The REVISED (and Current) Should-You-Wish-to-Complain-About-Your-Insurance-Company Advisory Paragraph of New York Insurance Regulation 64

This marks the seventh of many times since May 2008 that I've blogged about what I like to call the consumer advisory paragraph of New York Insurance Regulation 64 (11 NYCRR Part 216).  Insurers that do business in New York State should know that Regulation 64 requires certain letters to "prominently set out" a certain paragraph advising those to whom your letters are addressed that they may complain about you or your coverage position to New York's insurance regulator, formerly known as the New York State Insurance Department and now known since October 2011 as the New York State Department of Financial Services.

Effective June 9, 2021, the consumer advisory paragraph changed by deleting the in-person complaint-filing option and changing the Buffalo office mailing address.  Pursuant to the Eighteenth Amendment to 11 NYCRR Part 216, the paragraph now reads (new language highlighted):

Should you wish to take this matter up with the New York State Department of Financial Services, you may file a complaint with the Department either on its website at http://www.dfs.ny.gov/consumer/fileacomplaint.htm or by writing to the Consumer Assistance Unit, New York State Department of Financial Services, at: One State Street, New York, NY 10004; One Commerce Plaza, Albany, NY 12257; 1399 Franklin Avenue, Garden City, NY 11530; or 535 Washington Street, Suite 305, Buffalo, NY 14203.

As demonstrated by the claim file materials we continue to receive in my office (and the email I received just today), a number of insurers doing business in New York apparently remain uncertain of what kinds of letters must actually include that advisory paragraph. Under Regulation 64, there are only two kinds of notices or letters that must do so: 

"[a]ny notice rejecting any element of a claim involving personal property insurance" (11 NYCRR § 216.6[h]); and

"[a]ny letter of explanation or rejection of any element of a claim" for motor vehicle physical damage (11 NYCRR § 216.7[d][3]).

Let's take these in reverse order. 

11 NYCRR § 216.7(d)(3)'s Requirement

Everyone knows what a "motor vehicle physical damage" claim is, right?  Claims for collision or comprehensive coverage.  We're talking first-party, not third-party claims.  Indeed, §216.7 begins by stating that “[t]his section is applicable to claims arising under motor vehicle collision or comprehensive coverages”. Thus, by implication, letters regarding third-party property damage claims need not include the advisory paragraph. 

Notice also that 216.7(d)(3) is somewhat broader in its scope than 216.6(h) in that the advisory paragraph required by 216.7(d)(3) must be included in both coverage rejection and explanation letters.

11 NYCRR § 216.6(h)'s Requirement

Which brings us to "[a]ny notice [broader than "letter"?] rejecting any element of a claim involving personal property insurance", the first type of claim communication in which the advisory paragraph must be included. A notice or letter rejecting an element of a personal property claim is not

an acknowledgement letter;

an ROR letter;

a non-waiver agreement;

a letter written solely to explain personal property coverage or payments;

a letter forwarding payment to an insured;

a liability coverage declination letter; or

every single letter that leaves the insurer's office addressed to an insured or claimant.

In a January 6, 2004 opinion letter, the NYS Insurance Department's OGC (Office of General Counsel) opined: 

The term "personal property insurance" in Section 216.6(h) limits the applicability of subdivision (h) to personal lines property insurance. Thus, subdivision (h) is not applicable to commercial lines property insurance or to liability insurance. 

Letters rejecting commercial property insurance? ⇨ No advisory paragraph required❗

Letters to insureds rejecting (disclaiming/denying) liability coverage? ⇨ No advisory paragraph required❗

Letters to third-party claimants or their assignees (body shops) or subrogees (insurers) denying that your insured was at fault, in whole or part, for causing the accident and injuries or damages ? ⇨ No advisory paragraph required❗

See?

Over the 26+ years that my office has been open I've seen the advisory paragraph included in letters in which it is not required.  If you don't care about your company's consumer complaint ratios, then by all means continue including the consumer advisory paragraph in everything written that leaves your desk or office.  If, however, after reading this seventh missive you still are not sure whether the paragraph belongs in a certain letter or not, call or email me.  We'll figure it out. 

