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House Bill 1933er

ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 2 An act relating to workers' compensation; 3 amending s. 440.49, F.S.; revising procedures 4 and requirements for reimbursement from the 5 fund; providing for barring the filing of a 6 claim for reimbursement under certain 7 circumstances; providing a maximum fund 8 assessment rate; requiring certain fees; 9 requiring the Department of Labor and 10 Employment Security to prepare an annual 11 report; providing a schedule for reimbursements 12 from the fund under certain circumstances; 13 amending s. 625.091, F.S.; providing for 14 accounting for anticipated recoveries under the 15 Special Disability Trust Fund; requiring 16 insurers to identify anticipated recoveries 17 from the fund; providing an appropriation; 18 amending s. 624.4621, F.S.; requiring 19 self-insurance funds to maintain a positive 20 surplus to policyholders; amending s. 624.468, 21 F.S.; requiring self-insurance funds to 22 maintain a positive surplus to policyholders; 23 amending s. 624.470, F.S.; establishing 24 standards for the use of future investment 25 income as an asset for self-insurance funds; 26 amending s. 624.476, F.S.; providing that the 27 Department of Insurance may be appointed 28 receiver for a self-insurance fund under 29 certain circumstances; authorizing the 30 administrative supervision of a self-insurance 31 fund under certain conditions; creating s. 1 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 624.477, F.S.; requiring the Department of 2 Insurance to supervise, as receiver, the 3 liquidation, rehabilitation, reorganization, 4 conservation, or dissolution of self-insurance 5 funds; amending s. 624.488, F.S.; applying 6 provisions of the Florida Insurance Code 7 relating to rehabilitation and liquidation of 8 an insurer to self-insurance funds; applying 9 provisions relating to insurer assets, 10 liabilities, and deposits to self-insurance 11 funds; applying a provision relating to 12 assessable mutual insurer annual reports to 13 self-insurance funds; amending s. 628.6014, 14 F.S.; establishing standards for the use of 15 future investment income as an asset for 16 assessable mutual insurers; amending s. 17 631.021, F.S.; providing for delinquency 18 proceedings, venue, remedies, and appeals; 19 amending s. 631.182, F.S.; providing for claims 20 reports and procedures; amending s. 631.331, 21 F.S.; providing for notice, payment, and 22 collection procedure; amending s. 631.391, 23 F.S.; providing for revocation of 24 insurance-related licenses under certain 25 conditions; amending s. 631.397, F.S.; 26 specifying applicability of provision relating 27 to use of marshaled assets; amending s. 631.52, 28 F.S.; providing scope of direct insurance; 29 amending s. 631.54, F.S.; providing 30 definitions; amending s. 631.55, F.S.; 31 providing for creation of the association; 2 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 amending s. 631.57, F.S.; providing for powers 2 and duties of the association; creating ss. 3 631.901, 631.902, 631.903, 631.904, 631.911, 4 631.912, 631.913, 631.914, 631.916, 631.917, 5 631.918, 631.919, 631.921, 631.922, 631.923, 6 631.924, 631.926, and 631.927, F.S.; creating 7 the "Florida Workers' Compensation Insurance 8 Guaranty Association Act"; providing purposes; 9 providing construction; providing definitions; 10 creating the Florida Workers' Compensation 11 Insurance Guaranty Association, Incorporated, 12 by merging the Florida Self-Insurance Fund 13 Guaranty Association and the workers' 14 compensation insurance account; providing for 15 effect of the merger; providing requirements; 16 providing for a board of directors; providing 17 powers and duties of the corporation; 18 authorizing the board to levy assessments for 19 certain purposes; providing procedures; 20 providing requirements and limitations; 21 authorizing an additional assessment for 22 certain purposes; providing procedures; 23 providing requirements and limitations; 24 requiring the board to prepare a plan of 25 operation; providing requirements; providing 26 powers of the board to prevent insolvencies and 27 impairments; providing for examination of 28 certain insurers by the department for certain 29 purposes; providing immunity from liability; 30 specifying prohibited advertisement of 31 solicitation; providing powers of the 3 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 Department of Insurance; providing for 2 liability of members of impaired self-insurance 3 funds; providing for effect of paid claims; 4 providing requirements; providing procedures; 5 providing for staying certain proceedings; 6 providing for setting aside certain judgments, 7 orders, decisions, verdicts, or findings under 8 certain circumstances; providing for 9 nonapplication of certain attorney's fees 10 provisions under certain circumstances; 11 providing for assumption of liability by the 12 corporation of certain payments; amending s. 13 631.996, F.S.; creating the Florida Workers' 14 Compensation Insurance Guaranty Fund Account; 15 amending s. 631.915, F. S.; revising 16 definitions; amending s. 631.935, F.S.; 17 providing for powers and duties of the 18 association; creating s. 631.929, F.S.; 19 providing for election of remedies by injured 20 workers; providing procedures; providing 21 requirements; amending s. 631.997, F.S.; 22 providing for reports and recommendations of 23 the board; amending s. 631.998, F.S.; providing 24 for application of provisions relating to 25 negotiations with an insurer to the 26 corporation; directing that certain provisions 27 not be published in the Florida Statutes; 28 provides for a report; providing an 29 appropriation from the Insurance Commissioner's 30 Regulatory Trust Fund to the Florida 31 Self-Insurance Fund Guaranty Association; 4 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 providing for disbursement of appropriated 2 funds; repealing ss. 631.90, 631.905, 631.91, 3 631.915, 631.92, 631.925, 631.93, 631.935, 4 631.94, 631.945, 631.95, 631.955, 631.96, 5 631.965, 631.97, 631.975, 631.98, 631.985, 6 631.99, and 631.995, F.S., relating to the 7 Florida Self-Insurance Fund Guaranty 8 Association; providing an effective date. 9 10 Be It Enacted by the Legislature of the State of Florida: 11 12 Section 1. Subsections (7), (9), and (11) of section 13 440.49, Florida Statutes, 1996 Supplement, are amended to 14 read: 15 440.49 Limitation of liability for subsequent injury 16 through Special Disability Trust Fund.-- 17 (7) REIMBURSEMENT OF EMPLOYER.-- 18 (a) The right to reimbursement as provided in this 19 section is barred unless written notice of claim of the right 20 to such reimbursement is filed by the employer or carrier 21 entitled to such reimbursement with the division at 22 Tallahassee within 2 years after the date the employee last 23 reached maximum medical improvement, or within 2 years after 24 the date of the first payment of compensation for permanent 25 total disability, wage loss, or death, whichever is later. The 26 notice of claim must contain such information as the division 27 by rule requires; and the employer or carrier claiming 28 reimbursement shall furnish such evidence in support of the 29 claim as the division reasonably may require. 30 (b) For notice of claims on the Special Disability 31 Trust Fund filed on or after July 1, 1978, the Special 5 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 Disability Trust Fund shall, within 120 days after receipt of 2 notice that a carrier has paid, been required to pay, or 3 accepted liability for excess compensation, serve notice of 4 the acceptance of the claim for reimbursement. 5 (c) A proof of claim must be filed on each notice of 6 claim on file as of June 30, 1997, within 1 year after July 1, 7 1997, or the right to reimbursement of the claim shall be 8 barred. A notice of claim on file on or before June 30, 1997, 9 may be withdrawn and refiled if, at the time refiled, the 10 notice of claim remains within the limitation period specified 11 in paragraph (a). Such refiling shall not toll, extend, or 12 otherwise alter in any way the limitation period applicable to 13 the withdrawn and subsequently refiled notice of claim. Each 14 proof of claim filed shall be accompanied by a proof-of-claim 15 fee as provided in paragraph (9)(d). The Special Disability 16 Trust Fund shall, within 120 days after receipt of the proof 17 of claim, serve notice of the acceptance of the claim for 18 reimbursement. This paragraph shall apply to all claims 19 notwithstanding the provisions of subsection (12). 20 (d) Each notice of claim filed or refiled on or after 21 July 1, 1997, must be accompanied by a notification fee as 22 provided in paragraph (9)(d). A proof of claim must be filed 23 within 1 year after the date the notice of claim is filed or 24 refiled, accompanied by a proof-of-claim fee as provided in 25 paragraph (9)(d), or the claim shall be barred. The 26 notification fee shall be waived if both the notice of claim 27 and proof of claim are submitted together as a single filing. 28 The Special Disability Trust Fund shall, within 180 days after 29 receipt of the proof of claim, serve notice of the acceptance 30 of the claim for reimbursement. This paragraph shall apply to 31 all claims notwithstanding the provisions of subsection (12). 