House Bill 3827

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    Florida House of Representatives - 1998                HB 3827

        By Representatives Lippman, Gay, Rojas, Tobin, Stafford,
    Dennis, Garcia, Miller, Crady, Frankel, Ritchie, Mackenzie,
    Wasserman Schultz, Brennan, Villalobos, Peaden, Bloom, Hafner,
    Fasano, Melvin, Horan, Bullard, Wise, Cosgrove, Arnold,
    Roberts-Burke, Effman, Rayson, Ritter and Bronson


  1                      A bill to be entitled

  2         An act relating to insurance; providing a short

  3         title; amending s. 215.555, F.S.; revising

  4         definitions; excluding the Fair Access to

  5         Insurance Requirements Plan from application of

  6         reimbursement contract requirements; defining

  7         "insurer" for purposes of certain revenue

  8         bonds; providing for deactivation of the

  9         Residential Property and Casualty Joint

10         Underwriting Association and termination of the

11         association's plan of operation under certain

12         circumstances; providing for additional

13         assessments and augmented assessments for

14         certain purposes; providing for appropriating

15         certain moneys in the Florida Hurricane

16         Catastrophe Fund to the Department of Community

17         Affairs for certain purposes; amending s.

18         626.916, F.S.; authorizing certain surplus

19         lines insurers to remove and insure policies

20         from the Residential Property and Casualty

21         Joint Underwriting Association and the Florida

22         Windstorm Underwriting Association under

23         certain circumstances; providing procedures and

24         limitations; requiring reinsurance; prohibiting

25         eligibility for windstorm coverage for certain

26         risks; amending s. 627.0629, F.S.; requiring

27         the Department of Insurance to adopt certain

28         credits for use by insurers in certain rate

29         filings under certain circumstances; clarifying

30         the application of certain discounts for mobile

31         home owner's insurance rate filings; requiring

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  1         insurers to implement certain discounts or rate

  2         differentials for mobile home insurance

  3         premiums; providing criteria; requiring the

  4         department to adopt certain credits used by

  5         insurers for certain residential property

  6         insurance policies; providing requirements;

  7         authorizing the establishment of the Blue

  8         Ribbon Homes Program for certain purposes;

  9         providing priority for evaluations and

10         mitigation funds for certain applicants;

11         authorizing the department to develop and adopt

12         certain actuarial methodologies for certain

13         purposes; authorizing the department to enter

14         into contracts for such development; providing

15         criteria; amending s. 627.0651, F.S.;

16         specifying use of certain underwriting rules

17         for motor vehicle insurance; amending s.

18         627.351, F.S.; proscribing coverage by the

19         Florida Windstorm Underwriting Association for

20         certain persons and properties; revising

21         criteria and requirements for the association's

22         plan of operation to provide windstorm

23         coverage; requiring the Florida Windstorm

24         Underwriting Association and the Residential

25         Property and Casualty Joint Underwriting

26         Association to allow insurers to remove

27         packages of policies from the association;

28         providing criteria and requirements for

29         packaging; providing procedures, requirements,

30         and limitations on removal of such policies;

31         providing for assignments of policies from the

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  1         association under certain circumstances;

  2         imposing assignment fees; providing

  3         requirements and limitations for such

  4         assignments; providing exceptions; providing

  5         definitions; authorizing the department to

  6         adopt rules; authorizing the department to

  7         require revisions or amendments to certain

  8         plans; amending s. 627.3513, F.S.; clarifying a

  9         definition; providing construction; amending s.

