STATE OF NEW YORK
________________________________________________________________________
7317--A
2023-2024 Regular Sessions
IN ASSEMBLY
May 17, 2023
___________
Introduced by M. of A. BRAUNSTEIN -- read once and referred to the
Committee on Insurance -- recommitted to the Committee on Insurance in
accordance with Assembly Rule 3, sec. 2 -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
tee
AN ACT to amend the insurance law, in relation to establishing the New
York small contractor relief act; provides for the repeal upon expira-
tion thereof; and making an appropriation therefor
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Short title. This act shall be known and may be cited as
2 the "New York small contractor relief act".
3 § 2. The legislature hereby declares that the market for insurance for
4 small construction contractors and certified minority and women-owned
5 construction contractors has been challenged both by high insurance
6 rates and a lack of market capacity. These challenges are acute for
7 small construction contractors, and minority and women-owned
8 construction contractors working for public owners. This act shall
9 provide for a private market insurance solution for small construction
10 contractors, and minority and women-owned construction contractors
11 through the creation of a captive insurance company.
12 § 3. The insurance law is amended by adding a new article 70-A to read
13 as follows:
14 ARTICLE 70-A
15 NEW YORK SMALL CONTRACTOR RELIEF ACT
16 Section 7013. Definitions.
17 7014. New York small contractor captive insurance company.
18 7015. Reinsurance and retrocession reinsurance.
19 7016. No refusal.
20 7017. Risk management program.
21 7018. Prevailing wage requirement.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD11264-02-4
A. 7317--A 2
1 § 7013. Definitions. For the purpose of this article, the following
2 terms shall have the following meanings:
3 (a) "Liability insurance" shall mean personal injury liability insur-
4 ance and property damage liability insurance, as such terms are defined
5 in paragraphs thirteen and fourteen of subsection (a) of section one
6 thousand one hundred thirteen of this chapter, and shall include any
7 type of insurance deemed by the superintendent of financial services to
8 be substantially similar thereto pursuant to paragraph thirty-four of
9 subsection (a) of such section.
10 (b) "Small construction contractor" shall mean any contractor which
11 (i) is resident in this state; (ii) is independently owned and operated;
12 (iii) is exclusively engaged in construction contracting or subcontract-
13 ing; (iv) had less than three million dollars in gross revenues for the
14 calendar year prior to an application for insurance being filed pursuant
15 to the terms of this article, or is a certified minority or women-owned
16 business; and (v) pays the prevailing wage.
17 (c) "Prevailing wage" shall mean the rate of wages and supplemental
18 benefits paid in the locality to workers in the same trade or occupation
19 and annually determined by the commissioner of labor or comptroller in
20 accordance with the provisions of section two hundred twenty of the
21 labor law.
22 § 7014. New York small contractor captive insurance company. (a) A
23 captive insurance company organized pursuant to this article shall be
24 formed and regulated pursuant to the provisions of article seventy of
25 this chapter. Such entity may be a corporation, association, a joint
26 stock company or association, or an aggregation or partnership pursuant
27 to the laws of the state of New York.
28 (b) A captive insurance company may be organized pursuant to this
29 article for the sole purpose of providing liability insurance as defined
30 in subsection (a) of section seven thousand thirteen of this article to
31 small construction contractors, as that term is defined in subsection
32 (a) of section seven thousand thirteen of this article.
33 § 7015. Reinsurance and retrocession reinsurance. A captive insurance
34 company organized pursuant to this article shall be authorized to
35 purchase, and the New York state insurance fund (hereinafter the "fund")
36 shall be authorized and directed, to provide reinsurance and retroces-
37 sion reinsurance for such captive insurance company, on either a quota
38 share arrangement or facultative arrangement (hereafter "reinsurance")
39 at a rate to be determined by the board of the fund. The fund shall
40 provide such reinsurance on an application for such coverage unless, in
41 the opinion of the executive director, providing such coverage on an
42 application will imperil the financial safety and soundness of the fund.
43 The executive director of the fund shall provide, in writing, to the
44 board of the fund and the superintendent not less than quarterly a
45 report on all such applications for coverage that are denied, together
46 with the grounds for and an analysis of the basis for such denial.
47 § 7016. No refusal. A small contractor captive insurance company
48 organized pursuant to this article shall not refuse to issue, renew or
49 cancel a policy of any qualified small construction contractor based
50 upon geographic location or line of business engaged in by such contrac-
51 tor.
52 § 7017. Risk management program. A captive insurance company organized
53 pursuant to this article shall establish and promote a risk management
54 program among its members to identify and reduce risks by implementation
55 of loss control, safety programs and other methods of risk management,
56 and any small construction contractor accepted for coverage from such
A. 7317--A 3
1 insurer shall be responsible for adopting and following such risk
2 management program.
3 § 7018. Prevailing wage requirement. A small construction contractor
4 seeking to obtain liability insurance from a small contractor captive
5 insurance company authorized under this article shall establish that the
6 small construction contractor's entire workforce is being paid the
7 prevailing wage. The small construction contractor's application for
8 insurance shall document and certify that the applicant meets this
9 requirement and will meet this requirement for all construction work on
10 all projects covered by the liability insurance obtained pursuant to
11 this article as a precondition to qualifying for liability insurance
12 issued hereunder. Such application shall also be submitted to the
13 commissioner of labor who shall notify the small contractor captive
14 insurance company of receipt prior to approval of such application. As
15 a condition of approval, at least ten days prior to commencement of
16 work, the small construction contractor shall notify and update the
17 captive insurance company of any location where it is performing
18 construction covered by a policy associated with this article. Such
19 locations shall be publicly posted online within two days of receipt
20 from the small construction contractor and maintained by the captive
21 insurance company. All such work performed by the small construction
22 contractor shall be subject to the provisions of article eight of the
23 labor law including, but not limited to, section two hundred twenty and
24 two hundred twenty-i of such article. In the event the small
25 construction contractor is determined by the fiscal officer, as defined
26 in section two hundred twenty of the labor law, to be in violation of
27 article eight of the labor law, in addition to any penalties to be
28 enforced pursuant to such article, the captive insurance company shall
29 revoke such contractor's policy pursuant to this article and assess a
30 penalty equal to the costs incurred in providing liability insurance
31 coverage since its initial application was approved.
32 § 4. Not less than six months before the expiration date of article
33 70-A of the insurance law, as added by this chapter, the superintendent
34 of financial services shall issue to the governor, the speaker of the
35 assembly and the temporary president of the senate, and the chairs of
36 the insurance and labor committees of each house, a report on the
37 performance of the New York small contractor relief act and its impact
38 upon the small construction contractor sector. If such act is to expire,
39 it shall not impede such captive insurance companies created under arti-
40 cle 70-A of the insurance law to continue to operate as if the
41 provisions of such article were still in full force and effect, assuming
42 that such companies are otherwise viable pursuant to the provisions of
43 article 70 of the insurance law.
44 § 5. The sum of fifty million dollars ($50,000,000) is hereby appro-
45 priated for the support of up to two captives under this act. Such
46 funds may be used for the purpose of providing paid-in capital and
47 initial surplus contributions for captives organized pursuant to article
48 70-A of the insurance law, such amounts not to exceed twenty-five
49 million dollars ($25,000,000) for any one captive insurer so organized.
50 The New York state insurance fund is authorized, upon action of its
51 board of directors, to invest other funds as may be appropriate in a
52 captive organized pursuant to article 70-A of the insurance law.
53 § 6. This act shall take effect on the one hundred eightieth day after
54 it shall have become a law and shall expire and be deemed repealed five
55 years after such effective date.
