DIVISION OF INSURANCE
Readoption with Amendments: N.J.A.C 11:3
Adopted Repeals: N.J.A.C. 11:3-2B, 16 Appendix Exhibit A1; 16A, 18.4, 18.5, 19, 19A.9, 42 and 44.4.
Adopted Repeal and New Rule: N.J.A.C. 11:3-16 Appendix Exhibit H
Proposed: November 6, 2000 at 32 N.J.R. 3891(a).
Adopted: January 3, 2001 by Karen L. Suter, Commissioner, Department of Banking and Insurance.
Filed: January 4, 2001 as R. 2001 d. 44 with technical and substantial changes not requiring additional public notice and comment (see N.J.A.C. 1:30-4.3).
Authority: N.J.S.A. 17:1C-6(e) and 17:1-8.1.
Effective Date: January 4, 2001, Readoption and February 5, 2001 , Amendments, Repeals and New Rule
Expiration Date: January 4, 2006
Summary of Public Comments and Agency Responses:
During the comment period that closed December 6, 2000, the Department of Banking and Insurance (Department) received 12 written comments regarding this proposal from the following: New Jersey Auto Agents Alliance; Independent Insurance Agents of New Jersey; Allstate New Jersey Insurance Company; Professional Insurance Agents; First Trenton Companies; Insurance Services Office, Inc.; New Jersey Manufacturers Insurance Group; Prudential Property and Casualty Insurance Company of New Jersey; National Association of Independent Insurers; Insurance Council of New Jersey; State Farm Insurance Companies and Harleysville Insurance Companies.
COMMENT 1: One commenter recommends changes in the plan of operation of the New Jersey Personal Automobile Plan, that was established pursuant to N.J.S.A. 17:29D-1. These recommended changes would necessitate several major changes to the following:
1. N.J.A.C. 11:3-2.5(a)2 – to increase the size of the PAIP Governing Board to include four instead of three licensed procedures.
2. N.J.A.C. 11:3-2.5(d)4 – to permit the New Jersey Auto Agents Alliance Inc. (AIPSO) to nominate one member of the PAIP Governing Board.
3. N.J.A.C. 11:3-2.7(d)1 - to increase physical damaged coverage to reflect the increase in the actual cost value of cars in today’s market.
RESPONSE: These suggestions would involve a major revision of the PAIP and would exceed the scope of this proposal. Normally, the Department does not undertake major changes during chapter readoptions since such matters deserve the focused attention that is provided y an individual proposal.
Additionally, regarding the specific suggestions the Department responds as follows:
1. The membership of the PAIP Governing Board is set at 14 with eight members being salaried employees of participating insurers; three members being licensed producers; one member of the public; one member being employed by a LAD servicing carrier and the Commissioner (non-voting). The Department notes that the composition of the Board has worked well since it was created by N.J.S.A. 17:29D-1 in 1990. There does not appear to be any reason why another licensed producer should be added to the Board and, thus, the Department is not inclined to look favorably on this suggestion.
2. Since the Department does not see any need to increase the size of the PAIP Governing Board, there is not need to consider the commenter’s second suggestion.
3. Regarding the last suggestion, the Department notes that the physical damage coverage is set at $30,000. Since the Department considers this amount of physical damage coverage to be adequate in this residual market, the Department does not agree with the suggestion.
COMMENT 2: A commenter suggests that the Department amend N.J.A.C 11:3-33.4(a) to remove the words "or request" from those situations in which an insurer or agent must respond to an application for coverage with a quote or a denial. The commenter also claims that the time period for keeping a quote open should be decreased from 90 to 30 days after the date of the request for coverage.
RESPONSE: In Bulletin # 00-03, dated 3/28/2000, the Department asked all interested parties to make suggestions for changes during the chapter 3 readoption. This commenter refers to one of the suggestions received by the Department during the preproposal stage. After careful consideration, the Department chose not to act on these suggestions. The Department notes that these two changes would reduce the rights of consumers. One would limit the opportunity to obtain a premium quote to those situations where a written application is made by the consumer; and the other would reduce the timeframe within which a quote must be kept open. Since these are important consumer rights, the Department does not choose to accept these recommendations.
