Missouri Revised Statutes













Chapter 374

Department of Insurance, Financial Institutions and Professional Registration

←374.045

Section 374.046.1

374.047→

August 28, 2015

Relief issued by director for violations of state laws--considerations--notice--effective date of order--contents of order, procedures--penalty--costs--powers of director--service--order filed--noncompliance--modification of order--additional penalties--definitions.

374.046. 1. If the director determines based upon substantial and

competent evidence that a person has engaged, is engaging in or has taken a

substantial step toward engaging in an act, practice, omission, or course of

business constituting a violation of the laws of this state relating to

insurance in this chapter, chapter 354, and chapters 375 to 385, or a rule

adopted or order issued pursuant thereto or that a person has materially

aided or is materially aiding an act, practice, omission, or course of

business constituting a violation of the laws of this state relating to

insurance in this chapter, chapter 354, and chapters 375 to 385, or a rule

adopted or order issued pursuant thereto, the director may order the

following relief:



(1) An order directing the person to cease and desist from engaging in

the act, practice, omission, or course of business;



(2) A curative order or order directing the person to take other action

necessary or appropriate to comply with the insurance laws of this state;



(3) Order a civil penalty or forfeiture as provided in section 374.049;

and



(4) Award reasonable costs of the investigation.



2. In determining any relief sought, the director shall consider, among

other factors, whether:



(1) The violations are likely to continue or reoccur;



(2) Actual financial loss was sustained by consumers and restitution has

been made;



(3) The act, practice, omission, or course of business was detected as

part of a self-audit or internal compliance program and immediately reported

to the director; and



(4) The act, practice, omission, or course of business had previously

been detected, but inadequate policies and procedures were implemented to

prevent reoccurrence.



3. Unless the director determines that a summary order is appropriate

under subsection 4 of this section, the director shall provide notice of the

intent to initiate administrative enforcement by serving a statement of the

reasons for the action upon any person subject to the proceedings. A

statement of reasons, together with an order to show cause why a cease and

desist order and other relief should not be issued, shall be served either

personally or by certified mail on any person named therein. The director

shall schedule a time and place at least ten days thereafter for hearing, and

after notice of and opportunity for hearing to each person subject to the

order, the director may issue a final order under subsection 6 of this

section.



4. If the director determines that sections 375.014, 375.144, or 375.310

are being violated and consumers are being aggrieved by the violations, the

order issued under subdivision (1) of subsection 1 of this section may be

summary and be effective on the date of issuance. Upon issuance of the order,

the director shall promptly serve each person subject to the order with a

copy of the order and a notice that the order has been entered.



5. A summary order issued under subsection 4 of this section must include

a statement of the reasons for the order, notice within five days after

receipt of a request in a record from the person that the matter will be

scheduled for a hearing, and a statement whether the department is seeking a

civil penalty or costs of the investigation. If a person subject to the

order does not request a hearing and none is ordered by the director within

thirty days after the date of service of the order, the order becomes final

as to that person by operation of law. If a hearing is requested or ordered,

the director, after notice of and opportunity for hearing to each person

subject to the order, may modify or vacate the order or extend it until final

determination.



6. If a hearing is requested or ordered pursuant to subsection 3 or

subsection 5 of this section, a hearing before the director or a hearing

officer designated by the director must be provided. A final order may not

be issued unless the director makes findings of fact and conclusions of law

in a record in accordance with the provisions of chapter 536 and procedural

rules promulgated by the director. The final order may make final, vacate,

or modify the order issued under subsection 5 of this section.



7. In a final order under subsection 6 of this section, the director may

impose a civil penalty or forfeiture as provided in section 374.049. No

civil penalty or forfeiture may be imposed against a person unless the person

has engaged in the act, practice, omission, or course of business constituting

the violation.



8. In a final order under subsection 6 of this section, the director may

charge the actual cost of an investigation or proceeding for a violation of

the insurance laws of this state or a rule adopted or order issued pursuant

thereto. These funds shall be paid to the director to the credit of the

insurance dedicated fund.



9. The director is authorized to issue subpoenas, compel attendance of

witnesses, administer oaths, hear testimony of witnesses, receive evidence,

and require the production of books, papers, records, correspondence, and all

other written instruments or documents relevant to the proceeding and

authorized in contested cases under the provisions of chapter 536 and

procedural rules promulgated by the director.



10. Statements of charges, notices, orders, and other processes of the

director may be served by anyone duly authorized by the director either in

the manner provided by law for service of process in civil actions, or by

registering or certifying and mailing a copy thereof to the person affected by

such statement, notice, order, or other process at his or its residence or

principal office or place of business. The verified return by the person so

serving such statement, notice, order, or other process setting forth the

manner of such service shall be proof of the same, and the return postcard

receipt for such statement, notice, order, or other process, registered and

mailed as aforesaid, shall be proof of the service of the same.



11. If a petition for judicial review of a final order is not filed in

accordance with section 374.055, the director may file a certified copy of

the final order with the clerk of a court of competent jurisdiction. The

order so filed has the same effect as a judgment of the court and may be

recorded, enforced, or satisfied in the same manner as a judgment of the

court.



12. If a person violates or does not comply with an order under this

section, the director may under section 374.048 petition a court of competent

jurisdiction to enforce the order. The court may not require the director to

post a bond in an action or proceeding under this section. If the court

finds, after service and opportunity for hearing, that the person was not in

compliance with the order, the court may, in addition to relief authorized in

section 374.048, adjudge the person in civil contempt of the order. A

violation of or failure to comply with an order under this section is a level

three violation under section 374.049. The court may impose a further civil

penalty against the person for contempt in an amount not less than five

thousand dollars but not greater than one hundred thousand dollars for each

violation and may grant any other relief the court determines is just and

proper in the circumstances.



