Florida Senate - 2012                                    SB 1262
       
       
       
       By Senator Oelrich
       
       
       
       
       14-01046A-12                                          20121262__
    1                        A bill to be entitled                      
    2         An act relating to warranty associations; amending s.
    3         634.121, F.S.; providing criteria for a motor vehicle
    4         service agreement company to effectuate refunds
    5         through the issuing salesperson or agent; requiring
    6         the salesperson, agent, or service agreement company
    7         to maintain a copy of certain documents; requiring a
    8         salesperson or agent to provide a copy of a document
    9         to the service agreement company if requested by the
   10         Department of Financial Services; requiring the Office
   11         of Financial Regulation to provide to the department
   12         findings that a salesperson or agent exhibits a
   13         pattern or practice of failing to effectuate refunds
   14         or to maintain and remit to the service agreement
   15         company the required documentation; amending s.
   16         634.141, F.S.; providing an exception to the
   17         requirement that motor vehicle service agreement
   18         companies undergo periodic examinations; authorizing
   19         rather than requiring the Office of Financial
   20         Regulation to examine service agreement companies;
   21         limiting the examination period to the most recent 5
   22         years; removing the requirement that the Financial
   23         Services Commission establish rules for conducting
   24         examinations; removing the criteria for determining
   25         whether an examination is warranted; creating s.
   26         634.2855, F.S.; authorizing a governmental entity,
   27         public agency, institution, person, firm, or legal
   28         entity to provide property or money to the Department
   29         of Financial Services to pursue unauthorized entities
   30         operating as motor vehicle service agreement
   31         companies; amending s. 634.312, F.S.; authorizing a
   32         home warranty association to effectuate a refund
   33         through the issuing sales representative; amending s.
   34         634.314, F.S.; providing an exception to the
   35         requirement that home warranty associations undergo
   36         periodic examinations; authorizing rather than
   37         requiring the Office of Financial Regulation to
   38         examine home warranty associations; limiting the
   39         examination period to the most recent 5 years;
   40         removing the requirement that the Financial Services
   41         Commission establish rules for conducting
   42         examinations; removing the criteria for determining
   43         whether an examination is warranted; creating s.
   44         634.3385, F.S.; authorizing a governmental entity,
   45         public agency, institution, person, firm, or legal
   46         entity to provide property or money to the Department
   47         of Financial Services to pursue unauthorized entities
   48         operating as home warranty associations; amending s.
   49         634.414, F.S.; authorizing service warranty
   50         associations to effectuate refunds through the issuing
   51         sales representative; authorizing a service warranty
   52         association to issue refunds by cash, check, store
   53         credit, gift card, or other similar means; amending s.
   54         634.416, F.S.; providing an exception to the
   55         requirement that service warranty associations undergo
   56         periodic examinations; authorizing rather than
   57         requiring the Office of Financial Regulation to
   58         examine service warranty associations; limiting the
   59         examination period to the most recent 5 years;
   60         removing the requirement that the Financial Services
   61         Commission establish rules for conducting
   62         examinations; removing the criteria for determining
   63         whether an examination is warranted; removing
   64         provisions relating to the rates charged a to service
   65         warranty association for examinations; removing the
   66         provision authorizing the Office of Financial
   67         Regulation to waive the examination requirement upon
   68         receipt and review of the Form 10-K; creating s.
   69         634.4385, F.S.; authorizing a governmental entity,
   70         public agency, institution, person, firm, or legal
   71         entity to provide property or money to the Department
   72         of Financial Services to pursue unauthorized entities
   73         operating as service warranty associations; providing
   74         an effective date.