The Updated Should-You-Wish-to-Complain-About-Your-Insurance-Company Advisory Paragraph

I've blogged several times about the consumer advisory paragraph of New York Insurance Regulation 64 (11 NYCRR Part 216).  Personal Lines insurers that do business in New York State should know that Regulation 64 requires certain letters to "prominently set out" a certain paragraph advising those to whom your letters are addressed that they may complain about you or your coverage position to New York's insurance regulator, known since October 2011 as the New York State Department of Financial Services. 

Effective February 1, 2017 the consumer advisory paragraph changed with a new Garden City address for the NYS DFS's Long Island office.  Pursuant to the Sixteenth Amendment to 11 NYCRR Part 216, the paragraph now reads (new language highlighted):

Should you wish to take this matter up with the New York State Department of Financial Services, you may file with the Department either on its website at http://www.dfs.ny.gov/consumer/fileacomplaint.htm or you may write to or visit the Consumer Assistance Unit, Financial Frauds and Consumer Protection Division, New York State Department of Financial Services, at: One State Street, New York, NY 10004; One Commerce Plaza, Albany, NY 12257; 1399 Franklin Avenue, Garden City, NY 11530; or Walter J. Mahoney Office Building, 65 Court Street, Buffalo, NY 14202.

As demonstrated by the claim file materials we continue to receive in my office, a number of New York insurers apparently remain uncertain of what kinds of letters must actually include that advisory paragraph. Under Regulation 64, there are only two kinds of letters that must do so: 

1. letters "rejecting any element of a claim involving personal property insurance" (11 NYCRR § 216.6[h]); and
2. letters explaining or rejecting any element of a claim for auto physical damage (11 NYCRR § 216.7[d][3]).

Let's take these in reverse order. Everyone knows what an "auto physical damage" claim is, right? We're talking first-party, not third-party claims. Indeed, § 216.7 begins by stating that “[t]his section is applicable to claims arising under motor vehicle collision or comprehensive coverages”. Thus, by implication, letters regarding third-party property damage claims need not include the advisory paragraph. Notice also that § 216.7(d)(3) is somewhat broader in its scope than § 216.6(h) in that the advisory paragraph must be included in both coverage rejection and explanation letters.

Which brings us to letters "rejecting any element of a claim involving personal property insurance", the first type of letter in which the advisory paragraph must be included. A letter rejecting an element of a personal property claim is not:

• an acknowledgement letter;
• an ROR letter;
• a non-waiver agreement;
• a letter written solely to explain personal property coverage or payments;
• a letter forwarding payment to an insured;
• a liability coverage declination letter; or
• every single letter that leaves the insurer's office addressed to an insured or claimant.

In a January 6, 2004 opinion letter, the NYS Insurance Department's OGC (Office of General Counsel) opined:

The term "personal property insurance" in Section 216.6(h) limits the applicability of subdivision (h) to personal lines property insurance. Thus, subdivision (h) is not applicable to commercial lines property insurance or to liability insurance.

Letters rejecting commercial lines property insurance -- no advisory paragraph required.
Letters rejecting (disclaiming/denying) liability coverage -- no advisory paragraph required.

See?

Over the 22+ years that my office has been open I've seen the advisory paragraph included in letters in which it is not required.  If you don't care about your consumer complaint ratios, then keep on keeping on.  If you question whether the paragraph belongs in a certain letter even after reading the above, email me.  We'll  figure it out.

The I've-Lost-Counth Amendment to the Should Anyone Wish to Complain About You to the New York State Department of Financial Services Consumer Advisory Paragraph

Insurers that do business in New York State should know that New York Insurance Regulation 64 (11 NYCRR Part 216) requires certain letters to "prominently set out" a certain paragraph advising those to whom your letters are addressed that they may complain about you or your coverage position to New York's insurance regulator, known since October 2011 as the New York State Department of Financial Services. 

With the relatively recent closing of that department's 25 Beaver Street office in New York City what I like to call the "consumer advisory paragraph" of Regulation 64 now reads:

Should you wish to take this matter up with the New York State Department of Financial Services, you may file with the Department either on its website at http://www.dfs.ny.gov/consumer/fileacomplaint.htm or you may write to or visit the Consumer Assistance Unit, Financial Frauds and Consumer Protection Division, New York State Department of Financial Services, at: One State Street, New York, NY 10004; One Commerce Plaza, Albany, NY 12257; 163B Mineola Boulevard, Mineola, NY 11501; or Walter J. Mahoney Office Building, 65 Court Street, Buffalo, NY 14202.

