A. All funds of others received by a person licensed or acting as an insurance producer, surplus line broker, bail bondsman or their solicitor, motor club agent or agent for a health care plan or prepaid dental plan, or in a similar capacity for which licensing of the person is required under the Insurance Code, are received and held by the person in a fiduciary capacity. Any person who diverts or appropriates funds to the person’s own use, or takes or secretes with intent to embezzle, all without consent of the person entitled to the funds, is guilty of larceny by embezzlement.

Terms Used In New Mexico Statutes 59A-12-22

  • Bail: Security given for the release of a criminal defendant or witness from legal custody (usually in the form of money) to secure his/her appearance on the day and time appointed.
  • Embezzlement: In most states, embezzlement is defined as theft/larceny of assets (money or property) by a person in a position of trust or responsibility over those assets. Embezzlement typically occurs in the employment and corporate settings. Source: OCC
  • Fiduciary: A trustee, executor, or administrator.

B. Subject to the terms of any agreement between a person or licensee and the person’s or licensee’s principal or obligee, each person who does not make immediate remittance of funds to the insurer or other person entitled thereto shall elect and follow as to funds received for account of a particular insurer or person either of the following methods:

(1)     remit received premiums (less applicable commissions, if any) and return premiums to the insurer or other person entitled thereto within fifteen days after receipt; or

(2)     establish and maintain in a commercial bank or other established financial institution depositary one or more accounts, separate from accounts holding general personal, firm or corporate funds, and forthwith deposit and retain therein pending transmittal to the insurer or other person entitled thereto all such premiums (net of applicable commissions, if any) and return premiums. Funds belonging to more than one principal may be as deposited and held in the same account so long as the amount held for each principal is readily ascertainable from the records of the depositor. The depositor may commingle with such fiduciary funds in a particular account such additional funds as the licensee deems prudent for advancing premiums, reserves for payment of return commissions or for other contingencies arising in the business of receiving and transmitting premiums or return premiums.

C. The person may commingle with the person’s own funds to an unlimited amount funds of a particular principal who has in writing in advance expressly waived the segregation requirements of Subsection B of this section.

D. Any commingling of funds with funds of any person permitted under this section shall not alter the fiduciary capacity of the person as to funds of others.

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