   75  
   76  Be It Enacted by the Legislature of the State of Florida:
   77  
   78         Section 1. Paragraph (b) of subsection (3) of section
   79  634.121, Florida Statutes, is amended, and paragraphs (c), (d),
   80  and (e) are added to that subsection, to read:
   81         634.121 Forms, required procedures, provisions.—
   82         (3)
   83         (b) After the service agreement has been in effect for 60
   84  days, it may not be canceled by the insurer or service agreement
   85  company unless:
   86         1. There has been a material misrepresentation or fraud at
   87  the time of sale of the service agreement;
   88         2. The agreement holder has failed to maintain the motor
   89  vehicle as prescribed by the manufacturer;
   90         3. The odometer has been tampered with or disabled and the
   91  agreement holder has failed to repair the odometer; or
   92         4. For nonpayment of premium by the agreement holder, in
   93  which case the service agreement company shall provide the
   94  agreement holder notice of cancellation by certified mail.
   95  
   96  If the service agreement is canceled by the insurer or service
   97  agreement company, the return of premium must not be less than
   98  100 percent of the paid unearned pro rata premium, less any
   99  claims paid on the agreement. If, after 60 days, the service
  100  agreement is canceled by the service agreement holder, the
  101  insurer or service agreement company shall return directly to
  102  the agreement holder not less than 90 percent of the unearned
  103  pro rata premium, less any claims paid on the agreement. The
  104  service agreement company remains responsible for full refunds
  105  to the consumer on canceled service agreements. However, the
  106  salesperson and agent are responsible for the refund of the
  107  unearned pro rata commission. A service agreement company may
  108  effectuate refunds through the issuing salesperson or agent in
  109  accordance with paragraphs (c) and (d).
  110         (c) If the service agreement company effectuates refunds
  111  through the issuing salesperson or agent, the service agreement
  112  company must send the unearned pro rata premium refund due, less
  113  any unearned pro rata commission, to the salesperson or agent
  114  effectuating the refund. Upon receipt, the salesperson or agent
  115  must refund the unearned pro rata premium, including any
  116  unearned pro rata commission, and the sales tax refund owed to
  117  the service agreement holder.
  118         (d) The salesperson, agent, or service agreement company
  119  shall maintain a copy of one of the following documents, as
  120  applicable, demonstrating that the refund owed pursuant to
  121  paragraph (c) has been refunded:
  122         1. A copy of the front and back of the cancelled check for
  123  the applicable refund amount owed to the service agreement
  124  holder;
  125         2. A copy of the front of the check for the applicable
  126  refund amount owed to the service agreement holder and a copy of
  127  the statement from the bank account on which the check was drawn
  128  showing that the check was cashed;
  129         3. A copy of the front of the check issued by the service
  130  agreement company to the salesperson or agent in the amount of
  131  the service agreement company’s portion of the refund owed to
  132  the service agreement holder and a copy of the statement from
  133  the bank account on which the check was drawn showing that the
  134  check was cashed;
  135         4. A copy of a completed buyer’s order demonstrating that
  136  the applicable refund amount owed to the service agreement
  137  holder was credited toward the purchase or lease of another
  138  vehicle;
  139         5. Any document received from or sent to a lender, finance
  140  company, or creditor demonstrating that a loan or amount
  141  financed by the agreement holder was decreased by the amount of
  142  the applicable refund amount owed to the service agreement
  143  holder; or
  144         6. Any other evidence approved by the office in a written
  145  communication to a person licensed pursuant to this part
  146  demonstrating that the applicable refund amount due to the
  147  service agreement holder was properly made.
  148  
  149  A salesperson or agent effectuating a refund shall maintain a
  150  copy of the documentation required by this paragraph, and shall
  151  provide a copy to the service agreement company within 45 days
  152  after a request is made by the department.
  153         (e) If the office finds that a salesperson or agent
  154  exhibits a pattern or practice of failing to properly effectuate
  155  refunds owed or to maintain and remit to the service agreement
  156  company the documentation required by paragraph (d), the office
  157  shall notify the department of its finding.
  158         Section 2. Section 634.141, Florida Statutes, is amended to
  159  read:
  160         634.141 Examination of companies.—
  161         (1) Motor vehicle service agreement companies licensed
  162  under this part may be subject to periodic examination by the
  163  office in the same manner and subject to the same terms and
  164  conditions as applies to insurers under part II of chapter 624,
  165  with the exception of ss. 624.316(2)(e) and 624.3161(3), which
  166  do not apply to examinations conducted pursuant to this section.