COMMENT 3: One commenter recommends that the provisions of N.J.A.C. 11:3-34.4(a)6 should be amended to include situations to permit policy cancellations where there is a lapse of coverage of at least 30 days, for failure to pay premiums at the time of renewal. Thus, these changes would provide insurers with more opportunities for cancellation of private passenger automobile insurance.
RESPONSE: The provisions of N.J.A.C. 11:3-34.4 pertain to the rules for determining operators that do not qualify as eligible persons. This section states that certain categories of persons are not considered to be eligible persons for purposes of private passenger automobile insurance. This provision applies to those policyholders who fail to pay premiums and suffer a lapse of coverage of 30 days or more during the term of the policy. This is not the same circumstance as those policyholders who do not renew their policies. The Department considers that it is inappropriate to include persons who do not renew coverage in the same category as those insureds who do not pay for the coverage on an existing policy. It should also be noted that cancellation of existing coverage is subject N.J.S.A. 17:29C-7 et seq. and not subject to change by administrative rule.
COMMENT 4: The Department received one comment recommending several changes in the provisions of N.J.A.C. 11:3-46, Automobile Insurance Urban Enterprise Zone Program. ("UEZ") These suggestions include the following: (1) expand the number of designated cities that qualify as auto insurance UEZs; (2) develop plans to develop the skills of UEZ agents; (3) change the UEZ market share from 95 percent to 98 percent in determination of an insurer's compliance with UEZ goals; (4) require the Department to monitor an insurer’s UEZ efforts during the entire quarterly period of any shortfall in UEZ goals; (5) permit the use of communications between agents and insurers via electronic modem instead of via mail in order to expedite the quotation and application process; and (6) all reports associated with UEZ compliance should be confidential and not subject to inspection under the "Right to Know" Law.
RESPONSE: The Department recently adopted the UEZ rules, and is currently studying the application of the program. Thus, the Department does not consider it appropriate to make any changes while this program is still in the early implementation and analysis stage.
COMMENT 5: One insurer-commenter claims that the current PAIP Credit Program established in N.J.A.C. 11:3-2 is flawed. The insurer argues that new formulas and methodologies should be established for computation of the PAIP credits consistent with the objectives of the Automobile Insurance Urban Enterprise Zone Program.
RESPONSE: The Department acknowledges the concern of the commenter, however, the suggestion exceeds the scope of the proposal and would require a possible substantial restructuring of the PAIP and UEZ programs. As noted above, the Department does not seek to undertake this kind of change during a chapter readoption. The Department also wishes to note that the PAIP and the UEZ serve entirely different purposes. The PAIP is a residual market mechanism that provides coverage to drivers who do not qualify as eligible persons. The UEZ is a structure designed to provide auto insurance coverage in urban areas. The Department does not perceive any benefit at this time from linking the two programs. Also, as noted in the previous Response, it is too early to make any major changes in the UEZ since it is in the initial stages of operation.
COMMENT 6: Several commenters recommend substantial amendments in the rules found at N.J.A.C. 11:3-6, Insurance Identification Cards. The commenters note that the standard form and content of insurance identification cards are established by the Department of Banking and Insurance. Yet, the Division of Motor Vehicles Services (MVS) is the agency responsible for processing requests to deviate from the prescribed standards. The commenters note that the use of insurance identification cards is inconsistent with current technology, which points in the direction of online verification of insurance coverage. The commenters also note that N.J.S.A. 17:33B-41i requires the MVS to implement a system for online verification of automobile insurance coverage.
RESPONSE: N.J.A.C. 11:3-6 represents a longstanding procedure that has been in operation for several decades. While the Department recognizes that there is need for improvement in the systems established by these rules, any change that occurs must move in the direction of online verification of insurance coverage. Until that occurs, the Department believes that the current system of insurance identification cards must continue. The Department also observes that MVS regularly monitors the viability of the insurance identification cards through its inspection station agents and its regular contact with police authorities, and thus MVS should continue in its role of making determinations of exceptions to the general rules.