6 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 (e) For dates of accident on or after before January 2 1, 1994, the Special Disability Trust Fund shall, within 120 3 days of receipt of notice that a carrier has been required to 4 pay, and has paid over $10,000 in benefits, serve notice of 5 the acceptance of the claim for reimbursement. Failure of the 6 Special Disability Trust Fund to serve notice of acceptance 7 shall give rise to the right to request a hearing on the claim 8 for reimbursement. If the Special Disability Trust Fund 9 through its representative denies or controverts the claim, 10 the right to such reimbursement shall be barred unless an 11 application for a hearing thereon is filed with the division 12 at Tallahassee within 60 days after notice to the employer or 13 carrier of such denial or controversion. When such application 14 for a hearing is timely filed, the claim shall be heard and 15 determined in accordance with the procedure prescribed in s. 16 440.25, to the extent that such procedure is applicable, and 17 in accordance with the workers' compensation rules of 18 procedure. In such proceeding on a claim for reimbursement, 19 the Special Disability Trust Fund shall be made the party 20 respondent, and no findings of fact made with respect to the 21 claim of the injured employee or the dependents for 22 compensation, including any finding made or order entered 23 pursuant to s. 440.20(12), shall be res judicata. The Special 24 Disability Trust Fund may not be joined or made a party to any 25 controversy or dispute between an employee and the dependents 26 and the employer or between two or more employers or carriers 27 without the written consent of the fund. 28 (f) When it has been determined that an employer or 29 carrier is entitled to reimbursement in any amount, the 30 employer or carrier shall be reimbursed annually from the 31 Special Disability Trust Fund for the compensation and medical 7 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 benefits paid by the employer or carrier for which the 2 employer or carrier is entitled to reimbursement, upon filing 3 request therefor and submitting evidence of such payment in 4 accordance with rules prescribed by the division, which rules 5 may include parameters for annual audits. The Special 6 Disability Trust Fund shall pay the approved reimbursement 7 requests on a first-in, first-out basis reflecting the order 8 in which the reimbursement requests were received. 9 (9) SPECIAL DISABILITY TRUST FUND.-- 10 (a) There is established in the State Treasury a 11 special fund to be known as the "Special Disability Trust 12 Fund," which shall be available only for the purposes stated 13 in this section; and the assets thereof may not at any time be 14 appropriated or diverted to any other use or purpose. The 15 Treasurer shall be the custodian of such fund, and all moneys 16 and securities in such fund shall be held in trust by such 17 Treasurer and shall not be the money or property of the state. 18 The Treasurer is authorized to disburse moneys from such fund 19 only when approved by the division and upon the order of the 20 Comptroller. The Treasurer shall deposit any moneys paid into 21 such fund into such depository banks as the division may 22 designate and is authorized to invest any portion of the fund 23 which, in the opinion of the division, is not needed for 24 current requirements, in the same manner and subject to all 25 the provisions of the law with respect to the deposits of 26 state funds by such Treasurer. All interest earned by such 27 portion of the fund as may be invested by the Treasurer shall 28 be collected by him and placed to the credit of such fund. 29 (b)1. The Special Disability Trust Fund shall be 30 maintained by annual assessments upon the insurance companies 31 writing compensation insurance in the state, the commercial 8 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 self-insurers under ss. 624.462 and 624.4621, the assessable 2 mutuals under s. 628.601, and the self-insurers under this 3 chapter, which assessments shall become due and be paid 4 quarterly at the same time and in addition to the assessments 5 provided in s. 440.51. The division shall estimate annually in 6 advance the amount necessary for the administration of this 7 subsection and the maintenance of this fund and shall make 8 such assessment in the manner hereinafter provided. 9 2. The annual assessment shall be calculated to 10 produce during the ensuing fiscal year an amount which, when 11 combined with that part of the balance in the fund on June 30 12 of the current fiscal year which is in excess of $100,000, is 13 equal to the average of: 14 a. The sum of disbursements from the fund during the 15 immediate past 3 calendar years, and 16 b. Two times the disbursements of the most recent 17 calendar year. 18 19 Such amount shall be prorated among the insurance companies 20 writing compensation insurance in the state and the 21 self-insurers. 22 3. The net premiums written by the companies for 23 workers' compensation in this state and the net premium 24 written applicable to the self-insurers in this state are the 25 basis for computing the amount to be assessed as a percentage 26 of net premiums. Such payments shall be made by each insurance 27 company and self-insurer to the division for the Special 28 Disability Trust Fund in accordance with such regulations as 29 the division prescribes. 30 4. The Treasurer is authorized to receive and credit 31 to such Special Disability Trust Fund any sum or sums that may 9 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 at any time be contributed to the state by the United States 2 under any Act of Congress, or otherwise, to which the state 3 may be or become entitled by reason of any payments made out 4 of such fund. 5 (c) Notwithstanding the Special Disability Trust Fund 6 assessment rate calculated pursuant to this section, the rate 7 assessed shall not exceed 4.52 percent provisions of this 8 subsection, in order to implement specific appropriations 1475 9 and 1748 of the 1996-1997 General Appropriations Act, for 10 fiscal year 1996-1997 only, the workers' compensation Special 11 Disability Trust Fund assessment rate in effect on January 1, 12 1995, shall remain in effect until June 30, 1997. This 13 paragraph is repealed on July 1, 1997. 14 (d) The Special Disability Trust Fund shall be 15 supplemented by a $250 notification fee on each notice of 16 claim filed or refiled after July 1, 1997, and a $500 fee on 17 each proof of claim filed in accordance with subsection (7). 18 Revenues from the fee shall be deposited into the Special 19 Disability Trust Fund and are exempt from the deduction 20 required by s. 215.20. The fees provided in this paragraph 21 shall not be imposed upon any insurer which is in receivership 22 with the Department of Insurance. 23 (e) The Department of Labor and Employment Security 24 shall report annually on the status of the Special Disability 25 Trust Fund. The report shall update the projected change in 26 fund liability, change in the total number of notices of claim 27 on file with the fund in addition to the number of newly filed 28 notices of claim, change in the number of proofs of claim 29 processed by the fund, and the fee revenues refunded and 30 revenues applied to pay down the liability of the fund. The 31 department shall submit its initial report to the Governor, 10 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 the President of the Senate, and the Speaker of the House of 2 Representatives by March 1, 1998, for the period ending 3 February 1, 1998, with additional reports submitted by 4 December 1, 1998, and December 1, 1999. 5 (11) EFFECTIVE DATES.--This section does not apply to 6 any case in which the accident causing the subsequent injury 7 or death or the disablement or death from a subsequent 8 occupational disease occurred prior to July 1, 1955, or on or 9 after January 1, 1998. In no event shall the Special 10 Disability Trust Fund be liable for, or reimburse employers or 11 carriers for, any case in which the accident causing the 12 subsequent injury or death or the disablement or death from a 13 subsequent occupational disease occurred on or after January 14 1, 1998. The Special Disability Trust Fund shall continue to 15 reimburse employers or carriers for subsequent injuries 16 occurring prior to January 1, 1998, and the division shall 17 continue to assess for and fund reimbursements as provided in 18 subsection (9) for this purpose. 19 Section 2. Subsection (4) is added to section 625.091, 20 Florida Statutes, to read: 21 625.091 Losses and loss adjustment expense reserves; 22 liability insurance and workers' compensation insurance.--The 23 reserve liabilities recorded in the insurer's annual statement 24 and financial statements for unpaid losses and loss adjustment 25 expenses shall be the estimated value of its claims when 26 ultimately settled and shall be computed as follows: 27 (4)(a) Accounting credit for anticipated recoveries 28 from the Special Disability Trust Fund may only be taken in 29 the determination of loss reserves and may not be reflected on 30 the financial statements in any manner other than that allowed 31 pursuant to this subsection. 