t)
A health care facility as defined in ORS 442.015;
(u)
A home health agency as defined in ORS 443.005;
(v)
A hospice program as defined in ORS 443.850;
(w)
A clinical laboratory as defined in ORS 438.010;
(x)
A pharmacy as defined in ORS 689.005;
(y)
A diabetes self-management program as defined in ORS 743.694; and
(z)
Any other person or entity that furnishes, bills for or is paid for health care
in the normal course of business.
(15)
“Health information” means any oral or written information in any form or
medium that:
(a)
Is created or received by a covered entity, a public health authority, a life
insurer, a school, a university or a health care provider that is not a covered
entity; and
(b)
Relates to:
(A)
The past, present or future physical or mental health or condition of an
individual;
(B)
The provision of health care to an individual; or
(C)
The past, present or future payment for the provision of health care to an
individual.
(16)
“Health insurer” means:
(a)
An insurer who offers:
(A)
A health benefit plan as defined in ORS 743.730;
(B)
A short term health insurance policy, the duration of which does not exceed six
months including renewals;
(C)
A student health insurance policy;
(D)
A Medicare supplemental policy; or
(E)
A dental only policy.
(b)
The Oregon Medical Insurance Pool operated by the Oregon Medical Insurance Pool
Board under ORS 735.600 to 735.650.
(17)
“Homeowner insurance” means insurance for residential property consisting of a
combination of property insurance and casualty insurance that provides coverage
for the risks of owning or occupying a dwelling and that is not intended to
cover an owner’s interest in rental property or commercial exposures.
(18)
“Individual” means a natural person who:
(a)
In the case of life or health insurance, is a past, present or proposed
principal insured or certificate holder;
(b)
In the case of other kinds of insurance, is a past, present or proposed named
insured or certificate holder;
(c)
Is a past, present or proposed policyowner;
(d)
Is a past or present applicant;
(e)
Is a past or present claimant; or
(f)
Derived, derives or is proposed to derive insurance coverage under an insurance
policy or certificate that is subject to ORS 746.600 to 746.690.
(19)
“Individually identifiable health information” means any oral or written health
information that is:
(a)
Created or received by a covered entity or a health care provider that is not a
covered entity; and
(b)
Identifiable to an individual, including demographic information that
identifies the individual, or for which there is a reasonable basis to believe
the information can be used to identify an individual, and that relates to:
(A)
The past, present or future physical or mental health or condition of an
individual;
(B)
The provision of health care to an individual; or
(C)
The past, present or future payment for the provision of health care to an
individual.
(20)
“Institutional source” means a person or governmental entity that provides
information about an individual to an insurer, insurance producer or
insurance-support organization, other than:
(a)
An insurance producer;
(b)
The individual who is the subject of the information; or
(c)
A natural person acting in a personal capacity rather than in a business or
professional capacity.
(21)
“Insurance producer” or “producer” means a person licensed by the Director of
the Department of Consumer and Business Services as a resident or nonresident
insurance producer.
(22)
“Insurance score” means a number or rating that is derived from an algorithm,
computer application, model or other process that is based in whole or in part
on credit history.
(23)(a)
“Insurance-support organization” means a person who regularly engages, in whole
or in part, in assembling or collecting information about natural persons for
the primary purpose of providing the information to an insurer or insurance
producer for insurance transactions, including:
(A)
The furnishing of consumer reports to an insurer or insurance producer for use
in connection with insurance transactions; and
(B)
The collection of personal information from insurers, insurance producers or
other insurance-support organizations for the purpose of detecting or
preventing fraud, material misrepresentation or material nondisclosure in
connection with insurance underwriting or insurance claim activity.
(b)
“Insurance-support organization” does not mean insurers, insurance producers,
governmental institutions or health care providers.
(24)
“Insurance transaction” means any transaction that involves insurance primarily
for personal, family or household needs rather than business or professional
needs and that entails:
(a)
The determination of an individual’s eligibility for an insurance coverage,
benefit or payment; or
(b)
The servicing of an insurance application, policy or certificate.
(25)
“Insurer” has the meaning given that term in ORS 731.106.
(26)
“Investigative consumer report” means a consumer report, or portion of a
consumer report, for which information about a natural person’s character,
general reputation, personal characteristics or mode of living is obtained
through personal interviews with the person’s neighbors, friends, associates,
acquaintances or others who may have knowledge concerning such items of information.
(27)
“Licensee” means an insurer, insurance producer or other person authorized or
required to be authorized, or licensed or required to be licensed, pursuant to
the Insurance Code.
(28)
“Loss history report” means a report provided by, or a database maintained by,
an insurance-support organization or consumer reporting agency that contains
information regarding the claims history of the individual property that is the
subject of the application for a homeowner insurance policy or the consumer applying
for a homeowner insurance policy.
(29)
“Nonaffiliated third party” means any person except:
(a)
An affiliate of a licensee;
(b)
A person that is employed jointly by a licensee and by a person that is not an
affiliate of the licensee; and
(c)
As designated by the director by rule.
(30)
“Payment” includes but is not limited to:
(a)
Efforts to obtain premiums or reimbursement;
(b)
Determining eligibility or coverage;
(c)
Billing activities;
(d)
Claims management;
(e)
Reviewing health care to determine medical necessity;
(f)
Utilization review; and
(g)
Disclosures to consumer reporting agencies.
(31)(a)
“Personal financial information” means:
(A)
Information that is identifiable with an individual, gathered in connection
with an insurance transaction from which judgments can be made about the
individual’s character, habits, avocations, finances, occupations, general
reputation, credit or any other personal characteristics; or
(B)
An individual’s name, address and policy number or similar form of access code
for the individual’s policy.
(b)
“Personal financial information” does not mean information that a licensee has
a reasonable basis to believe is lawfully made available to the general public
from federal, state or local government records, widely distributed media or
disclosures to the public that are required by federal, state or local law.
(32)
“Personal information” means:
(a)
Personal financial information;
(b)
Individually identifiable health information; or
(c)
Protected health information.
(33)
“Personal insurance” means the following types of insurance products or
services that are to be used primarily for personal, family or household
purposes:
(a)
Private passenger automobile coverage;
(b)
Homeowner, mobile homeowners, manufactured homeowners, condominium owners and
renters coverage;
(c)
Personal dwelling property coverage;
(d)
Personal liability and theft coverage, including excess personal liability and
theft coverage; and
(e)
Personal inland marine coverage.
(34)
“Personal representative” includes but is not limited to:
(a)
A person appointed as a guardian under ORS 125.305, 419B.370, 419C.481 or
419C.555 with authority to make medical and health care decisions;
(b)
A person appointed as a health care representative under ORS 127.505 to 127.660
or 127.700 to 127.737 to make health care decisions or mental health treatment
decisions;
(c)
A person appointed as a personal representative under ORS chapter 113; and
(d)
A person described in ORS 746.611.
(35)
“Policyholder” means a person who:
(a)
In the case of individual policies of life or health insurance, is a current policyowner;
(b)
In the case of individual policies of other kinds of insurance, is currently a
named insured; or
(c)
In the case of group policies of insurance under which coverage is individually
underwritten, is a current certificate holder.
(36)
“Pretext interview” means an interview wherein the interviewer, in an attempt
to obtain personal information about a natural person, does one or more of the
following:
(a)
Pretends to be someone the interviewer is not.
(b)
Pretends to represent a person the interviewer is not in fact representing.
(c)
Misrepresents the true purpose of the interview.
(d)
Refuses upon request to identify the interviewer.
(37)
“Privileged information” means information that is identifiable with an
individual and that:
(a)
Relates to a claim for insurance benefits or a civil or criminal proceeding
involving the individual; and
(b)
Is collected in connection with or in reasonable anticipation of a claim for
insurance benefits or a civil or criminal proceeding involving the individual.
(38)(a)
“Protected health information” means individually identifiable health
information that is transmitted or maintained in any form of electronic or
other medium by a covered entity.