COMMENT: One insurer asks that the provisions of N.J.A.C. 1:3-8, Renewal and Nonrenewal of Automobile Insurance Policies, be amended to include those specific grounds for nonrenewal addressed in N.J.S.A. 17:29C-7.1 that deal with consumer fraud and misrepresentation after a written request for information is made by an insurer.
RESPONSE: N.J.A.C. 11:3-8.5 already addresses the grounds for nonrenewal mentioned by the commenter. In addition, N.J.A.C. 11:3-8.4(a) states that ineligible persons are not entitled to renewal in accordance with these rules. Thus, insurers are already permitted to file underwriting rules in accordance with N.J.A.C. 11:3-34 that recite the provisions of N.J.S.A. 17:29C-7.1.
COMMENT 8: Several insurers asked the Department to revise the provisions of N.J.A.C. 11:3-13 to broaden the use of "named excluded driver." The commenters suggest that more liberal collision and comprehensive coverage deductibles and options will make the named excluded driver provisions more appealing to consumers who seek to reduce premiums through the use of these endorsements.
RESPONSE: The named excluded driver provision is found in N.J.A.C. 11:3-13.5, which implements N.J.S.A. 17:28-8. The statute creates the authority for named excluded driver endorsements and carefully circumscribes the coverages and ancilliary provisions that can be addressed in this endorsement. Thus, the Department is constrained by the statute. These rules became effective less than two years ago and the Department continues to review their impact.
COMMENT 9: The Department received several comments about the Buyers’ Guide and Coverage Selection Forms which are located at N.J.A.C. 11:3-15. In summary, these comments stated:
1. In current form, the Buyers’ Guide and Coverage Selection Forms are too technical and too confusing and need to be edited to be made more understandable and readable for the benefit of the consumers.
2. There should be greater emphasis in the cost saving options that consumers can select including but not limited to the Basic Policy, lower PIP limits, the named driver exclusion, and health insurance as primary.
3. The specific format and context of these forms should not be dictated by the Department and should be left up to the discretion of each insurer.
4. A better explanation of the Automobile Insurance Urban Zone Program should be added to the Buyers’ Guide so that urban consumers are more fully aware of the opportunities to obtain coverage.
RESPONSE: The Department is always mindful of the need to make the Buyers’ Guide Coverage Selection Form more useful and understandable. Each of these thoughtful suggestions has some merit and deserves full and complete consideration. While the Department is not currently disposed to amend the Buyers’ Guide because such an undertaking occurred as recently as March 1998, the Department is concerned with the issues raised by these comments. Thus, the Department will further consider the suggestions with a view to making amendments where appropriate. The Department also notes that it continues to monitor the effectiveness of these documents and other Buyers’ Guides through the Office of the Insurance Claims Ombudsman. All interested parties are reminded that suggestions can be made directly to the Ombudsman at any time..
COMMENT 10: Several comments were received expressing concern about the proposed amendments in subchapter 16, Rate Filing Requirements: Voluntary Market Private Passenger Automobile Insurance. The primary concerns of the commenters related to the proposed amendments at N.J.A.C. 11:3-16.8(f). The proposed amendment permits insurers to reference external industry Fast Track loss trend data when establishing the credibility of trending. The commenters addressed the following areas:
RESPONSE: The Department is sensitive to the concerns of the commenters. Nonetheless, the Department, with certain changes upon adoption, remains committed to the use of Fast Track data as a reliable and consistent means of measuring frequency and severity trends. The Department notes that Fast Track data provides a stable measurement of frequency and severity trends and accurately reflects 67.5 percent of the New Jersey private passenger automobile insurance marketplace. Fast Track loss trends are a viable complement of credibility in calculating loss trends and are a better predictor of future loss trends than internal countrywide data. The Department also notes that the majority of insurers already subscribe to or purchase Fast Track data for internal purposes and are familiar with this information and its usages. Fast Track has been widely used in numerous filings analyzed by the Department. Thus, it is only fair that insurers have available to them the same data that the Department uses when calculating trends. These requirements will not require insurers to resubmit the entire Fast Track report; rather, the Department is only requiring that the filer identify the Fast Track data used and show how trends were derived based on that Fast Track information. In addition, the Department notes that the required trend analysis based on Fast Track data will be much less detailed than the current requirements for internal countrywide data, thus reducing the burden on insurers.
