Senate Bill 2528

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    Florida Senate - 1998                                  SB 2528

    By Senator Holzendorf





    2-1078-98

  1                      A bill to be entitled

  2         An act relating to insurance; providing

  3         legislative intent with respect to encouraging

  4         the voluntary audit of activities regulated

  5         under the Florida Insurance Code; providing

  6         definitions; providing that an insurance

  7         compliance self-evaluative audit document is

  8         privileged information and not discoverable or

  9         admissible as evidence in a civil, criminal, or

10         administrative proceeding; providing for

11         certain information to be submitted to the

12         Department of Insurance without waiving the

13         privilege; specifying circumstances under which

14         a court may compel the disclosure of material

15         for which the privilege is asserted; providing

16         procedures; providing for an in camera hearing;

17         providing for certain stipulations to be made

18         with respect to privileged information;

19         providing for applicability; providing that the

20         release of a self-evaluative audit document

21         does not limit or abrogate certain other

22         privileges; providing an effective date.

23

24  Be It Enacted by the Legislature of the State of Florida:

25

26         Section 1.  Privilege for insurance compliance

27  self-evaluative audit documents; waiver of privilege.--

28         (1)  The Legislature recognizes that in order to

29  encourage insurance companies and persons who conduct

30  activities regulated under the Florida Insurance Code to

31  conduct voluntary internal audits of compliance programs and

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  1  management systems and to assess and improve their compliance

  2  with state and federal laws, rules, and orders, the

  3  communications that relate to voluntary internal compliance

  4  audits must be privileged and confidential. The Legislature

  5  finds and declares that the protection of insurance consumers

  6  is enhanced by the voluntary compliance of insurance companies

  7  with the Florida Insurance Code and with other laws, and that

  8  the public will benefit from incentives to identify and remedy

  9  noncompliance. It is further declared that limited expansion

10  of the protection against disclosure of certain information

11  will encourage voluntary compliance and improve the quality of

12  the insurance market and that the voluntary provisions of this

13  section will not inhibit the regulatory authority of the

14  Department of Insurance.

15         (2)  As used in this section, the term:

16         (a)  "Company" includes every person engaged as

17  indemnitor, surety, or contractor in the business of entering

18  into contracts of insurance or of annuity.

19         (b)  "Department" means the Department of Insurance.

20         (c)  "Insurance compliance audit" means a voluntary

21  internal evaluation, review, assessment, audit, or

22  investigation that is conducted for the purpose of identifying

23  or preventing noncompliance, or for promoting compliance, with

24  laws, rules, orders, or industry or professional standards,

25  and that is conducted by or on behalf of a company licensed or

26  regulated under the Florida Insurance Code or involves an

27  activity regulated under the Florida Insurance Code.

28         (d)  "Insurance compliance self-evaluative audit

29  document" means a document prepared as a result of or in

30  connection with an insurance compliance audit. The term

31  includes, but is not limited to, a written response to the

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    Florida Senate - 1998                                  SB 2528
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  1  findings of an insurance compliance audit, field notes and

  2  records of observations, findings, opinions, suggestions,

  3  conclusions, drafts, memoranda, drawings, photographs,

  4  exhibits, computer-generated or electrically recorded

  5  information, phone records, maps, charts, graphs, and surveys

  6  collected or developed for the primary purpose of and in the

  7  course of an insurance compliance audit. The term also

  8  includes, but is not limited to:

  9         1.  An insurance compliance audit report prepared by an

10  auditor, who may be an employee of the company or an

11  independent contractor, which may include the scope of the

12  audit, the information gained in the audit, conclusions and

13  recommendations, and exhibits and appendices.

14         2.  Memoranda and documents that analyze portions or

15  all of the insurance compliance audit report and discuss

16  potential implementation issues.

17         3.  An implementation plan that addresses correcting

18  past noncompliance, improving current compliance, and

19  preventing future noncompliance.

20         4.  Analytic data generated in the course of conducting

21  the insurance compliance audit.

22         (3)(a)  Except as provided in subsection (4) or

23  subsection (5), an insurance compliance self-evaluative audit

24  document is privileged information and is not discoverable or

25  admissible as evidence in any legal action in any civil,

26  criminal, or administrative proceeding. The privilege created

27  in this section is a matter of substantive law and is not

28  merely a procedural matter governing civil or criminal

29  procedures in the courts of this state.