(b)
“Protected health information” does not mean individually identifiable health
information in:
(A)
Education records covered by the federal Family Educational Rights and Privacy
Act (20 U.S.C. 1232g);
(B)
Records described at 20 U.S.C. 1232g(a)(4)(B)(iv); or
(C)
Employment records held by a covered entity in its role as employer.
(39)
“Residual market mechanism” means an association, organization or other entity
involved in the insuring of risks under ORS 735.005 to 735.145, 737.312 or
other provisions of the Insurance Code relating to insurance applicants who are
unable to procure insurance through normal insurance markets.
(40)
“Termination of insurance coverage” or “termination of an insurance policy”
means either a cancellation or a nonrenewal of an insurance policy, in whole or
in part, for any reason other than the failure of a premium to be paid as
required by the policy.
(41)
“Treatment” includes but is not limited to:
(a)
The provision, coordination or management of health care; and
(b)
Consultations and referrals between health care providers. [1981 c.649 §4; 1987
c.490 §50; 2001 c.191 §50; 2001 c.377 §25; 2003 c.87 §6; 2003 c.364 §151; 2003
c.590 §§2,4; 2003 c.599 §§5,7; 2003 c.788 §1a; 2005 c.253 §§6,7; 2005 c.489 §§1,2;
2009 c.442 §48; 2009 c.833 §31; 2011 c.703 §47; 2011 c.715 §22]
746.605 Purpose.
The purpose of ORS 746.600 to 746.690 is to:
(1)
Establish standards for the collection, use and disclosure of personal
information gathered in connection with insurance transactions by insurers,
insurance producers or insurance-support organizations;
(2)
Maintain a balance between the need for personal information by those
conducting the business of insurance and the public’s need for fairness in
insurance information practices, including the need to minimize intrusiveness;
(3)
Establish a regulatory mechanism to enable natural persons to ascertain what
personal information is being or has been collected about them in connection
with insurance transactions and to have access to this personal information for
the purpose of verifying or disputing its accuracy;
(4)
Limit the disclosure of personal information collected in connection with
insurance transactions; and
(5)
Enable insurance applicants and policyholders to obtain the reasons for any
adverse underwriting decision. [1981 c.649 §2; 1987 c.490 §51; 2003 c.87 §7;
2003 c.364 §152]
746.606 Information privacy standards for
health insurers. ORS 746.607 and 746.608
establish standards for health insurers that are subject to the information
privacy provisions of both the federal Health Insurance Portability and
Accountability Act of 1996 (P.L. 104-191) and the federal Gramm-Leach-Bliley
Act (P.L. 106-102). These standards address:
(1)
Use and disclosure of personal information;
(2)
Access of individuals to personal information;
(3)
Notice of privacy practices for personal information;
(4)
Amendment of personal information; and
(5)
Accounting of disclosures of personal information. [2003 c.87 §2]
746.607 Use and disclosure of personal
information. A health insurer:
(1)
May use or disclose personal information of an individual in a manner that is
consistent with an authorization provided by the individual or a personal
representative of the individual.
(2)
May use or disclose protected health information of an individual without
obtaining an authorization from the individual or a personal representative of
the individual:
(a)
For its own treatment, payment or health care operations; or
(b)
As otherwise permitted or required by state or federal law or by order of the
court.
(3)
May disclose, subject to any requirements established by rule under ORS 746.608
and consistent with federal law, protected health information of an individual
without obtaining an authorization from the individual or a personal
representative of the individual:
(a)
To another covered entity for health care operations activities of the entity
that receives the information if:
(A)
Each entity has or had a relationship with the individual who is the subject of
the protected health information; and
(B)
The protected health information pertains to the relationship and the
disclosure is for the purpose of:
(i) Health care operations listed in ORS 746.600 (13)(a) or (b);
or
(ii)
Health care fraud and abuse detection or compliance;
(b)
To another covered entity or any other health care provider for treatment
activities of a health care provider; or
(c)
To another covered entity or any other health care provider for the payment
activities of the entity that receives the information.
(4)
May use or disclose personal financial information of an individual:
(a)
To perform a business, professional or insurance function, subject to any
requirements established by rule under ORS 746.608 for an authorization by an
individual or a personal representative of an individual; or
(b)
Without obtaining an authorization by the individual or the personal
representative of the individual as otherwise permitted or required by state or
federal law or by order of the court.
(5)
May charge a reasonable, cost-based fee, provided that the fee includes only
the cost of:
(a)
Copying personal information requested by an individual or a personal
representative of the individual, including the cost of supplies for and labor
of copying;
(b)
Postage, when an individual or a personal representative of the individual has
requested that copies of personal information or an explanation or summary of
protected health information be mailed; or
(c)
Preparing an explanation or summary of personal information if requested by an
individual or a personal representative of the individual.
(6)
Shall provide adequate notice of the uses and disclosures of personal
information that may be made by the health insurer and of the individual’s
rights and the health insurer’s legal duties with respect to personal
information.
(7)
Shall permit an individual or a personal representative of an individual to
request:
(a)
Access to inspect or obtain a copy of the individual’s personal financial
information or protected health information that is maintained in a designated
record set about the individual; or
(b)
That the health insurer correct, amend or delete personal information. [2003
c.87 §3]
746.608 Rules.
(1) The Director of the Department of Consumer and Business Services shall
adopt rules implementing ORS 746.607. In adopting rules under this section, the
director shall consider the information privacy provisions of the federal
Health Insurance Portability and Accountability Act of 1996 (P.L. 104-191)
and the federal Gramm-Leach-Bliley Act (P.L. 106-102).
(2)
The rules adopted under subsection (1) of this section shall include but are
not limited to:
(a)
Permitted uses and disclosures of:
(A)
Personal financial information for business, professional or insurance
purposes; and
(B)
Protected health information for treatment, payment and health care operations.
(b)
Requirements for notice of privacy practices for protected health information
and notice of information practices for personal financial information. [2003
c.87 §4]
746.609 Exemptions for health insurers.
ORS 746.620, 746.630, 746.640, 746.645 and 746.665 do not apply to health
insurers. [2003 c.87 §5]
746.610 Application of ORS 746.600 to
746.690. (1) Except as otherwise provided in ORS
746.606, 746.607, 746.608 and 746.609, the obligations imposed by ORS 746.600
to 746.690 apply to those insurers, insurance producers and insurance-support
organizations that:
(a)
In the case of life or health insurance:
(A)
Collect, receive or maintain personal information, in connection with insurance
transactions, that pertains to natural persons who are residents of this state;
or
(B)
Engage in insurance transactions with applicants, individuals or policyholders
who are residents of this state.
(b)
In the case of other kinds of insurance:
(A)
Collect, receive or maintain personal information in connection with insurance
transactions involving policies or certificates of insurance delivered, issued
for delivery or renewed in this state; or
(B)
Engage in insurance transactions involving policies or certificates of
insurance delivered, issued for delivery or renewed in this state.
(2)
The rights granted by ORS 746.600 to 746.690 extend to:
(a)
In the case of life or health insurance, the following persons who are
residents of this state:
(A)
Natural persons who are the subject of personal information collected, received
or maintained in connection with insurance transactions; and
(B)
Applicants, individuals or policyholders who engage in or seek to engage in
insurance transactions.
(b)
In the case of other kinds of insurance, the following persons:
(A)
Natural persons who are the subject of personal information collected, received
or maintained in connection with insurance transactions involving policies or
certificates of insurance delivered, issued for delivery or renewed in this
state; and
(B)
Applicants, individuals or policyholders who engage in or seek to engage in
insurance transactions involving policies or certificates of insurance
delivered, issued for delivery or renewed in this state.
(3)
For purposes of this section, a person is considered a resident of this state
if the person’s last-known mailing address, as shown in the records of the
insurer, insurance producer or insurance-support organization, is located in
this state.
