Nebraska

Nebraska

1. Unfair Claims Practices Act

2. Unfair Trade Practices Act

3. Imitation Crash Parts Regulations
4. Anti-Steering Regulations

5. Timely Notification

6. Timely Payment

7. False & Misleading Advertising

8. False Use of Insurer’s Name

9. Total Losses - No law we have found.

10. Consumer Sales Practices Acts

11. Consumer Auto Repair Practices Acts - No law we have found.

12. Telemarketing laws

13. Home Sales Act - No law we have found.

14. Licensing Adjusters

15. Diminished Value

16. Miscellaneous

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The Unfair Property and Casualty Settlement Practices Rule, Chapter 60, requires insurers to disclose to claimants the address and phone number of the Nebraska Department of Insurance. Then claimants have improved access to the Department to assist them in a determination as to whether insurers have complied with the laws and regulations governing claims settlement practices. The specific language requiring disclosure is located in Chapter 60, section 008.08, which states:

" If the insurer denies a claim or portion thereof, and the claimant objects to such denial, the insurer shall notify the claimant in writing that he or she may have the matter reviewed by the Nebraska Department of Insurance, and the insurer shall provide the claimant the Department's current address and phone number."

Typically, an insurer will include this disclosure language in written form if and when the insurer denies liability for a claim. However, when to provide this information is not as clear in situations when a portion of a claim has been denied. The statutes and regulations neither define the term "portion" nor address the meaning of what constitutes a denial. This matter has recently been under study by the Department of Insurance in an effort to promote a more uniform understanding and application of when such disclosure is required. We believe it is in the public interest for a claimant to receive this disclosure any time a claim remains in dispute based upon the claimant's oral or written objection. Disclosure would apply when a dispute as to amount of loss is unresolved and if liability for elements of coverage remain an issue between the parties.

Chapter 44. Insurance.
Unfair claims settlement practice; conduct prohibited.
LAW 44-1539. It shall be an unfair claims settlement practice for any domestic, foreign, or alien insurer transacting business in this state to commit an act or practice defined in section 44-1540 if the act or practice (1) is committed flagrantly and in conscious disregard of the Unfair Insurance Claims Settlement Practices Act or any rule or regulation adopted pursuant to the act or (2) has been committed with such frequency as to indicate a general business practice to engage in that type of conduct.

Any of the following acts or practices by an insurer, if committed in violation of section 44-1539, shall be
an unfair claims settlement practice:

(1) Knowingly misrepresenting to claimants and insureds relevant facts or policy provisions relating to coverages at
issue;

(2) Failing to acknowledge with reasonable promptness pertinent communications with respect to claims arising under its
policies;

(3) Failing to adopt and implement reasonable standards for the prompt investigation and settlement of claims arising
under its policies;

(4) Not attempting in good faith to effectuate prompt, fair, and equitable settlement of claims submitted in which
liability has become reasonably clear;

(5) Not attempting in good faith to effectuate prompt, fair, and equitable settlement of property and casualty claims

(b) for loss of tangible personal property within real property which is insured by a policy subject to section
44-501.02 and which is wholly destroyed by fire, tornado, windstorm, lightning, or explosion;

(6) Compelling insureds or beneficiaries to institute litigation to recover amounts due under its policies by offering
substantially less than the amounts ultimately recovered in litigation brought by them;

(8) Failing to affirm or deny coverage of a claim within a reasonable time after having completed its investigation
related to such claim;

(9) Attempting to settle a claim for less than the amount to which a reasonable person would believe the insured or
beneficiary was entitled by reference to written or printed advertising material accompanying or made part of an application;

(10) Attempting to settle claims on the basis of an application which was materially altered without notice to or
knowledge or consent of the insured;

(11) Making a claims payment to an insured or beneficiary without indicating the coverage under which each
payment is being made;

(12) Unreasonably delaying the investigation or payment of claims by requiring both a formal proof-of-loss form and
subsequent verification that would result in duplication of information and verification appearing in the formal
proof-of-loss form;