11 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 (b)1. For calendar years 1999-2003, an insurer 2 recording anticipated recoveries from the Special Disability 3 Trust Fund shall limit the aggregate amount to the amount 4 management reasonably expects will be reimbursed or the 5 following amount, whichever is lower: 6 a. For financial statements filed in 2000, an insurer 7 may take accounting credit in an amount equalling 80% of the 8 amount utilized in calendar year 1996. 9 b. For financial statements filed in 2001, an insurer 10 may take accounting credit in an amount equalling 60% of the 11 amount utilized in calendar year 1996. 12 c. For financial statements filed in 2002, an insurer 13 may take accounting credit in an amount equalling 40% of the 14 amount utilized in calendar year 1996. 15 d. For financial statements filed in 2003, an insurer 16 may take accounting credit in an amount equalling 20% of the 17 amount utilized in calendar year 1996. 18 2. Subparagraph 1. does not apply to an insurer 19 recording anticipated recoveries from the Special Disability 20 Trust Fund on the basis of: 21 a. A proof of claim which the Fund has reviewed, 22 determined to be a valid claim and so notified the carrier, 23 and extended a payment offer; or 24 b. A reimbursement request audited and approved for 25 payment or paid by the Fund; 26 (c) Beginning with financial statements filed in 2004, 27 an insurer may only take accounting credit for anticipated 28 recoveries from the Special Disability Trust Fund for each 29 proof of claim which the Fund has reviewed, determined to be a 30 valid claim and so notified the carrier, and extended a 31 12 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 payment offer; or a reimbursement request audited and approved 2 for payment or paid by the Fund. 3 (d)1. Beginning in calendar year 1998, each insurer 4 shall separately identify anticipated recoveries from the 5 Special Disability Trust Fund on the annual statement required 6 to be filed pursuant to s. 624.424. 7 2. For all financial statements filed with the 8 department beginning in calendar year 1998, each insurer shall 9 disclose in the notes to the financial statements of any 10 financial statement required to be filed pursuant to s. 11 624.424 any credit in loss reserves taken for anticipated 12 recoveries from the Special Disability Trust Fund. That 13 disclosure shall include: 14 a. The amount of credit taken by the insurer in the 15 determination of its loss reserves for the prior calendar year 16 and the current reporting period on a year-to-date basis. 17 b. The amount of payments received by the insurer from 18 the Special Disability Trust Fund during the prior calendar 19 year and the year-to-date recoveries for the current year. 20 c. The amount the insurer was assessed by the Special 21 Disability Trust Fund during the prior calendar year and 22 during the current calendar year. 23 Section 3. There is hereby appropriated from the 24 Special Disability Trust Fund in the Department of Labor and 25 Employment Security $2,743,000 for Other Personal Services and 26 $300,000 for related expenses. 27 Section 4. Subsection (10) is added to section 28 624.4621, Florida Statutes, to read: 29 624.4621 Group self-insurance funds.-- 30 31 13 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 (10) Any self-insurance fund which holds a certificate 2 of authority on or after January 1, 1998, shall maintain 3 surplus to policyholders in a positive amount. 4 Section 5. Subsection (7) of section 624.468, Florida 5 Statutes, is amended to read: 6 624.468 Continuing requirements for certificate of 7 authority.--After issuance of its initial certificate of 8 authority a commercial self-insurance fund shall thereafter 9 meet the following requirements as a condition of maintaining 10 its certificate of authority: 11 (7) Any self-insurance fund which holds a certificate 12 of authority on or after January 1, 1998, shall maintain 13 surplus to policyholders in a positive amount. Maintenance of 14 an aggregate net worth of at least $500,000 of all fund 15 members, as further specified in s. 624.466(8). A fund shall 16 not be required to provide financial statements of its members 17 evidencing conformity to this requirement after its 18 certificate of authority has been issued, unless required to 19 do so by the department upon a showing of good cause. 20 Section 6. Subsection (1) of section 624.470, Florida 21 Statutes, is amended to read: 22 624.470 Annual reports.-- 23 (1)(a) Every commercial self-insurance fund shall, 24 annually within 3 months of the end of the fiscal year, file a 25 financial statement of the fund, including its balance sheet 26 and a statement of operations for the preceding year, verified 27 by the oath of a member of the board of trustees or by an 28 administrative executive appointed by the board. An entry for 29 future investment income, reported on or after January 1, 30 1998, may only be reflected as an aggregate write-in asset on 31 the balance sheet of the annual and quarterly financial 14 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 statements. Future investment income shall be calculated as 2 the sum of the admitted asset value of Line 1 (Bonds) plus the 3 admitted asset value of Line 6 (Cash and Short-Term 4 Investments) as reported on page 2 in the annual or quarterly 5 financial statement, times the 3-year treasury note yield as 6 of the date of the financial statement, times 3. 7 (b) For financial statements filed on or after January 8 1, 1998, future investment income may only be reported as an 9 admitted asset by an Assessable Mutual or Self-Insurance Fund 10 which reported future investment income in financial 11 statements filed with the department prior to January 1, 1998. 12 Section 7. Section 624.476, Florida Statutes, is 13 amended to read: 14 624.476 Impaired self-insurance funds.-- 15 (1) If the assets of a self-insurance fund are at any 16 time insufficient to comply with the requirements of law or to 17 discharge its liabilities, other than any liability on account 18 of funds contributed by the trustees or others, and to meet 19 the required conditions of financial soundness, or if a 20 judgment against the fund has remained unsatisfied for 30 21 days, its trustees shall forthwith make up the deficiency or 22 levy an assessment upon the members for the amount needed to 23 make up the deficiency, but subject to the limitation set 24 forth in the trust agreement or the policy. 25 (2) If any fund levies an assessment pursuant to 26 subsection (1), the department shall require the fund to 27 consent to administrative supervision under part VI of chapter 28 624. The department may waive the requirement to consent to 29 administrative supervision for good cause. 30 (3)(2) If the trustees fail to make an assessment as 31 required by subsection (1), the department shall order the 15 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 trustees to do so. If the deficiency is not sufficiently made 2 up within 60 days after the date of the order, the fund shall 3 be deemed insolvent and grounds shall exist to proceed against 4 the fund as provided for in part I of chapter 631. 5 (4) Notwithstanding the requirement of the fund to 6 make an assessment pursuant to subsection (1) or subsection 7 (3), the department may at any time request to be appointed 8 receiver for purposes of rehabilitation or liquidation if it 9 is able to demonstrate that any grounds for rehabilitation or 10 liquidation exist pursuant to s. 631.051 or s. 631.061. 11 (3) Subject to this section, any rehabilitation, 12 liquidation, conservation, or dissolution of a self-insurance 13 fund shall be conducted under the supervision of the 14 department, which shall have all power with respect thereto 15 granted to it under part I of chapter 631 governing the 16 rehabilitation, liquidation, conservation, or dissolution of 17 insurers. 18 Section 8. Section 624.477, Florida Statutes, is 19 created to read: 20 624.477 Liquidation, rehabilitation, reorganization, 21 and conservation.--Any rehabilitation, liquidation, 22 conservation, or dissolution of a self-insurance fund shall be 23 conducted under the supervision of the department, which shall 24 have all power with respect thereto granted to the fund under 25 part I of chapter 631 governing the rehabilitation, 26 liquidation, conservation, or dissolution of insurers and 27 including all grounds for the appointment of a receiver 28 contained in ss. 631.051 and 631.061. 29 Section 9. Section 624.488, Florida Statutes, is 30 amended to read: 31 16 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 624.488 Applicability of related laws.--In addition to 2 other provisions of the code cited in ss. 624.460-624.488: 3 (1) Sections 624.155, 624.308, 624.414, 624.415, and 4 624.416(4); ss. 624.418-624.4211, except s. 624.418(2)(f); and 5 s. 624.501; 6 (2) Parts I, Part II, and III of chapter 625; 7 (3) Applicable sections of part VI of chapter 626; s. 8 626.9541(1)(a), (b), (c), (d), (e), (f), (h), (i), (j), (k), 9 (l), (m), (n), (o), (q), (u), (w), and (x); and ss. 10 626.9561-626.9641; 11 (4) Sections 627.291, 627.413, 627.4132, 627.416, 12 627.418, 627.420, 627.421, 627.425, 627.426, 627.4265, 13 627.427, 627.428, 627.702, and 627.706; part XI of chapter 14 627; ss. 627.912, 627.913, and 627.918; and 15 (5) Subsection Section 628.361(2) and s. 628.6014; 16 and, 17 (6) Parts I and V of chapter 631, 18 19 apply to self-insurance funds. Only those sections of the code 20 that are expressly and specifically cited in ss. 21 624.460-624.489624.488 apply to self-insurance funds. 