23-64-234. Travel insurance — Scope — Definitions — Licensing — Premium tax.

23-64-234. Travel insurance — Scope — Definitions — Licensing — Premium tax. (a)(1) This section applies to travel insurance that: (A) Covers a resident of this state; (B) Is sold, solicited, negotiated, or offered in this state; and (C) Has policies and certificates that are delivered or issued for delivery in this state. (2) This section does not apply to a cancellation fee waiver or travel assistance services except as provided in this section. (3) All other applicable provisions of this state's insurance laws shall continue to apply to travel insurance except that this section shall supersede any general provisions of law that would otherwise be applicable to travel insurance. (b) As used in this section: (1)(A) “Aggregator site” means a website that provides access to information regarding insurance products from more than one (1) insurer. (B) “Aggregator site” includes a website that provides product and insurer information for use in comparison shopping; (2) “Blanket travel insurance” means a policy issued to an eligible group providing coverage for specific classes of persons defined in the policy with coverage provided to all members of the eligible group without a separate charge to individual members of the eligible group; (3)(A) “Cancellation fee waiver” means a contractual agreement between a supplier of services for travel and its customer to waive some or all of the nonrefundable cancellation fee provisions of the underlying travel contract of the supplier with or without regard to the reason for the cancellation or form of reimbursement. (B) “Cancellation fee waiver” is not insurance under this section; (4) “Eligible group” means two (2) or more persons who are engaged in a common enterprise, or have an economic, educational, or social affinity or relationship, including without limitation any of the following: (A)(i) An entity engaged in the business of providing travel or services for travel, if in regard to any particular travel or type of travel or travelers, all members or customers of the group have a common exposure to risk attendant to the travel. (ii) An entity as described in subdivision (b)(4)(A)(i) of this section includes without limitation: (a) A tour operator; (b) A lodging provider; (c) A vacation property owner; (d) A hotel or resort; (e) A travel club; (f) A travel agency; (g) A property manager; (h) A cultural exchange program; or (i) A common carrier or the operator, owner, or lessor of a means of transportation of passengers, including without limitation: (1) An airline; (2) A cruise line; (3) A railroad; (4) A steamship company; or (5) A public bus carrier; (B) A college, school, or other institution of learning covering students, teachers, employees, or volunteers; (C) An employer covering a group of employees, volunteers, contractors, members of a board of directors, dependents, or guests; (D) A sports team, camp, or sponsor thereof covering participants, members, campers, employees, officials, supervisors, or volunteers; (E) A religious, charitable, recreational, educational, or civic organization or branch thereof covering any group of members, participants, or volunteers; (F) A financial institution or financial institution vendor, parent holding company, trustee, or an agent of a financial institution or financial institution vendor, parent holding company, trustee, or a designee of one (1) or more financial institutions or financial institution vendors, including without limitation an accountholder, credit card holder, debtor, guarantor, or purchaser; (G) An incorporated or unincorporated association, including without limitation a labor union, that has a common interest, constitution, and bylaws and is organized and maintained in good faith for purposes other than obtaining insurance for members or participants of the association covering its members; (H) A trust or the trustees of a fund that is established, created, or maintained for the benefit of and covering members, employees, or customers, subject to the permission of the Insurance Commissioner to use a trust and the state's premium tax provisions, as provided in subdivision (d)(1) of this section, of one (1) or more associations meeting the requirements of subdivision (b)(4)(G) of this section; (I) An entertainment production company covering a group of participants, volunteers, audience members, contestants, or workers; (J) A volunteer fire department, ambulance, rescue, police, court, or any first aid, civil defense, or other similar volunteer group; (K) A preschool, daycare institution for children or adults, or senior citizen club; (L)(i) An automobile or truck rental or leasing company covering a group of individuals who may become renters, lessees, or passengers as defined by their travel status on the rented or leased vehicles. (ii) A common carrier, owner, operator, or lessor of a means of transportation, or an automobile or truck rental or leasing company, is the policyholder under a policy to which this section applies; or (M) Any other group if the commissioner has determined that the members are engaged in a common enterprise, or have an economic, educational, or social affinity or relationship, and that issuance of the policy would not be contrary to the public interest; (5) “Fulfillment materials” means documentation sent to the purchaser of a travel protection plan confirming the purchase and providing the travel protection plan's coverage and travel assistance services details; (6) “Group travel insurance” means travel insurance issued to an eligible group; (7) “Limited lines travel insurance producer” means: (A) A managing general agent; (B) An insurance producer, including a limited lines producer; or (C) A travel administrator; (8) “Offer and disseminate” means to: (A) Provide general information, including without limitation a description of the insurance coverage and the cost of the insurance coverage; (B) Process an application for insurance coverage; (C) Collect the premiums for insurance coverage; and (D) Perform other nonlicensed activities allowed by the insurance laws of this state; (9) “Primary certificate holder” means an individual who elects and purchases