(13) Failing, in the case of the denial of a claim or the offer of a compromise settlement, to promptly provide a
reasonable and accurate explanation of the basis for such action;

(14) Failing to provide forms necessary to present claims with reasonable explanations regarding their use within
fifteen working days of a request;

(15) Failing to adopt and implement reasonable standards to assure that the repairs of a repairer owned by or
affiliated with the insurer are performed in a skillful manner. For purposes of this subdivision, a repairer is affiliated with
the insurer if there is a preexisting arrangement, understanding, agreement, or contract between the insurer and repairer for services in connection with claims on policies issued by the insurer; and

(16) Requiring the insured or claimant to use a particular company or location for motor vehicle repair. Nothing
in this subdivision shall prohibit an insurer from entering into discount agreements with companies and locations for motor vehicle repair or otherwise entering into any business arrangements or affiliations which reduce the cost of motor vehicle repair if the insured or claimant has the right to use a particular company or reasonably available location for motor vehicle repair. If the insured or claimant chooses to use a particular company or location other than the one providing the lowest estimate for like kind and quality motor vehicle repair, the insurer shall not be liable for any cost exceeding the lowest estimate. For purposes of this subdivision, motor vehicle repair shall include motor vehicle glass replacement and motor vehicle glass repair.

Title 210 – Insurance Chapter 60 - Unfair Property and Casualty Settlement Practices Rule

001. Authority. This rule is adopted under the authority of the Unfair Insurance Claims Settlement Practices Act, pursuant to Neb.Rev.Stat. §§44-1536 through 44-1544.

002. Purpose. This rule sets forth minimum standards for the investigation and disposition of property and casualty claims occurring in the State of Nebraska and arising under insurance policies or certificates which, if violated with such frequency as to indicate a general business practice or committed flagrantly and in conscious disregard, would constitute a violation of the Unfair Insurance Claims Settlement Practices Act or any rule or regulation promulgated thereunder. It is not intended to cover claims involving workers' compensation, fidelity, suretyship or boiler and machinery insurance. Various provisions of this rule are intended to define procedures and practices which constitute unfair insurance claims practices. This rule is not exclusive and other acts, not herein specified, may also be found to constitute such practices.

Nothing herein shall be construed to create nor imply a private cause of action for violation of this rule. This is merely a clarification of original intent and does not indicate any change of position.

003. Definitions. All definitions contained in the Unfair Insurance Claims Settlement Practices Act are hereby incorporated by reference. As otherwise used in this regulation:

004. File and record documentation. Each insurer's claim files are subject to examination by the Director of Insurance or by the Director's duly appointed designees. To aid in such examination:

007. Standards for the prompt investigation of claims. Every insurer shall, within fifteen (15) days of notification of claim, initiate investigation of any claim presented by a claimant.

008. Standards for prompt, fair and equitable settlements applicable to all insurers.

Chapter 44. Insurance.
Unfair trade practice; prohibited acts.
44-1524. It shall be an unfair trade practice in the business of insurance for any insurer to commit any act or practice defined in section 44-1525 if the act or practice (1) is committed flagrantly and in conscious disregard of the Unfair Insurance Trade Practices Act or any rule or regulation adopted pursuant to the act or (2) has been committed with such frequency as to indicate a general business practice to engage in that type of conduct.