13. Until the expiration of the time allowed under section 374.055 for

filing a petition for judicial review, if no such petition has been duly

filed within such time or if a petition for review has been filed within such

time, then until the transcript of the record in the proceeding has been filed

in the circuit court of Cole County, the director may at any time, upon such

notice and in such manner as he shall deem proper, modify or set aside in

whole or in part any order issued by him under this section.



14. The enforcement authority of the director under this section is

cumulative to any other statutory authority of the director.



15. The director is authorized to issue administrative consent orders in

the public interest as complete or partial settlement of any investigation,

examination, or other proceeding, which curative orders may contain any

provision necessary or appropriate to assure compliance with the insurance

laws of this state, require payment of restitution to be distributed directly

or by the director to any aggrieved consumers, civil penalties, or voluntary

forfeiture, reimbursement for costs of investigation or examination, or any

other relief deemed by the director to be necessary and appropriate. Any

remaining matters not addressed in settlement may be submitted to the

director through a contested proceeding under this section.



16. (1) Any person willfully violating any provision of any cease and

desist order of the director after it becomes final, while the same is in

force, upon conviction thereof shall be punished by a fine of not more than

one hundred thousand dollars, by imprisonment of up to ten years, or by both

such fine and imprisonment.



(2) In addition to any other penalty provided, violation of any cease

and desist order shall subject the violator to suspension or revocation of

any certificate of authority or license as may be applicable under the laws

of this state relating to the business of insurance.



17. The term "person" as used in this chapter shall include any

individual, partnership, corporation, association or trust, or any other

legal entity.



18. The term "order" as used in this chapter shall include a formal

administrative direction or command of the director issued under this section

or in any contested case subject to the provisions of section 536.063 or any

lawful administrative proceeding subject to judicial review, but shall not

include department bulletins, no-action letters, advisory opinions, or any

other statement of general applicability that should be adopted by rule.



(L. 1967 p. 516, A.L. 2006 H.B. 1837)





1991



1991



374.046. 1. (1) The director may issue cease and desist

orders whenever it appears to him upon competent and substantial

evidence that any person is acting in violation of any law of

this state or any rule or regulation promulgated by the director

relating to the business of insurance. Before any cease and

desist order shall be issued, a copy of the proposed order

together with an order to show cause why such cease and desist

order should not be issued shall be served either personally or

by certified mail on any person named therein.



(2) (a) Upon issuing any order to show cause the director

shall notify the person named therein that the person is entitled

to a public hearing before the director if a request for a

hearing is made in writing to the director within fifteen days

from the day of the service of the order to show cause why the

cease and desist order should not be issued.



(b) The cease and desist order shall be issued fifteen days

after the service of the order to show cause if no request for a

public hearing is made as above provided.



(c) Upon receipt of a request for a hearing the director

shall set a time and place for the hearing which shall not be

less than ten days or more than fifteen days from the receipt of

the request or as otherwise agreed upon by the parties. Notice

of the time and place shall be given by the director not less

than five days before the hearing.



(d) At the hearing the person may be represented by counsel

and shall be entitled to be advised of the nature and source of

any adverse evidence procured by the director and shall be given

the opportunity to submit any relevant written or oral evidence

in his behalf to show cause why the cease and desist order should

not be issued.



(e) At the hearing the director shall have such powers as

are conferred upon him in section 374.190.



(f) At the conclusion of the hearing, or within ten days

thereafter, the director shall issue the cease and desist order

as proposed or as subsequently modified or notify the person that

no order shall be issued.



(g) The circuit court of Cole County shall have jurisdiction

to review any cease and desist order of the director under the

provisions of sections 536.100 to 536.150, RSMo; and, if any

person against whom an order is issued fails to request judicial

review, or if, after judicial review, the director's cease and

desist order is upheld, the order shall become final.



2. (1) Any person willfully violating any provision of any

cease and desist order of the director after it becomes final,

while the same is in force, upon conviction thereof shall be

punished by a fine of not more than one thousand dollars or one

year in jail or by both such fine and jail sentence.



(2) In addition to any other penalty provided, violation of

any cease and desist order shall subject the violator to

suspension or revocation of any certificate of authority or

license as may be applicable under the laws of this state

relating to the business of insurance.



3. (1) When it appears to the director that there is a

violation of the laws of this state or any rule or regulation

promulgated by the director relating to the business of

insurance, and that the continuance of the acts or actions of any

person as herein defined would produce injury to the insuring

public or to any other person in this state, or when it appears

that a person is doing or threatening to do some act in violation

of the laws of this state relating to insurance, the director may

file a petition for injunction in the circuit court of Cole

County, Missouri, in which he may ask for a temporary injunction

or restraining order as well as a permanent injunction to

restrain the act or threatened act. In the event the temporary

injunction or restraining order or a permanent injunction is

issued by the circuit court of Cole County, Missouri, no person

against whom the temporary injunction or restraining order or

permanent injunction is granted shall do or continue to do any of

the acts or actions complained of in the petition for injunction,

unless and until the temporary injunction or restraining order or

permanent injunction is vacated, dismissed or otherwise

terminated.



(2) Any writ of injunction issued under this law may be

served and enforced as provided by law in injunctions issued in

other cases, but the director of the insurance department shall

not be required to give any bond as preliminary to or in the course

of any proceedings to which he is a party as director under this

section, either for costs or for any injunction, or in case of

appeal to either the supreme court or to any appellate court.



4. The term "person" as used in this section shall include

any individual, partnership, corporation, association or trust,

or any other legal entity.



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