22 Section 10. Section 628.6014, Florida Statutes, is 23 amended to read: 24 628.6014 Annual reports.-- 25 (1) An assessable mutual shall file a financial 26 statement within 90 days of the end of its accounting year. 27 The requirements of s. 624.470 shall apply, except an entry 28 for future investment income, reported on or after January 1, 29 1998, may only on losses and allocated loss adjustment expense 30 reserves and unallocated loss adjustment expense reserves 31 shall be reflected as an aggregate write-in asset on the 17 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 balance sheet of the annual and quarterly financial statements 2 statement for assets and policyholder surplus. Future 3 investment income shall be calculated as the sum of the 4 admitted asset value of Line 1 (Bonds) plus the admitted asset 5 value of Line 6 (Cash and Short-Term Investments) as reported 6 on page 2 in the annual or quarterly financial statement, 7 times the 3-year treasury note yield as of the date of the 8 financial statement, times 3. follows: 9 10 A + B + C - D, where 11 12 A = losses and allocated loss adjustment expense reserves, 13 B = unallocated loss adjustment expense reserves, 14 C = excess of statutory reserves over statement reserves, and 15 D = present value of A + B + C. 16 (2) For financial statements filed on or after January 17 1, 1998, future investment income may only be reported as an 18 admitted asset by an assessable mutual which reported future 19 investment income in financial statements filed with the 20 department prior to December 31, 1996. 21 Section 11. Subsection (3) of section 631.021, Florida 22 Statutes, is amended to read: 23 631.021 Jurisdiction of delinquency proceeding; venue; 24 change of venue; exclusiveness of remedy; appeal.-- 25 (3) A delinquency proceeding pursuant to this chapter 26 constitutes the sole and exclusive method of liquidating, 27 rehabilitating, reorganizing, or conserving an insurer. No 28 court shall entertain a petition for the commencement of such 29 a proceeding unless the petition has been filed in the name of 30 the state on the relation of the department. The Florida 31 Insurance Guaranty Association, Incorporated, the Florida 18 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 Workers' Compensation Insurance Guaranty Association, 2 Incorporated, and the Florida Life and Health Guaranty 3 Association, Incorporated, shall be given reasonable written 4 notice by the department of all hearings which pertain to an 5 adjudication of insolvency of a member insurer. 6 Section 12. Subsection (2) of section 631.182, Florida 7 Statutes, is amended to read: 8 631.182 Receiver claims report and claimants 9 objections procedure.-- 10 (2) At the hearing, any interested person is entitled 11 to appear. The hearing shall not be de novo but shall be 12 limited to the record as described in s. 631.181(2)., and The 13 court shall enter an order allowing, allowing in part, or 14 disallowing the claim. Any such order is deemed to be an 15 appealable order. In the interests of judicial economy, the 16 court may appoint a special master to resolve objections or to 17 perform any particular service required by the court. This 18 subsection shall apply to receivership proceedings commencing 19 prior to, or subsequent to, July 1, 1997. 20 Section 13. Paragraph (b) of subsection (4) of section 21 631.331, Florida Statutes, is amended to read: 22 631.331 Assessment prima facie correct; notice; 23 payment; proceeding to collect.-- 24 (4) If the subscriber or member after due service of a 25 copy of the order and petition referred to in subsection (3) 26 is made upon him: 27 (b) Appears in the manner and form required by law in 28 response to the order, the court shall hear and determine the 29 matter and enter a judgment in accordance with its decision. 30 In the interests of judicial economy, the court may appoint a 31 special master to resolve objections or to perform any 19 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 particular service required by the court. This paragraph shall 2 apply to receivership proceedings commencing prior to, or 3 subsequent to, July 1, 1997. 4 Section 14. Subsection (5) is added to section 5 631.391, Florida Statutes, to read: 6 631.391 Cooperation of officers and employees.-- 7 (5) Refusal by any person referred to in subsection 8 (1) to provide records upon the request of the department is 9 grounds for revocation of any insurance-related license, 10 including, but not limited to, agent and third-party 11 administrator licenses. 12 Section 15. Subsection (1) of section 631.397, Florida 13 Statutes, is amended to read: 14 631.397 Use of certain marshaled assets.-- 15 (1) Within 120 days of a final determination of 16 insolvency of an insurer by a court of competent jurisdiction 17 of this state, the department, as receiver, shall apply to the 18 court for approval of a proposal to disburse assets out of 19 such insurer's marshaled assets, as such assets become 20 available, to each association entitled thereto or, if there 21 are no assets available for such disbursement, then for 22 approval of such proposal as the receiver deems appropriate. 23 For the purposes of this section, the term "association" 24 includes the Florida Insurance Guaranty Association, 25 Incorporated, the Florida Workers' Compensation Insurance 26 Guaranty Association, and any entity or person performing a 27 function in another state similar to that performed in this 28 state by the Florida Insurance Guaranty Association, 29 Incorporated, or the Florida Workers' Compensation Insurance 30 Guaranty Association, provided the Florida Insurance Guaranty 31 Association, Incorporated, or the Florida Workers' 20 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 Compensation Insurance Guaranty Association, is entitled to 2 like payment under the laws of the association's state of 3 domicile in respect to insolvent companies doing business in 4 that state. 5 Section 16. Subsections (14) and (15) of section 6 631.52, Florida Statutes, are renumbered as subsections (15) 7 and (16), respectively, and new subsection (14) is added to 8 said section, to read: 9 631.52 Scope.--This part shall apply to all kinds of 10 direct insurance, except: 11 (14) Workers' compensation; 12 Section 17. Subsection (1) of section 631.54, Florida 13 Statutes, is amended to read: 14 631.54 Definitions.--As used in this part: 15 (1) "Account" means any one of the three four accounts 16 created by s. 631.55. 17 Section 18. Subsection (2) of section 631.55, Florida 18 Statutes, is amended to read: 19 631.55 Creation of the association.-- 20 (2) For the purposes of administration and assessment, 21 the association shall be divided into three four separate 22 accounts: 23 (a) The workers' compensation insurance account, which 24 includes excess workers' compensation insurance; 25 (a)(b) The auto liability account; 26 (b)(c) The auto physical damage account; and 27 (c)(d) The account for all other insurance to which 28 this part applies. 29 Section 19. Paragraph (a) of subsection (1) of section 30 631.57, Florida Statutes, is amended to read: 31 631.57 Powers and duties of the association.-- 21 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 (1) The association shall: 2 (a)1. Be obligated to the extent of the covered claims 3 existing: 4 a. Prior to adjudication of insolvency and arising 5 within 30 days after the determination of insolvency; 6 b. Before the policy expiration date if less than 30 7 days after the determination; or 8 c. Before the insured replaces the policy or causes 9 its cancellation, if he does so within 30 days of the 10 determination. 11 2. The obligation under subparagraph 1. shall include 12 only that amount of each covered claim which is in excess of 13 $100 and is less than $300,000, except that: 14 a. The association shall pay the full amount of any 15 covered claim arising out of a workers' compensation policy. 16 b. with respect to policies covering condominium 17 associations or homeowners' associations, which associations 18 have a responsibility to provide insurance coverage on 19 residential units within the association, the obligation shall 20 include that amount of each covered property insurance claim 21 which is less than $100,000 multiplied by the number of 22 condominium units or other residential units; however, as to 23 homeowners' associations, this sub-subparagraph applies only 24 to claims for damage or loss to residential units and 25 structures attached to residential units. 26 3. In no event shall the association be obligated to a 27 policyholder or claimant in an amount in excess of the 28 obligation of the insolvent insurer under the policy from 29 which the claim arises. 30 31 22 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 The foregoing notwithstanding, the association shall have no 2 obligation to pay covered claims to be paid from the proceeds 3 of bonds issued under s. 166.111(2). However, the association 4 shall cause assessments to be made under paragraph (3)(e) for 5 such covered claims, and such assessments shall be assigned 6 and pledged under paragraph (3)(e) to or on behalf of the 7 issuer of such bonds for the benefit of the holders of such 8 bonds. The association shall administer any such covered 9 claims and present valid covered claims for payment in 10 accordance with the provisions of the assistance program in 11 connection with which such bonds have been issued. 