  167  The office is not required to conduct periodic examinations
  168  pursuant to this section, but may examine a service agreement
  169  company at its discretion. An examination conducted pursuant to
  170  this section may cover a period of only the most recent 5 years.
  171  The commission may by rule establish provisions whereby a
  172  company may be exempted from examination.
  173         (2) The office shall determine whether to conduct an
  174  examination of a company by considering:
  175         (a) The amount of time that the company has been
  176  continuously licensed and operating under the same management
  177  and control.
  178         (b) The company’s history of compliance with applicable
  179  law.
  180         (c) The number of consumer complaints against the company.
  181         (d) The financial condition of the company, demonstrated by
  182  the financial reports submitted pursuant to s. 634.137.
  183         Section 3. Section 634.2855, Florida Statutes, is created
  184  to read:
  185         634.2855Unauthorized entities; gifts and grants.—A
  186  governmental unit, public agency, institution, person, firm, or
  187  legal entity may provide property or money to the department in
  188  accordance with s. 626.9894 to enable the department to pursue
  189  unauthorized entities operating in violation of this part. The
  190  department may transfer funds or property to the office to
  191  administer this section.
  192         Section 4. Subsection (5) of section 634.312, Florida
  193  Statutes, is amended to read:
  194         634.312 Forms; required provisions and procedures.—
  195         (5) Each home warranty contract shall contain a
  196  cancellation provision. Any home warranty agreement may be
  197  canceled by the purchaser within 10 days after purchase. The
  198  refund must be 100 percent of the gross premium paid, less any
  199  claims paid on the agreement. A reasonable administrative fee
  200  may be charged, not to exceed 5 percent of the gross premium
  201  paid by the warranty agreement holder. After the home warranty
  202  agreement has been in effect for 10 days, if the contract is
  203  canceled by the warranty holder, a return of premium shall be
  204  based upon 90 percent of unearned pro rata premium less any
  205  claims that have been paid. If the contract is canceled by the
  206  association for any reason other than for fraud or
  207  misrepresentation, a return of premium shall be based upon 100
  208  percent of unearned pro rata premium, less any claims paid on
  209  the agreement. A home warranty association may effectuate a
  210  refund through the issuing sales representative.
  211         Section 5. Section 634.314, Florida Statutes, is amended to
  212  read:
  213         634.314 Examination of associations.—
  214         (1) Home warranty associations licensed under this part may
  215  be subject to periodic examinations by the office, in the same
  216  manner and subject to the same terms and conditions as apply to
  217  insurers under part II of chapter 624 of the insurance code,
  218  with the exception of ss. 624.316(2)(e) and 624.3161(3), which
  219  do not apply to examinations conducted pursuant to this section.
  220  The office is not required to conduct periodic examinations
  221  pursuant to this section, but may examine a service agreement
  222  company at its discretion. An examination conducted pursuant to
  223  this section may cover a period of only the most recent 5 years.
  224         (2) The office shall determine whether to conduct an
  225  examination of a home warranty association by considering:
  226         (a) The amount of time that the association has been
  227  continuously licensed and operating under the same management
  228  and control.
  229         (b) The association’s history of compliance with applicable
  230  law.
  231         (c) The number of consumer complaints against the
  232  association.
  233         (d) The financial condition of the association,
  234  demonstrated by the financial reports submitted pursuant to s.
  235  634.313.
  236         Section 6. Section 634.3385, Florida Statutes, is created
  237  to read:
  238         634.3385Unauthorized entities, gifts and grants.—A
  239  governmental unit, public agency, institution, person, firm, or
  240  legal entity may provide property or money to the department in
  241  accordance with s. 626.9894 to enable the department to pursue
  242  unauthorized entities operating in violation of this part. The
  243  department may transfer funds or property to the office to
  244  administer this section.