travel insurance under a group policy; (10) “Primary policyholder” means an individual who elects and purchases a policy for individual travel insurance; (11)(A) “Travel administrator” means a person that, directly or indirectly, underwrites, collects or charges collateral or premiums from, or adjusts or settles claims on, residents of this state in connection with travel insurance. (B) “Travel administrator” does not include a person whose only actions that would otherwise cause it to be considered a travel administrator are among the following: (i) The person works for a travel administrator to the extent that the person's activities are subject to the supervision and control of the travel administrator; (ii) The person is an insurance producer selling insurance or engaged in administrative and claims-related activities within the scope of the license of the insurance producer; (iii) The person is a travel retailer offering and disseminating travel insurance and registered under the license of a limited lines travel insurance producer according to this section; (iv) The person is an individual adjusting or settling claims in the normal course of that individual's practice or employment as an attorney-at-law and does not collect charges or premiums in connection with insurance coverage; or (v) The person is a business entity that is affiliated with a licensed insurer while acting as a travel administrator for the direct and assumed insurance business of an affiliated insurer; (12)(A) “Travel assistance service” means a noninsurance service: (i) For which the consumer is not indemnified based on a fortuitous event; and (ii) That does not result in the transfer or shifting of risk that would constitute the business of insurance. (B) “Travel assistance services” includes without limitation: (i) Security advisories; (ii) Destination information; (iii) Vaccination and immunization information services; (iv) Travel reservation services; (v) Entertainment; (vi) Activity and event planning; (vii) Translation assistance; (viii) Emergency messaging; (ix) International legal and medical referrals; (x) Medical case monitoring; (xi) Coordination of transportation arrangements; (xii) Emergency cash transfer assistance; (xiii) Medical prescription replacement assistance; (xiv) Passport and travel document replacement assistance; (xv) Lost luggage assistance; (xvi) Concierge services; and (xvii) Any other service that is furnished in connection with planned travel. (C) “Travel assistance services” is not considered insurance and is not related to insurance; (13)(A) “Travel insurance” means insurance coverage for personal risks incident to planned travel, including without limitation: (i) Interruption or cancellation of a trip or event; (ii) Loss of baggage or personal effects; (iii) Damages to accommodations or rental vehicles; (iv) Sickness, accident, disability, or death occurring during travel; (v) Emergency evacuation; (vi) Repatriation of remains; or (vii) Any other contractual obligations to indemnify or pay a specified amount to a traveler upon determinable contingencies related to travel as approved by the commissioner. (B) “Travel insurance” does not include major medical plans that provide comprehensive medical protection for travelers on trips lasting longer than six (6) months, including without limitation an individual who is working or residing overseas as an expatriate, or any other product that requires a specific insurance producer license; (14) “Travel protection plan” means a plan that provides one (1) or more of the following: (A) Travel insurance; (B) Travel assistance services; or (C) Cancellation fee waivers; and (15) “Travel retailer” means a business entity that makes, arranges, or offers planned travel and offers and disseminates travel insurance as a service to a customer of the business entity on behalf of and under the direction of a limited lines travel insurance producer. (c)(1)(A) The commissioner may issue a limited lines travel insurance producer license to an individual or business entity that has filed with the commissioner an application for a limited lines travel insurance producer license in a form and manner prescribed by the commissioner. (B) A limited lines travel insurance producer shall be licensed to sell, solicit, and negotiate travel insurance through a licensed insurer. (C) A person shall not act as a limited lines travel insurance producer or travel retailer unless properly licensed or registered under the insurance laws of this state. (2) A travel retailer may offer and disseminate travel insurance under a limited lines travel insurance producer business entity license only if the following conditions are met: (A) A limited lines travel insurance producer or travel retailer provides to purchasers of travel insurance: (i) Actual material terms of the insurance coverage or a description of the material terms; (ii) A description of the process for filing a claim; (iii) A description of the review or cancellation process for the travel insurance policy; and (iv) The identity of and contact information for the insurer and limited lines travel insurance producer; (B)(i) A limited lines travel insurance producer establishes at the time of licensure and maintains a register, on a form prescribed by the commissioner, of each travel retailer that offers travel insurance on behalf of the limited lines travel insurance producer in this state. (ii) A register described under subdivision (c)(2)(B)(i) of this section shall be maintained and updated by the limited lines travel insurance producer and include: (a) The name, address, and contact information for the travel retailer and an officer or other person who directs or controls the travel retailer's operations; and (b) The federal employer identification number of the travel retailer. (iii) The limited lines travel insurance producer shall: (a) Provide the register described under subdivision (c)(2)(B)(i) of this section on application for and renewal of a limited lines travel insurance producer license; and (b) Certify that the travel retailer registered is in compliance with 18 U.S.C. § 1033, as it existed on January 1, 2019. (iv) The grounds for the suspension, revocation, and any