44-1525. Any of the following acts or practices, if committed in violation of section 44-1524, shall be unfair trade practices in the business of insurance:

(1) Making, issuing, circulating, or causing to be made, issued, or circulated any estimate, illustration, circular, statement, sales presentation, omission, or comparison which:

(b) Misrepresents the dividends or share of the surplus to be received on any policy;

(d) Misleads as to or misrepresents the financial condition of any insurer or the legal reserve system upon which any life insurer operates;

(e) Uses any name or title of any policy or class of policies which misrepresents the true nature thereof;

(f) Misrepresents for the purpose of inducing or tending to induce the purchase, lapse, forfeiture, exchange, conversion, or surrender of any policy, including intentionally misquoting any premium rate;

(g) Misrepresents for the purpose of effecting a pledge or assignment of or effecting a loan against any policy; or

(a) A person engages in a deceptive trade practice when, in the course of his or her business, vocation, or occupation, he or she:

(2) Causes likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of goods or services;

(3) Causes likelihood of confusion or of misunderstanding as to affiliation, connection, or association with, or certification by, another;

(4) Uses deceptive representations or designations of geographic origin in connection with goods or services;

(5) Represents that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that he or she does not have;

(6) Represents that goods are original or new if they are deteriorated, altered, reconditioned, reclaimed, used, or secondhand, except that sellers may repair damage to and make adjustments on or replace parts of otherwise new goods in an effort to place such goods in compliance with factory specifications;

(7) Represents that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another;

(8) Disparages the goods, services, or business of another by false or misleading representation of fact;

(10) Advertises goods or services with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity;

001. Authority. This regulation is adopted pursuant to the Unfair Competition and Trade Practices Act, Neb.Rev.Stat. '44-1522, et seq. ~~Neb. Rev. Stat.~~

002. Purpose. The purpose of this proposed regulation is to set forth standards for the prompt, fair and equitable settlements applicable to automobile insurance with regard to the use of after market parts. It is intended to regulate the use of after market parts in automobile damage repairs which insurers pay for on their insured's vehicle. The regulation requires disclosure when any use is proposed of a non-original manufacturer part. It also requires that all after market parts, as defined in the regulation, be identified and be of the same quality as the original part.

003.01 An Insurer includes any person authorized to present the insurer with respect to a claim who is acting within the scope of the person's authority.

003.02 A Non-Original Manufacturer means any manufacturer other than the original manufacturer of the part.

003.03 After market part for purpose of this regulation, means sheet metal or plastic parts which generally constitute the exterior of a motor vehicle, including inner and outer panels.

004. Identification. All after market parts, which are subject to this regulation and manufactured after the effective date of this regulation, shall carry sufficient permanent identification so as to identify its manufacturer. Such identification shall be accessible to the extent possible after installation.

005. Like kind and quality. No insurer shall require the use of after market parts in the repair of an automobile unless the after market part is at least equal in like, kind, and quality to the original part in terms of fit, quality and performance. Insurers specifying the use of after market parts shall consider the cost of any modifications which may become necessary when making the repair.

006. Disclosure. The insurer must disclose to the claimant in writing, either on the estimate or on a separate document attached to the estimate, the following information in no smaller print than 10 point type:

THIS ESTIMATE HAS BEEN PREPARED BASED ON THE USE OF AUTOMOBILE PARTS NOT MADE BY THE ORIGINAL MANUFACTURER. PARTS USED IN THE REPAIR OF YOUR VEHICLE BY OTHER THAN THE ORIGINAL MANUFACTURER ARE REQUIRED TO BE AT LEAST EQUAL IN LIKE, KIND AND QUALITY IN TERMS OF FIT, QUALITY AND PERFORMANCE TO THE ORIGINAL MANUFACTURER PARTS THEY ARE REPLACING.

All after market parts installed on the vehicle shall be clearly identified on the estimate of such repair.

Any of the following acts or practices by an insurer, if committed in violation of section 44-1539, shall be an unfair claims settlement practice:

009.02 Insurers shall not require a claimant to travel an unreasonable distance either to inspect a replacement automobile, to obtain a repair estimate or to have the automobile repaired at a specific repair shop.

009.03 Insurers shall include the first party claimant's deductible, if any, in subrogation demands, unless requested not to by the first party claimant. Subrogation recoveries shall be shared on a proportionate basis no less than yearly with the first party claimant, unless the first party claimant has otherwise recovered the deductible amount. No deduction for expenses can be made from the deductible recovery unless an outside attorney is retained to pursue such collection and then the only expenses shared, on a pro rata basis, shall be legal expenses.

