Dear Mr. Karns:
You requested an opinion from this office concerning the interpretation of LSA-R.S. 22:203(G) and LSA-R.S. 12:25(A)(1). You questioned the application of LSA-R.S. 12:25(A)(1) when the Commissioner of Insurance is designated agent for service of process under LSA-R.S. 22:303(G). Specifically, you ask whether the affidavit of acknowledgment and acceptance required by LSA-R.S. 12:25(A)(1) must be furnished to the Secretary of State's office by the Commissioner of Insurance when the Commissioner is designated agent for service of process under LSA-R.S. 22:203(G).
LSA-R.S. 22:201-22:210.1 is known as the Viatical Settlements Act. LSA-R.S. 22:203 addresses the licensing requirements for viatical settlement providers or brokers. LSA-R.S. 22:203(G) provides as follows:
G. The Department of Insurance shall not issue any license to any nonresident applicant unless the applicant has filed with the department one of the following:
(1) A written designation of an agent for service of process.
(2) A written designation of the commissioner as agent for service of process.
In accordance with this provision, nonresident applicants seeking a viatical settlement provider/broker license must file with the Department of Insurance either a written designation of an agent for service of process or a written designation of the Commissioner of Insurance as agent for service of process.
LSA-R.S. 12:21-12:29 of the Business Corporation Law deals with the incorporation of entities in the State of Louisiana and sets forth the requirements therefor. LSA-R.S. 12:25 addresses the filing and recording of the articles or incorporation and initial report; the issuance and effect of the certificate of incorporation and the commencement of the corporate existence of the entity. LSA-R.S. 12:25(A)(1) provides:
. . . The articles, or a multiple original thereof, shall be filed with the secretary of state, together with the initial report prescribed by R.S. 12:101. A notarized affidavit of acknowledgment and acceptance signed by the registered agent, if not included on the initial report, shall be attached to the articles of incorporation and initial report.
Under this provision, an entity desiring to form a corporation under the laws of this state and/or incorporate in this state must file with the Secretary of State their articles of incorporation, or a multiple original thereof, together with the initial report prescribed by R.S. 12:101. A notarized affidavit of acknowledgment and acceptance signed by the registered agent must be attached to the articles of incorporation and initial report if said acknowledgment and acceptance is not included on the initial report.
LSA-R.S. 12:25 applies to entities incorporated in this State under the laws of this State. These entities would therefore be classified as domestic corporations. The licensing provision or requirement of 22:203(G), which allows viatical settlement provider/broker license applicants to designate the Commissioner of Insurance as agent for service of process, only applies if the applicant is a nonresident. If the applicant is a nonresident corporation, it is not a domestic corporation, but rather a foreign corporation. Thus, LSA-R.S. 12:25(A)(1) and the requirements therein are not applicable. Therefore, it is the opinion of this office that LSA-R.S. 12:25(A)(1) does not require the Commissioner of Insurance to execute and submit a notarized affidavit of acknowledgment and acceptance to the Secretary of State when the Commissioner is designated agent for service of process for nonresident viatical settlement providers/brokers.
The provision addressing registered agent requirements for foreign corporations is set forth in LSA-R.S. 12:308. That provision provides, in pertinent part, as follows:
A. Each foreign corporation authorized to transact business in this state shall have and continuously maintain in this state:
(1) At least one registered agent, which agent may be either (a) an individual resident in this state whose business office is identical with the corporation's registered office, (b) an individual attorney or a partnership which is authorized to practice law in this state, or (c) a domestic corporation, or a foreign corporation authorized to transact business in this state, which has a business office identical with such registered office, which is authorized by its articles or certificate of incorporation to act as the agent of a corporation for service of process, and which has on file with the secretary of state both a certificate or amended certificate setting forth the names of at least two individuals in such office, each of whom is authorized to receive any process served on it as such agent and a notarized affidavit of acknowledgment and acceptance signed by each registered agent. The failure to attach a notarized affidavit of acknowledgment and acceptance as required by this Section shall not be a defense to proper service of process on the corporation.
In accordance with this provision, a notarized affidavit of acknowledgment and signed acceptance must be filed with the Secretary of State by a registered agent for a foreign corporation authorized to transact business in this state only if said registered agent is a corporation. The Commissioner of Insurance is not a corporation. Therefore, if a nonresident applicant seeking a viatical settlement provider license designates the Commissioner of Insurance as its agent for service of process, LSA-R.S. 12:308(A) does not require the Commissioner of Insurance to file a notarized affidavit of acknowledgment and acceptance with the Secretary of State.
It is hoped that this opinion has been of some assistance to you. If we can be of any further assistance, please feel free to contact us.
Sincerely,
RICHARD P. IEYOUB ATTORNEY GENERAL
BY: __________________________ CASSANDRA A. SIMMS ASSISTANT ATTORNEY GENERAL