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House Bill 0269c1

Florida House of Representatives - 1997 CS/HB 269 By the Committee on Financial Services and Representative Bainter 1 A bill to be entitled 2 An act relating to surplus lines insurance; 3 providing a short title; amending s. 626.921, 4 F.S.; creating a nonprofit association named 5 the "Florida Surplus Lines Service Office"; 6 providing findings; requiring surplus lines 7 agents to be members of the association; 8 providing duties; requiring the office to 9 collect a service fee from surplus lines 10 agents; providing for a board of governors; 11 providing for appointment of board members; 12 requiring a plan of operation to be submitted 13 to the Department of Insurance; requiring the 14 department to conduct examinations of the 15 association; providing for limitations of 16 liability for the association under certain 17 circumstances; providing for confidentiality of 18 certain information; amending s. 626.931, F.S.; 19 requiring surplus lines agents, foreign 20 insurers, and alien insurers to file a 21 quarterly report with the Florida Surplus Lines 22 Service Office; amending s. 626.932, F.S.; 23 requiring surplus lines agents to pay a surplus 24 lines tax to the office; requiring the service 25 office to remit the taxes and interest to the 26 department within 10 days; excluding from the 27 term "premium" a service fee; creating s. 28 626.9325, F.S.; imposing a service fee on 29 premiums charged for surplus lines insurance; 30 requiring surplus lines agents to collect the 31 fee and pay the fee to the office; requiring 1 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/HB 269 614-105-97 1 interest under certain circumstances; providing 2 for application; specifying use of such fees; 3 providing definitions; amending s. 626.918, 4 F.S.; providing surplus and other requirements 5 regarding certain surplus lines insurers; 6 amending s. 631.52, F.S.; providing that 7 certain surplus lines insurers may elect to be 8 members of the Florida Insurance Guaranty 9 Association; providing effective dates. 10 11 Be It Enacted by the Legislature of the State of Florida: 12 13 Section 1. This act may be cited as the "Dana Roehrig 14 Act." 15 Section 2. Section 626.921, Florida Statutes, 1996 16 Supplement, is amended to read: 17 (Substantial rewording of section. See 18 s. 626.921, F.S., 1996 Supp., 19 for present text.) 20 626.921 Florida Surplus Lines Service Office.-- 21 (1) There is hereby created a nonprofit association to 22 be known as the Florida Surplus Lines Service Office. The 23 Legislature hereby finds and declares that the establishment 24 of a surplus lines self-regulating organization is necessary 25 to establish a system that will permit better access by 26 consumers to approved unauthorized insurers. Accordingly, the 27 Legislature declares that this section shall be liberally 28 construed and applied to promote its underlying purposes, 29 which will protect consumers seeking insurance in this state, 30 permit surplus lines insurance to be placed with approved 31 surplus lines insurers, establish a self-regulating 2 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/HB 269 614-105-97 1 organization which will promote and permit orderly access to 2 surplus lines insurance in this state, enhance the number and 3 types of insurance products available to consumers in this 4 state, provide a source of advice and counsel for the benefit 5 of consumers, surplus lines agents, insurers, and government 6 agencies concerning the operation of the surplus lines 7 insurance market, and protect the revenues of this state. 8 (2) All surplus lines agents shall, as a condition of 9 holding a license as a surplus lines agent in this state, be 10 deemed to be members of this association and shall report to 11 and file with the service office a copy of or information on 12 each surplus lines insurance policy or document as provided in 13 the plan of operation adopted under subsection (5). Upon 14 receipt of any claim notice reported under a surplus lines 15 policy which is subject to the filing requirements of this 16 section, the insurer, or an adjuster representing the insurer, 17 must advise the service office of such claim, identifying the 18 policy under which coverage is claimed, and the service office 19 shall determine whether the policy has been filed as required 20 by this section. The service office shall immediately report 21 the particulars of any unfiled policy to the department for 22 enforcement of compliance with the Florida Surplus Lines Law. 23 (3) The association shall perform its functions under 24 a plan of operation adopted under subsection (5). It shall 25 exercise its powers through a board of governors established 26 under subsection (4). The association shall be regulated by 27 the department and is subject to the applicable provisions of 28 this code and the rules of the department. The service office 29 shall conduct the following activities provided in the plan of 30 operation adopted under subsection (5): 31 3 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/HB 269 614-105-97 1 (a) Receive, record, and review all surplus lines 2 insurance policies or documents. 