penalties that are applicable to resident insurance producers shall be applicable to the limited lines travel insurance producers and travel retailers; (C) A limited lines travel insurance producer has designated an employee who is a licensed individual producer who shall be known as a designated responsible producer, to be responsible for compliance with the travel insurance laws and regulations applicable to the limited lines travel insurance producer and its registrants; (D) A designated responsible producer, president, secretary, treasurer, and any other officer or person who directs or controls the limited lines travel insurance producer's insurance operations shall comply with the fingerprinting requirements applicable to insurance producers in the resident state of the limited lines travel insurance producer; (E) A limited lines travel insurance producer pays the applicable insurance producer licensing fees; and (F)(i) A limited lines travel insurance producer requires each employee and authorized representative of the travel retailer that offers and disseminates travel insurance to receive instruction or training that may be reviewed and approved by the commissioner. (ii) At a minimum, the training material shall contain instructions on the types of insurance offered, ethical sales practices, and the required disclosures to provide to customers. (3)(A) A travel retailer offering or disseminating travel insurance shall make available to prospective purchasers brochures or other written materials that have been approved by the insurer. (B) A brochure or other written materials, at a minimum, shall contain the following information: (i) The identity of and contact information for the insurer and limited lines travel insurance producer; (ii) An explanation that the purchase of travel insurance is not required to purchase any other product or service from the travel retailer; and (iii) An explanation that an unlicensed travel retailer may provide general information about the insurance coverage offered by the travel retailer, including a description of the insurance coverage and the cost of the insurance coverage, but shall not answer technical questions about the insurance terms and conditions offered by the travel retailer or provide an evaluation of the adequacy of any existing insurance coverage. (4) A travel retailer employee or authorized representative of the travel retailer that is not licensed as an insurance producer shall not: (A) Evaluate or interpret the technical terms, benefits, and conditions of the offered travel insurance coverage; (B) Evaluate or provide advice concerning a prospective purchaser's existing insurance coverage; or (C) Hold themselves or itself out as a licensed insurer, producer, or insurance expert. (5) Notwithstanding any other provision in law, a travel retailer, its employees, and authorized representatives of the travel retailer that receive training under subdivision (c)(2)(F)(i) of this section and whose insurance-related activities are limited to offering and disseminating travel insurance on behalf of and under the direction of a limited lines travel insurance producer that is licensed under this subchapter may receive compensation if listed on the registry maintained by the limited lines travel insurance producer under subdivision (c)(2)(B)(i) of this section. (6) As an insurer designee, the limited lines travel insurance producer is responsible for the acts of the travel retailer and shall use reasonable means to ensure compliance by the travel retailer with this section. (7)(A) A person licensed in a major line of authority as an insurance producer is authorized to sell, solicit, and negotiate travel insurance. (B) A property and casualty insurance producer is not required to become appointed by an insurer in order to sell, solicit, or negotiate travel insurance. (d)(1) An insurer shall pay premium tax, as provided in § 26-57-603, on travel insurance premiums paid by any of the following: (A) An individual primary policyholder who is a resident of this state; (B) A primary certificate holder who is a resident of this state and elects coverage under a group travel insurance policy; or (C) A blanket travel insurance policyholder that is a resident in, or has its principal place of business or the principal place of business of an affiliate or subsidiary in, this state if that affiliate or subsidiary has purchased blanket travel insurance in this state for eligible blanket group members, and subject to any apportionment rules which apply to the insurer across multiple taxing jurisdictions or that permits the insurer to allocate premium on an apportioned basis in a reasonable and equitable manner in those jurisdictions. (2) An insurer shall: (A) Document the state of residence or principal place of business of the primary policyholder or primary certificate holder, as required in subdivision (d)(1) of this section; and (B) Report as premium only the amount allocable to travel insurance and not any amounts received for travel assistance services or cancellation fee waivers. (e) A travel protection plan may be offered for one (1) price for the combined features that the travel protection plan offers in this state if: (1) A travel protection plan clearly discloses to the consumer at or before the time of purchase that the travel protection plan includes travel insurance, travel assistance services, and cancellation fee waivers, as applicable, and provides information and an opportunity at or before the time of purchase for the consumer to obtain additional information regarding the features and pricing of each; and (2) The fulfillment materials: (A) Describe and delineate the travel insurance, travel assistance services, and cancellation fee waivers in the travel protection plan; and (B) Include the travel insurance disclosures and the contact information for persons providing travel assistance services and cancellation fee waivers, as applicable. (f)(1)(A) Except as provided in subdivision (f)(1)(B) of this section, a person offering travel insurance to residents of this state is subject to the Trade Practices Act, § 23-66-201 et seq. (B) If a conflict exists between this section and any other insurance law of this state