(4)
Notwithstanding subsections (1) and (2) of this section, ORS 746.600 to 746.690
do not apply to personal information collected from the public records of a
governmental authority and maintained by an insurer or its representatives for
the purpose of insuring the title to real property located in this state. [1981
c.649 §3; 1987 c.490 §52; 2003 c.87 §8; 2003 c.364 §153]
746.611 Personal representative of
deceased person. If no person has been appointed
as a personal representative under ORS chapter 113 or a person appointed as a
personal representative under ORS chapter 113 has been discharged, the personal
representative of a deceased individual shall be the first of the following
persons, in the following order, who may be located upon reasonable effort by
the covered entity and who is willing to serve as the personal representative:
(1)
A person appointed as guardian under ORS 125.305, 419B.370, 419C.481 or
419C.555 with authority to make medical and health care decisions at the time
of the individual’s death.
(2)
The individual’s spouse.
(3)
An adult designated in writing by the persons listed in this section, if no
person listed in this section objects to the designation.
(4)
A majority of the adult children of the individual who can be located.
(5)
Either parent of the individual or an individual acting in loco parentis to the
individual.
(6)
A majority of the adult siblings of the individual who can be located.
(7)
Any adult relative or adult friend. [2005 c.253 §5]
746.612 No right of action.
Nothing in ORS 746.607 may be construed to create a new private right of action
against a health insurer. [2003 c.87 §18a]
746.615 Pretext interviews prohibited.
An insurer, insurance producer or insurance-support organization may not use or
authorize the use of pretext interviews to obtain personal information in
connection with an insurance transaction. However, a pretext interview may be
undertaken to obtain information from a person or institution that does not
have a generally recognized or statutorily recognized privileged relationship
with the person about whom the information relates, for the purpose of
investigating a claim where, based upon specific information available for
review by the Director of the Department of Consumer and Business Services,
there is a reasonable basis for suspecting criminal activity, fraud, material
misrepresentation or material nondisclosure in connection with the claim. [1981
c.649 §5; 2003 c.87 §9; 2003 c.364 §154]
746.620 Notice of insurance information
practices; rules. (1) A licensee must provide a
clear and conspicuous notice of personal information practices to individuals
in connection with insurance transactions under the circumstances and at the
times as follows:
(a)
Except as provided in this paragraph, to a consumer who becomes a customer of
the licensee, not later than the date that the licensee establishes a
continuing relationship under which the licensee provides one or more insurance
products or services to the consumer that are to be used primarily for
personal, family or household purposes. A licensee may provide the notice
within a reasonable time after the date the licensee establishes a customer
relationship if:
(A)
Establishing the customer relationship is not at the customer’s election; or
(B)
Providing notice not later than the date that the licensee establishes a
customer relationship would substantially delay the customer’s transaction and
the customer agrees to receive the notice at a later time.
(b)
To a consumer other than as described in paragraph (a) of this subsection,
before the licensee discloses any personal information about the consumer
pursuant to the requirements of ORS 746.665, unless the disclosure meets one or
more of the conditions specified in ORS 746.665.
(2)
A licensee shall provide a clear and conspicuous notice to a customer that
accurately reflects the privacy policies and practices not less than annually
during the continuation of the relationship described in subsection (1)(a) of
this section. For the purpose of this subsection, a notice is given annually if
it is given at least once in any period of 12 consecutive months during which
the relationship exists. A licensee may define the period of 12 consecutive
months, but the licensee must apply the period to the customer on a consistent
basis.
(3)
The privacy notice required by subsections (1) and (2) of this section must be
in writing and clear and conspicuous. The notice may be provided in electronic
form if the recipient agrees. In addition to any other personal information the
licensee wishes to provide, the notice shall include the following items of
personal information that apply to the licensee and to the individuals to whom the
licensee sends the notice:
(a)
The categories of personal information that the licensee collects.
(b)
The categories of personal information that the licensee discloses.
(c)
The categories of affiliates and nonaffiliated third parties to whom the licensee
discloses personal information other than persons to whom the licensee
discloses information under ORS 746.665.
(d)
The categories of personal information about former customers of the licensee
that the licensee discloses and the categories of affiliates and nonaffiliated
third parties to whom the licensee discloses personal information about the
licensee’s former customers, other than persons to whom the licensee discloses
personal information under ORS 746.665.
(e)
If a licensee discloses personal information to a nonaffiliated third party
under ORS 746.665, a separate description of the categories of personal
information the licensee discloses and the categories of nonaffiliated third
parties with whom the licensee has contracted.
(f)
An explanation of the individual’s right under ORS 746.630 to authorize
disclosure of personal information, including the methods by which the
individual may exercise that right.
(g)
Any disclosure that the licensee makes under section 603(d)(2)(A)(iii) of the
federal Fair Credit Reporting Act (15 U.S.C. 1681a(d)(2)(A)(iii)) regarding the
ability to opt out of disclosures of personal information among affiliates.
(h)
The policies and practices of the licensee with respect to protecting the
confidentiality and security of personal information.
(i) Any disclosure that the licensee makes under subsection
(4) of this section.
(j)
A description of the rights established under ORS 746.640 and 746.645 and the
manner in which such rights may be exercised.
(4)
If a licensee discloses personal information as authorized under ORS 746.665,
the licensee is not required to list those exceptions in the privacy notices
required by this section. When describing the categories of parties to whom
disclosure is made, the licensee must state only that the licensee makes
disclosures to other affiliated parties or nonaffiliated third parties, as
applicable, as authorized by law.
(5)
In lieu of the notice required in subsection (3) of this section, the licensee
may provide to a consumer an abbreviated notice, in writing or in electronic
form if the consumer agrees, informing the consumer that:
(a)
Personal information may be collected from persons other than the consumer
proposed for coverage;
(b)
Such information as well as other personal or privileged information
subsequently collected by the licensee may in certain circumstances be
disclosed to third parties without authorization;
(c)
A right of access and correction exists with respect to all personal
information collected; and
(d)
The notice prescribed in subsection (3) of this section shall be furnished to
the consumer upon request.
(6)
The Director of the Department of Consumer and Business Services by rule may
apply the categories of consumer and customer as defined in ORS 746.600 for the
purpose of establishing specific requirements for notice of personal
information practices, authorization for disclosure of personal information,
conditions for disclosure of personal information under this section and ORS
746.630 and 746.665, and exceptions. The director shall consider applicable
definitions and terms used in the federal Gramm-Leach-Bliley Act (P.L.
106-102), applicable definitions and requirements used in the model “Privacy of
Consumer Financial and Health Information Regulation” adopted by the National
Association of Insurance Commissioners and other sources as may be needed so
that the terms defined in ORS 746.600 and applicable to this section and ORS
746.630 and 746.665:
(a)
Facilitate compliance with requirements in federal law and the laws of other
states that establish protections of nonpublic personal information; and
(b)
Establish separate and discrete requirements relating to the privacy notice and
its contents and delivery for customers and consumers, so that the requirements
provide reasonable notice and facilitate compliance with requirements in
federal law and in the laws of other states.
(7)
The director shall determine by rule:
(a)
When a privacy notice must be provided to a certificate holder or beneficiary of
a group policy and to a third-party claimant.
(b)
When the obligation to provide annual notice ceases.
(c)
Requirements for revision of the notice by a licensee.
(8)
An insurance producer is not subject to the requirements of this section when
the insurer on whose behalf the insurance producer acts otherwise complies with
the requirements of this section and the insurance producer does not disclose
any personal information to any person other than the insurer or its affiliate,
or as otherwise authorized by law.
(9)
A licensee may provide a joint notice from the licensee and one or more of its
affiliates or other financial institutions, as identified in the notice, as
long as the notice is accurate with respect to the licensee and the other
institutions. A licensee may also provide a notice on behalf of a financial
institution.
(10)
The obligations imposed by this section upon a licensee may be satisfied by
another licensee authorized to act on behalf of the first licensee.
(11)
For purposes of this section and ORS 746.630 and 746.665, an individual is not
the consumer of a licensee solely because the individual is covered under a
group life insurance policy issued by the licensee or is a participant or
beneficiary of an employee benefit plan that the licensee administers or
sponsors or for which the licensee acts as a trustee, insurer or fiduciary, if:
(a)
The licensee provides to the policyholder the initial, annual and revised
notices under this section; and
(b)
The licensee does not disclose to a nonaffiliated third party personal
information about the individual other than as permitted by ORS 746.665.