  245         Section 7. Section 634.414, Florida Statutes, is amended to
  246  read:
  247         634.414 Forms; required provisions.—
  248         (1) Each service warranty contract shall contain a
  249  cancellation provision. If the contract is canceled by the
  250  warranty holder, return of premium shall be based upon no less
  251  than 90 percent of unearned pro rata premium less any claims
  252  that have been paid or less the cost of repairs made on behalf
  253  of the warranty holder. If the contract is canceled by the
  254  association, return of premium shall be based upon 100 percent
  255  of unearned pro rata premium, less any claims paid or the cost
  256  of repairs made on behalf of the warranty holder. Service
  257  warranty associations may effectuate refunds through the issuing
  258  sales representative.
  259         (2) Refunds owed pursuant to this section may be made by
  260  cash, check, store credit, gift card, or other similar means.
  261         (3)(2) By July 1, 2011, each service warranty contract sold
  262  in this state must be accompanied by a written disclosure to the
  263  consumer that the rate charged for the contract is not subject
  264  to regulation by the office. A service warranty association may
  265  comply with this requirement by including such disclosure in its
  266  service warranty contract form or in a separate written notice
  267  provided to the consumer at the time of sale.
  268         Section 8. Section 634.416, Florida Statutes, is amended to
  269  read:
  270         634.416 Examination of associations.—
  271         (1)(a) Service warranty associations licensed under this
  272  part may be subject to periodic examination by the office, in
  273  the same manner and subject to the same terms and conditions
  274  that apply to insurers under part II of chapter 624, with the
  275  exception of ss. 624.316(2)(e) and 624.3161(3), which do not
  276  apply to examinations conducted pursuant to this section. The
  277  office is not required to conduct periodic examinations pursuant
  278  to this section, but may examine a service agreement company at
  279  its discretion. An examination conducted pursuant to this
  280  section may cover a period of only the most recent 5 years.
  281         (b) The office shall determine whether to conduct an
  282  examination of a service warranty association by considering:
  283         1. The amount of time that the association has been
  284  continuously licensed and operating under the same management
  285  and control.
  286         2. The association’s history of compliance with applicable
  287  law.
  288         3. The number of consumer complaints against the
  289  association.
  290         4. The financial condition of the association, demonstrated
  291  by the financial reports submitted pursuant to s. 634.313.
  292         (2)  The rate charged a service warranty association by the
  293  office for examination may be adjusted to reflect the amount
  294  collected for the Form 10-K filing fee as provided in this
  295  section.
  296         (3) On or before May 1 of each year, an association may
  297  submit to the office the Form 10-K, as filed with the United
  298  States Securities and Exchange Commission pursuant to the
  299  Securities Exchange Act of 1934, as amended. Upon receipt and
  300  review of the most current Form 10-K, the office may waive the
  301  examination requirement; if the office determines not to waive
  302  the examination, such examination will be limited to that
  303  examination necessary to ensure compliance with this part. The
  304  Form 10-K shall be accompanied by a filing fee of $2,000 to be
  305  deposited into the Insurance Regulatory Trust Fund.
  306         (4) The office is not required to examine an association
  307  that has less than $20,000 in gross written premiums as
  308  reflected in its most recent annual statement. The office may
  309  examine such an association if it has reason to believe that the
  310  association may be in violation of this part or is otherwise in
  311  an unsound financial condition. If the office examines an
  312  association that has less than $20,000 in gross written
  313  premiums, the examination fee may not exceed 5 percent of the
  314  gross written premiums of the association.
  315         Section 9. Section 634.4385, Florida Statutes, is created
  316  to read:
  317         634.4385Unauthorized entities; gifts and grants.—A
  318  governmental unit, public agency, institution, person, firm, or
  319  legal entity may provide property or money to the department in
  320  accordance with the provisions of s. 626.9894 to enable the
  321  department to pursue unauthorized entities operating in
  322  violation of this part. The department may transfer funds or
  323  property to the office to administer this section.
  324         Section 10. This act shall take effect July 1, 2012.