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40-2407. Same; cease and desist orders; penalties; suspension or revocation of license; restitution; modification of order. (a) If, after such hearing, the commissioner shall determine that the person charged has engaged in an unfair method of competition or an unfair or deceptive act or practice, the commissioner shall render an order requiring such person to cease and desist from engaging in such method of competition, act or practice and if the act or practice is a violation of K.S.A. 40-2404, and amendments thereto, the commissioner may in the exercise of discretion order any one or more of the following:

(1) Payment of a monetary penalty of not more than $1,000 for each and every act or violation, but not to exceed an aggregate penalty of $10,000, unless the person knew or reasonably should have known such person was in violation of this act, in which case the penalty shall be not more than $5,000 for each and every act or violation, but not to exceed an aggregate of $50,000 in any six-month period;

(2) suspension or revocation of the person's license if such person knew or reasonably should have known such person was in violation of this act; or

(3) redress of the injury by requiring the refund of any premiums paid by, the payment of any moneys withheld from, any consumer and appropriate public notification of the violation. In applying this penalty any requirement for the payment of moneys may include reasonable interest at a rate not to exceed the rate specified in K.S.A. 40-2,126, and amendments thereto, with such interest commencing no earlier than the date the consumer's complaint was received by the commissioner and actual costs incurred by the consumer in effecting the payment associated directly with the injury.

(b) After the expiration of the time allowed for filing a petition for review if no such petition has been duly filed within such time, the commissioner may at any time, after notice and opportunity for hearing in accordance with the provisions of the Kansas administrative procedure act, reopen and alter, modify or set aside, in whole or in part, any order issued under this section, whenever in the commissioner's opinion conditions of fact or of law have so changed as to require such action or if the public interest shall so require.

History: L. 1955, ch. 247, § 7; L. 1972, ch. 189, § 6; L. 1976, ch. 219, § 1; L. 1988, ch. 356, § 111; L. 1993, ch. 91, § 1; L. 1997, ch. 24, § 5; July 1.

Law Review and Bar Journal References:

"Insurer's Bad Faith: A New Tort for Kansas?" Janet Amerine and Jan E. Montgomery, 19 W.L.J. 467, 476, 486 (1980).

Attorney General's Opinions:

Definitions; prepaid legal and dental prepaid service plans act. 89-112.


1. Tort of bad faith not recognized in Kansas. Spencer v. Aetna Life & Casualty Ins. Co., 227 K. 914, 923, 925, 611 P.2d 149.

2. All power under act vested in insurance commissioner; no language purporting to create private cause of action. Earth Scientists v. United States Fidelity Ex Guar., 619 F.Supp. 1465, 1468, 1469 (1985).

3. Liability of insurer in excess of policy limits as based upon wrongdoing causing loss to insured examined. Heinson v. Potter, 244 K. 667, 676, 772 P.2d 778 (1989).

4. Constitutionality of 40-2404b prohibiting unfair competition and deceptive practices upheld; distinction between criminal statutes and those regulating business noted. Guardian Title Co. v. Bell, 248 K. 146, 150, 805 P.2d 33 (1991).

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