(12)
When an individual becomes a consumer of a licensee under subsection (11) of
this section, this section and ORS 746.630 and 746.665 apply to the licensee
with respect to the individual. [1981 c.649 §6; 2001 c.377 §26; 2003 c.87 §10;
2003 c.364 §155]
746.625 Marketing and research surveys.
An insurer or insurance producer shall clearly identify those questions that
are designed to obtain personal information solely for marketing or research
purposes from an individual in connection with an insurance transaction. [1981
c.649 §7; 2003 c.87 §11; 2003 c.364 §156]
746.630 Authorization for disclosure of
certain information; forms; revocation. (1) Notwithstanding
any other law of this state, a licensee or insurance-support organization may
not use as its disclosure authorization form in connection with insurance
transactions a form or statement that authorizes the disclosure of personal or
privileged information about an individual to the licensee or insurance-support
organization unless the form or statement is clear and conspicuous, and
contains all of the following:
(a)
The identity of the individual who is the subject of the personal information.
(b)
A general description of the categories of personal information to be
disclosed.
(c)
General descriptions of the parties to whom the licensee discloses personal
information, the purpose of the disclosure and how the personal information may
be used.
(d)
The signature of the individual who is the subject of the personal information
or the individual who is legally empowered to grant authority and the date
signed.
(e)
Notice of the length of time for which the authorization is valid, that the
individual may revoke the authorization at any time and the procedure for
making a revocation.
(2)
An authorization is not valid for more than 24 months.
(3)
An individual who is the subject of personal information may revoke an
authorization provided pursuant to this section at any time, subject to the
rights of any individual who acted in reliance on the authorization prior to
notice of the revocation.
(4)
A licensee must retain the authorization of an individual or a copy thereof in
the record of the individual who is the subject of the personal information.
(5)
A disclosure authorization obtained by an insurer, insurance producer or
insurance-support organization from an individual prior to January 1, 1983, is
considered to be in compliance with this section. [1981 c.649 §8; 2001 c.377 §27;
2003 c.87 §12; 2003 c.364 §157]
746.632 Genetic information used for
treatment; authorization; disclosure. (1)
Notwithstanding ORS 192.537 (3), a health insurer may retain genetic
information of an individual without obtaining an authorization from the
individual or a personal representative of the individual if the retention is
for treatment, payment or health care operations by the insurer.
(2)
Notwithstanding ORS 192.539 (1), a health insurer may disclose genetic information
of an individual without obtaining an authorization from the individual or a
personal representative of the individual if the insurer discloses the genetic
information in accordance with ORS 746.607 (3).
(3)
As used in this section, “retain genetic information” has the meaning given
that term in ORS 192.531.
(4)
As used in this section, “health care operations” does not include underwriting
activities.
(5)
Nothing in this section shall be construed to interfere with or limit the
requirements of ORS 746.135. [2007 c.800 §8]
746.635 Investigative consumer reports.
(1) No insurer, insurance producer or insurance-support organization may
prepare or request an investigative consumer report about an individual in
connection with an insurance transaction involving an application for
insurance, a policy renewal, a policy reinstatement or a change in insurance
benefits unless the insurer or insurance producer informs the individual:
(a)
That the individual may request to be interviewed in connection with the
preparation of the investigative consumer report; and
(b)
That upon a request pursuant to ORS 746.640, the individual is entitled to
receive a copy of the investigative consumer report.
(2)
If an investigative consumer report is to be prepared by an insurer or
insurance producer, the insurer or insurance producer shall institute
reasonable procedures to conduct a personal interview requested by the
individual.
(3)
If an investigative consumer report is to be prepared by an insurance-support
organization, the insurer or insurance producer desiring the report shall
inform the insurance-support organization whether a personal interview has been
requested by the individual. The insurance-support organization shall institute
reasonable procedures to conduct such requested interviews. [1981 c.649 §9;
2003 c.364 §158]
746.640 Access to recorded personal
information. (1) If any individual, after proper
identification, submits a written request to an insurer, insurance producer or
insurance-support organization for access to recorded personal information
about the individual that is reasonably described by the individual and
reasonably locatable and retrievable by the insurer, insurance producer or
insurance-support organization, the insurer, insurance producer or
insurance-support organization within 30 business days from the date the
request is received shall:
(a)
Inform the individual of the nature and substance of the recorded personal
information in writing, by telephone or by other oral communication, whichever
the insurer, insurance producer or insurance-support organization prefers;
(b)
Permit the individual to see and copy, in person, the recorded personal
information or to obtain a copy of the recorded personal information by mail,
whichever the individual prefers, unless the recorded personal information is
in coded form, in which case an accurate translation in plain language shall be
provided in writing;
(c)
Disclose to the individual the identity, if recorded, of the persons to whom
the insurer, insurance producer or insurance-support organization has disclosed
the recorded personal information within two years prior to the request, and if
such identity is not recorded, the names of the insurers, insurance producers,
insurance-support organizations and other persons to whom such information is
normally disclosed; and
(d)
Provide the individual with a summary of the procedures by which the individual
may request correction, amendment or deletion of recorded personal information.
(2)
Any personal information provided pursuant to this section must identify the
source of the information if the source is an institutional source.
(3)
If an individual requests individually identifiable health information supplied
by a health care provider, the insurer, insurance producer or insurance-support
organization shall provide the information, including the identity of the
health care provider either directly to the individual or to a health care
provider designated by the individual and licensed to provide health care with
respect to the condition to which the information relates, whichever the
insurer, insurance producer or insurance-support organization prefers. If the
insurer, insurance producer or insurance-support organization elects to
disclose the information to a health care provider designated by the
individual, the insurer, insurance producer or insurance-support organization
shall notify the individual, at the time of the disclosure, that the insurer,
insurance producer or insurance-support organization has provided the
information to the health care provider.
(4)
Except for personal information provided under ORS 746.650, an insurer,
insurance producer or insurance-support organization may charge a reasonable
fee to cover the costs incurred in providing a copy of recorded personal
information to an individual.
(5)
The obligations imposed by this section upon an insurer or insurance producer
may be satisfied by another insurer or insurance producer authorized to act on
its behalf. With respect to the copying and disclosure of recorded personal
information pursuant to a request under this section, an insurer, insurance
producer or insurance-support organization may make arrangements with an
insurance-support organization or a consumer reporting agency to copy and
disclose recorded personal information on its behalf.
(6)
The rights granted to individuals by this section shall extend to all natural
persons to the extent personal information about them is collected and
maintained by an insurer, insurance producer or insurance-support organization
in connection with an insurance transaction. The rights granted to all natural
persons by this subsection shall not extend to personal information about them
that relates to and is collected in connection with or in reasonable
anticipation of a claim or a civil or criminal proceeding involving them.
(7)
For purposes of this section, the term “insurance-support organization” does
not include “consumer reporting agency.” [1981 c.649 §10; 2003 c.87 §13; 2003
c.364 §159a]
746.645 Correction, amendment or deletion
of recorded personal information. (1) Within 30
business days from the date of receipt of a written request from an individual
to correct, amend or delete any recorded personal information about the
individual within its possession, an insurer, insurance producer or
insurance-support organization shall either:
(a)
Correct, amend or delete the portion of the recorded personal information in
dispute; or
(b)
Notify the individual of:
(A)
Its refusal to make the correction, amendment or deletion;
(B)
The reasons for the refusal; and
(C)
The individual’s right to file a statement as provided in subsection (3) of
this section.
(2)
If the insurer, insurance producer or insurance-support organization corrects,
amends or deletes recorded personal information in accordance with subsection
(1) of this section, the insurer, insurance producer or insurance-support
organization shall so notify the individual in writing and furnish the
correction, amendment or fact of deletion to:
(a)
Each person specifically designated by the individual who may have, within the
preceding two years, received the recorded personal information;
(b)
Each insurance-support organization whose primary source of personal
information is insurers, if the insurance-support organization has
systematically received recorded personal information from the insurer within
the preceding seven years. However, the correction, amendment or fact of
deletion need not be furnished if the insurance-support organization no longer
maintains recorded personal information about the individual; and
(c)
Each insurance-support organization that furnished the recorded personal
information that has been corrected, amended or deleted.
