Sec. 27.5. Supporting affidavits

(a) For every policy or policy renewal procured from an unauthorized insurer pursuant to section 2118 of the Insurance Law affidavits meeting the requirements of this section shall be filed by the excess line broker with the excess line association.

(b) Each affidavit shall be on an affidavit form prescribed by the superintendent, consisting of parts A and C, as follows:

(1) part A is the affidavit by the excess line broker and shall be consecutively numbered; and

(2) part C is the affidavit by the producing broker that shall be submitted in addition to part A, if any of the requisite declinations from authorized insurers has been obtained by the producing broker or if the producing broker provided the insured with the written notice required by subdivision (e) of this section.

(c)

(1) The excess line broker shall obtain a properly completed and executed affidavit from the producing broker (part C), if the producing broker has obtained any of the requisite declinations from authorized insurers or if the producing broker provided the insured with the written notice required by subdivision (e) of this section.

(2) The affidavits required by paragraph (1) of this subdivision shall be obtained, whenever practicable, prior to placing coverage with an unauthorized insurer, but in no event more than 45 days following such placement.

(d)

(1) As set forth in Part 301 (Regulation 134) of this Title:

(i) a consolidated part A and, when required, a consolidated part C of the required affidavit may be completed and executed by the excess line broker or producing broker, on behalf of more than one member of a purchasing group, where liability insurance (as defined in section 5902 of the Insurance Law for purchasing group members) has been procured during any consecutive 30-day period prior to the filing of the affidavit(s); and

(ii) any consolidated affidavit (part A or part C) shall specify all applicable information required for each insured member of the purchasing group.

(2) As set forth in Subpart 60-3 (Regulation 35-E) of this Title: a consolidated part A and, when required, a consolidated part C of the required affidavit may be completed and executed by the excess line broker or producing broker, on behalf of the transportation network company drivers of the transportation network company, when a group policy has been obtained by a transportation network company as the group policyholder pursuant to section 3455 of the Insurance Law, with respect to coverages provided without option by the group policyholder.

(e) The excess line broker or the producing broker shall affirm in part A or part C of the affidavit, as true under the penalties of perjury, that the insured was specifically advised in writing, prior to placement, that:

(1) the unauthorized insurer with which the coverage would be placed is not authorized to do an insurance business in this State and is not subject to supervision by this State;

(2) in the event of the insolvency of the unauthorized insurer, losses will not be covered by any New York State security fund; and

(3) the policy may not be subject to all of the regulations of the superintendent pertaining to policy forms. A copy of the written notice provided to the insured shall be attached to the affirming broker's affidavit.

(f) With regard to an exempt commercial purchaser, the excess line broker or the producing broker also shall affirm in part A or part C of the affidavit, as true under the penalties of perjury, that the exempt commercial purchaser was specifically advised in writing, prior to placement, that the insurance may or may not be available from the authorized market that may provide greater protection with more regulatory oversight.

(g) In part A of the affidavit, the excess line broker shall:

(1) identify each authorized insurer and its representative declining to issue or renew the coverage;

(2) identify any producing broker acting on behalf of the insured;

(3) identify the insured being placed with the unauthorized insurer and affirm that the insured’s home state is this State;

(4) describe the type and extent of, and the premium for, the coverage to be placed;

(5) identify the unauthorized insurer with which the coverage has been placed;

(6) specify, if coverage has been placed with more than one unauthorized insurer, the separate participation and proportionate premium of each such insurer, except that for purposes of this paragraph placement with Lloyd's shall be treated as if the placement was made with one unauthorized insurer;

(7) identify, in the case of an association of insurance underwriters or insurance exchange entity, each syndicate participating in the coverage; and

(8) indicate when coverage has been placed through participation in a purchasing group.

(h) For insurance contracts that have an effective date prior to July 21, 2011, where the premium tax is to be allocated in accordance with section 27.9 of this Part, the excess line broker shall also specify the bases for allocation, using a form prescribed by the superintendent that shall be attached to part A of the affidavit and, if an alternative equitable method of allocation is utilized, additional information to substantiate such method shall be provided.