Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code Section 33-23-79 are included in the annotations to this Code section.

Insurance premium deposited to bank account of agent represented "trust funds" in possession of the agent on behalf of the insured and the bank's setoff against the account in the amount of an unpaid loan to the agent was improper. Bank of Spalding County v. Pound, 213 Ga. App. 324, 444 S.E.2d 375 (1994).

Assignment of unearned return premiums to financing company creates fiduciary duty.

- When the contract entered into by an insured and a premium finance company provided for the assignment of any and all unearned return premiums and dividends to the financing company, the assignment created a fiduciary relationship between the parties pursuant to subsection (b) of former § 33-23-79 (see O.C.G.A. § 33-23-35(b)), and the failure on the part of the insured to pay a returned premium to the financing company, for whatever reason, was a breach of this fiduciary duty such that the debt for this amount was nondischargeable in bankruptcy. National Premium Budget Plan Corp. v. Nicholson, 55 Bankr. 645 (Bankr. N.D. Ga. 1985) (decided under former O.C.G.A. § 33-23-79).

Prompt accounting for refunds.

- In a proceeding on revocation of an insurance agent's license, evidence that the agent waited between 48 and 57 days after depositing checks before sending premium refunds to clients supported a finding that the refunds were not "promptly accounted for" as required by O.C.G.A. § 33-23-35. Commissioner of Ins. v. Stryker, 218 Ga. App. 716, 463 S.E.2d 163 (1995).

Fiduciary relationship between broker and insurer.

- When parties A, B and C arrange that C will provide insurance to A, and A will give B money for the purpose of paying C, B owes fiduciary duties to both A and C; accordingly, the fact that the parties' relationship arises from a contract does not preclude the possibility of a tort claim if the elements of the claim are otherwise established. Unified Servs., Inc. v. Home Ins. Co., 218 Ga. App. 85, 460 S.E.2d 545 (1995).

Fiduciary status of agents.

- Bankruptcy debtors who administered employment benefit plans were fiduciaries for purposes of nondischargeability of debts to the plans under 11 U.S.C. § 523(a)(4) as licensed insurance agents, since O.C.G.A. § 33-23-35(b) created an express statutory trust, and the debtors' administration of the plans through a corporation did not abrogate the debtors' fiduciary status as individuals under O.C.G.A. § 33-23-1. Nat'l Air Traffic Controllers Assoc. v. Davenport (In re Davenport), Bankr. (Bankr. N.D. Ga. Sept. 6, 2007).

Cited in Herring v. Standard Guar. Ins. Co., 238 Ga. 261, 232 S.E.2d 544 (1977); Seibels, Bruce & Co. v. England, 63 Bankr. 76 (Bankr. N.D. Ga. 1986); Hubbard v. Stewart, 651 F. Supp. 294 (M.D. Ga. 1987); Surety Group, Inc. v. Ragsdale, 197 Ga. App. 437, 398 S.E.2d 718 (1990); Moseley v. Coastal Plains Gin Co., 199 Ga. App. 99, 404 S.E.2d 123 (1991).