South Dakota State Regulations & NAIC Insurance Law

Licensing

To apply for a South Dakota resident producer’s license, you must:

• Be at least 18 years old.
• Be a South Dakota resident before you submit your application, or maintain the principal place of business in South Dakota (S.D. Codified Laws § 58-30-142(6)).

Pre-licensing course and exam

South Dakota does not have specific pre-licensing requirements, but a resident applicant must pass the examinations for the lines of authority applied for (S.D. Codified Laws § 58-30-148).

Fingerprints/background check

The Director reviews an applicant’s background before issuing a license, and many states require applicants to submit fingerprints for a state and FBI criminal history check as part of the application.

Controlled business

Controlled business is insurance written on the producer’s own life, property or interests, or on those of the producer’s family, employer or a business the producer controls. A producer may insure themselves and their family, but a license exists to sell insurance to the public, so states generally restrict obtaining or using a license principally to write controlled business.

Non-resident license

A producer licensed in another state can obtain a South Dakota nonresident license without taking South Dakota’s examination. Under the NAIC’s Producer Licensing Model Act, which most states have adopted in some form, a nonresident receives the license if the person:

• Is currently licensed as a resident, and in good standing, in the home state
• Has applied (the home-state application or the Uniform Application) and paid the fees
• Lives in a home state that grants nonresident licenses to residents of this state on the same basis (reciprocity)

Under the same model, a producer who moves to another state files a change of address, with certification from the new home state, within 30 days. A licensed producer who moves into a state applies for a resident license there within 90 days and does not repeat prelicensing education or the examination for lines already held. In South Dakota, the Director may require an examination for a line of authority held in the prior state unless the Director determines otherwise by rule (S.D. Codified Laws § 58-30-52(9)).

Temporary license

Most states allow the insurance regulator to issue a temporary license, without an examination, when one is needed to keep an insurance business serviced. Typical cases are:

• The surviving spouse or personal representative of a producer who dies or becomes disabled, to allow time to sell the business or train new people
• A member or employee of a business entity producer, on the death or disability of its designated producer
• The designee of a producer entering active military service

The regulator may limit what a temporary licensee may do and may require a licensed sponsor who takes responsibility for the temporary licensee’s acts.

The NAIC’s model act limits a temporary license to 180 days.

Military service

Under the NAIC’s model act, a producer who cannot meet license renewal requirements because of military service, or because of another extenuating circumstance such as a long-term medical disability, may request a waiver of those requirements and of any examination, fine or sanction for missing them.

Renewal and reinstatement

A producer license stays in effect only while the producer renews it on schedule: paying the renewal fee and completing continuing education by the due date.

Each state sets its own renewal cycle.

A producer who misses the deadline and lets the license lapse may be able to reinstate it without retaking the examination.

Under the NAIC’s model act, a lapsed license may be reinstated within 12 months of the renewal due date, for a penalty of double the unpaid renewal fee. Each state sets its own window and fee, and after the window closes the person must qualify for a new license. South Dakota follows the model: a producer may apply within 12 months of the renewal fee’s due date to reinstate the same license without an examination, paying a penalty of double the unpaid renewal fee (S.D. Codified Laws § 58-30-154).

Continuing education

All states, including South Dakota, have continuing education requirements that must be met to renew any major lines (life, health, property, liability) insurance license.

Individuals licensed in the state of South Dakota must complete continuing education prior to renewing their license. The number of hours required is set by state law and published by the state insurance department.

Notice of change of name or address

Under the NAIC’s model act, the licensee reports a change of address to the regulator within 30 days of the change.

The model also requires a producer to report to the regulator within 30 days any administrative action taken against the producer in another state or by another government agency, counted from the final disposition, and any criminal prosecution in any jurisdiction, counted from the initial pretrial hearing date. A producer who does business under any name other than their legal name must notify the regulator before using it. In South Dakota, a producer reports an administrative action within 30 days of its final disposition (S.D. Codified Laws § 58-30-193), and a felony criminal prosecution in any jurisdiction within 30 days of the initial pretrial hearing date (S.D. Codified Laws § 58-30-194).