10         627.3515, F.S.; revising requirements for the

11         department's market assistance plan; specifying

12         additional criteria and requirements for such

13         plan; providing for assignment or placement of

14         policies under the plan; providing limitations;

15         providing definitions; providing powers of the

16         department; providing for transferring plan

17         funding obligations from the Residential

18         Property and Casualty Joint Underwriting

19         Association to the FAIR Plan; amending s.

20         627.3516, F.S.; revising the principal entities

21         responsible for creating a residual property

22         insurance market coordinating council; revising

23         council membership; creating s. 627.3518, F.S.;

24         establishing the Florida Access to Insurance

25         Requirements (FAIR) Plan; providing purposes;

26         providing definitions; creating the Florida

27         FAIR Plan Association; providing for operation

28         and membership; requiring insurers to

29         participate in the association; providing

30         requirements; providing for assessments;

31         providing for additional assessments under

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  1         certain circumstances; authorizing local

  2         governments to issue bonds under certain

  3         circumstances; providing procedures and

  4         requirements; requiring property insurance rate

  5         filings under certain circumstances; providing

  6         requirements; declaring the FAIR Plan to be a

  7         political subdivision; exempting the plan from

  8         the corporate income tax; protecting financial

  9         characteristics of the association; requiring

10         the association to contract with the Florida

11         Hurricane Catastrophe Fund for certain

12         purposes; requiring the association to develop

13         and adopt a plan of operation; providing for

14         department approval of the plan; providing for

15         amending the plan; specifying requirements for

16         the plan; requiring certificates of eligibility

17         for coverage; providing procedures, criteria,

18         and standards; providing for levy of market

19         equalization surcharges by the plan; amending

20         s. 627.4091, F.S.; prohibiting insurers from

21         canceling or nonrenewing residential policies

22         without notice; providing requirements for such

23         notice; amending s. 627.4133, F.S.; providing

24         additional requirements relating to notices of

25         cancellation or nonrenewal; requiring insurers

26         to offer coverage for certain replacement

27         property under certain circumstances; creating

28         s. 627.4138, F.S.; providing restrictions on

29         cancellation or nonrenewal of residential

30         coverage; providing legislative findings;

31         requiring insurers to reduce rates after

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  1         deactivation of the Residential Property and

  2         Casualty Joint Underwriting Association;

  3         providing an exception; providing procedures;

  4         requiring insurers' rate filings to reflect

  5         certain savings; authorizing the Department of

  6         Insurance to adopt rules; providing

  7         appropriations; repealing s. 627.062(6), F.S.,

  8         relating to arbitration of certain rate

  9         filings; repealing s. 627.0628, F.S., relating

10         to contract provisions for illegal occupation;

11         providing severability; amending ss. 624.4071,

12         626.918, 626.932, 626.9325, and 626.9541, F.S.;

13         correcting cross references; providing an

14         effective date.

15

16         WHEREAS, it is in the best interests of both the

17  property owners of this state and the insurance industry to

18  maximize available resources for catastrophic losses, to allow

19  private markets to operate to the extent of their capacity,

20  and to provide for tax free growth of reserves for

21  catastrophic events, and

22         WHEREAS, the reallocation of resources from frequent

23  losses of limited severity to coverage of less frequent more

24  severe catastrophic events can most effectively be

25  accomplished by eliminating the Residential Property and

26  Casualty Joint Underwriting Association, by reducing the

27  geographic scope of the Florida Windstorm Underwriting

28  Association, and by expansion of the financing capabilities of

29  the Florida Hurricane Catastrophe Fund, NOW, THEREFORE,

30

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

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  1         Section 1.  This act may be cited as the "Homeowners'

  2  Protection Act."

  3         Section 2.  Paragraph (c) of subsection (2), paragraphs

  4  (d), (e), and (f) of subsection (4), paragraph (a) of

  5  subsection (6), and subsection (7) of section 215.555, Florida

  6  Statutes, are amended to read:

  7         215.555  Florida Hurricane Catastrophe Fund.--

  8         (2)  DEFINITIONS.--As used in this section:

  9         (c)  "Covered policy" means any insurance policy

10  covering residential property in this state, including, but

11  not limited to, any homeowner's, mobile home owner's, farm

12  owner's, condominium association, condominium unit owner's,

13  tenant's, or apartment building policy, or any other policy

14  covering a residential structure or its contents issued by any

15  authorized insurer, including any joint underwriting

16  association created pursuant to s. 627.351 or s. 627.3518 or

17  similar entity created pursuant to law or issued by an

18  eligible surplus lines insurer pursuant to s. 626.916(2)(a).

