PCI Seeks Changes to Proposed Rule on Producer Compensation in Oregon

December 9, 2004

The Property Casualty Insurers Association of America (PCI) has voiced its general support of the Oregon Insurance Division’s effort to establish an objective way to determine when an insurance broker must make disclosures regarding compensation from someone other than the insured.

The proposed rule would impose disclosure requirements when an insurance broker charges a prospective insured a fee or commission.

“An insurance broker who charges a fee or a commission to a prospective insured should be responsible for providing the insured with basic information about the charges,” said Sam Sorich, vice president and western regional manger for PCI. “While we believe the focus of the proposed rules is correct, they specify disclosure requirements that are unnecessary.”

The rules would require the disclosure of the dollar amounts paid by the insurer and description of any potential conflicts of interest. “A disclosure of the dollar amount paid by the insurer does not significantly enhance the substantive disclosure that is required by the rule,” Sorich said. “A consumer needs to know that compensation is being paid to the broker from another source. That alerts the consumer to a potential for a conflict of interest. The calculations of compensation paid to brokers can include insurers’ proprietary information and should not be made available to competitors. In addition, the mandate to describe any potential conflicts of interest would impose a requirement for which compliance could never be assured. A broker would never be certain whether he or she described every possible conflict of interest.”

During a hearing on this issue on Dec. 7, PCI also urged the division not to adopt the regulations that have been proposed by the California Department of Insurance. The California proposal, which is scheduled for a hearing Jan. 6, 2005, would impose a fiduciary duty on brokers to provide the “best available insurers.” The definition of “best available insurers” is the most suitable insurers based on “coverage, service, financial security and price.”

“The definition of ‘best available’ in the proposed regulation is anything but clear,” Sorich said. “The proposal is extremely subjective and would create situations ripe for litigation. To compound the problem, the California proposal provides no guidance on how the terms are to be weighted. If coverage would become an issue sometime in the future, then it will be argued that coverage should be given the most weight. If an insurer goes insolvent, it will be argued that financial security should be given the most weight. The proposal is ambiguous and unworkable.”

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