(3)
Whenever an individual disagrees with an insurer’s, insurance producer’s or
insurance-support organization’s refusal to correct, amend or delete recorded
personal information, the individual shall be permitted to file with the
insurer, insurance producer or insurance-support organization:
(a)
A concise statement setting forth what the individual thinks is the correct,
relevant or fair information; and
(b)
A concise statement of the reasons why the individual disagrees with the
insurer’s, insurance producer’s or insurance-support organization’s refusal to
correct, amend or delete recorded personal information.
(4)
In the event an individual files either or both of the statements described in
subsection (3) of this section, the insurer, insurance producer or
insurance-support organization shall:
(a)
File the statements with the disputed personal information and provide a means
by which anyone reviewing the disputed personal information will be made aware
of the individual’s statements and have access to them;
(b)
In any subsequent disclosure by the insurer, insurance producer or
insurance-support organization of the recorded personal information that is the
subject of the disagreement, clearly identify the matter or matters in dispute
and provide the individual’s statements along with the recorded personal
information being disclosed; and
(c)
Furnish the statements to the persons and in the manner specified in subsection
(2) of this section.
(5)
The rights granted to individuals by this section shall extend to all natural
persons to the extent information about them is collected and maintained by an
insurer, insurance producer or insurance-support organization in connection
with an insurance transaction. The rights granted to all natural persons by
this subsection shall not extend to information about them that relates to and
is collected in connection with or in reasonable anticipation of a claim or a
civil or criminal proceeding involving them.
(6)
For purposes of this section, the term “insurance-support organization” does
not include “consumer reporting agency.” [1981 c.649 §11; 2003 c.364 §160]
746.650 Reasons for adverse underwriting
decisions. Except as otherwise provided in
ORS 743.804, 743.806, 743.857 and 743.861:
(1)
In the event of an adverse underwriting decision, the insurer or insurance
producer responsible for the decision must:
(a)
Either provide the consumer proposed for coverage with the specific reason or
reasons for the adverse underwriting decision in writing or advise the consumer
that upon written request the consumer may receive the specific reason or
reasons in writing; and
(b)
Provide the consumer proposed for coverage with a summary of the rights
established under subsection (2) of this section and ORS 746.640 and 746.645.
(2)
Upon receipt of a written request within 90 business days from the date of the
mailing of notice or other communication of an adverse underwriting decision to
a consumer proposed for coverage, the insurer or insurance producer shall
furnish to the consumer within 21 business days from the date of receipt of the
written request:
(a)
The specific reason or reasons for the adverse underwriting decision, in
writing, if this information was not initially furnished in writing pursuant to
subsection (1) of this section;
(b)
The specific items of personal information and privileged information that
support these reasons, subject to the following:
(A)
The insurer or insurance producer is not required to furnish specific items of
privileged information if the insurer or insurance producer has a reasonable
suspicion, based upon specific information available for review by the Director
of the Department of Consumer and Business Services, that the consumer proposed
for coverage has engaged in criminal activity, fraud, material
misrepresentation or material nondisclosure; and
(B)
Specific items of individually identifiable health information supplied by a
health care provider shall be disclosed either directly to the consumer about
whom the information relates or to a health care provider designated by the
consumer and licensed to provide health care with respect to the condition to
which the information relates, whichever the insurer or insurance producer
prefers; and
(c)
The names and addresses of the institutional sources that supplied the specific
items of information described in paragraph (b) of this subsection. However,
the identity of any health care provider must be disclosed either directly to
the consumer or to the designated health care provider, whichever the insurer
or insurance producer prefers.
(3)
The obligations imposed by this section upon an insurer or insurance producer
may be satisfied by another insurer or insurance producer authorized to act on
its behalf.
(4)
When an adverse underwriting decision results solely from an oral request or
inquiry, the explanation of reasons and summary of rights required by
subsection (1) of this section may be given orally.
(5)
Notwithstanding subsection (1) of this section, when an adverse underwriting
decision is based in whole or in part on credit history or insurance score, the
insurer or insurance producer responsible for the decision must provide the
consumer proposed for coverage with the specific reason or reasons for the
adverse underwriting decision in writing. The notice must include the
following:
(a)
A summary of no more than four of the most significant credit reasons for the
adverse underwriting decision, listed in decreasing order of importance, that
clearly identifies the specific credit history or insurance score used to make
the adverse underwriting decision. An insurer or insurance producer may not use
“poor credit history” or a similar phrase as a reason for an adverse
underwriting decision.
(b)
The name, address and telephone number, including a toll-free telephone number,
of the consumer reporting agency that provided the information for the consumer
report.
(c)
A statement that the consumer reporting agency used by the insurer or insurance
producer to obtain the credit history of the consumer did not make the adverse
underwriting decision and is unable to provide the consumer with specific
reasons why the insurer or insurance producer made an adverse underwriting
decision.
(d)
Information on the right of the consumer:
(A)
To obtain a free copy of the consumer’s consumer report from the consumer
reporting agency described in paragraph (b) of this subsection, including the
deadline, if any, for obtaining a copy; and
(B)
To dispute the accuracy or completeness of any information in a consumer report
furnished by the consumer reporting agency.
(6)
Notwithstanding subsection (1) of this section, an insurer or insurance
producer responsible for an adverse underwriting decision that is based in
whole or in part on credit history or insurance score must provide the notice
required by subsection (5) of this section only when the insurer or insurance
producer makes the initial adverse underwriting decision regarding a consumer.
(7)
Notwithstanding subsection (1) of this section, when an adverse underwriting
decision relating to homeowner insurance is based in whole or in part on a loss
history report, the insurer or insurance producer responsible for the decision
must provide the consumer proposed for coverage with the specific reason or
reasons for the adverse underwriting decision in writing. The notice must
include the following:
(a)
A description of a specific claim or claims that are the basis for the specific
loss history report used to make the adverse underwriting decision.
(b)
The name, address and telephone number, including a toll-free telephone number,
of the consumer reporting agency that provided the information for the loss
history report.
(c)
A statement that the consumer reporting agency used by the insurer or insurance
producer to obtain the loss history report of the consumer did not make the
adverse underwriting decision and is unable to provide the consumer with
specific reasons why the insurer or insurance producer made an adverse
underwriting decision.
(d)
Information on the right of the consumer:
(A)
To obtain a free copy of the consumer’s loss history report from the consumer
reporting agency described in paragraph (b) of this subsection, including the
deadline, if any, for obtaining a copy; and
(B)
To dispute the accuracy or completeness of any information in a loss history
report furnished by the consumer reporting agency.
(8)
When an adverse underwriting decision relating to homeowner insurance is based
in part on credit history and in part on a loss history report, the insurer or
insurance producer responsible for the adverse underwriting decision may
provide the notices required by subsections (5) and (7) of this section in a
single notice. [1981 c.649 §12; 2003 c.87 §15; 2003 c.364 §161; 2003 c.788 §2a;
2005 c.489 §7; 2011 c.500 §42]
746.655 Information concerning previous
adverse underwriting decisions. No insurer,
insurance producer or insurance-support organization may seek information in
connection with an insurance transaction concerning any previous adverse
underwriting decision experienced by an individual, or any previous insurance
coverage obtained by an individual through a residual market mechanism, unless
the inquiry also requests the reasons for any previous adverse underwriting
decision or the reasons why insurance coverage was previously obtained through
a residual market mechanism. [1981 c.649 §13; 2003 c.364 §162]
746.660 Basing adverse underwriting
decision on previous adverse decision. No insurer or
insurance producer may base an adverse underwriting decision in whole or in
part on:
(1)
The fact of a previous adverse underwriting decision or on the fact that an
individual previously obtained insurance coverage through a residual market
mechanism. However, an insurer or insurance producer may base an adverse
underwriting decision on further information obtained from an insurer or
insurance producer responsible for a previous adverse underwriting decision.