The Department is initiating a change upon adoption in N.J.A.C. 11:3-16.8(f) to reduce the nature and quantity of both internal company and external Fast Track data to New Jersey only, excluding all data for countrywide loss trends. External Fast Track information will be limited to data already available, without capping PIP losses at $75,000 or adjusting Comprehensive and Collision losses to the $500.00 deductible. Thus, the Department is amending the rule upon adoption to reduce some of the filing requirements imposed on insurers and to more closely reflect the document analysis of the Department.
COMMENT 11: In reference to N.J.A.C. 11:3-20 Appendix, two commenters make the following claims:
1. As to Exhibit 5, the current formula provides for an allowance of 50 percent of the LAD costs paid by insurers. The commenter claims that since those companies that retain their PAIP business can claim 100 percent of their operating losses and those small companies that use LAD servicing carriers only can claim 50 percent of the expense, the formula is unfair to small companies.
2. As to Exhibit 6, the investment calculation for short term bonds creates an artificially high rate of return. The commenter claims that these bonds are not all purchased for sold at one time and, thus, the current formula underestimates the assets and overstates the return on the investments. As an alternative the commenter suggests the use of the average daily balances of short term bonds in the calculation of the rate of return in lieu of the value of the bonds on the books at the end of the year.
3. Income should not be imputed to insurers as in N.J.A.C. 11:3-20.7 (what Moody’s reports seasoned AAA bonds would be worth) but rather only actual income should be reported on financial disclosures and excess reports.
RESPONSE: Subchapter 20 contains the financial disclosure and excess profits requirements that have well served the Department and insurance industry for several years. As a result, the Department is not inclined to amend these filings without further study. It is also noted that the
Department is currently reviewing several other provisions in both N.J.A.C. 11:3-16 (rate filings) and 11:3-3.20 (financial disclosure and excess profits), some of which are integrally related. Thus, the Department thanks the commenters for their suggestions and will further study them as part of the review of these two subchapters.
COMMENT 12: One insurer argues that the Department should change the "take all comers" rule and the corresponding underwriting rules to restrict the number of drivers that qualify as eligible persons in the voluntary market place. The "take-all-comers" rule is part of the eligible persons qualifications for private passenger automobile insurance set forth in N.J.A.C. 11:3-34. The underwriting rules which implement the eligible persons qualifications are found in subchapter 35.
RESPONSE: Many of the "take all comers" requirements are based on N.J.S.A. 17:33B-13 et seq. and 17:29A-46. The legislative mandate cannot be changed in rulemaking.
COMMENT 13: In referencing the amendments permitting insurers to provide the Buyers Guide and Coverage Selection Forms via websites and the e-mail, one commenter questions whether the applicant/policyholders must affirmatively request that they no longer be mailed these documents and that they will accept the websites/e-mail for acquisition of required information.
RESPONSE: The amendment permits insurers to make the Buyers Guide and Coverage Selection Forms available to applicants and policyholders via websites and e-mail. The choice of media clearly rests with the insurer. The applicant/policyholder must affirmatively state that receipt of the documents via e-mail or website posting is acceptable in lieu of receipt via the postal service.
COMMENT 14: In regard to the amendment to N.J.A.C. 11:3-34.5(e), two commenters support the amendment which permits insurers to consult Appendix Schedules 1 and 2 for determination of the number of insurance eligibility points which apply to motor vehicle offenses committed in states or provinces other than New Jersey. The commenters also observe that N.J.A.C. 11:3-34.5(d) makes reference to the points structure established by the MVS rules in N.J.A.C. 13:19-10.1. The commenters note that the motor vehicle rule was recently amended to include the offense of "operating a motor vehicle on public or private property to avoid a traffic signal or sign." The commenters recommend that the Department amend N.J.A.C. 11:34-4(d) so as to include the changes recently made by MVS.
