STATUTORY REFERENCE: N.Y. Ins. Law Article 23 and ˜˜ 2402, 2403,
and 4224
On February 1, 2008, the Supreme Court of the State of New York,
Appellate Division, Fourth Department held in Martinez v. Monroe Community
College, 50 A.D.3d 189, 850 N.Y.S.2d 740 (4th Depft),
lv. to appeal denied, 10 N.Y.3d 856 (2008), that plaintiff Patricia
Martinezfs marriage to her same-sex partner was entitled to recognition in New
York State as a matter of comity. The case arose after Ms. Martinezfs
employer denied Ms. Martinezfs application to obtain health care benefits for
her same-sex spouse, whom she had married in Canada, even though the employer
provided such benefits to the opposite-sex spouses of its employees.
Shortly thereafter, the Insurance Department received inquiries
from both consumers and industry seeking guidance as to how insurance companies,
in the wake of Martinez, should treat same-sex couples in marriages
legally performed outside the State of New York.
On May 6, 2008, the New York Court of Appeals – the Statefs highest
court – dismissed Monroe Countyfs application for leave to appeal. In the
absence of guidance from the Court of Appeals or the other Departments of the
Appellate Division, Martinez therefore is controlling precedent for all
trial courts in the State. See, e.g., Mountain View Coach Lines,
Inc. v. Storms, 102 A.D.2d 663, 664 (2d Depft 1984); see also
People v. Turner, 5 N.Y.3d 476, 482 (2005) (following Mountain
View); Tzolis v. Wolff, 39 A.D.3d 138, 142 (1st Depft 2007).
In a legal opinion issued on November 21, 2008 in response to an
inquiry (the gOpinionh), the
Departmentfs Office of General Counsel (gOGCh) concluded that same-sex spouses
to marriages legally performed outside of New York must be treated as spouses
for purposes of the New York Insurance Law, including all provisions governing
health insurance. The Opinion finds that in light of the controlling
authority of Martinez and several opinions from lower New York courts
consistent with that holding, marriages between same-sex couples that are valid
when entered into outside of New York must be recognized in this State for
purposes of interpreting the Insurance Law. Thus, where an employer offers
group health insurance to employees and their spouses, the same-sex spouse of a
New York employee who enters into a marriage legally performed outside the State
is entitled to health insurance coverage to the same extent as any opposite-sex
spouse. Moreover, the Opinion notes that its analyses and conclusions are
applicable to all other kinds of insurance, too.
Accordingly, the Department expects all licensees to comply with
Martinez and the Opinion by recognizing the marriages of same-sex couples
legally performed in other jurisdictions, which includes providing all legally
married couples with the same rights and benefits, regardless of the sex of the
spouses. Further, an insurerfs refusal to extend health insurance or other
coverage on an equal basis to same-sex and opposite-sex spouses may constitute
an unfair act or practice under Insurance Law ˜˜ 2402 and 2403, and/or
unfair discrimination under Insurance Law Article 23 and ˜ 4224. In
addition, an employerfs failure to treat same-sex and opposite-sex spouses
equally for purposes of health insurance coverage or otherwise may violate New
York Executive Law ˜ 296(1)(a), which also targets unlawful
discrimination. See Martinez, 850 N.Y.S.2d at 743. The
Department fully expects that, to the extent necessary, licensees will file new
policy forms or policy form amendments with the Department to ensure compliance
with the law, as expressed in this Circular Letter, controlling judicial
precedent, and the Opinion.
The Departmentfs construction of the Insurance Law also is
consistent with a memorandum dated May 14, 2008 from the Counsel to the
Governor, which asked all State agencies to review their policy statements,
regulations, and statutes to ensure that terms such as gspouse,h ghusband,h and
gwifeh are construed in a manner, consonant with Martinez, that
encompasses marriages of same-sex couples legally performed outside the State,
unless barred by some other provision of law. In a decision dated
September 2, 2008, the Supreme Court of the State of New York, Bronx County,
upheld the legal validity of that memorandum. See Golden v.
Paterson, Index No. 260148/2008 (Sup. Ct. N.Y. Cty. Sept. 2, 2008).
Any general questions regarding the content of this Circular Letter
may be directed to Deputy Superintendent and General Counsel Robert H. Easton at
(212) 480-5282 or Deputy General Counsel Martha A. Lees at (212) 480-2290.
For specific questions about policy form submissions, please contact the
following Insurance Department personnel:
Health Bureau:
Thomas Fusco at (716) 847-7618 or tfusco@ins.state.ny.us
Tobias Len at (518) 486-7815 or tlen@ins.state.ny.us
Life
Bureau: Peter
Dumar at (518) 474-4552 or pdumar@ins.state.ny.us
Property Bureau: Gerald
Scattaglia at (212) 480-5583 or gscattag@ins.state.ny.us
Sincerely,
________________________________________
Robert H.
Easton
Deputy Superintendent and General Counsel