(2)
Personal information received from an insurance-support organization whose
primary source of information is insurers. However, an insurer or insurance
producer may base an adverse underwriting decision on further personal
information obtained as the result of information received from such an
insurance-support organization. [1981 c.649 §14; 2003 c.364 §163]
746.661 Use of credit history or insurance
score. (1) An insurer that issues personal
insurance policies in this state:
(a)
May not cancel or nonrenew personal insurance that
has been in effect for more than 60 days based in whole or in part on a
consumer’s credit history or insurance score.
(b)
May use a consumer’s credit history to decline coverage of personal insurance
in the initial underwriting decision only in combination with other substantive
underwriting factors. An offer of placement with an affiliate insurer does not
constitute a declination of insurance coverage.
(c)
May not use the following types of credit history to decline coverage of
personal insurance, calculate an insurance score or determine personal
insurance premiums or rates:
(A)
The absence of credit history or the inability to determine the consumer’s
credit history, if the insurer has received accurate and complete information
from the consumer, unless the insurer does one of the following:
(i) If the insurer presents information that the absence of
credit history or the inability to determine the consumer’s credit history
relates to the risk for the insurer, uses the absence of a credit history or
inability to determine a consumer’s credit history as allowed by rules adopted
by the Director of the Department of Consumer and Business Services;
(ii)
Treats the consumer as if the applicant or insured has neutral credit history,
as defined by the insurer; or
(iii)
Excludes the use of credit information as a factor and uses only other
underwriting criteria.
(B)
Credit inquiries not initiated by the consumer or inquiries requested by the
consumer for the consumer’s own credit information.
(C)
Inquiries identified on a consumer’s credit report relating to insurance
coverage.
(D)
Multiple lender inquiries identified as being from the home mortgage industry
and made within 30 days of one another, unless only one inquiry is considered.
(E)
Multiple lender inquiries identified as being from the automobile lending
industry and made within 30 days of one another, unless only one inquiry is
considered.
(F)
The consumer’s total available line of credit. However, an insurer may consider
the total amount of outstanding debt in relation to the total available line of
credit.
(d)
May not rerate an existing policy or rerate a customer based on a customer’s
credit history or the credit history component of a customer’s insurance score
when the marital status of the customer changes due to death or divorce.
(2)(a)
If an insurer uses the consumer’s credit history or insurance score at any time
in the rating of a personal insurance policy, the consumer may request, no more
than once per insurer per policy line annually, that the insurer rerate the
consumer according to the standards that the insurer would apply if the
consumer were initially applying for the same insurance policy.
(b)
The insurer shall rerate the consumer within 30 days after receiving a request
from the consumer. After rerating the consumer based upon the request, the
insurer may not use credit information from rerating to increase the premium on
any personal insurance policy the consumer holds. If the consumer qualifies for
a more favorable rating category, the insurer shall reduce the premiums on all
the personal insurance policies the consumer holds in the related policy line
for which the consumer’s credit history and insurance score would entitle the
consumer to lower premiums if the consumer were applying for a new policy. The
effective date of any rate change is the date of the consumer’s request.
(c)
If a request to rerate a policy is received within 60 days prior to a renewal
date, or if the difference between the current rate and the improved rate is
less than $10, the insurer may provide the consumer with the difference between
the current rate and the improved rate over the remainder of the current period
as a credit upon renewal. If the policy is canceled or not renewed, the insurer
shall refund the unearned premium. Any existing claim-related discounts or
surcharges shall carry forward for each rerated policy.
(3)
If an insurer uses disputed credit history to determine eligibility for
coverage of personal insurance and places a consumer with an affiliate that
charges higher premiums or offers less favorable policy terms:
(a)
The insurer shall rerate the policy retroactive to the effective date of the
current policy term; and
(b)
The policy, as reissued or rerated, shall provide the premiums and policy terms
for which the consumer would have been eligible if accurate credit history had
been used to determine eligibility.
(4)
If an insurer charges higher premiums due to disputed credit history, the
insurer shall rerate the policy retroactive to the effective date of the
current policy term. As rerated, the insurer shall charge the consumer the same
premiums the consumer would have been charged if accurate credit history had
been used to calculate an insurance score.
(5)
Subsections (3) and (4) of this section apply only if the consumer resolves the
credit dispute under the process set forth in the federal Fair Credit Reporting
Act (15 U.S.C. 1681) and notifies the insurer in writing that the dispute has
been resolved.
(6)
Except as provided in subsections (2), (3) and (4) of this section, an insurer
may only use rating factors other than credit history or insurance score to
rerate the policy at renewal. [2003 c.788 §4; 2005 c.464 §1; 2009 c.422 §1]
746.662 Filing of insurance scoring
models. (1) An insurer may not use credit
history to determine personal insurance eligibility, premiums or rates for
coverage unless the insurer has filed the insurance scoring models used by the
insurer with the Director of the Department of Consumer and Business Services.
An insurance scoring model includes all attributes and factors used in the
calculation of an insurance score.
(2)
Insurance scoring models filed with the director under subsection (1) of this
section are confidential and not subject to disclosure under ORS 192.410 to
192.505. [2003 c.788 §5]
746.663 Cancellation or nonrenewal of
personal insurance policies based on credit history or insurance score.
(1) An insurer that issues personal insurance policies in this state may not
cancel or nonrenew a policy of personal insurance
based in whole or in part on a consumer’s credit history or insurance score.
(2)
If, prior to January 1, 2004, an insurer has assigned a consumer to a less
favorable rating category for a policy of personal insurance based in whole or
in part on the consumer’s credit history or insurance score, the consumer may
request, no more than once annually, that the insurer rerate the consumer
according to the standards that the insurer would apply to the consumer if the
consumer were initially applying for the same personal insurance on or after
January 1, 2004.
(3)
An insurer that receives a request under subsection (2) of this section may not
consider that the consumer was assigned to a less favorable rate category when
the insurer rerates the consumer.
(4)
If an insurer uses disputed credit history to determine eligibility for
coverage of personal insurance and places a consumer with an affiliate that
charges higher premiums or offers less favorable policy terms:
(a)
The insurer shall rerate the policy retroactive to the effective date of the
current policy term; and
(b)
The policy, as reissued or rerated, shall provide the premiums and policy terms
for which the consumer would have been eligible if accurate credit history had
been used to determine eligibility.
(5)
If an insurer charges higher premiums due to disputed credit history, the
insurer shall rerate the policy retroactive to the effective date of the
current policy term. As rerated, the insurer shall charge the consumer the same
premiums the consumer would have been charged if accurate credit history had
been used to calculate an insurance score.
(6)
Subsections (4) and (5) of this section apply only if the consumer resolves the
credit dispute under the process set forth in the federal Fair Credit Reporting
Act (15 U.S.C. 1681) and notifies the insurer in writing that the dispute has
been resolved.
(7)
Except as provided in subsections (2), (4) and (5) of this section, an insurer
may only use rating factors other than credit history or insurance score to
rerate the policy at renewal. [2003 c.788 §7]
746.665 Limitations and conditions on
disclosure of certain information. (1) A
licensee or insurance-support organization may not disclose any personal or
privileged information about an individual collected or received in connection
with an insurance transaction unless the disclosure meets one or more of the
following conditions:
(a)
Is with the written authorization of the individual, and:
(A)
If the authorization is submitted by another licensee or insurance-support
organization, the authorization meets the requirements of ORS 746.630; or
(B)
If the authorization is submitted by a person other than a licensee or
insurance-support organization, the authorization is:
(i) Dated;
(ii)
Signed by the individual; and
(iii)
Obtained one year or less prior to the date a disclosure is sought pursuant to
this subsection.