RESPONSE: The Department appreciates the support of the commenters regarding the use of Schedules 1 and 2 in determining the number of insurance eligibility points for offenses committed in other jurisdictions. Regarding the recommended change to N.J.A.C. 11:3-34.5(d), the Department notes that it is unnecessary to change the DOBI rule which references N.J.A.C. 13:19-10.1 and incorporates any changes made by MVS.
COMMENT 15: One commenter claims that there is inconsistency between the provisions of N.J.A.C. 11:3-35.4(e)1 and 35.4(e)2. The commenter states that N.J.A. C. 11:3-35.4(e)1 provides a list of motor vehicle violations for which insurers will be permitted to cancel coverage mid-term. In 11:3-35.4(e)2, there is a further statement that insurers may file underwriting rules for the cancellation of a policy when a household member is convicted of a violation of N.J.S.A. 39:6B-2 (operating without insurance) and in other instances where there is indication that a suspended resident of the household is operating the insured vehicle.
RESPONSE: The Department does not agree with the commenter that these provisions are inconsistent. N.J.A.C. 11:3-35.4(e)1 lists the grounds for cancellation of a policy mid-term which reflect serious motor vehicle violations. N.J.A.C. 11:3-35.4(e)2 goes on to state that if a suspended or revoked member of a household is convicted of operating a motor vehicle in violation of N.J.S.A. 39:6A-2 or other evidence exists that the suspended operator is using an insured vehicle in the household, the policy may be cancelled mid-term. Paragraph (e)2 is the "suspended spouse" rule and is designed to allow the insurers to file underwriting rules permitting cancellation of coverage when a suspended or revoked spouse is illegally operating the vehicle which is insured by an otherwise eligible person-spouse. Thus, the Department does not consider that there is any inconsistency here.
COMMENT 16: Several commenters have expressed their support for the amendment being made to N.J.A.C. 11:3-17(d)vi which will permit the CAIP to offer physical damage coverage to social services vehicles when used for the transportation of persons without charge.
RESPONSE: The Department acknowledges the support of these commenters.
COMMENT 17: One commenter states that its does not understand the reasons for the amendments to N.J.A.C. 11:3-8.3(a) and (f) that refine the meaning of "named insured."
RESPONSE: The Department notes that N.J.S.A. 39:6A-3.1(a) uses the term "named insured" to include the policyholder as well as members of the policyholder’s family living in the household. These family members living in the household may not be named in the policy; however, they are considered part of the statutory definition of "named insured." To make it clear that only the named policyholder has to be provided with notices of nonrenewal, the Department is amending these provisions to provide for notice to the insurer named policyholder, only.
COMMENT 18. One commenter claims that the Department should not eliminate the nonrenewal reports that have been required pursuant to the provisions of N.J.A.C. 11:3-8.8(b). In the proposal, the Department intends to eliminate the filing of these nonrenewal reports because recent changes in the law have substantially lessened the opportunity for nonrenewal in accordance with the "two percent" and "two-for-one" rules. The commenter claims that these reports permit the Department to monitor insurers compliance with the nonrenewal.
RESPONSE: As noted in the proposal, the ability of insurers to use "two percent" and "two-for-one" nonrenewals has been severely restricted by N.J.S.A. 17:29C-7.1. Consequently, reporting of this information has become unnecessary.
COMMENT 19: A comment was received from an insurer complaining about the time involved in the adjudication of prior approval rate requests pursuant to N.J.A.C. 11:3-18. The commenter claims that the rule should be amended to require a more timely disposition on applications for rate change. One suggestion involves a mandatory preliminary disposition by the Department within a short time after an initial filing. According to the commenter, this would focus the issues, and result in quicker resolution. The commenter also noted that prior approval rate filings that are contested and referred to the Office of Administrative Law for hearing will often take more than one year before a final disposition is obtained, which is inconsistent with N.J.S.A. 17:29A-14c.
RESPONSE: The Department accepts the comments of this insurer regarding the need for more timely disposition of prior approval rate request. The time goal set forth in N.J.S.A. 17:29A-14c reflects a time standard that the Department seeks to comply with in all matters. It should also be noted that, once a matter is referred to the Office of Administrative Law, its scheduling in that forum is out of the Department’s control.
