New York, NY asked in Insurance Defense for New York

Q: Does selling stand alone indemnification that assumes risk of liability constitute doing an insurance business?

I want to license a photograph with unreleased images of people in it. It is very unlikely that the people who appear in this photo will ever see the photo or initiate a lawsuit based on the lack of release form. If I put in the indemnification provision of the licensing agreement that I will assume the risk of lawsuit by the unreleased subjects in the photograph, does that make me an insurer subject to insurance law? It would be near impossible to track down these people in the photo to get a release, and it is very unlikely that they will ever see the photo being used.

While we’re certainly not within the scope of NY Insurance Law §1101(b)(1)(B), selling an indemnification guarantee on its own could potentially fall into part (C), as collecting a premium or other consideration for any contract of insurance.

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1 Lawyer Answer

A: You are giving them a license, of which the indemnification provision is merely a part. Thus no, the license would not be a stand-alone insurance contract.

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