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Code of Virginia
Title 38.2. Insurance
Chapter 8. Service of Process
12/1/2021

Chapter 8. Service of Process.

Article 1. Unlicensed Insurers Process.

§ 38.2-800. Definition.

For the purposes of this article, "insurer" includes health services plans, health maintenance organizations, legal services plans, dental or optometric services plans, and unlicensed insurers approved by the Commission to issue surplus lines coverage as respectively provided for in Chapters 42, 43, 44, 45, and 48 of this title.

1986, c. 562; 2007, c. 157.

§ 38.2-801. What constitutes appointment of agent for service of process.

A. The clerk of the Commission shall be deemed to be appointed by any insurer unlicensed in this Commonwealth as its agent for the service of process in accordance with § 13.1-758 if any of the following acts are effected by mail or otherwise in this Commonwealth:

1. The issuance or delivery of insurance contracts to residents of this Commonwealth or to corporations authorized to do business in this Commonwealth;

2. The solicitation of applications for these insurance contracts;

3. The collection of premiums, membership fees, assessments or other considerations for these insurance contracts; or

4. The transaction of any other insurance business in connection with these insurance contracts.

1952, c. 317, § 38.1-64; 1956, c. 431; 1958, c. 597; 1986, c. 562.

§ 38.2-802. How process served.

Service of process or notice upon any unlicensed insurer in any suit, action or proceeding arising out of or in connection with the acts listed in § 38.2-801 in this Commonwealth shall be made in the manner prescribed in § 13.1-758.

1952, c. 317, § 38.1-65; 1956, c. 431; 1958, c. 597; 1986, c. 562.

§ 38.2-803. Alternate method of service.

A. Service of process or notice in any action, suit or proceeding shall be valid if:

1. Served upon any person within this Commonwealth who, in this Commonwealth on behalf of the unlicensed insurer, is (i) soliciting insurance, (ii) making, issuing, or delivering any insurance contract, or (iii) collecting or receiving any premium, membership fee, assessment or other consideration for insurance; and

2. A copy of the process or notice is sent within ten days thereafter by registered mail to the unlicensed insurer at its last known principal place of business.

B. A post-office receipt showing the sender's name, and the unlicensed insurer's name and address, and the plaintiff's or plaintiff's attorney's affidavit of compliance with the procedures set out in subsection A of this section shall be filed with the clerk of the court in which the proceeding is pending on or before the date the unlicensed insurer is required to appear, or within such further time as the court allows.

1952, c. 317, § 38.1-66; 1986, c. 562.

§ 38.2-804. Other legal service not limited.

Nothing in this article shall limit the right to serve any process or notice upon any licensed insurer in any other manner permitted by law.

1952, c. 317, § 38.1-67; 1986, c. 562.

§ 38.2-805. When judgment may be entered.

No judgment based on default of appearance shall be entered against any defendant served pursuant to § 38.2-803 until the expiration of thirty days from the date that the affidavit of compliance is filed.

1952, c. 317, § 38.1-68; 1986, c. 562.

§ 38.2-806. Defense of action by unlicensed insurer.

A. Before any unlicensed insurer files or causes to be filed any pleading in any action, suit or proceeding instituted against it, that insurer shall either:

1. Deposit cash or securities with the clerk of the court in which the action, suit or proceeding is pending, or file with the clerk a bond in an amount to be fixed by the court which shall be sufficient to secure the payment of any final judgment; or

2. Procure a certificate of authority and a license to transact the business of insurance in this Commonwealth.

B. The court may order a postponement in any action, suit or proceeding in which service is made in the manner provided in § 38.2-802 or § 38.2-803 to afford the unlicensed insurer reasonable opportunity to comply with the provisions of subsection A of this section and to defend the action.

C. Nothing in subsection A of this section shall be construed to prevent any unlicensed insurer from appearing specially in the suit or other proceeding in which service was made in the manner provided in this article on the ground either that (i) the insurer has not done any of the acts listed in § 38.2-801, or (ii) the person on whom service was made pursuant to § 38.2-803 was not doing any of the acts listed in § 38.2-803.