3 (b) Maintain records of the surplus lines policies 4 reported to the service office and prepare monthly reports for 5 the department in such form as the department may prescribe. 6 (c) Prepare and deliver to each surplus lines agent 7 quarterly reports of each surplus lines agent's business in 8 such form as the department may prescribe, and collect and 9 remit to the department the surplus lines tax as provided for 10 in s. 626.932. 11 (d) Perform a reconciliation of the policies written 12 in the nonadmitted market, as provided by nonadmitted 13 insurers, with the policies reported to the service office by 14 the surplus lines agents, and prepare and deliver to the 15 department a report on the results of the reconciliation in 16 such form as the department may prescribe. 17 (e) Submit to the department for review and approval 18 an annual budget for the operation of the service office. 19 (f) Collect from each surplus lines agent a service 20 fee of up to 0.3 percent, as determined by the department, of 21 the total gross premium of each surplus lines policy or 22 document reported under this section, for the cost of 23 operation of the service office. The service fee shall be 24 paid by the insured. 25 (g) Employ and retain such personnel as are necessary 26 to carry out the duties of the service office. 27 (h) Borrow money, as necessary, to effect the purposes 28 of the service office. 29 (i) Enter into contracts, as necessary, to effect the 30 purposes of the service office. 31 4 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/HB 269 614-105-97 1 (j) Perform such other acts as will facilitate and 2 encourage compliance with the surplus lines law of this state 3 and rules adopted thereunder. 4 (k) Provide such other services as are incidental or 5 related to the purposes of the service office. 6 (4) The association shall operate under the 7 supervision of a board of governors consisting of: 8 (a) Five individuals appointed by the department from 9 the regular membership of the Florida Surplus Lines 10 Association. 11 (b) Two individuals appointed by the department, one 12 from each of the two largest domestic agents' associations, 13 each of whom shall be licensed surplus lines agents. 14 (c) The Insurance Consumer Advocate. 15 (d) One individual appointed by the department, who 16 shall be a risk manager for a large domestic commercial 17 enterprise. 18 19 Each board member shall be appointed to serve beginning on the 20 date designated by the plan of operation and shall serve at 21 the pleasure of the department for a 3-year term, such term 22 initially to be staggered by the plan of operation so that 23 three appointments expire in 1 year, three appointments expire 24 in 2 years, and three appointments expire in 3 years. Members 25 may be reappointed for subsequent terms. The board of 26 governors shall elect such officers as may be provided in the 27 plan of operation. 28 (5)(a) The association shall submit to the department 29 a plan of operation, and any amendments thereto, to provide 30 operating procedures for the administration of the service 31 5 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/HB 269 614-105-97 1 office. The plan of operation and any amendments thereto shall 2 become effective upon approval by order of the department. 3 (b) If the association fails to submit a suitable plan 4 of operation within 180 days following the effective date of 5 this act, or if at any time thereafter the association fails 6 to submit suitable amendments to the plan of operation, the 7 department shall, after notice and hearing, adopt a plan of 8 operation, or amendments to a plan of operation, and adopt 9 such rules as are necessary or advisable to effectuate the 10 provisions of this section. Such rules shall continue in 11 force until modified by the department or superseded by a plan 12 of operation submitted by the association and approved by the 13 department. 14 (c) All surplus lines agents licensed in this state 15 must comply with the plan of operation. 16 (6) The department shall, at such times deemed 17 necessary, make or cause to be made an examination of the 18 association. The costs of any such examination shall be paid 19 by the association. During the course of such examination, 20 the governors, officers, agents, employees, and members of the 21 association may be examined under oath regarding the operation 22 of the service office and shall make available all books, 23 records, accounts, documents, and agreements pertaining 24 thereto. 25 (7) In the absence of gross negligence, fraud, or bad 26 faith, there shall be no liability on the part of, and no 27 causes of action of any nature shall arise against, the 28 association, its governors, officers, agents, or employees, 29 the department, or employees or representatives of the 30 department, or the commissioner, for any action taken or 31 6 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/HB 269 614-105-97 1 omitted by them in performance of their powers and duties 2 under this section. 