Rule 590-3-5-.01 - Insurance and Bonding Requirements(1) No merchandise dealer, as a condition of installing merchandise in a perpetual care cemetery, may be required by the cemetery owner or any other person to maintain insurance, bonds or other coverage in excess of the following: (a) Comprehensive general liability insurance covering premises operation, contractual liability, products and completed operations in the amount of $1,000,000 for each occurrence of bodily injury or property damage, with an aggregate liability limit of $2,000,000.(b) Automobile liability insurance covering owned, non-owned, borrowed and hired vehicles, in the amount of $1,000,000 for each occurrence of bodily injury or property damage.(c) In the case of a merchandise dealer otherwise required by applicable law to be so insured, worker's compensation and employer's liability insurance in an amount of $100,000 for each accident, with an aggregate limit of $500,000.(d) Cemetery compliance bond in the amount of $10,000 guaranteeing that work performed is in compliance with the cemetery's rules and regulations, providing that no such bond may be required in the event the merchandise dealer maintains the bond described in subparagraph (e) of this paragraph. In lieu of a compliance bond the Secretary of State will accept as evidence of financial responsibility the deposit in trust of: 1. A certificate of deposit or letter of credit evidencing a deposit with a financial institution in the amount of $10,000 payable to the applicant and assigned to the Secretary of State;2. An irrevocable letter of credit addressed to the Secretary of State in the amount of $10,000, insured by the Federal Deposit Insurance Corporation or other governmental agency, or a state or federally chartered credit union insured under 12 U.S.C. Section 1781 of the Federal Credit Union Act and conditioned only upon the rendering of a judgment in which the applicant is found liable for damages; or3. Obligations of the United States, an agency thereof, or the State of Georgia which mature in not more than one year and has a market value as of the date of deposit of at least $10,000.(e) As an alternative to the bond described in subparagraph (d) above, the merchandise dealer may post a bond with the Secretary of State in the amount of $25,000, in a form and with a company satisfactory to the Secretary of State, with language providing that the bond will cover the costs of correction of the dealer's failure to install merchandise in accordance with the rules and regulations of the cemeteries in which it has installed merchandise in the event of a finding by the Secretary of State or a court of competent jurisdiction that the dealer is so liable. In lieu of a bond the Secretary of State will accept as evidence of financial responsibility the deposit in trust of:1. A certificate of deposit or letter of credit evidencing a deposit with a financial institution in the amount of $25,000 payable to the applicant and assigned to the Secretary of State;2. An irrevocable letter of credit addressed to the Secretary of State in the amount of $25,000, insured by the Federal Deposit Insurance Corporation or other governmental agency, or a state or federally chartered credit union insured under 12 U.S.C. Section 1781 of the Federal Credit Union Act and conditioned only upon the rendering of a judgment in which the applicant is found liable for damages; or3. Obligations of the United States, an agency thereof, or the State of Georgia which mature in not more than one year and has a market value as of the date of deposit of at least $25,000.(f) Such deposits shall be held for the benefit of all persons to whom the applicant is liable for damages under this rule for a period of one year after such applicant's registration has expired or been revoked; provided, however, such deposits shall not be released at any time while there is an action pending against the applicant (including any direct appeal of such action or an appeal based on a petition for certiorari jurisdiction), of which the Secretary of State has notice, in a court of competent jurisdiction in which it is alleged that the applicant is liable for damages under this rule. Such deposits shall not be released except upon application to and the written order of the Secretary of State. The Secretary of State shall have no liability for any such release of any deposit or part thereof made by him in good faith. The Secretary of State may designate any regularly constituted state depository having trust powers domiciled in this state as a depository to receive and hold any such deposit. Any such deposit so held shall be at the expense of the applicant. Such depository shall give to the Secretary of State a proper trust and safekeeping receipt upon which the Secretary of State shall give an official receipt to the applicant. The State of Georgia shall be responsible for the safekeeping and return of all deposits made pursuant to this rule. So long as the applicant complies with this rule, the applicant may demand, receive, bring an action for, and recover the income from the securities deposited or may exchange and substitute for the letter of credit or securities deposited or a part thereof, with the approval of the Secretary of State, a letter of credit or securities of the kinds specified in this rule of equivalent or greater value. No judgment creditor or other claimant of the applicant shall levy upon any deposit held pursuant to this rule or upon any part thereof, except as specified in this subsection. Whenever any person shall file an action in a court of competent jurisdiction in which it is alleged that the applicant is liable for damages under this rule, such person, in order to secure his recovery, may give notice to the Secretary of State of such alleged liability and of the amount of damages claimed, after which notice the Secretary of State shall be bound to retain, subject to the order of the Superior Court of Fulton County, as provided in subsection (g) of this rule, a sufficient amount of the deposit to pay the judgment in the action.