Company regulations

An insurance company must be authorized by the Division of Insurance to conduct business in South Dakota. To receive a certificate of authority, the company applies to the Director and files its charter or articles of incorporation, financial statements showing that it meets the state’s capital and surplus requirements, and the other documents and fees the state requires.

Capital and surplus requirement

A company that has been authorized to conduct insurance business in South Dakota must maintain minimum standards as a corporation. The certificate of authority allows the insurer to conduct business in the state only if it maintains the minimum capital or permanent surplus required. In South Dakota, the Director must refuse to renew, suspend or revoke the certificate of a foreign insurer that no longer meets the requirements for its authority on account of a deficiency of assets, and of a domestic insurer that fails to cure an impairment of capital or surplus within the time the Director allows (S.D. Codified Laws § 58-6-44(2)).

Duties of the Director of the Division of Insurance

The South Dakota Director of the Division of Insurance is an appointed position in the South Dakota state government. The Director of the Division of Insurance is appointed by the Secretary of Labor and Regulation, who is appointed by the Governor.

The Director is responsible for establishing and enforcing regulations in the South Dakota insurance market in a manner that protects consumers and encourages economic development.

Duties of the Director include:

• Investigate all claims and complaints of legal violations relating to insurance.
• If the Director finds that laws have been violated, the findings and supporting documents may be referred for criminal prosecution.
• Monitor transactions of all companies including domestic, foreign, and alien insurance companies.
• Audit the books and records of any resident producer as frequently as necessary.
• Collect all fees associated with producers and insurers.
• Determine and administer fines associated with violations for insurers and producers.
• Issue reports pertaining to the suspension and revocation of licenses of producers and certificates of authority for insurers.
• Approve documentation used by insurance companies such as forms and rates.

Sidenote

Know this...

The Director does not have the authority to arrest, issue injunctions, or sentence jail time. The Director can start the process, but it takes a law officer to arrest and a judge or court of law to issue injunctions or sentence jail time. The Director may refer illegal activity for criminal prosecution.

Suspend, revoke or non-renew

The Director has the authority to suspend, revoke, or refuse to renew a license for:

• Providing false information on the application for an insurance license.
• Omitting any relevant information on an application that would have disqualified the individual from being eligible to receive a license.
• Being found guilty of a violation or the noncompliance of insurance regulations and laws…
• Committing fraud while attempting to obtain an insurance license.
• Improperly withholding, misappropriating or converting any money or property received in the course of doing insurance business.
• Providing false information in reference to the terms and conditions of an insurance contract.
• Having been convicted of a felony.
• Having admitted or been found to have committed any insurance unfair trade practice or fraud.
• Having engaged in activities of a fraudulent nature which allowed the person to involve themselves in dishonest, coercive, untrustworthy, and financially irresponsible practices.
• Having had a prior insurance license revoked or suspended in a state other than South Dakota.
• Using another person’s identity and forging their name on an insurance application.
• Being found guilty of using unethical practices or cheating on an examination for an insurance license.

Cease and desist

If the Director finds that a producer has violated the state’s insurance laws, the Director may order the producer to cease and desist.

A cease and desist order does not automatically mean the recipient’s registration has been suspended or revoked. It requires the recipient to stop or limit the activity addressed in the order.

Hearing and penalties

A person facing action by the Director is entitled to notice and an opportunity for a hearing, within time limits set by South Dakota law, and may ask a court to review the final order. In South Dakota, the Director may suspend a license for up to 12 months, revoke it or refuse to continue it only after a hearing, with notice of the hearing and the charges given at least 20 days before it (S.D. Codified Laws § 58-30-167). When the Director believes from substantial evidence that a person is violating or about to violate the insurance laws, the Director may issue a temporary cease and desist order pending a hearing, set not less than 10 nor more than 20 days from the date of the order (S.D. Codified Laws § 58-4-7).

A violation of the insurance laws can bring a civil penalty in addition to action against a license. State law sets the maximum, usually per violation and often with a cap on the total, and a higher tier commonly applies to a violation that was knowing or flagrant. Some violations are also crimes. In South Dakota, the Director may impose a money penalty in place of, or together with, action against a license, of up to $5,000 for each offense by a producer or $25,000 by an insurer; no penalty may be imposed before a hearing unless the licensee agrees to it in writing (S.D. Codified Laws §§ 58-4-28.1, 58-30-167).

