(1) (a) Subject to Subsection (7), a licensee is a trustee for money that is paid to, received by, or collected by a licensee for forwarding to insurers or to insureds. (b) (i) Except as provided in Subsection (1)(b)(ii), a licensee may not commingle trust funds with: (A) the licensee's own money; or (B) money held in any other capacity. (ii) This Subsection (1)(b) does not apply to: (A) amounts necessary to pay bank charges; and (B) money paid by insureds and belonging in part to the licensee as a fee or commission. (c) Except as provided under Subsection (4), a licensee owes to insureds and insurers the fiduciary duties of a trustee with respect to money to be forwarded to insurers or insureds through the licensee. (d) (i) Unless money is sent to the appropriate payee by the close of the next business day after their receipt, the licensee shall deposit them in an account authorized under Subsection (2). (ii) Money deposited under this Subsection (1)(d) shall remain in an account authorized under Subsection (2) until sent to the appropriate payee. (2) (a) A licensee shall deposit money required to be deposited under Subsection (1): (i) into a federally insured trust account in a depository institution, as defined in Section 7-1-103, that: (A) has a branch in this state, if the licensee is a resident licensee; (B) has federal deposit insurance; and (C) the depository institution's primary regulator authorizes to engage in the trust business, as that term is defined by Section 7-5-101, in this state; or (ii) into some other account, that: (A) the commissioner approves by rule or order; and (B) provides safety comparable to an account described in Subsection (2)(a)(i). (b) This Subsection (2) does not apply to a title insurance licensee. (3) A licensee does not violate Subsection (2)(a)(i) if the amounts in the accounts exceed the amount of the federal insurance on the accounts. (4) (a) A trust account into which a licensee deposits money may be interest bearing. (b) The interest accrued on the account may be paid to the licensee, if the licensee otherwise complies with this section and with the contract with the insurer. (5) A depository institution or other organization holding trust funds under this section may not offset or impound trust account funds against debts and obligations the licensee incurs. (6) A licensee who, not being lawfully entitled to do so, diverts or appropriates any portion of the money held under Subsection (1) to the licensee's own use, is guilty of theft under Title 76, Chapter 6, Part 4, Theft. Sanctions under Section 31A-2-308 also apply. (7) A nonresident licensee: (a) shall comply with Subsection (1)(a) by complying with the trust account requirements of the nonresident licensee's home state; and (b) is not required to comply with the other provisions of this section.
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