12 (b) Be deemed the insurer to the extent of its 13 obligation on the covered claims, and, to such extent, shall 14 have all rights, duties, and obligations of the insolvent 15 insurer as if the insurer had not become insolvent. In no 16 event shall the association be liable for any penalties or 17 interest. 18 Section 20. Sections 631.901, 631.902, 631.903, 19 631.904, 631.911, 631.912, 631.913, 631.914, 631.916, 631.917, 20 631.918, 631.919, 631.921, 631.922, 631.923, 631.924, 631.926, 21 and 631.927, Florida Statutes, are created to read: 22 631.901 Title.--This part may be cited as the "Florida 23 Workers' Compensation Insurance Guaranty Association Act." 24 631.902 Purposes.--The purposes of this part are to: 25 (1) Create a not-for-profit Florida Workers' 26 Compensation Insurance Guaranty Association, Incorporated, to 27 provide a mechanism for the payment of covered claims under 28 chapter 440 to avoid excessive delay in payment and to avoid 29 financial loss to claimants because of the insolvency of a 30 member insurer. 31 23 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 (2) Assist in the detection and prevention of insurer 2 insolvencies. 3 (3) Allocate the cost of such protection among the 4 insurers. 5 (4) Provide for the prompt payment by the corporation 6 of workers' compensation claims incurred by insolvent 7 insurers. 8 631.903 Construction.--The statutes controlling the 9 corporation shall be construed liberally to achieve the 10 purposes stated in s. 631.902. The corporation shall perform 11 its functions under a plan of operation established by its 12 board of directors and approved by the department. 13 631.904 Definitions.--As used in this part, the term: 14 (1) "Corporation" means the Florida Workers' 15 Compensation Insurance Guaranty Association, Incorporated. 16 (2) "Covered claim" means an unpaid claim, including a 17 claim for return of unearned premiums, which arises out of, is 18 within the coverage of, and is not in excess of the applicable 19 limits of, an insurance policy to which this part applies, 20 which policy was issued by an insurer and which claim is made 21 on behalf of a claimant or insured who was a resident of this 22 state at the time of the injury. The term does not include any 23 amount due any reinsurer, insurer, insurance pool, or 24 underwriting association, as subrogation recoveries or 25 otherwise. Member insurers have no right of subrogation 26 against the insured of any insolvent insurer. This provision 27 shall be applied retroactively to cover claims of an insolvent 28 self-insurance fund resulting from accidents or losses 29 incurred prior to January 1, 1994, regardless of the date the 30 Department of Insurance filed a petition in circuit court 31 24 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 alleging insolvency and the date the court entered an order 2 appointing a receiver. 3 (3) "Department" means the Department of Insurance. 4 (4) "Insolvency" means that condition in which all of 5 the assets of the insurer, if made immediately available, 6 would not be sufficient to discharge all of its liabilities or 7 that condition in which the insurer is unable to pay its debts 8 as they become due in the usual course of business. When the 9 context of any provision of this part so indicates, insolvency 10 also includes impairment of surplus or impairment of capital. 11 (5) "Insolvent insurer" means an insurer that was 12 authorized to transact insurance in this state, either at the 13 time the policy was issued or when the insured event occurred, 14 and against which an order of liquidation with a finding of 15 insolvency has been entered by a court of competent 16 jurisdiction if such order has become final by the exhaustion 17 of appellate review. 18 (6) "Insurer" means an insurance carrier or 19 self-insurance fund authorized to insure under chapter 440. 20 For purposes of this Act, "insurer" does not include a 21 qualified local government self-insurance fund, as defined in 22 s. 624.4622, or an individual self-insurer as defined in s. 23 440.385. 24 (7) "Self-insurance fund" means a group self-insurance 25 fund authorized under s. 624.4621, a commercial self-insurance 26 fund writing workers' compensation insurance authorized under 27 s. 624.462, or an assessable mutual insurer authorized under 28 s. 628.6011. For purposes of this Act, "self-insurance fund" 29 does not include a qualified local government self-insurance 30 fund, as defined in s. 624.4622, or an individual self-insurer 31 as defined in s. 440.385. 25 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 631.911 Creation of the Florida Workers' Compensation 2 Insurance Guaranty Association, Incorporated; merger; effect 3 of merger.-- 4 (1)(a) The Florida Self-Insurance Fund Guaranty 5 Association established in part V of chapter 631 and the 6 workers' compensation insurance account, which includes excess 7 workers' compensation insurance, established in s. 8 631.55(2)(a) shall be merged, effective October 1, 1997, or as 9 provided in paragraph (b), in accordance with the plan of 10 operation adopted by the interim board of directors. The 11 successor nonprofit corporation shall be known as the "Florida 12 Workers' Compensation Insurance Guaranty Association, 13 Incorporated." 14 (b) The merger may be effected prior to October 1, 15 1997, if: 16 1. the interim board of directors of the Workers' 17 Compensation Insurance Guaranty Association provides the 18 Department of Insurance with written notice of its intent to 19 effectuate the merger as of a date certain and its functional 20 readiness to initiate operations, such notice setting forth 21 the plan or summary thereof for effecting the merger; and, 22 2. the department, upon review of the plan or summary 23 thereof, determines the Workers' Compensation Insurance 24 Guaranty Association is functionally ready to initiate 25 operations and so certifies to the interim board of directors. 26 (c) Prior to the effective date of the merger, the 27 Florida Self-Insurance Fund Guaranty Association shall be the 28 entity responsible for the claims of insolvent self-insurance 29 funds resulting from accidents or losses incurred prior to 30 January 1, 1994, regardless of the date the Department of 31 Insurance filed a petition in circuit court alleging 26 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 insolvency and the date the court entered an order appointing 2 a receiver. 3 (d) Upon the effective date of the merger: 4 1. The Florida Self-Insurance Fund Guaranty 5 Association and the workers' compensation insurance account 6 within the Florida Insurance Guaranty Association cease to 7 exist and are succeeded by the Florida Workers' Compensation 8 Insurance Guaranty Association. 9 2. Title to all assets of any description, all real 10 estate and other property, or any interest therein, owned by 11 each party to the merger is vested in the successor 12 corporation without reversion or impairment. 13 3. The successor corporation shall be responsible and 14 liable for all the liabilities and obligations of each party 15 to the merger. 16 4. Any claim existing or action or proceeding pending 17 by or against any party to the merger may be continued as if 18 the merger did not occur or the successor corporation may be 19 substituted in the proceeding for the corporation or account 20 which ceased existence. 21 5. Neither the rights of creditors nor any liens upon 22 the property of any party to the merger shall be impaired by 23 such merger. 24 6. Outstanding assessments levied by the Florida 25 Self-Insurance Guaranty Association or the Florida Insurance 26 Guaranty Association on behalf of the workers' compensation 27 insurance account remain in full force and effect and shall be 28 paid when due. 29 (2) All insurers must be members of the corporation as 30 a condition of their authority to offer workers' compensation 31 coverage in this state. An insurer must reimburse the 27 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 corporation for all funds advanced to the insurer and all 2 claim payments the insurer makes on the insured's behalf if 3 the insurer, having been placed in rehabilitation 4 receivership, is subsequently rehabilitated. 5 (3) The corporation shall perform its functions under 6 a plan of operation and shall exercise its powers through a 7 board of directors. Upon adoption of a plan of operation for 8 the corporation, the board shall manage the Florida Workers' 9 Compensation Insurance account. 10 (4) The corporation has all powers granted or allowed 11 to not-for-profit corporations under chapter 617, in addition 12 to other powers granted in this section. 13 631.912 Board of directors.