(b)
Is to a person other than a licensee or insurance-support organization, if the
disclosure is reasonably necessary to enable the person to:
(A)
Perform a business, professional or insurance function for the disclosing
licensee or insurance-support organization and the person agrees not to
disclose the information further without the individual’s written authorization
unless the further disclosure:
(i) Would otherwise be permitted by this section if made by
a licensee or insurance-support organization; or
(ii)
Is reasonably necessary for the person to perform its function for the
disclosing licensee or insurance-support organization; or
(B)
Provide information to the disclosing licensee or insurance-support
organization for the purpose of:
(i) Determining an individual’s eligibility for an insurance
benefit or payment; or
(ii)
Detecting or preventing criminal activity, fraud, material misrepresentation or
material nondisclosure in connection with an insurance transaction.
(c)
Is to a licensee, insurance-support organization or self-insurer, if the
information disclosed is limited to that which is reasonably necessary:
(A)
To detect or prevent criminal activity, fraud, material misrepresentation or
material nondisclosure in connection with insurance transactions; or
(B)
For either the disclosing or receiving licensee or insurance-support
organization to perform its function in connection with an insurance
transaction involving the individual.
(d)
Is to a health care provider and discloses only such information as is
reasonably necessary to accomplish one or more of the following purposes:
(A)
Verifying insurance coverage or benefits.
(B)
Informing an individual of a medical problem of which the individual may not be
aware.
(C)
Conducting an operations or services audit.
(e)
Is to an insurance regulatory authority.
(f)
Is to a law enforcement or other governmental authority:
(A)
To protect the interests of the licensee or insurance-support organization in
preventing or prosecuting the perpetration of fraud upon it; or
(B)
If the licensee or insurance-support organization reasonably believes that
illegal activities have been conducted by the individual.
(g)
Is otherwise permitted or required by law.
(h)
Is in response to a facially valid administrative or judicial order, including
a search warrant or subpoena.
(i) Is made for the purpose of conducting actuarial or
research studies, if:
(A)
No individual may be identified in any resulting actuarial or research report;
(B)
Materials allowing the individual to be identified are returned or destroyed as
soon as they are no longer needed; and
(C)
The actuarial or research organization agrees not to disclose the information
unless the disclosure would otherwise be permitted by this section if made by a
licensee or insurance-support organization.
(j)
Is to a party or a representative of a party to a proposed or consummated sale,
transfer, merger or consolidation of all or part of the business of the licensee
or insurance-support organization, if:
(A)
Prior to the consummation of the sale, transfer, merger or consolidation only
such information is disclosed as is reasonably necessary to enable the
recipient to make business decisions about the purchase, transfer, merger or
consolidation; and
(B)
The recipient agrees not to disclose the information unless the disclosure
would otherwise be permitted by this section if made by a licensee or
insurance-support organization.
(k)
Is to a nonaffiliated third party whose only use of the information will be in
connection with the marketing of a product or service, if all of the following
conditions are met:
(A)
No privileged information or personal information is disclosed, and no
classification derived from such information may be disclosed.
(B)
The individual must have been given the notice described in ORS 746.620 and an
opportunity to indicate that the individual does not want personal information
disclosed for marketing purposes and must have given no indication that the
individual does not want the information disclosed. The individual need not
have been given the opportunity described in this subparagraph if the
disclosure is made pursuant to a joint marketing agreement. As used in this
subparagraph, “joint marketing agreement” means a formal written contract
pursuant to which an insurer jointly offers, endorses or sponsors a financial
product or service with a financial institution. When the opportunity is
required, the statement that offers the opportunity must state that the insurer
may disclose personal information to nonaffiliates
and that the individual has a right to indicate that the individual does not
want personal information disclosed for marketing purposes, and must describe
the method for exercising that right. The statement must be in writing but may
be in an electronic form if the individual agrees. The individual who is given
the opportunity must be provided a reasonable time to exercise the opportunity.
An individual may exercise the opportunity at any time. A statement by an
individual barring disclosure of personal information remains effective until
the individual who made the statement revokes the statement in writing or, if
the individual agrees, in electronic form.
(C)
The person receiving the information must agree not to use it except in
connection with the marketing of a product or service.
(L)
Is to an affiliate whose only use of the information will be in connection with
an audit of the licensee or the marketing of a financial product or service,
and the affiliate agrees not to disclose the information for any other purpose
or to unaffiliated persons. This paragraph does not apply to the disclosure of
individually identifiable health information for the purpose of marketing a
financial product or service.
(m)
Is by a consumer reporting agency, and the disclosure is to a person other than
a licensee.
(n)
Is to a group policyholder for the purpose of reporting claims experience or
conducting an audit of the licensee’s operations or services, and the
information disclosed is reasonably necessary for the group policyholder to
conduct the review or audit.
(o)
Is to a professional peer review organization for the purpose of reviewing the
service or conduct of a health care provider.
(p)
Is to a governmental authority for the purpose of determining the individual’s
eligibility for health benefits for which the governmental authority may be
liable.
(q)
Is to a policyholder or certificate holder for the purpose of providing
information regarding the status of an insurance transaction.
(2)
Personal or privileged information may be acquired by a group practice
prepayment health care service contractor from providers which contract with
the contractor and may be transferred among providers which contract with the
contractor for the purpose of administering plans offered by the contractor.
The information may not be disclosed otherwise by the contractor except in
accordance with ORS 746.600 to 746.690. [1981 c.649 §15; 1987 c.490 §53; 2001
c.377 §28; 2003 c.87 §14]
746.668 Relationship of ORS 746.620,
746.630 and 746.665 to federal Fair Credit Reporting Act.
Nothing in ORS 746.620, 746.630 or 746.665 may be construed to modify, limit or
supersede the operation of the federal Fair Credit Reporting Act (15 U.S.C.
1681 et seq.) and no inference may be drawn on the basis of ORS 746.620,
746.630 or 746.665 regarding whether personal information is transaction
information or experience information under section 603 of the federal Fair
Credit Reporting Act (15 U.S.C. 1681 et seq.). [2001 c.377 §28c; 2003 c.87 §16]
746.670 Investigatory powers.
(1) The Director of the Department of Consumer and Business Services may
examine and investigate into the affairs of any insurer or insurance producer
transacting insurance in this state to determine whether it has been or is
engaged in any conduct in violation of ORS 746.600 to 746.690.
(2)
The director may examine and investigate into the affairs of any
insurance-support organization acting on behalf of an insurer or insurance
producer which either transacts insurance in this state or transacts insurance
outside this state which has an effect on a person residing in this state, in
order to determine whether the insurance-support organization has been or is engaged
in any conduct in violation of ORS 746.600 to 746.690. [1981 c.649 §16; 1987
c.490 §54; 2003 c.87 §17; 2003 c.364 §164]
746.675 Service of process on out-of-state
insurance-support organizations. For the
purpose of ORS 746.600 to 746.690 and 750.055, an insurance-support
organization transacting business outside this state which has an effect on a
person residing in this state shall be considered to have appointed the
Director of the Department of Consumer and Business Services to accept service
of process on its behalf. Notice of such service shall be given forthwith by
the director as provided for orders and notices under ORS 731.248 (3). [1981
c.649 §17; 1987 c.490 §55]
746.680 Remedies.
(1) A person whose rights granted under ORS 746.607 (7), 746.640, 746.645 or
746.650 are violated may apply to the circuit court for the county in which the
person resides, or any other court of competent jurisdiction, for appropriate
equitable relief if an insurer, insurance producer or insurance-support organization
fails to comply with ORS 746.607 (7), 746.640, 746.645 or 746.650.
(2)
A licensee or insurance-support organization that discloses information in
violation of ORS 746.665 or a health insurer that uses or discloses information
in violation of ORS 746.607 (1) or (2) is liable for damages sustained by the
individual about whom the information relates. However, an individual is not
entitled to a monetary award that exceeds the actual damages sustained by the
individual as a result of the violation of ORS 746.607 (1) or (2) or 746.665.
(3)
In any action brought pursuant to this section, the court may award the cost of
the action and reasonable attorney fees to the prevailing party.
(4)
An action under this section must be brought within two years from the date the
alleged violation is or should have been discovered.