1952, c. 317, § 38.1-69; 1986, c. 562.

§ 38.2-807. Attorney fees.

A. In any action against an unlicensed insurer upon an insurance contract issued or delivered in this Commonwealth to a resident of this Commonwealth or to a corporation authorized to do business in this Commonwealth, the court may allow the plaintiff a reasonable attorney fee if (i) the insurer has failed to make payment in accordance with the terms of the contract for 30 days after demand prior to the commencement of the action and (ii) the court concludes that the refusal was vexatious and without reasonable cause. The fee shall not exceed 33 1/3 percent of the amount that the court or jury finds the plaintiff is entitled to recover against the insurer, but shall be at least $200.

B. Failure of the insurer to defend the action shall be deemed prima facie evidence that its failure to make payment was vexatious and without reasonable cause.

1952, c. 317, § 38.1-70; 1986, c. 562; 2010, c. 343.

Article 2. Unlicensed Nonresident Brokers and Agents Process.

§ 38.2-808. Definition.

For the purposes of this article, "agent" shall have the meaning as set forth in § 38.2-1800 which shall include a legal services agent, a health agent and a dental or optometric services agent.

1986, c. 562.

§ 38.2-809. What constitutes appointment of agent for service of process.

The clerk of the Commission shall be deemed to be appointed by any unlicensed nonresident broker or agent as its agent for the service of process pursuant to § 13.1-758 if any of the following acts are effected by mail or otherwise in this Commonwealth by such unlicensed nonresident broker or agent: (i) the issuance or delivery of insurance contracts to residents of this Commonwealth or to corporations authorized to do business in this Commonwealth, (ii) the solicitation of applications for such contracts, (iii) the collection of premiums, membership fees, assessments or other considerations for such contracts, or (iv) the transaction of any other insurance business in connection with such contracts.

1958, c. 180, § 38.1-70.2; 1986, c. 562.

§ 38.2-810. How process or notice served.

Service of process or notice upon any unlicensed nonresident broker or agent in any suit, action or proceeding arising out of or in connection with the acts enumerated in § 38.2-809 in this Commonwealth shall be made in the manner prescribed in § 13.1-758.

1958, c. 180, § 38.1-70.3; 1986, c. 562.

§ 38.2-811. Other legal service not limited.

Nothing in this article shall limit the right to serve any process or notice upon any unlicensed nonresident broker or agent in any other manner permitted by law.

1958, c. 180, § 38.1-70.4; 1986, c. 562.

Article 3. Unlicensed Public Adjusters.

§ 38.2-812. Definition.

For the purposes of this article, "public adjuster" shall have the meaning as set forth in § 38.2-1845.1.

2012, cc. 734, 735.

§ 38.2-813. What constitutes appointment of agent for service of process.

The Clerk of the Commission shall be deemed to be appointed by any unlicensed public adjuster as its agent for the service of process pursuant to § 13.1-758 if any of the following acts are effected by mail or otherwise in the Commonwealth by such unlicensed public adjuster: (i) the investigation, negotiation, adjustment, or provision of advice to insureds in relation to first party claims arising under insurance contracts that insure real or personal property located in the Commonwealth; (ii) the solicitation of public adjusting for such contracts; (iii) the collection of fees, commissions, salaries, or other considerations for such contracts; or (iv) the transaction of any other insurance business in connection with such contracts.

2012, cc. 734, 735.

§ 38.2-814. How process or notice served.

Service of process or notice upon any unlicensed public adjuster in any suit, action, or proceeding arising out of or in connection with the acts enumerated in § 38.2-813 in the Commonwealth shall be made in the manner prescribed in § 13.1-758.

2012, cc. 734, 735.

§ 38.2-815. Other legal service not limited.

Nothing in this article shall limit the right to serve any process or notice upon any unlicensed public adjuster in any other manner permitted by law.

2012, cc. 734, 735.