-- 14 (1) The board of directors of the corporation shall 15 consist of 11 persons, one of whom is the Insurance Consumer 16 Advocate appointed under s. 627.0613 or designee and one of 17 whom is designated by the Insurance Commissioner. The 18 department shall appoint to the board six persons selected by 19 private carriers from among the 20 workers' compensation 20 insurers with the largest amount of net direct written premium 21 as determined by the department, and three persons selected by 22 the self-insurance funds. At least two of the private 23 carriers shall be foreign carriers authorized to do business 24 in this state. The board shall elect a chairperson from among 25 its members. The commissioner may remove any board member for 26 cause. Each board member shall serve for a 4-year term and 27 may be reappointed, except that four members of the initial 28 board shall have 2-year terms so as to stagger the periods of 29 service. A vacancy on the board shall be filled for the 30 remaining period of the term in the same manner by which the 31 original appointment was made. 28 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 (2) Members of the board may be reimbursed from the 2 assets of the corporation for actual and reasonable 3 out-of-pocket expenses incurred by them as members of the 4 board of directors, however, members of the board may not 5 otherwise be compensated by the corporation for their 6 services. 7 (3) Effective upon this act becoming a law, the 8 persons on the board of directors created pursuant to s. 9 627.311(4)(a) who evidence a willingness to serve in writing, 10 shall serve as an interim board of directors of the 11 corporation until the initial board of directors has been 12 appointed for the corporation in accordance with the 13 provisions of subsection (1). The interim board of directors 14 shall serve for a period not to exceed 6 months. The initial 15 meeting shall be called by the commissioner within 30 days 16 after this act becomes a law. The interim board of directors 17 shall establish a process for the selection of persons to 18 serve on the board of the Florida Workers' Compensation 19 Insurance Guaranty Association in accordance with the terms of 20 subsection (1). The board of directors shall adopt an interim 21 plan of operation to effect the merger in s. 631.911 and avoid 22 any interruption of benefit payments to injured workers. When 23 necessary and upon approval of the chairs of their respective 24 board of directors, the Florida Self-Insurance Fund Guaranty 25 Association and the Florida Insurance Guaranty Association 26 shall provide staff support to the interim board of directors. 27 The board shall submit the interim plan to the commissioner, 28 who shall approve or disapprove the plan within 30 days after 29 receipt. 30 631.913 Powers and duties of the corporation.-- 31 29 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 (1) The corporation is obligated to the extent of the 2 full amount of the covered claims: 3 (a) Existing before the adjudication of insolvency and 4 arising within 30 days after the determination of insolvency; 5 (b) Existing before the policy expiration date if less 6 than 30 days after the determination of insolvency; or 7 (c) Existing before the insured replaces the policy or 8 causes its cancellation, if the insured does so within 30 days 9 after the determination of insolvency. 10 11 The corporation is not obligated to a policyholder or claimant 12 in an amount in excess of the obligation of the insolvent 13 insurer under the policy from which the claim arises. 14 (2) The corporation is considered to be the insurer to 15 the extent of its obligation on the covered claims, and, to 16 such extent, has all rights, duties, and obligations of the 17 insolvent insurer as if the insurer had not become insolvent. 18 The corporation is not liable for any penalties or interest. 19 (3) The corporation may: 20 (a) Employ or retain such persons as are necessary to 21 handle claims and perform other duties of the corporation. 22 (b) Borrow funds necessary to effect the purposes of 23 this part in accordance with the plan of operation. 24 (c) Sue or be sued. Service of process in such legal 25 actions must be made upon the person registered with the 26 department as agent for the receipt of service of process. 27 (d) Enter into such contracts as are necessary to 28 carry out the purpose of this part. 29 (4) The corporation may assist and advise the 30 department, when appropriate, concerning rehabilitation, 31 payment of claims, continuance of coverage, or the performance 30 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 of other contractual obligations of any impaired or insolvent 2 insurer. The corporation may also assist and advise 3 departments of insurance of other states; other guaranty 4 associations; and conservators, rehabilitators, and receivers 5 appointed or acting in regard to any member insured wherever 6 located, for the purpose of developing plans to coordinate 7 protection of policyholders. Costs of such activities may be 8 charged against the Florida Workers' Compensation Insurance 9 Guaranty Association Account at the discretion of the board of 10 directors, notwithstanding any other provision of this act. 11 (5) The corporation shall have standing to appear 12 before any court in this state which has jurisdiction over an 13 impaired or insolvent insurer to which the corporation is or 14 may become obligated under this act. Such standing shall 15 extend to all matters germane to the powers and duties of the 16 corporation, including but not limited to, proposals for 17 reinsuring or guaranteeing the covered policies of the 18 impaired or insolvent insurer and the determination of the 19 covered policies and contractual obligations. 20 (6) State funds may not be allocated or paid to the 21 corporation. 22 631.914 Assessments.-- 23 (1)(a) To the extent necessary to secure the funds for 24 the payment of covered claims, and also to pay the reasonable 25 costs to administer the same, the department, upon 26 certification by the board, shall levy assessments on each 27 insurer in the proportion that the insurer's net direct 28 written premiums in this state bears to the total of said net 29 direct written premiums received in this state by all such 30 workers' compensation insurers for the preceding calendar 31 year. Assessments shall be remitted to and administered by 31 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 the board of directors in the manner specified by the approved 2 plan of operation. The board shall give each insurer so 3 assessed at least 30 days' written notice of the date the 4 assessment is due and payable. Each assessment shall be a 5 uniform percentage applicable to the net direct written 6 premiums of each insurer writing workers' compensation 7 insurance. 8 1. Beginning July 1, 1997, assessments levied against 9 insurers, other than self-insurance funds, shall not exceed in 10 any calendar year more than 2 percent of that insurer's net 11 direct written premiums in this state for workers' 12 compensation insurance during the calendar year next preceding 13 the date of such assessments. 14 2. Beginning July 1, 1997, assessments levied against 15 self-insurance funds shall not exceed in any calendar year 16 more than 1.50 percent of that self-insurance fund's net 17 direct written premiums in this state for workers' 18 compensation insurance during the calendar year next preceding 19 the date of such assessments. 20 (b) Assessments shall be included as an appropriate 21 factor in the making of rates. 22 (c)1. Effective July 1, 1999, if assessments otherwise 23 authorized in paragraph (a) are insufficient to make all 24 payments on reimbursements then owing to claimants in a 25 calendar year, then upon certification by the board, the 26 department shall levy additional assessments of up to 1.5 27 percent of the insurer's net direct written premiums in this 28 state during calendar year next proceeding the date of such 29 assessments against insurers to secure the necessary funds. 30 2. To assure that insurers paying assessments levied 31 under this paragraph continue to charge rates that are neither 32 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 inadequate nor excessive, each insurer that is to be assessed 2 pursuant to this paragraph, or a licensed rating organization 3 to which the insurer subscribes, may make, within 90 days 4 after being notified of such assessments, a rate filing for 5 workers' compensation coverage pursuant to ss. 627.072 and 6 627.091. If the filing reflects a percentage rate change 7 equal to the difference between the rate of such assessment 8 and the rate of the previous year's assessment under this 9 paragraph, the filing shall consist of a certification so 10 stating and shall be deemed approved when made. Any rate 11 change of a different percentage shall be subject to the 12 standards and procedures of ss. 627.072 and 627.091. 13 (2)(a) The board may exempt any insurer from an 14 assessment if, in the opinion of the department, an assessment 15 would result in such insurer's financial statement reflecting 16 an amount of capital or surplus less than the minimum amount 17 required by any jurisdiction in which the insurer is 18 authorized to transact insurance. 19 (b) The board may temporarily defer, in whole or in 20 part, assessments against an insurer if, in the opinion of the 21 department, payment of the assessment would endanger the 22 ability of the insurer to fulfill its contractual obligations. 