§23.  Exclusive use of expirations

A.(1)  Except as otherwise provided herein, for purposes of soliciting, selling, or negotiating the renewal or sale of insurance coverage, insurance products, or insurance services, an insurance producer shall have the exclusive use of expirations, records, or other written or electronic information directly related to an insurance application submitted by or an insurance policy written through an insurance producer.  No insurance company, managing general agent, surplus lines insurance broker, wholesale broker, third party administrator, or residual markets including but not limited to the Louisiana Automobile Insurance Plan, the Louisiana Joint Reinsurance Plan, or the Louisiana Insurance Underwriting Plan, shall use such expirations, records, or other written or electronic information to solicit, sell, or negotiate the renewal or sale of insurance coverage, insurance products, or insurance services to the insured, either directly or by providing such information to others without the express written consent of the insurance producer.

(2)  Such expirations, records, or other written or electronic information may be used to review an application, issue a policy, or for any other purpose necessary for placing such business through the insurance producer.  Such expirations, records, or other written or electronic information may also be used for any other purpose which does not involve the soliciting, selling, or negotiating the renewal or sale of insurance coverage, insurance products, or insurance services.

B.  This Section shall not apply:

(1)  When the insured requests, individually or through another producer, that the insurance company renew the policy or write other insurance business.

(2)  When the insurance producer has, by contract, agreed to act exclusively for one company or group of affiliated insurance companies, in which case the rights of the producer shall be determined by the terms of the producer's contract with that company or affiliated group.

(3)  When the producer is in default for nonpayment of premiums or other monies due and owing for which the agent is in default under the producer's contract or other agreement with the insurer, unless there is a legitimate dispute as to monies owed.

(4)  When the agency contract is terminated and the insurance company is required by law to continue coverage for the insured; however, in that event, the insurance company shall continue to pay the producer commissions on such policies that the company is required to renew during the thirty-six month period following the effective date of the termination or three years, whichever is sooner.  The commission shall be at the insurer's prevailing commission rates in effect on the date of renewal for that class or line of business in effect on the date of renewal for producers whose contracts are not terminated.

(5)  To policies providing group coverage and health insurance.

C.  The producer and insurer may in a written agreement, separate from the agency contract, mutually agree to terms different than the provisions set forth in this Section.  The terms of any such agreement shall be negotiated in good faith between the parties.

D.(1)  The commissioner of insurance may adopt rules, in accordance with the Administrative Procedure Act, to enforce the provisions of this Section and any violation of this Section or the rules adopted thereunder shall be subject to regulation by the commissioner of insurance under R.S. 22:18.

(2)  In addition, the producer shall have a right to a claim for lost commissions.  Such claim shall be resolved in accordance with the dispute resolution terms in the applicable contract or agreement.  In the absence of any dispute resolution term, the parties shall attempt to resolve their dispute through mediation.  If the claim is not resolved through mediation, the claim may be resolved through binding arbitration if the parties agree.  In the absence of an agreement to resolve the claim through binding arbitration, the  producer may maintain a civil action in a court of competent jurisdiction for lost commissions.

(3)(a)  All life insurance, disability income, long-term care, and annuity files, whether paper or electronic, submitted to an insurance company, are owned by the insurance company.  The producer who sold the policy has the right to retain a copy of the file submitted to the issuing company.  The producer has the right to retain a copy of the file after terminating his affiliation with the issuing company, unless the producer and the issuing company agree in writing that the producer shall not have such a right.  Should the issuing company wish to make copies of the information retained by the producer, such copies shall be made at the issuing company's expense.

(b)  This Paragraph shall not apply to any policy issued under the home service marketing distribution system referenced in R.S. 22:1962(C).

(c)  As used in this Paragraph, files include all records, written or electronic, that were gathered and maintained by the producer.

(d)  Notwithstanding any other provision of this Paragraph to the contrary, information a producer may retain shall not include real-time data and updates maintained on the insurance company computer system or any data protected by the Gramm-Leach-Bliley Act, 15 U.S.C. 6801-15 U.S.C. 6809, or the security laws.

(4)  Except as provided in this Section, nothing in this Section shall be interpreted as impairing any rights in law or contract currently enjoyed by any party.

Acts 1999, No. 1186, §1; Acts 2008, No. 137, §1; Redesignated from R.S. 22:1474 by Acts 2008, No. 415, §1, eff. Jan. 1, 2009; Acts 2009, No. 503, §1; Acts 2012, No. 271, §1.

NOTE:  Former R.S. 22:23 redesignated as R.S. 22:2223 by Acts 2008, No. 415, §1, eff. Jan. 1, 2009.