(g) In the event that the applicant prevails in such action and in the event that such deposits have been held by the Secretary of State for a period of at least one year after the applicant's registration has expired or been revoked, then such deposits shall be released to the applicant; provided, however, such deposits shall not be released at any time while there is an action pending against the applicant (including any direct appeal of such action or an appeal based on a petition for certiorari jurisdiction), of which the Secretary of State has notice, in a court of competent jurisdiction in which it is alleged that the applicant is liable for damages under this rule. If a judgment is rendered in such action by which it is determined that the applicant is liable for damages under this rule and the applicant has not paid the judgment within ten days of the date the judgment became final or if the applicant petitions the Supreme Court of the United States to take certiorari jurisdiction over such action and the applicant has not paid the judgment within ten days of the date the Supreme Court of the United States denies certiorari jurisdiction or within ten days of the date the Supreme Court of the United States affirms the judgment, then such person may petition the Superior Court of Fulton County for an order directing the Secretary of State to reduce such deposit or a portion thereof sufficient to pay the judgment to cash or its equivalent and to pay such judgment to the extent the judgment may be satisfied with the proceeds of the deposit. If there shall remain any residue from the deposit and if at least one year has passed since the expiration or revocation of the applicant's registration, the Secretary of State shall pay such residue to the applicant, taking his receipt for the residue, which shall be filed and recorded with the other papers of the case, unless there is an action pending against the applicant (including any direct appeal of such action or an appeal based on a petition for certiorari jurisdiction), of which the Secretary of State has notice, in a court of competent jurisdiction in which it is alleged that the applicant is liable for damages under this rule, in which case the Secretary of State shall hold or dispose of such residue in accordance with the provisions of this subsection relating to the holding or disposing of the entire deposit. If more than one final judgment is rendered against the applicant for violation of this rule, the judgment creditors shall be paid in full from such deposit or residue thereof, to the extent the deposit or residue is sufficient to pay the judgments, in the order in which the judgment creditors petitioned the Superior Court of Fulton County.(h) Anything in this rule to the contrary notwithstanding, the Secretary of State shall comply with any order of a Georgia or United States court of competent jurisdiction to turn over any deposit held by him or her pursuant to subsection (1)(d) or (1)(e) of this rule or the proceeds from any bond held by him or her pursuant to subsection (1)(d) or (1)(e) of this rule to a trustee or receiver for the use and sole benefit of persons on whose behalf the Secretary of State holds such deposit or proceeds.(i) No merchandise dealer shall be required to maintain insurance described in subparagraph (b) or (c) of this rule if insurance otherwise maintained provides equivalent coverage.(2) With respect to subsection (1)(a), (1)(b), and (1)(c) hereof, in no event shall a cemetery owner require insurance coverage of any type in an amount greater than its own coverage.(3) No merchandise dealer, as a condition of installing merchandise in a perpetual care cemetery, may be required by the cemetery owner or any other person to provide proof of any insurance required by rule or regulation of the cemetery, as permitted by subsection (1)(a), (1)(b), (1)(c), (1)(d) or (1)(e), more frequently than once per year; provided, however, a cemetery may require a merchandise dealer to provide proof of any material change in coverage five (5) days prior to the installation of merchandise in the cemetery.Ga. Comp. R. & Regs. R. 590-3-5-.01
O.C.G.A. Secs. 10-14-14, 10-14-16, 10-14-17.
Original Rule entitled "Insurance and Bonding Requirements" adopted. F. July 26, 2000; eff. August 15, 2000.Repealed: New Rule of same title adopted. F. Jan. 17, 2002; eff. Feb. 6, 2002. Repealed: New Rule of same title adopted. F. Aug. 26, 2004; eff. Sept. 15, 2004. Repealed: New Rule of same title adopted. F. May 19, 2005; eff. June 8, 2005.