MAY INSURANCE AGENTS DOING BUSINESS IN NEVADA RECIEVE BOTH A COMMISSION AND COMPENSATION FROM THE CUSTOMER?

BRIEF HISTORY BEHIND NEVADA

CURRENT PRODUCER LICENSING LAWS AND REGULATIONS 

Prior to 1999, each state, including Nevada, had its own insurance producer licensing requirements, and what each license type (including agents and brokers) could do varied from state to state.  A provision in the federal Gramm-Leach-Bliley Act of 1999 (GLBA) sought to streamline producer licensing by requiring states to enact certain reforms to insurance producer licensing or the federal government would assume the insurance licensing function.  The GBLA provision to force the states to reform insurance producer licensing called for the creation of a new organization called the National Association of Registered Agents and Brokers (NARAB) if greater state producer-licensing uniformity or reciprocity was not achieved by at least 29 states before November 2002.  So, the GLBA started a nationwide movement of states implementing sweeping reforms in producer licensing.  The National Association of Insurance Commissioners (NAIC) adopted the Producers Licensing Model Act (Model Act) for states to use in satisfying the GLBA.  NARAB was never created because at least 29 states met the requirements set forth in the GLBA for reciprocity and uniformity in non-resident licensing.  As of the first quarter of 2015, Nevada is one of the 39 states that have adopted new licensing laws.[1]  However, many large states failed to implement reciprocity of non-resident producer licensing, resulting in the push and congressional adoption of the National Association of Registered Agents and Brokers Reform Act (NARAB II as it is commonly called) which President Obama signed into law on January 12, 2015.   NARAB II has yet to affect Nevada’s current agent and broker licensing.[2]

Despite Nevada’s substantial adoption of the Model Act, Nevada does have uniqueness in how its laws, regulations and case law, both before and after the Model Act, affect how an agent and/or broker must engage in business.  One important Nevada case holds that, even if the insurance producer has an appointment with an insurance company, if that producer previously represented the insured in placing insurance with several insurance companies, that insurance producer is effectively a broker representing the insured and not an insurance agent for the insurance company.[3]

DEFINING AGENT VERSUS BROKER SINCE 2001

1. Agents

Since Nevada’s adoption of the NAIC Model Act, the following is a general list of what an insurance producer with an appointment with an insurance company may either do, or be responsible for, in Nevada:

1. The agent can sell, solicit or negotiate insurance in the State of Nevada for any class or classes of insurance for which the agent is licensed, provided the agent has an insurance appointment from an insurance company admitted to do business in the State of Nevada.

2. To be an agent, an appointment is required to be filed with the Nevada Insurance Division by all insurance companies for whom one is an agent. An appointment is required of those producers who are acting in the capacity of an “agent of the insurer”.[4]

3. A licensed insurance producer acting for a corporation that is licensed as an insurance producer, and which has an appointment with insurer, is acting as an agent.

4. An agent only receives fees and payment from the insurance company.[5]

5. An agent cannot charge any fees from the insured. Only premiums for the insurance can be charged and received by the agent.

6. An agent can only receive commissions and fees from the insurance company, and those commissions and fees must have been filed and approved by the Nevada Insurance Division as part of the premium rate filing made by the insurer.[6]

7. An agent may be determined to have a fiduciary duty to both the insurance company, as well as his, her or its clients where the agent has previously placed other coverage with other insurance companies for the client.[7]

8. If a person or entity licensed as an insurance producer sells a policy provided by an insurance company where he/she or it has no insurance appointment, then he/she or it is acting as a broker.

1. Brokers

Since Nevada’s adoption of the NAIC Model Act, the following is a general list of what an insurance producer without an appointment with an insurance company may either do, or be responsible for, in Nevada:

1. A broker can sell, solicit or negotiate insurance in the State of Nevada for any class or classes of insurance for which the broker is licensed.

2. A broker cannot have an insurance appointment from an insurance company.

3. The actual policy sold by the broker must be signed and/or countersigned by an agent appointed by the insurance company placing the insurance for the broker’s client.[8]

4. A person or entity can ONLY act as a broker when he places insurance with an insurance company that has not appointed him.[9]

5. A broker can only receive a commission on the placement of insurance by and through an agent and should never receive commission or fees from the insurance company issuing the insurance coverage.[10]

6. A broker has a duty, including a fiduciary duty, to the broker’s insured.[11]

7. For a broker to obtain fees directly from an insured or a potential insured, the broker must have a written agreement with the potential insured that fully informs the insured of all commissions the broker will receive from others, and also provide all fees and charges of the broker.[12]

8. The broker must disclose to the customer the amount of commissions the broker receives even if the broker does not charge any other fees or costs.[13] It is advisable, although not specifically required, to have this disclosure in writing.

