CHAPTER 297
FORMERLY
HOUSE BILL NO. 551
AS AMENDED BY HOUSE AMENDMENT NO. 1
AN ACT TO AMEND CHAPTER 23, TITLE 18, DELAWARE CODE, RELATING TO DISCRIMINATION BY INSURANCE COMPANIES.
WHEREAS, it has come to the attention of the Legislature and eminently reported in news media that there are some Insurance companies licensed In Delaware who discriminate on the basis of race relative to the marketing of life Insurance polices; and
WHEREAS, as a result of a survey conducted by the Insurance Department mailed out to 600 companies in an effort to ascertain what insurance companies discriminate on the basis of race It was discovered that approximately 20 companies were suspicious of discriminatory practices by refusing to cooperate with the Insurance Commissioner discriminated In the past or were still discriminatory, one such company being the Home Beneficial Life Insurance Company; and
WHEREAS, discrimination was practiced in one such case of a Mrs. Ella Mae Dale, who detected in her life Insurance policy the symbol or designation (c) representing the client as being colored and through further investigation It was discovered that the letter (w) also appeared on policies issued to white clients; and
WHEREAS, It was subsequently discovered that this same Insurance company who sold life Insurance policies to so called "colored" for a face value of $500.00 carry 20% less cash value than those same policies Issued to white clients; and
WHEREAS, the same investigation also uncovered that the premiums in which minorities paid on policies was 207 higher than those paid by whites, identical policies of the same amount; and
WHEREAS, Home Beneficial Life Insurance Company reportedly has a reserve fund In excess of 350 million dollars of which a portion should be placed In some type of escrow to recompensate clients who have been discriminated against and to cover other legal costs, either by the Commissioner or a court of competent jurisdiction; and
WHEREAS, a resolution of the harm done to clients remains unsettled for all parties included; and
WHEREAS, It is desired to clarify that existing Delaware law prohibits discrimination by Insurance companies based on race, color, religion or national origin; and
WHEREAS, It is desired to provide a statutory mechanism for redressing such
discrimination once found.
NOW, THEREFORE'
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:
Section I. Amend g2304, Chapter 23, Title 18, Delaware Code, by adding thereto a new
subsection (22) to read as follows:
"(22) Unfair Discrimination in the Value of Insurance Policies and Premiums due on
same based on Race, Color, Religion or National Origin; Penalty
(a) It shall be unlawful practice for any Insurance company licensed to do
business In this State to discriminate In any way because of the Insured's race, color, religion or national origin, or to make, publish, disseminate, circulate or place before the public, or cause, directly or indirectly, to be made, published, disseminated, circulated or placed before the public, In a newspaper, magazine or other publication, or in the form of a notice, circular, pamphlet, letter or poster, or over any radio or television station, or in any other way, to Include the writing of any policy or the application therefor, an advertisement, announcement or statement containing any assertion, representation or statement with respect to the business of Insurance or with respect to any person in the conduct of his Insurance business, which discriminates in any way because of the Insured's race, color, religion, or national origin or to classify or refer to any individual on the basis of race. cola', religion, or national origin.
(b) The Department of Insurance is empowered, as hereinafter provided to
prevent any licensed or authorized insurance company from engaging in any discriminatory practices as set forth in subsection (a) of this Section.
(a) Whenever a charge is filed with the Department by or on behalf of a person claiming to have been discriminated against in the purchase of insurance because of race, religion, color, or national origin, the Department shall serve, a copy of the charge on such insurance company and shall make an investigation thereof. Charges shall be in writing and shall contain such information and be in such form as the Department requires. Such charges shall not be made public by the Department. If the Department determines after such investigation that there is reasonable cause to believe that the charge is not true, it shall dismiss the charge and promptly notify the person claiming to have been discriminated against and the respondent of its action. Such notice shall be in writing and shall set forth the facts upon
which the decision is based.