As demonstrated by the claim file materials we continue to receive in my office, a number of New York insurers apparently remain uncertain of what kinds of letters must actually include that advisory paragraph. Under Regulation 64, there are only two kinds of letters that must do so: 

1. letters "rejecting any element of a claim involving personal property insurance" (11 NYCRR § 216.6[h]); and
2. letters explaining or rejecting any element of a claim for auto physical damage (11 NYCRR § 216.7[d][3]).

Let's take these in reverse order. Everyone knows what an "auto physical damage" claim is, right? We're talking first-party, not third-party claims. Indeed, § 216.7 begins by stating that “[t]his section is applicable to claims arising under motor vehicle collision or comprehensive coverages”. Thus, by implication, letters regarding third-party property damage claims need not include the advisory paragraph. Notice also that § 216.7(d)(3) is somewhat broader in its scope than § 216.6(h) in that the advisory paragraph must be included in both coverage rejection and explanation letters.

Which brings us to letters "rejecting any element of a claim involving personal property insurance", the first type of letter in which the advisory paragraph must be included. A letter rejecting an element of a personal property claim is not:

• an acknowledgement letter;
• an ROR letter;
• a non-waiver agreement;
• a letter written solely to explain personal property coverage or payments;
• a letter forwarding payment to an insured;
• a liability coverage declination letter; or
• every single letter that leaves the insurer's office addressed to an insured or claimant.

In a January 6, 2004 opinion letter, the NYS Insurance Department's OGC (Office of General Counsel) opined:

The term "personal property insurance" in Section 216.6(h) limits the applicability of subdivision (h) to personal lines property insurance. Thus, subdivision (h) is not applicable to commercial lines property insurance or to liability insurance.

Letters rejecting commercial lines property insurance -- no advisory paragraph required.
Letters rejecting (disclaiming/denying) liability coverage -- no advisory paragraph required.

See?

Over the nearly 20 years that my office has been open I've seen the advisory paragraph included in letters in which it is not required.  If you don't care about your consumer complaint ratios, then keep on keeping on.  If you question whether the paragraph belongs in a certain letter even after reading the above, email me.  We'll  figure it out.

Should You Wish to Complain About Us to the New York State Department of Financial Services

If I'm going to reactivate this blog (and I am) I might as well start by updating this May 2008 posting.

You insurers who do business in New York know, of course, that New York Insurance Regulation 64  (11 NYCRR Part 216) requires certain letters to "prominently set out" a certain paragraph advising those to whom your letters are addressed that they may complain about you or your coverage decision to New York's insurance regulator, known since October 2011 as the New York State Department of Financial Services.

It only took that department approximately 20 months after its creation to update all regulatory references to the previous regulator -- the New York State Insurance Department -- including what I like to refer to as the "consumer advisory paragraph" of Regulation 64.  That paragraph now reads:

Should you wish to take this matter up with the New York State Department of Financial Services, you may file with the Department either on its website at http://www.dfs.ny.gov/consumer/fileacomplaint.htm or you may write to or visit the Consumer Assistance Unit, Financial Frauds and Consumer Protection Division, New York State Department of Financial Services, at: One State Street, New York, NY 10004; One Commerce Plaza, Albany, NY 12257; 163B Mineola Boulevard, Mineola, NY 11501; or Walter J. Mahoney Office Building, 65 Court Street, Buffalo, NY 14202.

A number of New York insurers apparently remain uncertain, however, of what kinds of letters must actually include that advisory paragraph. Under Regulation 64, there are only two kinds of letters that must do so:

1. letters "rejecting any element of a claim involving personal property insurance" (11 NYCRR § 216.6[h]); and
2. letters explaining or rejecting any element of a claim for auto physical damage (11 NYCRR § 216.7[d][3]).