An insurance producer may only act as a broker in Nevada if he, she or it has no appointment with the insurer and where the producer is not paid, directly or indirectly, by the insurer providing the insurance coverage.  Insurance producers acting as a broker should receive commissions only from a Nevada insurance producer appointed by the insurer that provided the insurance coverage.

AGENT (CONSULTANT) WITH AGREEMENT WITH CLIENT           

Under NAC 686A.335, an agent also licensed as a broker may enter into a consultant agreement with an insured where he, she or it can receive both commissions and fees.  However prior to November 1, 2012, the term “agent” in NAC 686A.335 referred to the repealed definition.  The term “agent” could not be affirmatively determined.[14]
Before Section 683A.030, Nevada Revised Statutes (NRS) was repealed in 2001, and replaced with NRS 683A.321.  NRS 683A.030 defined an “agent” as being “an individual, firm or corporation appointed by an insurer to solicit applications for insurance or annuity contracts or to negotiate for such contracts on its behalf, and if authorized to do so by the insurer, to effectuate and countersign contracts.”  Now the reference to the definition of “agent” is in NRS 683A.321 and it demonstrates that, since 2001, a broker cannot also be an agent regarding an insured.[15]  Although NAC 686A.335 was intended to permit agents licensed also as brokers to be able to receive fees besides commissions, the subsequent changes in Nevada laws and regulations obfuscates that apparent consent.  The Nevada Insurance Division has issued no written opinions or changes to NAC 686A.335 that have corrected or clarified this discord and, as the laws and regulations currently stand and have existed since 2001, Nevada agents cannot receive both commissions and fees.

Even with the Nevada Insurance Division’s consent to an agent charging fees, a strong legal argument could be made that an agent cannot also be a broker for the same insured in the same transaction because such a person, entity or corporation has an inherit conflict of interest by representing both the insurance company and the insured.  Fiduciary duties can be, and have been, argued to exist for brokers in relation to the insured.  Although Nevada has no cases defining fiduciary duties as being a cause of legal action, state court judges have upheld the cause of action against brokers and agents for alleged breach of fiduciary duty.  Former Nevada Insurance Commissioner Alice Molasky-Arman testified in a deposition on August 10, 2006, that NAC 686A.352 to NAC 686A.370 was a codification of the broker’s fiduciary duties.  Former NAC 686A.352 to NAC 686A.370 has been substituted in revisions of the NAC to now be NAC 683A.700 to NAC 683A.718.  Importantly, the regulation, specifically NAC 683A.714, applies common law, another strong argument that fiduciary duty applies, especially where a person, entity or corporation charges a fee to the insured.  NAC 683A.714 imposes the following duties on a broker:

The duties imposed on a broker in NAC 683A.716 [concerning self-dealing, and disclosures concerning compensation and certain quotes, as discussed below]:

1. Apply to every producer of insurance when acting as a broker.

2. Are in addition to and not in lieu of any other duty imposed on a broker by the Nevada Insurance Code or the common law of agency as recognized in this State.  (Emphasis added)

In Nevada, every agency relationship creates a fiduciary duty.[16]  Further, if the broker is paid more than just commissions, then a fiduciary relationship arguably exists.[17]

An agent owes to the principal the highest duty of fidelity, loyalty and honesty in the performance of the duties by the agent on behalf of the principal.[18]  An agent may not pervert his authority to his own personal gain in severe hostility to the interests of his principal.[19]  Before dealing with the principal on his own account, an agent has a duty, not only to make no misstatements of fact, but also to disclose to the principal all material facts fully and completely.[20]  A fact is material if it is one which the agent should realize would be likely to affect the judgment of the principal in giving his consent to the agent to enter into the particular transaction on the specified terms.  Therefore, any disclosure must include not only the fact that the agent is acting on his own account, but also all other facts which he should realize have or are likely to have a bearing upon the desirability of the transaction of the business of the principal to his best advantage.[21]

An insurance agent must make known to his principal all material facts within his knowledge which may in any way affect the transaction and the subject matter of his agency.[22]  This complies with the fiduciary requirement where broker’s fees are charged, the compensation received not only affects the transaction, but it is a critical fact.  If one does not disclose commissions, then arguably he/she or it fails to disclose information critical to the insured’s ability to negotiate or to make an informed decision about its purchase.  This disclosure also complies with the common law duty for an insurance broker to divulge the compensation received and a duty to assist the insured in obtaining insurance at the most reasonable rates.[23]  While this issue has not been addressed by the Nevada Supreme Court, other courts have stated that insurance brokers have a duty to disclose the commission received by the broker.

