On May 13, 2020, the New York Department of Financial Services (“NYDFS”) sent separate Section 308 information requests related to impact of the COVID-19 pandemic to all property/casualty and life insurance companies authorized in New York. Section 308 of the New York Insurance Law authorizes the NYDFS to require New York-licensed insurers to submit written special reports on any topics specified in the NYDFS information request.

Property/Casualty (“P&C”) Insurance Letter

The first letter requires all insurers that write “Commercial Liability Policies” (defined as including but not limited to Commercial General Liability, Directors & Officers, Commercial Umbrella, Commercial Excess, Professional Liability, Business Owner, Commercial Multiple Peril, and Specialized Multiple Peril) to provide the following information:

  • An explanation of any communicable disease exclusions or similar exclusions that the insurer might use to deny coverage for claims relating to COVID-19;
  • An explanation of any plan to add COVID-19 exclusions to existing or new policies;
  • An explanation of any decision to stop offering products in New York to avoid COVID-19-related risks; and
  • A list of current policies for which pricing included recognition of potential coverage exposure for COVID-19-like losses.

P&C Insurers have until May 21, 2020, to respond.

Life Insurance & Annuities Letter

The letter to all life insurers authorized in New York has two sections. The first section applies generally, and the second section applies specifically to insurers that offer an accelerated or algorithmic underwriting program.

The general section includes broad survey questions, requiring insurers to:

Provide:

  • Statistical information about products the insurer offers, including how many of each type it has issued in the first four months of 2020, whether these numbers represent an increase or decrease, and whether the products are targeted at specific age groups or demographics;
  • Any new product filings the insurer plans to make; and
  • The notice the insurer is providing to its sales force before implementation of new products or changes to existing products.

And describe:

  • The insurer’s current practices and experience, including changes due to mortality risk, morbidity risk, interest rates, default risk, and risk of financial loss due to recent changes in equity and other financial markets;
  • The changes the insurer has made in life insurance and annuity product pricing for new sales;
  • The changes the insurer has made in life insurance and annuity product pricing for existing customers;
  • The role of the company’s reinsurers in any pricing changes; and
  • The changes the insurer has made in underwriting life insurance and annuities.

The second section requires insurers offering accelerated or algorithmic underwriting programs to provide the following information:

  • Whether the insurer uses external consumer data or information sources to supplement medical (i.e., paramedical exam or physically invasive) underwriting (other than an attending physician’s statement; MIB Group, Inc. member information exchange; motor vehicle report; inspection report or prescription drug database);
  • A list of the policies for which the insurer uses external data in underwriting;
  • Any limitations on the use of external data;
  • A description of the external data used and its use;
  • A description of how the insurer obtains the external data;
  • A description of how the insurer informs the applicant about what information is being obtained;
  • The process or recourse provided to applicants who receive an adverse underwriting decision based on external data; and
  • A description of how external data is used, stored and disposed of after the underwriting process.

Most, if not all, of the information requests relating to accelerated/algorithmic underwriting are similar to the ones included in the NYDFS survey that preceded the issuance of “Circular Letter No. 1 re: Use of External Consumer Data and Information Sources in Underwriting for Life Insurance” in January 2019.

Insurers have until May 19, 2020, to respond to the questions in the first generally applicable section and until May 29, 2020, to respond to the algorithmic/accelerated underwriting questions.


The Mayer Brown insurance regulatory team continues to engage with our clients and NYDFS concerning the Department’s pandemic-related actions and stands ready to advise on responses to the Section 308 letters issued today and the potential issues they raise.

The NYDFS Section 308 letters are part of an evolving COVID-19 response that is moving across regulatory agencies. For information on other regulatory developments related to the pandemic, please visit our COVID-19 Portal

If you wish to receive regular updates on the range of the complex issues confronting businesses in the face of the novel coronavirus, please subscribe to our COVID-19 “Special Interest” mailing list.

And for any legal questions related to this pandemic, please contact the authors of this article or Mayer Brown’s COVID-19 Core Response Team at [email protected].