The Department also notes that rules implementing recent legislation providing for an expedited rate change process are soon to be proposed. These new rules streamline the nature and quantity of material that insurers will have to submit and will allow the Department to render a decision on an application within a much shorter period of time.
COMMENT 20: One insurer-commenter suggests that the 3.5 percent profit provision found in N.J.A.C. 11:3-16.10(a) and the excess profits provisions found in subchapter 20 should be repealed. The commenter states that the formula used in the profit provision originated in 1972 and is neither adequate nor current in evaluating an insurer’s prospective total return on equity. The commenter suggests that newer approaches to profit such as "cash flow" models should be developed. Regarding the excess profits reports, the commenter objects to the voluminous filings that must accompany the report, as well as the need for such a provision in a jurisdiction where there is also a control on profits through the prior approval of rate requests process.
RESPONSE: The Department notes that the Excess Profits Report and the methodology used in N.J.A.C. 11:3-16 and 3-20 are based on N.J.S.A. 17:29A-36 and 17:29A-5.6 et seq. The suggested changes in the excess profits rules would require complementary changes in the standard rate making methodologies which would necessitate extensive study and could not be undertaken during a chapter readoption process. The Department is currently involved in a review of both of these subchapters and will act on changes when, and if, deemed appropriate.
Federal Standards Statement
A Federal standards analysis is not required because these rules impact private passenger automobile insurance which is governed by Title 17 and 39 of the New Jersey Statutes and is not subject to any Federal requirements and standards.
Full text of the readoption can be found in the New Jersey Administrative Code at N.J.A.C. 11:3.
Full text of the adopted amendments follows (additions to proposal indicated in boldface with asterisk *thus*; deletions from proposal indicated in brackets with asterisks *[thus]*):
11:3-16.8 Premiums, loss costs, loss and loss adjustments expense data
(a) - (e) (No change from proposal.)
1. All internal loss trend data on a calendar year paid and, at the filer’s option, incurred basis shown separately for frequency and severity for the latest available five calendar years on a quarterly year ending basis for all *[coverage on both a countrywide and]* *coverages for* New Jersey *[basis]*. Bodily injury liability and property damage liability trend data shall be given at total limits and, at the filer's option, basic limits. Basic personal injury protection ("PIP") data shall be given at a per person limit retained by the insurer according to N.J.S.A. 39:6-73.1 ($75,000 of insurer payments). Physical damage coverages shall be shown on the basis of the $500.00 deductible or all deductibles combined adjusted to the $500.00 deductible basis. In the latter case the filer shall provide an explanation of the methodology for adjusting other than $500.00 deductible data to the $500.00 deductible level.
2. All external industry fast track loss trend data on a calendar year paid *[and, at the filer's option, incurred]* basis shown separately for frequency and severity for the latest available five calendar years on a quarterly year ending basis for all *[coverage on both a countrywide and]* *coverages for* New Jersey *[basis]*. *[Bodily injury liability and property damage liability trend data shall be given at total limits and, at the filer's option, basic limits. Basic personal injury protection ("PIP") data shall be given at a per person limit retained by the insurer according to N.J.S.A. 39:6-73.1 ($75,000 of insurer payments). Physical damage coverages shall be shown on the basis of the $500.00 deductible or all deductibles combined adjusted to the $500.00 deductible basis. In the latter case the filer shall provide an explanation of the methodology for adjusting other than $500.00 deductible data to the $500.00 deductible level.]*
3. – 4. (No change from proposal.)
*[4.]* *5* Information, including studies, analyses, and fact sheets regarding the effects *[(both countrywide and in New Jersey)]* of the items described in [(d)4i through vi.]* *(d)5I through vi.* below if the filer has either compiled the information itself or relied upon outside information in the support of the filing. If the effects of such studies, etc., have been incorporated into the rate filing, described in detail the methodologies used. Provide this information for the following:
i. – vi. (No change).
Automobile Insurance reform Act of 1990, N.J.S.A. 17:33B-1 et seq.