For instance, a Maryland federal district court held that an insurance broker had a duty to disclose the amount of commissions he received from the insurance carriers.[24]  Since the essence of any agreement with the insured is for increased compensation, it demonstrates a duty to the insured paying the additional compensation which requires complete disclosure.  Anyone entering into an agreement for the disclosing compensation must comply with NAC 683A.716 (formerly NAC 686A.368).  NAC 683A.716 sets forth what must be disclosed and, although it does not expressly state that such disclosure should be in a written agreement, that is the only manner to demonstrate compliance with NAC 683A.716.  NAC 683A.716 provides in pertinent part as follows:

A broker who represents a client in an insurance transaction:

1. Shall not unreasonably place his own interest above the interest of the client.

2. Shall, before or simultaneously with a client’s purchase of insurance, or the consummation of any other insurance transaction that would entitle the broker to compensation as a result of his representation of the client, disclose to the client:

      (a)  That the broker may receive compensation in some form from an insurer or other source as a result of his representation of the client in the transaction. 

      (b)  The name and identity of the source of the compensation and whether the broker has any ownership interest in, or is under common control with, the person providing compensation. 

      (c)  That the compensation received by the broker may differ depending upon the product and insurer.

      (d) The identity of any other person that the broker knows, or reasonably ought to know, will receive compensation from the insurer for assisting the broker in the insurance transaction.  As used in this paragraph, “person” does not include an intermediary, managing general agent or wholesale broker acting in the normal course of production.

These disclosures must be followed by a documented acknowledgment by the client and the broker that clearly indicates the client’s understanding of the contents of the disclosure statement before or simultaneously with the consummation of the insurance transaction.  In the case of a transaction consummated over the telephone or by electronic means, the client’s understanding of the disclosure must be documented by the broker at the time of the transaction followed by a documented acknowledgment by the client and the broker.

3. Shall, before a client’s purchase of insurance, disclose to the client the name of each insurer or other person that supplied the broker with a quote that would reasonably meet the client’s needs. (Emphasis added)

An agreement for fees plus commissions with an insured or potential insured should comply with NAC 686A.335 and NAC 686A.716.

Another arguable obstacle to an agent obtaining fees and commissions is that the Nevada Insurance Division or litigant could contend, despite subsection NRS 686A.230(4), any charges or fees added by an agent of the insurer should be filed and approved by the Nevada Insurance Division as it relates to premium.  Pursuant NRS 686B.070, insurers must file rates and forms for substandard automobile insurance with the Nevada Insurance Division.  Commissions and costs related to insurance must be filed and approved by the Nevada Insurance Division.  In addition, NRS 686A.230 specifically provides that it is illegal for agents to charge excess fees in addition to the premiums, but it is not improper for a broker or consultant with a written contract to do so.  Again, the reference to “agent” in NRS 686A.230(4) was to an old definition that has since been repealed and again appears to obfuscate not only its meaning but seemingly impairs an agent from receiving a fee besides commissions.  Again, it is recommended that the best route for fees besides commissions is for the person or entity to be licensed[25] as an insurance producer without appointments with the insurer placing the insurance, thus in all respects acting as a broker.

Despite NRS 686A.230(4) providing that a fee or charge is not premium, NAC 686A.340 provides commission for services is to be taxed as premium.[26] NAC 686A.340 provides: “Any commission received by a financial planner, agent or broker for services related to the sale of insurance shall be deemed a premium for purposes of the tax imposed by chapter 680B of NRS.”

CONCLUSION

An agent doing business in the State of Nevada appears to be limited to receiving commissions and fees only from the insurer with whom business is placed.  A broker without an agreement is limited to receiving commissions and fees from the insurer’s agent and then such commissions and fees must have been filed with the Nevada Insurance Division as part of the premium filing. The only current latitude to define the relationship including commissions and fees is a written agreement between the broker and the insured or potential insured.  In the end, the test of the difference is easy:  only a broker with a written agreement concerning all the details of services and commissions and fees can charge for any service provided to the insured.

[1] As of the first quarter of 2015, thirty-nine (39) states and the District of Columbia have adopted the NAIC Model Act: Alabama, Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New Jersey, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Vermont, West Virginia and Wyoming. Model Regulation Service – 1st Quarter 2015, Producer Licensing Model Act, National Association of Insurance Commissioners.