3 (8) Information furnished to the department under s. 4 626.923 or contained in the records subject to examination by 5 the department under s. 626.930 is confidential and exempt 6 from the provisions of s. 119.07(1) and s. 24(a), Art. I of 7 the State Constitution if the disclosure of the information 8 would reveal a trade secret as defined in s. 688.002. This 9 subsection is subject to the Open Government Sunset Review Act 10 of 1995 in accordance with s. 119.15, and shall stand repealed 11 on October 2, 2001, unless reviewed and saved from repeal 12 through reenactment by the Legislature. The exemption does 13 not apply to any proceeding instituted by the department 14 against an agent or insurer. 15 Section 3. Effective January 1, 1998, subsections (1), 16 (4), and (5) of section 626.931, Florida Statutes, are amended 17 to read: 18 626.931 Quarterly report.-- 19 (1) Each surplus lines agent shall on or before the 20 end of the month next following each calendar quarter file 21 with the Florida Surplus Lines Service Office department a 22 verified report of all surplus lines insurance transacted by 23 him during such calendar quarter. 24 (4) Each foreign insurer accepting premiums which are 25 subject to taxes and which are described in this section 26 shall, on or before the end of the month following each 27 calendar quarter, file with the Florida Surplus Lines Service 28 Office department a verified report of all surplus lines 29 insurance transacted by such insurer for insurance risks 30 located in this state during such calendar quarter. 31 7 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/HB 269 614-105-97 1 (5) Each alien insurer accepting premiums which are 2 subject to taxes and which are described in this section 3 shall, on or before June 30 of each year, file with the 4 Florida Surplus Lines Service Office department a verified 5 report of all surplus lines insurance transacted by such 6 insurer for insurance risks located in this state during the 7 preceding calendar year, provided the first such report shall 8 be with respect to calendar year 1994. 9 Section 4. Effective January 1, 1998, subsections (2) 10 and (6) of section 626.932, Florida Statutes, are amended to 11 read: 12 626.932 Surplus lines tax.-- 13 (2)(a) The surplus lines agent shall pay to the 14 Florida Surplus Lines Service Office department the tax 15 related to each calendar quarter's business as reported, and 16 at the same time as provided for the filing of the quarterly 17 report, under s. 626.931. The Florida Surplus Lines Service 18 Office shall forward to the department the taxes and any 19 interest collected pursuant to paragraph (b), within 10 days 20 of receipt, along with a copy of the quarterly reports 21 received. 22 (b) The agent shall pay interest on the amount of any 23 delinquent tax due, at the rate of 9 percent per year, 24 compounded annually, beginning the day the amount becomes 25 delinquent. 26 (6) For the purposes of this section, the term 27 "premium" means the consideration for insurance by whatever 28 name called and includes any assessment, or any membership, 29 policy, survey, inspection, service, or similar fee or charge 30 in consideration for an insurance contract, which items are 31 deemed to be a part of the premium. The per-policy fee 8 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/HB 269 614-105-97 1 authorized by s. 626.916(4) is specifically included within 2 the meaning of the term "premium." However, the service fee 3 imposed pursuant to s. 626.9325 is excluded from the meaning 4 of the term "premium." 5 Section 5. Section 626.9325, Florida Statutes, is 6 created to read: 7 626.9325 Service fee.-- 8 (1) The premiums charged for surplus lines insurance 9 are subject to a service fee as provided in s. 626.921(3)(f). 10 The surplus lines agent shall collect from the insured the 11 amount of the fee at the time of the delivery of the policy, 12 or other initial confirmation of insurance, in addition to the 13 full amount of the gross premium charged by the insurer for 14 the insurance. The surplus lines agent is prohibited from 15 absorbing such fee or, as an inducement for insurance or for 16 any other reason, rebating all or any part of such fee or of 17 his commission. 18 (2)(a) The surplus lines agent shall pay monthly to 19 the Florida Surplus Lines Service Office the fees related to 20 all policies reported during the previous calendar month in 21 accordance with the plan of operation of the Florida Surplus 22 Lines Service Office. 23 (b) The agent shall pay interest on the amount of any 24 delinquent fees due, at the rate of 9 percent per year, 25 compounded annually, beginning the day the amount becomes 26 delinquent. 27 (3) If a surplus lines policy covers risks or 28 exposures only partially in this state, the fee payable shall 29 be computed on the portion of the premium which is properly 30 allocable to the risks or exposures located in this state. 