30         (b)  If any company, person, or entity performs or

31  directs the performance of an insurance compliance audit, an

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  1  officer, employee, or agent involved with the insurance

  2  compliance audit, or any consultant who is hired for the

  3  purpose of performing the insurance compliance audit, may not

  4  be examined in any civil, criminal, or administrative

  5  proceeding as to the insurance compliance audit or any

  6  insurance compliance self-evaluative audit document. This

  7  paragraph does not apply if the privilege set forth in

  8  paragraph (a) is determined not to apply as provided in

  9  subsection (4) or subsection (5).

10         (c)  A company may voluntarily submit, in connection

11  with an examination conducted under the Florida Insurance

12  Code, an insurance compliance self-evaluative audit document

13  to the department, or to a designee of the department, as a

14  confidential document without waiving the privilege set forth

15  in this section to which the company would otherwise be

16  entitled. The department may not disclose information

17  contained in a voluntarily submitted insurance compliance

18  self-evaluative audit document to the National Association of

19  Insurance Commissioners. To the extent that the department may

20  compel disclosure of an insurance compliance self-evaluative

21  audit document under other provisions of law, any such report

22  furnished to the department may not be provided to any other

23  person or entity and shall be accorded the same

24  confidentiality and other protections as are provided for

25  voluntarily submitted documents. Any use of an insurance

26  compliance self-evaluative audit document furnished as a

27  result of a request of the department under a claim of

28  authority to compel disclosure is limited to determining

29  whether any disclosed defects in an insurer's policies and

30  procedures or inappropriate treatment of customers has been

31

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  1  remedied or that an appropriate plan for such remedy is in

  2  place.

  3         1.  A company's compliance self-evaluative audit

  4  document submitted to the department shall remain subject to

  5  all applicable statutory or common law privileges, including,

  6  but not limited to, the work-product doctrine, attorney-client

  7  privilege, and the exclusion provided for subsequent remedial

  8  measures.

  9         2.  Any compliance self-evaluative audit document

10  submitted and in the possession of the department shall remain

11  the property of the company.

12         (d)  Disclosure of an insurance compliance

13  self-evaluative audit document to a governmental agency,

14  whether voluntary or pursuant to compulsion of law, does not

15  constitute a waiver of the privilege set forth in subsection

16  (3) with respect to any other person or any other governmental

17  agency.

18         (4)(a)  The privilege set forth in subsection (3) does

19  not apply to the extent that it is expressly waived by the

20  company that prepared or caused to be prepared the insurance

21  compliance self-evaluative audit document.

22         (b)  In a civil or administrative proceeding, a court

23  of record may, after an in camera review, require disclosure

24  of material for which the privilege set forth in subsection

25  (3) is asserted, if the court determines one of the following:

26         1.  The privilege is asserted for a fraudulent purpose;

27  or

28         2.  The material is not subject to the privilege.

29         (c)  In a criminal proceeding, a court of record may,

30  after an in camera review, require disclosure of material for

31

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  1  which the privilege described in subsection (3) is asserted,

  2  if the court determines one of the following:

  3         1.  The privilege is asserted for a fraudulent purpose;

  4         2.  The material is not subject to the privilege; or

  5         3.  The material contains evidence relevant to

  6  commission of a criminal offense under the Florida Insurance

  7  Code, and all three of the following factors are present:

  8         a.  The department, a state attorney, or the Attorney

  9  General has a compelling need for the information;

10         b.  The information is not otherwise available; and

11         c.  The department, a state attorney, or the Attorney

12  General is unable to obtain the substantial equivalent of the

13  information by any other means without incurring unreasonable

14  cost and delay.

15         (5)(a)  Within 30 days after the department, a state

16  attorney, or the Attorney General serves on an insurer a

17  written request by certified mail for disclosure of an

18  insurance compliance self-evaluative audit document under this

19  section, the company that prepared or caused the document to

20  be prepared may file with the appropriate court a petition

21  requesting an in camera hearing on whether the insurance

22  compliance self-evaluative audit document or portions of the

23  document are privileged under this section or subject to

24  disclosure. The court has jurisdiction over a petition filed

25  by a company under this subsection requesting an in camera

26  hearing on whether the insurance compliance self-evaluative

27  audit document or portions of the document are privileged or

28  subject to disclosure. Failure by the company to file a

29  petition waives the privilege for this request only.

