N.Y. Insurance Law § 2339: Charging or receiving of rates; deviations

§ 2339. Charging or receiving of rates; deviations. (a) This section

shall apply only to kinds of insurance the rates for which are subject

to prior approval pursuant to subsection (b) of section two thousand

three hundred five of this article.

(b) No member of or subscriber to a rate service organization, and no

insurer which makes and files its own rates, shall charge or receive any

rate which deviates from the rates, rating plans, classifications,

schedules, rules and standards made and filed by such rate service

organization, or by such insurer, as the case may be, which are

applicable to any kind or type of business done by such member or

subscriber, or by such insurer, except as provided in this article.

(c) Any insurer which is a member of or subscriber to a rate service

organization may make written application to the superintendent for

permission to deviate from the rates, schedules, rating plans or rules

filed on its behalf by the rate service organization. The application

shall specify the basis for the modification and a copy shall also be

sent simultaneously to such rate service organization. In considering

the application to deviate the superintendent shall give consideration

to the available statistics and the principles for rate making as

provided in section two thousand three hundred four of this article. If

the superintendent finds the deviation to be justified, he shall approve

it to be effective for a period to be fixed by him, but in no event for

a period of less than one year, unless sooner terminated by the

applicant with the permission of the superintendent or unless sooner

withdrawn or appropriately adjusted by an order of the superintendent

made in accordance with the provisions of this article generally

applicable to rate filings. If the superintendent finds that the

deviation applied for does not meet the requirements of this article, he

shall send to the applicant written notice of his disapproval,

specifying in what respects he finds it fails to meet the requirements

of this article. The superintendent shall inform the rate service

organization of his action upon the deviation application.

(d) (1) Notwithstanding any other provision of law, except as provided

in paragraph three of this subsection, the state insurance fund shall

not charge an insured any rate, or receive from an insured any rate in

excess of the total of (i) the applicable loss cost approved by the

superintendent, (ii) the applicable expense component of the state

insurance fund and (iii) a fair and reasonable differential charge which

takes into consideration the nature and hazards of the insured's

business or operations, the insured's prior loss experience, the

insured's prior and presently existing safety practices, the insured's

prior premium payment history, the number of persons the insured employs

in such business or operations and the specific type of work they

perform, the insured's prior and current compliance with obligations

imposed upon the insured by the workers' compensation law and other laws

which require premium or other payments by the insured on the basis of

earnings and other remuneration earned by persons engaged in the

furtherance of the insured's enterprise or enterprises, the promptness

and completeness of such reports as the insured has filed on accidents

and claims, and such other factors as may be relevant to the appraisal

of the insured or proposed insured as a risk in whole.

(2) A differential charge applied by the state insurance fund to a

workers' compensation and employer's liability insurance policy may be

challenged by the insured by an appeal to the superintendent after an

exhaustion by the insured of all internal review procedures of the state

insurance fund as established by rules adopted by the commissioners of

the state insurance fund and filed with the secretary of state; provided

that a writing setting forth the grounds upon which such appeal is based

is served and filed with the superintendent and with the secretary to

the board of commissioners of the state insurance fund within thirty

days after a final determination by the state insurance fund. Appeals to

the superintendent shall be determined upon papers and documents that

were before the state insurance fund in connection with the internal

review procedures, the writing setting forth the grounds of the

insured's appeal and any answer to such appeal served by the state

insurance fund upon the insured and filed with the superintendent within

thirty days after the service of the insured's notice.

(3) The provisions of this section shall not apply to a policy sold by

the state insurance fund under article six-G of the executive law. The

rate which the state insurance fund may charge under such article shall

be governed only by such regulations or guidelines as the superintendent

may issue.