23 In the case of a self-insurance fund, the trustees of the fund 24 determined to be endangered must immediately levy an 25 assessment upon the members of that self-insurance fund in an 26 amount sufficient to pay the assessments to the corporation. 27 (c) The board may allow an insurer to pay an 28 assessment on a quarterly basis. 29 631.916 Plan of operation.--The board of directors 30 shall prepare and submit to the department a plan of operation 31 and any amendments to the plan which are necessary or suitable 33 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 to assure the fair, reasonable, and equitable administration 2 of the corporation. The plan of operation and any amendments 3 to the plan shall become effective unless disapproved in 4 writing by the department within 30 days after receipt. If the 5 corporation fails to submit a plan of operation within 90 days 6 after the appointment of the new board, the department shall 7 implement a plan of operation which will be effective until 8 the board submits a plan of operation. The plan of operation 9 prepared by the board is subject to periodic review by the 10 department. All member insurers shall comply with the approved 11 plan of operation. The plan of operation must, in addition to 12 the requirements enumerated elsewhere in this part: 13 (1) Establish procedures for handling the assets of 14 the corporation. 15 (2) Establish regular places and times for meetings of 16 the board of directors. 17 (3) Establish procedures for keeping records of all 18 financial transactions of the corporation, its agents, and the 19 board of directors. 20 (4) Establish procedures for levying and collecting 21 assessments and deficiency surcharges. 22 (5) Establish procedures to allow injured workers to 23 make claims and to adjust and pay such claims. 24 (6) Establish additional provisions necessary or 25 proper for executing the powers and duties of the association. 26 631.917 Prevention of insolvencies.--To aid in the 27 detection and prevention of insolvencies or impairments: 28 (1)(a) The board may make reasonable and lawful 29 investigation into the practices of any third-party 30 administrator or service company for a self-insurance fund 31 declared insolvent by the court. 34 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 (b) If the results of an investigation reasonably lead 2 to a finding that certain actions taken or not taken by those 3 handling, processing, or preparing covered claims for payment 4 or other benefit pursuant to any workers' compensation 5 insurance policy, contributed to the insolvency of an insurer, 6 such information may, in the discretion of the board, be 7 provided to the department in an expedited manner. 8 (2) The board of directors may make reports and 9 recommendations to the department upon any matter germane to 10 the solvency, liquidation, rehabilitation, or conservation of 11 any member insurer or germane to the solvency of any insurer 12 seeking to do insurance business in this state. 13 (3) The board of directors, in its discretion, may 14 notify the department of any information indicating that any 15 member insurer may be an impaired or insolvent insurer. 16 (4) The board of directors, in its discretion, may 17 request that the department order an examination of any member 18 insurer which the board in good faith believes may be an 19 impaired or insolvent insurer. Within 30 days after receipt 20 of such a request, the department shall begin such an 21 examination. The examination may be conducted as a National 22 Association of Insurance Commissioners examination or may be 23 conducted by such persons as the Insurance Commissioner 24 designates. The cost of such examination shall be paid by the 25 corporation and the examination report shall be treated in a 26 manner similar to other examination reports pursuant to s. 27 624.319. In no event may such examination report be released 28 to the board of directors before its release to the public, 29 but this requirement does not preclude the department from 30 complying with s. 631.398(2). The department shall notify the 31 board of directors when the examination is completed. The 35 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 request for an examination shall be kept on file by the 2 department. 3 (5) The board is authorized to assist and aid the 4 department, in any manner consistent with existing laws and 5 this chapter, in the department's investigation or referral 6 for prosecution of those whose action or inaction may have 7 contributed to the impairment or insolvency of the insurer. 8 (6) The board may make recommendations to the 9 department for the detection and prevention of insurer 10 insolvencies. 11 631.918 Immunity.--There is no liability on the part 12 of, and a cause of action may not arise against, the 13 corporation, its agents or employees, or members of its board 14 of directors, or the department or its agents or employees, 15 for any action taken by them in the performance of their 16 powers and duties under this section, unless such action is 17 found to be a violation of antitrust laws, was in bad faith, 18 or was undertaken with malicious purpose or in a manner 19 exhibiting wanton and willful disregard of human rights, 20 safety, or property. 21 631.919 Prohibited advertisement of solicitation.--A 22 person may not make, publish, disseminate, advertise, 23 circulate, or place before the public, or cause, directly or 24 indirectly, to be made, published, disseminated, circulated, 25 or placed before the public, in any print, television, or 26 broadcast media, or in any circular, letter, pamphlet, or 27 publication of any kind, a statement or announcement that uses 28 the existence of the Florida Workers' Compensation Insurance 29 Guaranty Association, Incorporated, to induce an employer to 30 purchase membership in or insurance from a member insurer. 31 36 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 631.921 Department powers.--The corporation shall be 2 subject to examination by the department. By March 1 of each 3 year, the board of directors shall cause a financial report to 4 be filed with the department for the immediately preceding 5 calendar year in a form approved by the department. 6 631.922 Liability of members of an impaired 7 self-insurance fund for unpaid claims.--This act may not be 8 construed to reduce the liability of a member of an impaired 9 self-insurance fund for the member's liability under s. 10 624.4621 or s. 624.476. 11 631.923 Effect of paid claims.-- 12 (1) Any person who recovers under this part is 13 considered to have assigned his or her rights under the policy 14 to the corporation to the extent of his or her recovery from 15 the corporation. Every insured or claimant seeking the 16 protection of this part shall cooperate with the corporation 17 to the same extent as the insured or claimant would have been 18 required to cooperate with the insolvent insurer. The 19 corporation has no cause of action against the insured of the 20 insolvent insurer for any sums the insured has paid out except 21 such causes of action as the insolvent insurer would have had 22 if the sums had been paid by the insolvent insurer. 23 (2) The receiver, liquidator, or statutory successor 24 of an insolvent insurer is bound by settlements of covered 25 claims by the corporation. The court having jurisdiction shall 26 grant such claims priority equal to that to which the claimant 27 would have been entitled, in the absence of this part, against 28 the assets of the insolvent insurer. The expenses of the 29 association or similar organization in handling claims must be 30 accorded the same priority as the liquidator's expenses. 31 37 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 (3) The corporation shall periodically file with the 2 receiver or liquidator of the insolvent insurer statements of 3 the covered claims paid by the corporation and estimates of 4 anticipated claims on the corporation, which shall preserve 5 the rights of the corporation against the assets of the 6 insolvent insurer. 7 (4) Any release of the corporation and its insured 8 must clearly state whether or not any claim filed with the 9 receiver in excess of the liability of the corporation under 10 s. 631.57 is waived. 11 631.924 Stay of proceedings; reopening of default 12 judgments.--All proceedings in which the insolvent 13 self-insurance fund is a party or is obligated to defend a 14 party in any court or before any quasi-judicial body or 15 administrative board in this state must be stayed for 6 16 months, or such additional period from the date the insolvency 17 is adjudicated, by a court of competent jurisdiction to allow 18 proper defense by the association of all pending causes of 19 action as to any covered claims. The stay may be extended for 20 a period of time greater than 6 months upon proper application 21 to a court of competent jurisdiction. The association, either 22 on its own behalf or on behalf of the insured, may apply to 23 have any judgment, order, decision, verdict, or finding based 24 on the default of the insolvent self-insurance fund or its 25 failure to defend an insured set aside by the same court or 26 administrator that made the judgment, order, decision, 27 verdict, or finding and may defend against the claim on the 28 merits. If the association so requests, the stay of 29 proceedings may be shortened or waived. 30 631.926 Attorney's fees.