regarding the sale and marketing of travel insurance and travel protection plans, this section controls. (2) Offering or selling a travel insurance policy that could never result in payment of any claims for any insured under the policy is an unfair trade practice under the Trade Practices Act, § 23-66-201 et seq. (3)(A) All documents provided to consumers before the purchase of travel insurance, including without limitation sales materials and marketing materials, shall be consistent with the travel insurance policy itself, including without limitation, forms, endorsements, policies, rate filings, and certificates of insurance. (B) For travel insurance policies or certificates that contain pre-existing condition exclusions, information and an opportunity to learn more about the pre-existing condition exclusions shall be provided any time before the time of purchase and in the coverage's fulfillment materials. (C)(i) The fulfillment materials and the information described in subdivision (c)(2)(A) of this section shall be provided to a primary policyholder or primary certificate holder as soon as practicable following the purchase of a travel protection plan. (ii)(a) Unless the insured has either started a covered trip or filed a claim under the travel insurance coverage, a primary policyholder or primary certificate holder may cancel a policy or certificate for a full refund of the travel protection plan price from the date of purchase of a travel protection plan until at least: (1) Fifteen (15) days after the date of delivery of the travel protection plan's fulfillment materials by postal mail; or (2) Ten (10) days after the date of delivery of the travel protection plan's fulfillment materials by means other than postal mail. (b) For purposes of subdivision (f)(3)(C)(ii)(a) of this section, “delivery” means handing fulfillment materials to the primary policyholder or primary certificate holder or sending fulfillment materials by postal mail or electronic means to the primary policyholder or primary certificate holder. (D) The policy documentation and fulfillment materials shall disclose whether the travel insurance is primary or secondary to other applicable coverage. (E) If travel insurance is marketed directly to a consumer through an insurer's website or by others through an aggregator site, it shall not be an unfair trade practice or other violation of law when an accurate summary or short description of coverage is provided on the insurer's website or aggregator site, so long as the consumer has access to the full provisions of the policy through electronic means. (4) A person offering, soliciting, or negotiating travel insurance or travel protection plans on an individual or group basis shall not do so by using negative option or opt out, which would require a consumer to take an affirmative action to deselect coverage such as unchecking a box on an electronic form when the consumer purchases a trip. (5) It is an unfair trade practice under the Trade Practices Act, § 23-66-201 et seq., to market blanket travel insurance coverage as free. (6) If a consumer's destination jurisdiction requires insurance coverage, it is not an unfair trade practice under the Trade Practices Act, § 23-66-201 et seq., to require that a consumer choose between the following options as a condition of purchasing a trip or travel package: (A) Purchasing the coverage required by the destination jurisdiction through the travel retailer or limited lines travel insurance producer supplying the trip or travel package; or (B) Agreeing to obtain and provide proof of coverage that meets the destination jurisdiction's requirements before departure. (g)(1) Notwithstanding any other provision of insurance laws in this state, a person shall not act or represent itself as a travel administrator for travel insurance in this state unless that person: (A) Is a licensed property and casualty insurance producer in this state for activities permitted under that property and casualty insurance producer license; or (B) Holds a valid managing general agent license in this state. (2) A travel administrator and its employees are exempt from the licensing requirements for adjusters under § 23-64-201 for travel insurance it administers. (3) An insurer is responsible for the acts of a travel administrator administering travel insurance underwritten by the insurer and is responsible for ensuring that the travel administrator maintains all books and records relevant to the insurer to be made available by the travel administrator to the commissioner upon request. (h)(1) Notwithstanding any other provision of the insurance laws of this state, travel insurance shall be classified and filed for purposes of rates and forms as marine insurance, provided, however, that travel insurance that provides coverage for sickness, accident, disability, or death occurring during travel, either exclusively or in conjunction with related coverages of emergency evacuation or repatriation of remains or in conjunction with incidental limited property and casualty benefits such as baggage or trip cancellation, may be filed by an authorized insurer under either an accident and health line of insurance or a marine line of insurance. (2) Travel insurance may be in the form of an individual, group, or blanket policy. (3) Eligibility and underwriting standards for travel insurance may be developed and provided based on travel protection plans designed for individual or identified marketing or distribution channels, provided those standards also meet the state's underwriting standards for marine insurance. (i)(1) The commissioner shall promulgate rules necessary to implement this section. (2)(A) When adopting the initial rules to implement this section, the final rule shall be filed with the Secretary of State for adoption under § 25-15-204(f): (i) On or before January 1, 2020; or (ii) If approval under § 10-3-309 has not occurred by January 1, 2020, as soon as practicable after approval under § 10-3-309. (B) The commissioner shall file the proposed rule with the Legislative Council under § 10-3-309(c) sufficiently in advance of January 1, 2020, so that the Legislative Council may consider the rule for approval before January 1, 2020.