009.04 If the insurer designates any repairer owned or affiliated with the insurer, it shall assure that the repairs are performed in a skillful manner and shall comply with this subsection. If non-total losses are settled on the basis of a written estimate prepared by or for the insurer, the insurer shall supply the claimant a copy of the estimate upon which the settlement is based. The estimate prepared by or for the insurer shall be reasonable, in accordance with applicable policy provisions, and of an amount which will allow for repairs to be made in a skillful manner. If the claimant subsequently claims, based upon a written estimate which was obtained, that necessary repairs will exceed the written estimate prepared by or for the insurer, the insurer may (1) pay the difference between the written estimate and a higher estimate obtained by the claimant, or (2) promptly provide the claimant with the name of at least one quality repair shop that will make the repairs for the amount of the written estimate, or (3) contact the repair shop of the claimant's choice for repair, to negotiate the amount of the written estimate for repair. The insurer shall maintain documentation of all such communications.

009.06 When the insurer elects to repair and designates a specific repair shop for automobile repairs, the insurer shall cause the damaged automobile to be restored to its condition prior to the loss within a reasonable period of time, at no additional cost to the first party claimant other than as stated in the policy.

(12) Unreasonably delaying the investigation or payment of claims by requiring both a formal proof-of-loss form and subsequent verification that would result in duplication of information and verification appearing in the formal proof-of-loss form;

(13) Failing, in the case of the denial of a claim or the offer of a compromise settlement, to promptly provide a reasonable and accurate explanation of the basis for such action;

(14) Failing to provide forms necessary to present claims with reasonable explanations regarding their use within fifteen working days of a request;

008.01 Within fifteen (15) days after receipt by the insurer of settlement information or a properly executed proof of loss, the claimant shall be advised of the acceptance or denial of the claim by the insurer. No insurer shall deny a claim on the grounds of a specific policy provision, condition or exclusion unless reference to such provision, condition, or exclusion is included in the denial. The denial must be given to the claimant in writing and the claim file of the insurer shall contain documentation of the denial.

008.02 If the insurer needs more time to determine whether a claim should be accepted or denied, it shall so notify the claimant within fifteen (15) days after receipt of settlement information or the proof of loss, giving the reasons more time is needed. If the investigation remains incomplete, the insurer shall, thirty (30) days from the initial notification and every thirty (30) days thereafter, send to the claimant a letter setting forth the reasons additional time is needed for investigation. This subsection shall not apply to claims in litigation.

(2) Failing to acknowledge with reasonable promptness pertinent communications with respect to claims arising under its policies;

(3) Failing to adopt and implement reasonable standards for the prompt investigation and settlement of claims arising under its policies;

(4) Not attempting in good faith to effectuate prompt, fair, and equitable settlement of claims submitted in which liability has become reasonably clear;

(5) Not attempting in good faith to effectuate prompt, fair, and equitable settlement of property and casualty claims in which coverage and the amount of the loss are reasonably clear;

(6) Compelling insureds or beneficiaries to institute litigation to recover amounts due under its policies by offering substantially less than the amounts ultimately recovered in litigation brought by them;

(8) Failing to affirm or deny coverage of a claim within a reasonable time after having completed its investigation related to such claim;

(9) Attempting to settle a claim for less than the amount to which a reasonable person would believe the insured or beneficiary was entitled by reference to written or printed advertising material accompanying or made part of an application;

(10) Attempting to settle claims on the basis of an application which was materially altered without notice to or knowledge or consent of the insured;

(11) Making a claims payment to an insured or beneficiary without indicating the coverage under which each payment is being made;

(12) Unreasonably delaying the investigation or payment of claims by requiring both a formal proof-of-loss form and subsequent verification that would result in duplication of information and verification appearing in the formal proof-of-loss form;

008.04 In cases where there is no dispute as to coverage as to one or more portions of the insurance policy and where liability has become reasonably clear, the insurer shall offer to claimants, within fifteen (15) days of receipt of settlement information, amounts within policy limits which are fair and reasonable as shown by the insurer's completed investigation. The insurer shall tender payment within fifteen (15) days of claimant's acceptance. Payment shall be made for any such portion of the insurance policy notwithstanding the existence of disputes as to other portions of the insurance policy coverage where such payment can be made without prejudice to any interested party.