(b) If the Department determines after the investigation referred to in
subsection (c) of this section that there is reasonable cause to believe that the charge is true, the Department shall endeavor to eliminate any such alleged unlawful practice by informal methods of conference, conciliation and persuasion. Nothing said or done during and as a part of such conciliation endeavors may be made public by the Department, its officers or employees or used as evidence in a subsequent proceeding without the written consent of the persons concerned. The
Department shall make its determination on reasonable cause as promptly as possible and, so far as practicable, not later than 120 days from the filing of the charge. A charge under subsection (c) of this section must be filed within 90 days after the alleged unlawful discriminatory practice or 120 days after discovery thereof, whichever is the later.
(a) If the Department determines, after attempting to secure voluntary
compliance under subsection (d) of this section, that It Is unable to secure from the respondent a conciliation agreement acceptable to the Department and to the person aggrieved, which determination shall not be reviewable in any court, the Department shall issue and cause to be served upon the respondent a complaint stating the facts upon which the allegation of the unlawful discriminatory practice is based together with a notice of hearing before the Commissioner or his agent, at a place therein fixed not less than 5 days after the serving of such complaint. The complaint may be amended at any reasonable time provided that the respondent has sufficient time to respond thereto. Related proceedings may be consolidated
for hearing.
(a) A respondent shall have the right to file an answer to the complaint
against him and may amend his answer at any reasonable time. Respondent and the person aggrieved shall be parties and may appear at any stage of the proceedings, with or without counsel. All testimony shall be taken under oath and shall be
reduced to writing.
(a) If the Commissioner or his agent finds that the respondent has engaged In an unlawful discrimin•tory practice, the Commissioner or his agent shall state its findings of fact In writing and shall issue and cause to be served on the respondent and the person or persons aggrieved by such unlawful discriminatory practice an order requiring the respondent to cease and desist from such unlawful practice. Such order may further require such respondent to make reports from time to time showing the extent to which he has complied with the order. If the
Commissioner or his agent finds that the respondent has not engaged in any unlawful discriminatory practice, the Commissioner or his agent shall state his findings of fact in writing and shall issue and cause to be served on the respondent and the person or persons alleged in the complaint to be aggrieved an order dismissing the complaint.
(a) Any complainant or aggrieved party, or respondent or intervenor or the
Commissioner or his agent may obtain an order of the Court of Chancery for
enforcement of the Commissioner's order. The proceeding for enforcement is
initiated by filing a petition in the Court of Chancery. Copies of the petition
shall be served upon all parties of record. Within 30 days after the service of the petition upon the Commissioner or his agent or its filing by the Commissioner or his agent or within such further time as the Court may allow, the Commissioner or his agent shall transmit to the Court the original or a certified copy of the entire record upon which the order is based, including any transcript of testimony, which need not be printed. By stipulation of all parties to the proceeding, the record may be shortened. The Court may reverse or modify the order if substantial rights of the petitioner have been prejudiced or the findings of fact of the
Department are clearly erroneous. The Court shall have power to grant such
temporary relief or restraining order as It deems just and to enter an order enforcing, as modified, or setting aside in whole or in part the order of the Commissioner or his agent, or remand the case to the Department for further proceedings.
A proceeding under this section must be initiated within 30 days after a copy of the order of the Commissioner or his agent Is received. If no proceeding is so initiated, the Commissioner or his agent may obtain a decree of the Court for enforcement of its order upon showing that a copy of the petition for enforcement was served on the respondent and that the respondent Is subject to the jurisdiction of the Court.
(I) After a charge has been filed and until the record has been filed in the Court of Chancery as herein provided, the proceeding may at any time be ended by agreement between the Commissioner or his agent and the parties for the elimination of the alieged unlawful discriminatory practice, approved by the Commissioner or his agent and the Commissioner or his agent may at any time, upon reasonable notice, modify or set aside, In whole or in part, any finding or order made or Issued by It.
(j) The Superior Court of the county where the violation Is alleged to have
occurred shall have jurisdiction to hear an appeal from any decision made by the Commissioner or his agent, except as provided In subsection (h) of this section. Such appeal shall be on the record only.
(k) In the event that the court determines that the respondent has engaged in
an unlawful discriminatory practice causing economic loss to the petitioner, the respondent shall reimburse or refund to the petitioner, with reasonable Interest added thereto, a sum equal to the amount of the economic loss suffered by the petitioner."
Approved June 30, 1988.