Let's take these in reverse order. Everyone knows what an "auto physical damage" claim is, right? We're talking first-party, not third-party claims. Indeed, § 216.7 begins by stating that “[t]his section is applicable to claims arising under motor vehicle collision or comprehensive coverages”. Thus, by implication, letters regarding third-party property damage claims need not include the advisory paragraph. Notice also that § 216.7(d)(3) is somewhat broader in its scope than § 216.6(h) in that the advisory paragraph must be included in both coverage rejection and explanation letters.

Which brings us to letters "rejecting any element of a claim involving personal property insurance", the first type of letter in which the advisory paragraph must be included. A letter rejecting an element of a personal property claim is not:

• an acknowledgement letter;
• an ROR letter;
• a non-waiver agreement;
• a letter written solely to explain personal property coverage or payments;
• a letter forwarding payment to an insured;
• a liability coverage declination letter; or
• every single letter that leaves the insurer's office addressed to an insured or claimant.

In a January 6, 2004 opinion letter, the NYS Insurance Department's OGC (Office of General Counsel) opined:

The term "personal property insurance" in Section 216.6(h) limits the applicability of subdivision (h) to personal lines property insurance. Thus, subdivision (h) is not applicable to commercial lines property insurance or to liability insurance.

Letters rejecting commercial lines property insurance -- no advisory paragraph required.
Letters rejecting (disclaiming/denying) liability coverage -- no advisory paragraph required.

See?

Nearly six years later I'm still seeing the advisory paragraph being included in letters in which it is not required.  If you don't care about your consumer complaint ratios, then keep on keeping on.  If you question whether the paragraph belongs in a certain letter even after reading the above, email me.  We'll  figure it out.

Notice of Consolidated Proposed Consensus Rulemaking to Correct Out-of-Date Hyperlinks and References as a Result of the Consolidation of the New York State Insurance and Banking Departments Into a New Department of Financial Services

How could I have missed it with a title so clear and succinct?

Since October 3rd of last year, when the New York State Banking and Insurance Departments consolidated into a single Department of Financial Services, I've been waiting for the DFS to announce the corrected verbiage for the "Should you wish to take this up with..." consumer advisory paragraph required by Regulation 64.  You know, the one that instructs insureds and claimants how to skew your company's consumer complaint ratio.  I blogged about that paragraph -- and in what letters it belongs and doesn't belong -- more than four years and four months ago.  If you work in claims for a personal property or auto insurer that does business in New York and don't recall reading that post, you should do so now by clicking here.

Well on July 18, 2012, the DFS proposed a consolidated consensus rulemaking that, among other things, replaces the old and outdated New York State Insurance Department references and hyperlink in the advisory paragraph with new and up-to-date references to the DFS.  The new advisory paragraph will thus read:

Should you wish to take this matter up with the New York State Department of Financial Services, you may file with the Department either on its website at http://www.dfs.ny.gov/consumer/fileacomplaint.htm or you may write to or visit the Consumer Assistance Unit, Financial Frauds and Consumer Protection Division, New York State Department of Financial Services, at: 25 Beaver Street, New York, NY 10004; One Commerce Plaza, Albany, NY 12257; 163B Mineola Boulevard, Mineola, NY 11501; or Walter J. Mahoney Office Building, 65 Court Street, Buffalo, NY 14202.

Although the 45-day public comment period for this new language expired on September 1, 2012, we still wait for our newly activated ChangeDetection.com subscription (see the immediately preceding post) to register the listing of the Twelfth Amendment to 11 NYCRR 216 (a/k/a Regulation 64) among the Department's final adoptions. 

I understand that some New York insurers, perhaps recognizing that this is a consensus rulemaking that is not expected to garner any objections, have already changed their letters and forms to comport with the new language, even though the proposed amendment technically has not yet taken effect.  This new paragraph becoming the required one is not an if, but a when.

Little known factoid:  the consumer advisory paragraph is also found on Page 2 of the prescribed NF-10 Denial of Claim Form for New York no-fault claims.  Once this consolidated rule goes into effect, including its Fourth Amendment to 11 NYCRR 65-3 (a/k/a Regulation 68-C), New York no-fault insurers will need to begin using the revised or "new" NYS Form NF-10.