(10) Advertises goods or services with intent not to supply reasonably expectable public demand, unless the advertisement discloses a limitation of quantity;

44-351. No company, association, or society organized under sections 44-202 to 44-208.08 shall take any name in use by any other company, association, or society or so closely resembling such name as to mislead the public as to its identity.

44-352. It shall be unlawful for any insurance company to permit the use of its name or for any other company, person, or firm to use the name of any insurance company in such a way as to deceive or mislead the public. The violation of this section or section 44-351 by an insurance company shall be grounds for the suspension or revocation of its license, and the person, firm, or corporation so using the name of an insurance company shall be punished by a fine not exceeding one hundred dollars for each offense. An appeal of a suspension, revocation, or fine may be taken, and the appeal shall be in accordance with the Administrative Procedure Act.

Chapter 59. Monopolies and Unlawful Combinations. Monopolies and attempted monopolies; unlawful.
LAW 59-1604. It shall be unlawful for any person to monopolize, or attempt to monopolize or combine or conspire with any other person or persons to monopolize any part of trade or commerce.

59-1605
Chapter 59. Monopolies and Unlawful Combinations.
Transactions and agreements not to use or deal in commodities or services of competitor; unlawful; when.
It shall be unlawful for any person to lease or sell or contract for sale of goods, wares, merchandise, machinery, supplies, or other commodities, or services, whether patented or unpatented, for use, consumption, enjoyment, or resale, or fix a price charged therefor, or discount from, or rebate upon, such price, on the condition, agreement, or understanding that the lessee or purchaser thereof shall not use or deal in the goods, wares, merchandise, machinery, supplies, or other commodity or services of a competitor of the lessor or seller, when the effect of such lease, sale, or contract for such sale or such condition, agreement, or understanding may be to substantially lessen competition or tend to create a monopoly in any line of commerce.

004. Applicability. This regulation shall be applicable only to insurance policies issued or renewed in this state after May 1, 1973, and is in addition to, and not in substitution for, other applicable requirements of the Insurance Law and Department regulations. The requirements of this regulation are not applicable to methods of marketing other than mass marketing plans.

005. Fictitious arrangement prohibited. No insurer shall, without the approval of the Director sell insurance pursuant to a mass marketing plan to members of any association or organization formed principally for the purpose of obtaining such insurance.

006. Premium rates. Premium rates under a mass marketing plan shall comply with the standards in the Insurance Law, including the standards that rates not be excessive, inadequate, or unfairly discriminatory. Rates shall not be deemed to be unfairly discriminatory because different premiums result for policyholders with like loss exposures but different expense factors, or like expense factors but different loss exposures, so long as the rates reflect the differences with reasonable accuracy. Rates shall not be deemed to be unfairly discriminatory if they are averaged broadly among persons insured under a mass marketing plan.

007. Statistics. An insurer selling insurance pursuant to mass marketing plans shall maintain separate statistics for each plan as to loss and expense experience pertinent thereto.

008. Producers. No person shall act as an insurance agent or an insurance broker in connection with a mass marketing plan for any kind of insurance unless such person is duly licensed, under the Insurance Producers Licensing Act, Neb.Rev.Stat. §44-4001 et seq., as an agent or broker for such kind of insurance.

Unsolicited consumer telephone call, defined. (86-220 through 86-230)
Unsolicited consumer telephone call means a consumer telephone call other than a call made:

(1) In response to an express request of the person called;
(2) Primarily in connection with an existing debt or contract, for which payment or performance has not been completed at the time of such a call;
(3) To any person with whom the seller has a clearly established business relationship; or
(4) By a magazine or newspaper publisher or such publisher's agent or employee in connection with such publisher's business.