Unfair claims settlement practices

Under the NAIC’s model act, these practices are violations when committed flagrantly and in conscious disregard of the law, or often enough to indicate a general business practice.

• The intentional obstruction and delay of claims payment or the delay of a claims investigation is a violation of regulation.
• Neglecting to provide a prompt response and written explanation of insurance policy terms, conditions, and laws related to the contract are examples of unfair claims settlement practices.
• Failure to provide claims without launching a thorough investigation is a violation of regulation.
• Making settlement claims based on information contained on an application that has been altered without the insured’s consent is a violation of regulation.
• Denying a claim without conducting a thorough investigation.
• Attempting to settle a claim for less than fair market value.

Policy forms

Insurers file their policy forms with the Director.

Depending on the line of insurance and the form, a state may require approval before a form is used, often with a period after which a filing that has not been acted on is deemed approved, or may allow the form to be used as soon as it is filed (“file and use”). In South Dakota, a policy, application, rider or endorsement form may not be delivered until it has been filed with and approved by the Director; a form filed at least 30 days before delivery is deemed approved at the end of that period unless the Director has acted, and the Director may extend the period by up to 30 days (S.D. Codified Laws §§ 58-11-12, 58-11-17, 58-11-18).

If a policy provision conflicts with South Dakota law, the policy is read as amended to conform to the law.

Record maintenance

A producer keeps records of each transaction (the policies placed, the insureds, the premiums received and any changes) and makes them available for the Director’s inspection.

South Dakota requires a producer to keep, at the place of business, the records of transactions under the producer’s license (for each policy, the insured’s name and address, the policy’s form, number and term, the general subject of the insurance and the general nature of the coverage) for at least five years after the transaction is completed (S.D. Codified Laws § 58-30-91).

Fraudulent producer representation

An insurance producer who represents to the public that he/she is licensed to conduct insurance business in South Dakota, but has not passed the appropriate licensing examination, is in violation of regulation.

Any means of public communication are included, such as advertisements, letterheads, circulars, business cards, and other methods of representation.

A producer found guilty of conducting business in South Dakota in any line of insurance for which they are not properly licensed may have any other insurance license suspended or revoked.

Misrepresentation

• Misrepresentation involving the creation or distribution of policies, quotes, and illustrations designed to provide inaccurate information about the terms and conditions of a policy is prohibited.
• Providing inaccurate or incomplete information or comparisons regarding the benefits of a policy is an example of misrepresentation.
• Providing inaccurate or incomplete information for the purpose of inducing, or tending to induce, the lapse, exchange, conversion, forfeiture, or surrender of a policy is a violation as well (twisting).

False advertising

Making, publishing or circulating an advertisement, announcement or statement about the business of insurance that is untrue, deceptive or misleading is an unfair trade practice under state law, based on the NAIC’s model act. The medium does not matter: the rule reaches newspapers, magazines, radio and television, and also notices, circulars, pamphlets, letters, posters and any other way of placing the statement before the public. The model act’s test is whether the statement is untrue, deceptive or misleading, not whether the person meant to deceive.

Defamation

Defamation of an insurer is an unfair trade practice under state law, based on the NAIC’s model act: making, publishing or circulating an oral or written statement that is false, or maliciously critical of or derogatory to the financial condition of an insurer, and that is calculated to injure that insurer or any other person engaged in the business of insurance. Spreading an untrue rumor that a competing insurer is about to fail is the classic example.

Boycott, coercion and intimidation

Entering into an agreement to commit, or by concerted action committing, any act of boycott, coercion or intimidation that results or tends to result in unreasonable restraint of, or monopoly in, the business of insurance is prohibited.

False financial statements

In South Dakota, any misleading representation or misrepresentation as to the financial condition of an insurer is a Class 2 misdemeanor (S.D. Codified Laws § 58-33-5), and knowingly making a false or fraudulent statement or representation with reference to an application for insurance is a Class 1 misdemeanor (S.D. Codified Laws § 58-33-37).

