It is now clear that the commissioner of the Department of Banking and Insurance (DOBI) can bring an administrative action for violating state laws and insurance practices against “non-admitted foreign insurance companies,” carriers that are not licensed in New Jersey, and licensed affiliates in New Jersey. According to the Appellate Division’s April 27 opinion in Applied Underwriters Captive Risk Assuance Co. v. Department of Banking and Insurance, a Superior Court action by the attorney general is not the only enforcement mechanism.

Under section 20 of the Non-Admitted Insurers Act, N.J.S.A. 17:32-16 to -23, “the Attorney General, upon the request of the Commissioner [of DOBI] shall institute a civil action in the Superior Court for injunctive” or other appropriate relief when it appears that an insurer, or its agent or representative “has violated, is violating or is about to violate” the act. The Appellate Division held that “[b]ased on text, legislative history, and public policies of the statute as a whole, as well as principles of primary jurisdiction, the Commissioner has the authority to pursue an administrative complaint against these companies instead of a lawsuit brought by the Attorney General.” It is now clear—in the absence of Supreme Court review—that the commissioner has discretion in the choice of forum and has the authority to proceed administratively against a carrier or, through the Department of Law and Public Safety, in a Superior Court action.