[2] NARAB II is intended to streamline the non-resident producer licensing process.  NARAB II creates no federal regulator but establishes a non-profit corporation, known as the National Association of Registered Agents and Brokers (NARAB), governed by a 13-member governing board comprising of eight state insurance commissioners and five insurance industry representatives subject to presidential appointment and Senate confirmation.  The stated purpose of NARAB II is to provide “a mechanism through which licensing, continuing education, and other nonresident insurance producer qualification requirements and conditions may be adopted and applied on a multi-state basis without affecting the laws, rules, and regulations, and preserving the rights of a State, pertaining to” certain specific product-related conduct.  Terrorism Risk Insurance Program Reauthorization Act of 2015, H.R. 26, 114th Cong. §322 (1st Sess. 2015).  NARAB II preserves the rights of a state pertaining to resident licensing and continuing education, supervision and disciplinary actions for non-resident producers.  The Act also includes disclosures to the states, addresses business entity licensing and protects state revenues.

[3] In Grand Hotel Gift Shop v. Granite State Ins. Co., 108 Nev. 811, 839 P.2d 599 (1992) (Granite State Insurance Company’s appointed agent, Harmon, was actually the representative (agent) of the Grand Hotel Gift Shop).  In that case, the Gift Shop had been using Harmon for its insurance needs since the 1960s.  Harmon, which was licensed in Nevada both as a broker and as an agent, had advised the Gift Shop regarding its insurance coverage requirements for the entire period since its opening.  The agency had appointments as a resident agent by five insurance companies.  Of the total insurance premiums collected on policies written through Harmon in 1979, approximately 25% were based on policies issued by Granite State.  In obtaining policies from Granite State, Harmon dealt with a company known as Western General Agency, which was the managing general agent for Granite State.  Granite State issued policies only through such intermediaries rather than to the public.  Either Harmon or Granite State could revoke Harmon’s agency appointment, and Granite State did not restrict whom Harmon could solicit as a potential insured.  Moreover, Granite State did not require Harmon to submit potential clients to it exclusively, nor did it require Harmon to produce any specific amount of premiums for Granite State in order to keep the agency appointment.  After Harmon collected its premium from the insured, it deducted its commission, which was its only compensation, from the premium and forwarded the remaining portion to Granite State.  Thus, because the facts of Grand Hotel case are similar to those of another case in which the independent insurance agent was held to be the agent of the plaintiff-insured, and because of the court’s application of the same factors among the two cases, the Grand Hotel court concluded that Harmon was an agent of the Gift Shop rather than an agent of Granite State.

[4] NRS 683A.321 provides in pertinent part:

A producer of insurance shall not act as an agent unless he or she is appointed as an agent by the insurer.  A producer who is not acting as an agent is a broker who does not need to be appointed.

*   *   *   *

7. As used in this section:

(a)   “Agent” means a producer of insurance who is compensated by the insurer and sells, solicits or negotiates insurance for the insurer.

(b)   “Broker” means a producer of insurance who:

(1)   Is not an agent of an insurer;

(2)   Solicits, negotiates or procures insurance on behalf of an insured or prospective insured; and

(3)   Does not have the power, by his or her own action as a broker, to obligate an insurer upon any risk or with reference to any transaction of insurance.

[5] NRS 683A.361 provides that:

5. An insurer shall not pay a commission, directly or indirectly, to a producer of insurance for selling, soliciting or negotiating insurance in this State unless the producer of insurance is appointed as an agent of the insurer as provided in NRS 683A.321.

6. A producer of insurance shall not accept a commission from an insurer for selling, soliciting or negotiating insurance in this State unless the producer of insurance is appointed as an agent of the insurer as provided in NRS 683A.321.

[6] Insurers are required to file rates and forms for substandard automobile insurance with the Nevada Insurance Division, pursuant to Chapter 686B of The Nevada Revised Statutes.  Commissions and costs related to insurance are required to be filed and approved by the Nevada Insurance Division.  In addition, the provisions of NRS 686A.230 specifically provide that it is illegal for agents to charge excess fees in addition to the premiums but not improper for a broker or consultant with a written contract.

[7]  Grand Hotel Gift Shop v. Granite State Ins. Co., 839 P.2d 599, 108 Nev. 811 (1992)               

[8] NRS 683A.321(7) provides:

As used in this section:

(a)   “Agent” means a producer of insurance who is compensated by the insurer and sells, solicits or negotiates insurance for the insurer.

(b)   “Broker” means a producer of insurance who:

(1)   Is not an agent of an insurer;

(2)   Solicits, negotiates or procures insurance on behalf of an insured or prospective insured; and