Illegal inducements

Offering anything of value not specified in the policy (money, a service, a favor or a gift) as an inducement to buy insurance is prohibited unless state law expressly allows it, and any agreement made as part of the sale must be written into the policy.

States differ on promotional gifts. The NAIC’s model act lets producers and insurers give customers non-cash gifts, meals or charitable donations up to an amount the state considers reasonable, as long as the gift is not conditioned on buying or renewing a policy and is offered without unfair discrimination. Each state sets its own limit. In South Dakota, an insurer or producer may give, for advertising or promotional programs, an article of merchandise with an invoice value of no more than $100 (S.D. Codified Laws § 58-33-74). An insurer or producer may also hold a raffle or drawing only if entry costs nothing, it does not obligate participants to purchase insurance, the prizes are of reasonable value and it is open to the public (S.D. Codified Laws § 58-33-138).

Unfair discrimination

Unfair discrimination is treating people or risks that present the same hazard differently. The NAIC’s model act, on which state unfair trade practices laws are based, prohibits:

• Unfair discrimination between individuals of the same class and equal expectation of life in life insurance and annuity rates, dividends, benefits or terms
• Unfair discrimination between individuals of the same class and essentially the same hazard in health insurance premiums, benefits or terms
• Refusing, limiting or canceling coverage because of a person’s sex, marital status, race, religion or national origin
• In property and casualty insurance, refusing or limiting coverage solely because of a risk’s geographic location, unless sound underwriting and actuarial principles justify it, or solely because the applicant or insured is physically or mentally impaired

Many states also expressly forbid refusing or limiting coverage solely because a person is blind or partially blind. In South Dakota the rule covers life insurance only: an insurer may not terminate, modify, refuse to issue or refuse to renew a life policy solely because a person is blind or partially blind, unless the action rests on sound actuarial principles or actual or reasonably anticipated experience, and the rule does not apply to accident and health insurance (S.D. Codified Laws § 58-33-12.1).

Errors & Omissions

Errors & Omissions (E&O) insurance is a type of professional liability insurance that protects insurance agents if they are sued for negligent performance of their duties.

• E&O covers honest mistakes that result in (financial) damage to customers/prospects.
• E&O does not cover violations of insurance regulation.

Rebating

South Dakota licensed producers are prohibited from directly or indirectly giving any refund, discount, favor, or credit to reduce premiums to induce the purchase of insurance.

Sidenote

Know this...

To “solicit” or “negotiate” insurance implies that the person is licensed.

Sharing commission

The splitting or sharing of commissions with a licensed producer is allowed. Both parties must be licensed in the line of business in which the proposed commission is to be split. Under the NAIC’s model act, a commission may also be paid to an insurance agency, or to a person who does not sell, solicit or negotiate insurance. In South Dakota, a person not licensed for the business may receive only a referral payment of a fixed dollar amount that is not related to the commission or premium and does not depend on whether the referral results in a transaction (S.D. Codified Laws § 58-30-174).

Twisting

Providing false information or expressing derogatory ideas about the financial conditions of a competitor company with the intent to lapse or surrender an existing policy is a violation of the law.

Under the NAIC’s model act, twisting is a misrepresentation made to induce a policyholder to lapse, forfeit, surrender, exchange or convert a policy. A false or maliciously critical statement about a competing insurer’s finances, made to injure it, is defamation. In South Dakota, twisting is a written or oral statement misrepresenting, or making incomplete comparisons of, the terms, conditions or benefits of any policy to induce a policyholder to lapse, forfeit, surrender, retain, exchange or convert a policy (S.D. Codified Laws § 58-33-8); a misrepresentation of an insurer’s financial condition is a separate offense (S.D. Codified Laws § 58-33-5).

Any written or oral statements used to induce the lapse, termination, exchange, or surrender of an insurance contract based on inaccurate information is prohibited.

Unfair marketing practices

The Division of Insurance is responsible for establishing minimum standards for the full and fair disclosure of policy content. They also require the standardization and simplification of the terms used to describe insurance coverage.

Advertising may not involve the following:

• Any statement or implication that policies are approved, or that the financial condition of a company is endorsed, by any government agency or by any independent group, individual, organization or society, unless that is the fact.
• Any statements regarding advertising that are false or untrue in reference to the time frame in which claims are paid.