30         (b)  A company that asserts the insurance compliance

31  self-evaluative privilege in response to a request for

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  1  disclosure under this subsection must include in its request

  2  for an in camera hearing all of the information set forth in

  3  paragraph (e).

  4         (c)  Upon the filing of a petition under this section,

  5  the court shall issue an order scheduling, within 45 days

  6  after the filing of the petition, an in camera hearing to

  7  determine whether the insurance compliance self-evaluative

  8  audit document or portions of the document are privileged

  9  under this section or subject to disclosure.

10         (d)  The court, after an in camera review, may require

11  disclosure of material for which the privilege in subsection

12  (3) is asserted if the court determines, based upon its in

13  camera review, that any one of the conditions set forth in

14  paragraph (4)(b) is applicable as to a civil or administrative

15  proceeding or that any one of the conditions set forth in

16  paragraph (4)(c) is applicable as to a criminal proceeding.

17  Upon making such a determination, the court may compel the

18  disclosure only of those portions of an insurance compliance

19  self-evaluative audit document that are relevant to issues in

20  dispute in the underlying proceeding. Any compelled disclosure

21  is not a public document and is not a waiver of the privilege

22  for any other civil, criminal, or administrative proceeding. A

23  party that unsuccessfully opposes disclosure may apply to the

24  court for an appropriate order protecting the document from

25  further disclosure.

26         (e)  A company that asserts the insurance compliance

27  self-evaluative privilege in response to a request for

28  disclosure under this subsection shall provide to the

29  department, the state attorney, or the Attorney General, as

30  appropriate, at the time of filing any objection to the

31  disclosure, all of the following:

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  1         1.  The date of the insurance compliance

  2  self-evaluative audit document.

  3         2.  The identity of the entity that conducted the

  4  audit.

  5         3.  The general nature of the activities covered by the

  6  insurance compliance audit.

  7         4.  An identification of the portions of the insurance

  8  compliance self-evaluative audit document for which the

  9  privilege is being asserted.

10         (6)(a)  A company that asserts the insurance compliance

11  self-evaluative privilege set forth in subsection (3) has the

12  burden of demonstrating the applicability of the privilege.

13  Once a company has established the applicability of the

14  privilege, a party that seeks disclosure under paragraph

15  (4)(b) has the burden of proving that the privilege is

16  asserted for a fraudulent purpose. The department, the state

17  attorney, or the Attorney General seeking disclosure under

18  paragraph (4)(c) has the burden of providing the elements set

19  forth in paragraph (4)(c).

20         (b)  The parties may at any time stipulate in

21  proceedings under subsection (4) or subsection (5) to entry of

22  an order directing that specific information contained in an

23  insurance compliance self-evaluative audit document is or is

24  not subject to the privilege provided under subsection (3).

25  Any such stipulation may be limited to the instant proceeding

26  and, absent specific language to the contrary, is not

27  applicable to any other proceeding.

28         (c)  The privilege set forth in subsection (3) does not

29  extend to:

30         1.  Documents, communications, data, reports, or other

31  information expressly required to be collected, developed,

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  1  maintained, or reported to a regulatory agency pursuant to the

  2  Florida Insurance Code or other state or federal law;

  3         2.  Information obtained by observation or monitoring

  4  by any regulatory agency; or

  5         3.  Information obtained from a source that is

  6  independent of the insurance compliance audit.

  7         (7)  The insurance compliance self-evaluative privilege

  8  created by this section applies to all litigation or any

  9  administrative proceeding pending on July 1, 1998.

10         (8)  This section, or the release of any

11  self-evaluative audit document under this section, does not

12  limit, waive, or abrogate the scope or nature of any statutory

13  or common law privilege, including, but not limited to, the

14  work-product doctrine, the attorney-client privilege, and the

15  exclusion provided for subsequent remedial measures.

16         Section 2.  This act shall take effect July 1, 1998.

17

18            *****************************************

19                          SENATE SUMMARY

20    Provides that a document produced as the result of a
      voluntary audit of activities regulated under the Florida
21    Insurance Code is privileged information and is not
      discoverable or admissible as evidence in any civil,
22    criminal, or administrative proceeding. Authorizes a
      court to compel the disclosure of material for which the
23    privilege is asserted following an in camera hearing.
      Specifies documents and information for which an
24    insurance company may not claim the privilege. (See bill
      for details.)
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