(5)
Except as specifically provided in this section, there shall be no remedy or
recovery available to individuals, in law or in equity, for occurrences
constituting a violation of any provision of ORS 746.600 to 746.690. [1981
c.649 §18; 1987 c.490 §56; 1995 c.618 §131; 2001 c.377 §28a; 2003 c.87 §18;
2003 c.364 §165a]
746.685 Liability for disclosure of
information. No cause of action in the nature of
defamation, invasion of privacy or negligence shall arise against any person
for disclosing personal or privileged information in accordance with ORS
746.600 to 746.690 and 750.055, nor shall such a cause of action arise against
any person for furnishing personal or privileged information to an insurer,
insurance producer or insurance-support organization. However, this section
shall provide no immunity for disclosing or furnishing false information with
malice or willful intent to injure any person. [1981 c.649 §19; 1987 c.490 §57;
2003 c.364 §166]
746.686 Use of prior claim or inquiry in
determination to issue or renew homeowner insurance policy; rules.
(1) When a consumer applies for a homeowner insurance policy, an insurer may
not use:
(a)
A prior claim of the consumer or a claim relating to the property to be
insured, when the date of loss of the claim is more than five years preceding
the date of application, to determine whether to issue the policy or to
determine rates or other terms and conditions of the policy. This paragraph
does not apply when the insurer uses claim experience of the consumer or of the
property to provide a discount to the consumer.
(b)
The first claim that the consumer made on a homeowner insurance policy within
the five-year period immediately preceding the date of application to determine
whether to issue the policy.
(c)
A prior claim relating to the property to be insured that occurred prior to
purchase of the property by the consumer, when the consumer demonstrates to the
insurer’s satisfaction that the risk associated with damage resulting from the
accident or occurrence that gave rise to the prior claim has been mitigated, to
determine whether to issue the policy or to determine rates or other terms and
conditions of the policy. For purposes of this paragraph, a risk is mitigated
if the consumer has fully restored the damaged property and has repaired,
replaced, restored or eliminated the condition, system or use of the property
that was the underlying cause of the loss.
(2)
When renewing a homeowner insurance policy, an insurer may not use:
(a)
A prior claim of the consumer or a claim relating to the property to be
insured, when the date of loss of the claim is more than five years before the
upcoming renewal date, to determine whether to renew the policy or to determine
rates or other terms and conditions of the policy. This paragraph does not
apply when the insurer uses claim experience of the consumer or of the property
to provide a discount to the consumer at renewal.
(b)
The first claim of the consumer made within the five-year period immediately
preceding the upcoming renewal date to determine whether to renew the policy.
(3)
An insurer or insurance producer may not use an inquiry made by any means by
the consumer to the insurer or to an insurance producer regarding the terms,
conditions or coverage of an insurance policy, including an inquiry about an
actual loss or claim filing process, to determine whether to issue or renew a
policy or to determine rates or other terms and conditions of a policy if the
consumer is not making a claim as part of the inquiry. An insurer or insurance
producer may verify whether the consumer is making a claim as part of the
inquiry. If the consumer affirms that the inquiry is not a claim, the insurer
or insurance producer may rely on the affirmation to rebut a later assertion to
the contrary. This subsection does not apply to an inquiry by a consumer
relating to the possibility of a third party claim against the consumer. The
Director of the Department of Consumer and Business Services may adopt rules
establishing procedures to implement this subsection.
(4)
This section does not prohibit an insurer from taking any underwriting or
rating action that is:
(a)
Based on the known condition or use of the property;
(b)
Based on fraudulent acts of the consumer; or
(c)
Otherwise allowed by law. [2005 c.489 §4]
746.687 Cancellation of homeowner
insurance policy. (1) Except as provided in
subsection (6) of this section, an insurer may cancel a homeowner insurance
policy before the expiration of the policy only for one or more of the
following reasons:
(a)
Nonpayment of premium;
(b)
Fraud or material misrepresentation affecting the policy or in the presentation
of a claim under the policy;
(c)
Violation of any of the terms and conditions of the policy;
(d)
Substantial increase in the risk of loss after insurance coverage has been
issued or renewed, including but not limited to an increase in exposure due to
rules, legislation or court decision; or
(e)
Determination by the Director of the Department of Consumer and Business
Services that the continuation of a line of insurance or class of business to
which the policy belongs will jeopardize an insurer’s solvency or place the
insurer in violation of the insurance laws of Oregon or any other state,
whether because of a loss or decrease in reinsurance covering the risk or other
reason determined by the director.
(2)
The insurer shall give the policyholder written notice of the cancellation,
including the effective date of the cancellation and the reasons for the
cancellation.
(3)
The insurer must mail or deliver a notice of cancellation to the policyholder
at the address shown in the policy:
(a)
At least 10 days prior to the effective date of cancellation, if the
cancellation is for the reason described in subsection (1)(a) or (b) of this
section.
(b)
At least 30 days prior to the effective date of cancellation, if the
cancellation is for the reason described in subsection (1)(c), (d) or (e) of
this section.
(4)
An insurer shall mail or deliver to a policyholder, at the address shown in the
policy, a notice of renewal or nonrenewal of a homeowner insurance policy at
least 30 days prior to the expiration of the policy period. This subsection
does not apply when the policy is in lapse status under the terms of the
policy.
(5)
Proof of mailing notice of cancellation or nonrenewal to the policyholder at
the address shown in the policy is sufficient proof of notice under this
section.
(6)
This section does not apply to a homeowner insurance policy that has been in
effect fewer than 60 days at the time the notice of cancellation is mailed or
delivered by the insurer unless it is a renewal policy. An insurer may not use
the fact that a claim was filed on the policy within the 60-day period as a
basis for canceling the policy within the 60-day period, for increasing the
premium rate or for altering the terms of the policy during the current policy
term. An insurer may, within the 60-day period, use any other information
consistent with the insurer’s rating or underwriting program, including but not
limited to, conditions or uses of the property discovered by the insurer, as a
basis for cancellation or for offering to continue coverage at an increased
rate or on different terms. At renewal of the policy, the insurer may treat a
claim that occurred within the 60-day period the same as any other claim
occurring during the policy period for the purposes of rating, nonrenewing and altering the terms of the policy. [2005
c.489 §5]
746.688 Use of loss history reports;
notice to consumer. (1) An insurer or insurance
producer shall notify a consumer that the insurer or insurance producer will
request a loss history report relating to the consumer or property to be
insured before the insurer or insurance producer may obtain the report. The
notice may be oral, in writing or in the same medium as the medium in which
previous communication between the consumer and the insurer or insurance
producer has been conducted.
(2)
An insurance producer may provide a single notice under subsection (1) of this
section to a consumer if the insurance producer makes loss history inquiries of
one or more insurers in response to a request by the consumer relating to a
homeowner insurance policy.
(3)
An insurer that uses loss history reports for underwriting or rating homeowner
insurance shall instruct the insurer’s insurance producers that an insurance
producer must notify the consumer that the insurance producer has requested a
loss history report before the insurance producer may obtain the report.
(4)
An insurer that uses a loss history report of a consumer when considering an
application for a homeowner insurance policy shall notify the consumer during
the application process that the consumer may request a free copy of the loss
history report from the consumer reporting agency and a written statement
describing the insurer’s use of the report. The notice to the applicant may be
in writing or in the same medium as the medium in which the application is
made. The written statement must contain the following explanations:
(a)
The ways in which the insurer uses loss history reports;
(b)
How often the insurer reviews a consumer’s loss history report; and
(c)
The procedures a consumer may use to obtain additional information. [2005 c.489
§6]
746.690 Obtaining information under false
pretenses prohibited. No person shall knowingly and
willfully obtain information about an individual from an insurer, insurance
producer or insurance-support organization under false pretenses. [1981 c.649 §20;
2003 c.364 §167]
PENALTIES
746.990
[Repealed by 1967 c.359 §704]
746.991 Penalties.
Violation of ORS 746.280 to 746.292 is a Class D violation. [1977 c.785 §8;
1999 c.1051 §221]
Note: See
note under 746.275.
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