Gramm-Leach Bliley Act (GLBA)

This law repealed the Glass-Steagall Act of 1933, allowing consolidation of commercial banks, investment institutions and insurance companies. GLBA established a framework of responsibilities of federal and state regulators for these financial industries.

It permits financial services companies to merge and engage in a variety of new business activities, including insurance, while attempting to address the regulatory issues raised by such combinations.

McCarran-Ferguson Act

Federal law signed in 1945 in which Congress declared that the insurance industry would be regulated at the state level. Grants insurers a limited exemption from federal antitrust legislation. Since 2021 the exemption does not cover the business of health insurance, apart from narrow activities such as sharing historical loss data (15 U.S.C. § 1013©).

National Association of Insurance Commissioners (NAIC)

The U.S. standard-setting and regulatory support organization is created and governed by the chief insurance regulators from the 50 states, the District of Columbia and five U.S. territories.

Through the NAIC, state insurance regulators establish standards and best practices, conduct peer review, and coordinate their regulatory oversight. NAIC staff supports these efforts and represents the collective views of state regulators domestically and internationally.

NAIC members, together with the central resources of the NAIC, form the national system of state-based insurance regulation in the U.S.

Fair Credit Reporting Act

The Fair Credit Reporting Act (FCRA, 15 U.S.C. 1681) regulates consumer reporting agencies and the use of consumer reports, such as credit reports, MIB records and investigative reports, including in insurance underwriting.

• When an insurer requests an investigative consumer report, it must disclose that to the consumer within 3 days of the request
• When an insurer takes adverse action based on a consumer report, it must notify the consumer and identify the reporting agency. The consumer then has 60 days to request a free copy of the report and may dispute inaccurate information

Privacy Act of 1974

The federal Privacy Act of 1974 governs how federal agencies handle personal information. It does not apply to private insurers. An insurer’s use of an applicant’s personal information is governed by the FCRA, the Gramm-Leach-Bliley Act and state insurance privacy law.

In states that adopted the NAIC’s Insurance Information and Privacy Protection Model Act, an authorization to collect personal information signed with an application is valid for no more than 30 months for life, health or disability insurance and one year for property or casualty insurance.

Telemarketing

The National Do Not Call Registry is a list of telephone numbers whose owners do not want to receive telemarketing calls. Telemarketers may not call registered numbers without the person’s permission or an established business relationship, and unsolicited sales calls:

• May be made only between 8 a.m. and 9 p.m. in the recipient’s local time under federal rules; South Dakota’s telemarketing law is narrower for the telemarketers it covers, barring unsolicited calls to a residence received before 9 a.m. or after 9 p.m. local time, or on Sunday (S.D. Codified Laws § 37-30A-3(2))
• Must disclose the caller’s identity, the company the caller represents and that the purpose is a sale

CAN-SPAM

A commercial email must:

• Be identified clearly as an advertisement
• Carry accurate header information and a subject line that is not deceptive
• Include the sender’s valid physical postal address
• Offer a way to opt out, and the sender must honor an opt-out within 10 business days

Insurance guaranty association

Every state has a property and casualty insurance guaranty association that pays covered claims when a member insurer becomes insolvent. Insurers licensed to write the covered lines in the state must belong to it, and it is funded by assessments on its members.

Each state sets the most its association pays per claim. The NAIC’s model act sets $500,000 per claimant for most covered claims and $10,000 for the return of unearned premium.

Auto insurance state minimum

The “state minimum” auto insurance is the minimum amount of car insurance you must carry in your state to legally drive a vehicle in South Dakota. It ensures that you can pay for others’ injuries and damages if you cause a car accident.

Driving without adequate coverage can result in financial repercussions such as fines, license suspensions, vehicle impoundment and even jail time.

Auto insurance is typically structured as a split limit policy with coverage minimums represented by numbers and slashes. The first number is BI coverage per person, the second is BI coverage per incident (if multiple people are injured) and the third is PD per incident.

In South Dakota, the state minimum is 25/50/25 which would cover up to $25,000 of Bodily Injury protection for each person involved in an accident, up to $50,000 worth of Bodily Injuries per incident, and up to $25,000 of Property Damage per incident.