A seller may not obtain or submit for payment a check, draft, or other form of negotiable paper drawn on a consumer's checking, savings, share, or similar account, without that consumer's express verifiable authorization. Such authorization shall be deemed verifiable if any of the following means are employed:

(1) Express written authorization by the consumer, which may include the consumer's signature on the negotiable instrument;

(2) Express oral authorization which is tape recorded and made available upon request to the consumer's financial institution or to the consumer and which evidences clearly both the consumer's authorization of payment for the goods and services that are the subject of the sales offer and the consumer's receipt of all of the following information:

(a) The consumer obligated for any part of the purchase price may cancel the telephone sale until midnight of the fifth business day after the day on which the consumer has received written notice from the seller notifying the consumer of his or her right to cancel the telephone sale. Written notice shall include all of the information included in subdivision (2) of section 86-224 and the procedures by which a consumer may obtain a refund; and

Chapter 44. Insurance. (44-2607 - 44-2635) Insurance consultant; acts requiring licensure.

44-2614. No person shall, in or on advertisements, cards, signs, circulars, letterheads, or elsewhere or in any other manner by which public announcements are made, use the title insurance consultant, public adjustor, or any similar title or any title, word, combination of words, or abbreviation indicating that he or she gives or is engaged in the business of offering to the public any advice, counsel, opinion, or service with respect to insurable risks, concerning the benefits, coverages, or provisions under any policy of insurance that could be issued in this state, or involving the advantages or disadvantages of any such policy of insurance, unless such person holds a license as an insurance consultant under sections 44-2606 to 44-2635.

The subject of payment or nonpayment of special costs (such as sales tax, luxury tax, and other applicable taxes or surcharges) on property losses (including total losses) has come to the attention of this Department. This bulletin is designed to address payment of these special costs.

The purpose and theory of insurance is indemnification; that is, to put one back into the position they were in before the loss. This indemnification principle is applicable not only to first party claims, but also to third party claims where statutes and case law apply instead of contractual obligations.

This Department has not approved any policy which has specifically stated that applicable special costs are excluded, nor have we interpreted any approved policy as excluding payment for applicable special costs.

This Department takes the position that these special costs must be paid whether a first party or third party settlement is involved. The following guidelines may offer assistance.

009.05 When the amount claimed is reduced because of betterment or depreciation, all information for such reduction shall be contained in the claim file. Such deductions shall be measurable, discernable, itemized and specified as to dollar amount and shall be appropriate for the amount of deductions.

Sections 44-5801 to 44-5816 shall be known and may be cited as the Third-Party Administrator Act. Source: Laws 1992, LB 1006, § 76. 44-5802 Terms, defined.

(1) Affiliate or affiliated shall mean any entity or person who, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with a specified entity or person;

(4) Insurance or insurance coverage shall mean any coverage offered or provided by an insurer;

(5) Insurer shall mean any person undertaking to provide life insurance, sickness and accident insurance, workers' compensation insurance coverage, or annuities in this state. Insurer shall include an authorized insurance company, a prepaid hospital or medical care plan, a health maintenance organization, or any other person providing a plan of insurance subject to state insurance regulation. Insurer shall include an employer who is approved by the Nebraska Workers' Compensation Court as a self-insurer. Insurer shall not include a bona fide employee benefit plan established by an employer or an employee organization, or both, for which the insurance laws of this state are preempted pursuant to the Employee Retirement Income Security Act of 1974;

This article may be downloaded for use by a single individual. It may not be copied or faxed or mailed to others. It may be reprinted only with written permission from Beyond Parts & Equipment. Published in Beyond Parts & Equipment, 2003 , © 2003, Millennium Publications, Inc. Other use or publication of this version is strictly prohibited.