Should You Wish To Increase Your Consumer Complaint Ratio

It's never been easier to drive a New York insurer's consumer complaint ratio higher. Insureds or their "authorized" representatives can now sit at their computers at all hours of the day and night (just like coverage bloggers) and file online electronic complaints against their insurers. Beats licking a 42¢ stamp.

What I've never understood is the seeming eagerness of some insurers to promote or facilitate the filing of consumer complaints -- not by misbehaving, but by tacitly inviting their insureds to complain, in every piece of correspondence that leaves the insurer's offices. Earlier today, for example, I saw such a misplaced invitation in a letter denying commercial auto liability coverage to a general contractor for injuries from a workplace accident. I'll explain.

Most New York insurers know that Regulation 64 (11 NYCRR Part 216) requires certain letters to "prominently set out" the following advisory paragraph (see Editor's Note of 01.28.14 below):

Should you wish to take this matter up with the New York State Insurance Department, you may file with the Department either on its website at www.ins.state.ny.us/complhow.htm or you may write or visit the Consumer Services Bureau, New York State Insurance Department, at: 25 Beaver Street, New York, NY 10004; One Commerce Plaza, Albany, NY 12257; 200 Old Country Road, Suite 340, Mineola, NY 11501;or Walter J. Mahoney Office Building, 65 Court Street, Buffalo, NY 14202.

Many New York insurers apparently remain uncertain, however, of what kinds of letters must actually include that advisory paragraph. Under Regulation 64, there are only two kinds of letters that must do so:

1. letters "rejecting any element of a claim involving personal property insurance" (11 NYCRR § 216.6[h]); and
2. letters explaining or rejecting any element of a claim for auto physical damage (11 NYCRR § 216.7[d][3]).

Let's take these in reverse order. Everyone knows what an "auto physical damage" claim is, right? We're talking first-party, not third-party claims. Indeed, § 216.7 begins by stating that “[t]his section is applicable to claims arising under motor vehicle collision or comprehensive coverages”. Thus, by implication, letters regarding third-party property damage claims need not include the advisory paragraph. Notice also that § 216.7(d)(3) is somewhat broader in its scope than § 216.6(h) in that the advisory paragraph must be included in both coverage rejection and explanation letters.

Which brings us to letters "rejecting any element of a claim involving personal property insurance", the first type of letter in which the advisory paragraph must be included. A letter rejecting an element of a personal property claim is not:

• an acknowledgement letter;
• an ROR letter;
• a non-waiver agreement;
• a letter written solely to explain personal property coverage or payments;
• a letter forwarding payment to an insured;
• a disclaimer and denial letter written solely with respect to other than personal property claims, such as real property/structure or ALE/LOU claims, or liability coverage claims; or
• every other letter that leaves the insurer's office addressed to an insured or claimant.

In a January 6, 2004 opinion letter, the NYS Insurance Department's OGC (Office of General Counsel) opined:

The term "personal property insurance" in Section 216.6(h) limits the applicability of subdivision (h) to personal lines property insurance. Thus, subdivision (h) is not applicable to commercial lines property insurance or to liability insurance.

Letters rejecting commercial lines property insurance -- no advisory paragraph required.
Letters rejecting (disclaiming/denying) liability coverage -- no advisory paragraph required.

See?

I'm a less-is-more, strict constructionist, kind of coverage attorney when it comes to regulatory issues such as this. If it were my call (which I openly concede it is not), I'd follow the reg. Reduce toner usage AND one's consumer complaint ratio at the same time. What could be better? You insurer Reg 64 compliance people won't mind, I'm sure. Unless you really like responding to consumer complaints, in which case you may want to consider printing the advisory paragraph on bills and policy forms, as well. Or not.

Editor's Note (12.07.10) ~~  Since originally posting this back in May 2008, it has come to my attention that the New York State Insurance Department takes the position that if a policy under which coverage is being denied includes personal property coverage, sch as a homeowners policy, a letter rejecting any element of the claim must include the advisory paragraph regardless of whether the claim is just for building or dwelling coverage.  For that reason and although I may disagree with the Insurance Department on this point, I've struck the reference to denials for other than personal property claims in the above bullet list.

Editor's Note (01.28.14) ~~ See today's blog post for the updated verbiage of the advisory paragraph.