--The provisions of s. 627.428 31 providing for an attorney's fee are inapplicable to any claim 38 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 presented to the corporation under this part, unless the 2 corporation denies, by affirmative action other than delay, a 3 covered claim or a portion thereof. 4 631.927 Assumption of liability.--Notwithstanding s. 5 631.913, the corporation shall assume the liability for the 6 payment of the workers' compensation indemnity and medical 7 benefits that are due to claimants covered by the Certified 8 Pulpwood Dealers Self-Insurers Fund. The corporation shall 9 assess the former members of the Certified Pulpwood Dealers 10 Self-Insurers Fund pursuant to the provisions of this act. 11 Section 21. Subsection (3) of section 631.915, Florida 12 Statutes, is amended to read: 13 631.915 Definitions.--As used in this part, the term: 14 (3) "Covered claim" means an unpaid claim, including 15 one of unearned premiums, which arises out of, is within the 16 coverage of, and is not in excess of the applicable limits of, 17 an insurance policy to which this part applies, issued by a 18 self-insurer's fund, which claim is made on behalf of a 19 claimant or insured who is a resident of this state at the 20 time of the injury. The term does not include any claims 21 resulting from dates of accidents or losses incurred by a 22 member self-insurance fund before January 1, 1994, or any 23 amount due any reinsurer, insurer, insurance pool, or 24 underwriting association, as subrogation recoveries or 25 otherwise. Member self-insurer's funds have no right of 26 subrogation against the insured of any insolvent 27 self-insurance fund. This provision shall be applied 28 retroactively to cover all claims on accidents or losses 29 incurred prior to January 1, 1994, regardless of the date the 30 Department of Insurance filed a petition in the circuit court 31 39 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 alleging insolvency and the court entered an order appointing 2 a receiver. 3 Section 22. Subsection (4) of section 631.935, Florida 4 Statutes, is amended to read: 5 631.935 Powers and duties of the association.-- 6 (4) State funds may not be allocated or paid to the 7 association. 8 Section 23. Section 631.996, Florida Statutes, is 9 renumbered as section 631.928, Florida Statutes, and is 10 amended to read: 11 631.928 631.996 Florida Workers' Compensation 12 Insurance Guaranty Association Group Self-Insurance Fund 13 Account.--Notwithstanding the provisions of s. 215.3207, the 14 Florida Workers' Compensation Insurance Guaranty Association 15 Group Self-Insurance Fund Account is hereby created, to be 16 managed by the Florida Workers' Compensation Insurance Group 17 Self-Insurance Fund Guaranty Association. Funds shall be 18 credited to the fund as provided in chapter 93-415, Laws of 19 Florida, or similar legislation, to be used for the purposes 20 set forth therein. 21 Section 24. Section 631.929, Florida Statutes, is 22 created to read: 23 631.929 Election of remedies.--An injured worker who 24 has a date of accident which occurred before January 1, 1994, 25 and is not receiving benefits due under chapter 440 due to the 26 insolvency of a self-insurance fund or its successors, 27 regardless of the date declared insolvent by the court, may 28 elect to seek medical care, treatment, and attendance, and 29 compensation required under ss. 440.15 and 440.16 from the 30 corporation and forego the remedy to seek benefits from his 31 employer or the insolvent self-insurance fund. An employee 40 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 who so elects may be required to obtain medical care, 2 treatment, and attendance through a managed care plan 3 comporting with the requirement of s. 440.134 if the plan of 4 operation so provides. An injured worker has 60 days to seek 5 benefits from the corporation upon ratification by the 6 corporation of his right to elect a remedy under this part. 7 If the injured worker elects to pursue his remedy under the 8 provisions of this part, the corporation may, with the 9 agreement of the injured employee, pay a lump-sum payment in 10 exchange for the corporation's and employer's release from 11 liability for future medical and compensation expenses, as 12 well as any other benefit provided under chapter 440. 13 However, there shall be no entitlement to attorney's fees, 14 penalties, interest, or costs to be paid on any claim 15 presented to the corporation under this part. This section 16 shall not create any cause of action against any employer who 17 purchased workers' compensation insurance coverage pursuant to 18 s. 440.38. 19 Section 25. Section 631.997, Florida Statutes, 1996 20 Supplement, is renumbered as section 631.931, Florida 21 Statutes, and subsection (1) of said section is amended to 22 read: 23 631.931 631.997 Reports and recommendations by board; 24 public records exemption.-- 25 (1) Reports and recommendations made by the Board of 26 Directors of the Florida Workers' Compensation Insurance 27 Self-Insurance Fund Guaranty Association to the Department of 28 Insurance under s. 631.917 631.95 upon any matter germane to 29 the solvency, liquidation, rehabilitation, or conservation of 30 any member insurer self-insurance fund are confidential and 31 exempt from the provisions of s. 119.07(1) and s. 24(a), Art. 41 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 I of the State Constitution until the termination of a 2 delinquency proceeding. 3 Section 26. Section 631.998, Florida Statutes, 1996 4 Supplement, is renumbered as section 631.932, Florida 5 Statutes, and subsection (1) of said section is amended to 6 read: 7 631.932 631.998 Negotiations; public meetings and 8 records exemptions.-- 9 (1) Negotiations held between an insurer a 10 self-insurance fund and the Florida Workers' Compensation 11 Insurance Self-Insurance Fund Guaranty Association are exempt 12 from the provisions of s. 286.011 and s. 24(b), Art. I of the 13 State Constitution. Documents related to such negotiations 14 that reveal identifiable payroll and loss and individual claim 15 information are confidential and exempt from the provisions of 16 s. 119.07(1) and s. 24(a), Art. I of the State Constitution. 17 Section 27. The Division of Statutory Revision of the 18 Joint Legislative Management Committee shall omit from the 19 next edition of the official Florida Statutes subsection (2) 20 of section 631.997, Florida Statutes (renumbered as section 21 631.931, Florida Statutes, by this act), and subsection (2) of 22 section 631.998, Florida Statutes (renumbered as section 23 631.932, Florida Statutes, by this act). Subsection (2) of 24 section 1 of chapter 93-423, Laws of Florida, and subsection 25 (2) of section 2 of chapter 93-423, Laws of Florida, shall 26 remain valid in the form enacted by that chapter. 27 Section 28. Report by the Department of 28 Insurance.--The Department of Insurance shall conduct a study 29 and report on the feasibility of: 30 31 42 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 (1) Enabling the self-insurance funds and assessable 2 mutual insurers to transition to fully capitalized insurers 3 over a five year period; 4 (2) Establishing alternative methodologies by which 5 self-insurance funds and assessable mutual insurers may 6 satisfy payment obligations other than capital and surplus 7 requirements; and 8 (3) Permitting captive insurers to be utilized by 9 businesses in the same trade or business. 10 11 The department shall submit its report to the Governor, the 12 President of the Senate and the Speaker of the House of 13 Representatives by December 1, 1997. 14 Section 29. Notwithstanding s. 631.913, Florida 15 Statutes, there is hereby appropriated $5 million from the 16 Insurance Commissioner's Regulatory Trust Fund to the Florida 17 Self-Insurance Fund Guaranty Association, Incorporated, or 18 successor corporation resulting from the merger effected in s. 19 631.911. Of the amount appropriated, the board of directors 20 of the Florida Self-Insurance Fund Guaranty Association may 21 disburse funds to the interim board of directors of the 22 Florida Workers' Compensation Insurance Guaranty Association 23 as necessary for the purpose of carrying out the duties and 24 responsibilities of said interim board under the Florida 25 Workers' Compensation Insurance Guaranty Association Act. 26 Section 30. Sections 631.90, 631.905, 631.91, 631.915, 27 631.92, 631.925, 631.93, 631.935, 631.94, 631.945, 631.95, 28 631.955, 631.96, 631.965, 631.97, 631.975, 631.98, 631.985, 29 631.99, and 631.995, Florida Statutes, are hereby repealed 30 effective October 1, 1997, or the effective date of the merger 31 43 CODING: Words stricken are deletions; words underlined are additions. ENROLLED 1997 Legislature HB 1933, Second Engrossed 1 pursuant to section 631.911, Florida Statutes, as certified by 2 the Department of Insurance, whichever occurs first. 3 Section 31. This act shall take effect upon becoming a 4 law, except that the amendments to sections 631.52, 631.54, 5 631.55, 631.57, and 631.997, Florida Statutes, shall take 6 effect October 1, 1997, or the effective date of the merger 7 pursuant to section 631.911, Florida Statutes, as certified by 8 the Department of Insurance, whichever occurs first. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 44