31 9 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/HB 269 614-105-97 1 (4) This section does not apply as to insurance of 2 risks of the state government or its agencies, or of any 3 county or municipality or of any agency thereof. 4 (5) The association shall use the fees to fund the 5 cost of operations of the Florida Surplus Lines Service 6 Office. 7 (6) For the purposes of this section, the term 8 "premium" means the consideration for insurance by whatever 9 name called and includes any assessment, or any membership, 10 policy, survey, inspection, service, or similar fee or charge 11 in consideration for an insurance contract, which items are 12 deemed to be a part of the premium. The per-policy fee 13 authorized by s. 626.916(4) is specifically included within 14 the meaning of the term "premium." 15 Section 6. Paragraph (d) of subsection (2) of section 16 626.918, Florida Statutes, is amended to read: 17 626.918 Eligible surplus lines insurers.-- 18 (2) No unauthorized insurer shall be or become an 19 eligible surplus lines insurer unless made eligible by the 20 department in accordance with the following conditions: 21 (d)1. The insurer must have and maintain surplus as to 22 policyholders of not less than $15 million; or, if an alien 23 insurer, must have and maintain in the United States a trust 24 fund for the protection of all its policyholders in the United 25 States under terms deemed by the department to be reasonably 26 adequate, in an amount not less than $15 million. Any such 27 surplus as to policyholders or trust fund shall be represented 28 by investments consisting of eligible investments for like 29 funds of like domestic insurers under part II of chapter 625; 30 31 10 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/HB 269 614-105-97 1 2. For those surplus lines insurers that were eligible 2 on January 1, 1994, and that maintained their eligibility 3 thereafter, the required surplus as to policyholders shall be: 4 a. On December 31, 1994, and until December 30, 1995, 5 $2.5 million. 6 b. On December 31, 1995, and until December 30, 1996, 7 $3.5 million. 8 c. On December 31, 1996, and until December 30, 1997, 9 $4.5 million. 10 d. On December 31, 1997, and until December 30, 1998, 11 $5.5 million. 12 e. On December 31, 1998, and until December 30, 1999, 13 $6.5 million. 14 f. On December 31, 1999, and until December 30, 2000, 15 $8 million. 16 g. On December 31, 2000, and until December 30, 2001, 17 $9.5 million. 18 h. On December 31, 2001, and until December 30, 2002, 19 $11 million. 20 i. On December 31, 2002, and until December 30, 2003, 21 $13 million. 22 j. On December 31, 2003, and thereafter, $15 million. 23 3. The capital and surplus requirements as set forth 24 in subparagraph 2. do not apply in the case of an insurance 25 exchange created by the laws of individual states, where the 26 exchange maintains capital and surplus pursuant to the 27 requirements of that state, or maintains capital and surplus 28 in an amount not less than $50 million in the aggregate. For 29 an insurance exchange which maintains funds in the amount of 30 at least $12 million for the protection of all insurance 31 exchange policyholders, each individual syndicate shall 11 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/HB 269 614-105-97 1 maintain minimum capital and surplus in an amount not less 2 than $3 million. If the insurance exchange does not maintain 3 funds in the amount of at least $12 million for the protection 4 of all insurance exchange policyholders, each individual 5 syndicate shall meet the minimum capital and surplus 6 requirements set forth in subparagraph 2. 7 4. A surplus lines insurer which is a member of an 8 insurance holding company that includes a member which is a 9 Florida domestic insurer as set forth in its holding company 10 registration statement, as set forth in s. 628.801 and rules 11 promulgated thereunder, may elect to maintain surplus as to 12 policyholders in an amount equal to the requirements of s. 13 624.408, subject to the following requirements: 14 a. The surplus lines insurer shall at all times be in 15 compliance with the requirements of chapter 625. 16 b. The surplus lines insurer shall at all times be a 17 member of the Florida Insurance Guaranty Association. 18 19 The election shall be submitted to the department and shall be 20 effective upon being satisfied that the requirements of this 21 sub-subparagraph have been met. The initial date of election 22 shall be the date of department approval. The election 23 approval application shall be on a form adopted by department 24 rule. 25 Section 7. Subsection (13) of section 631.52, Florida 26 Statutes, is amended to read: 27 631.52 Scope.--This part shall apply to all kinds of 28 direct insurance, except: 29 (13) Surplus lines, except if the insurer has elected 30 to participate as a member insurer of the association; 31 12 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/HB 269 614-105-97 1 Section 8. Except as otherwise provided herein, this 2 act shall take effect October 1, 1997. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 13