19  "Covered policy" does not include any policy that excludes

20  wind coverage or hurricane coverage or any reinsurance

21  agreement.

22         (4)  REIMBURSEMENT CONTRACTS.--

23         (d)1.  The contract shall require the insurer to report

24  to the board, as directed by the board, but no later than

25  December 31 of each year, and quarterly thereafter, its losses

26  from covered events for the year. The contract shall require

27  the board to determine and pay, as soon as practicable after

28  receiving these reports, the initial amount of reimbursement

29  due and adjustments to this amount based on later loss

30  information. The adjustments to reimbursement amounts shall

31

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  1  require the board to pay, or the insurer to return, amounts

  2  reflecting the most recent calculation of losses.

  3         2.  If the board determines that the projected year-end

  4  balance of the fund, together with the amount that the board

  5  determines that it is possible to raise through revenue bonds

  6  issued under subsection (6) and through other borrowing and

  7  financing arrangements under paragraph (7)(b), are

  8  insufficient to pay reimbursement to all insurers at the level

  9  promised in the contract, the board shall:

10         a.  First reimburse insurers writing covered policies,

11  which insurers are in full compliance with this section and

12  have petitioned the Department of Insurance and qualified as

13  limited apportionment companies under s. 627.351(2)(b)4 s.

14  627.351(2)(b)3.  The amount of such reimbursement shall be the

15  lesser of $10 million or an amount equal to 10 times the

16  insurer's reimbursement premium for the current year.  The

17  amount of reimbursement paid under this sub-subparagraph may

18  not exceed the full amount of reimbursement promised in the

19  reimbursement contract. This sub-subparagraph does not apply

20  with respect to any contract year in which the year-end

21  projected cash balance of the fund, exclusive of any bonding

22  capacity of the fund, exceeds $2 billion. Only one member of

23  any insurer group may receive reimbursement under this

24  sub-subparagraph.

25         b.  Next pay to each insurer the amount of

26  reimbursement it is owed, up to an amount equal to the

27  insurer's share of the actual premium paid for that contract

28  year, multiplied by the actual claims-paying capacity

29  available for that contract year. This determination shall be

30  adjusted to reflect payments made under sub-subparagraph a.

31

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  1         c.  Thereafter, establish, based on reimbursable

  2  losses, the prorated reimbursement level at the highest level

  3  for which any remaining fund balance or bond proceeds are

  4  sufficient.

  5         (e)1.  Except as provided in subparagraphs 2. and 3.,

  6  the contract shall provide that if an insurer demonstrates to

  7  the board that it is likely to qualify for reimbursement under

  8  the contract, and demonstrates to the board that the immediate

  9  receipt of moneys from the board is likely to prevent the

10  insurer from becoming insolvent, the board shall advance the

11  insurer, at market interest rates, the amounts necessary to

12  maintain the solvency of the insurer, up to 50 percent of the

13  board's estimate of the reimbursement due the insurer. The

14  insurer's reimbursement shall be reduced by an amount equal to

15  the amount of the loan and interest thereon.

16         2.  With respect only to an entity created under s.

17  627.351, the contract shall also provide that the board may,

18  upon application by such entity, advance to such entity, at

19  market interest rates, up to 90 percent of the lesser of:

20         a.  The board's estimate of the amount of reimbursement

21  due to such entity; or

22         b.  The entity's share of the actual reimbursement

23  premium paid for that contract year, multiplied by the

24  currently available liquid assets of the fund.  In order for

25  the entity to qualify for an advance under this subparagraph,

26  the entity must demonstrate to the board that the advance is

27  essential to allow the entity to pay claims for a covered

28  event and the board must determine that the fund's assets are

29  sufficient and are sufficiently liquid to allow the board to

30  make an advance to the entity and still fulfill the board's

31  reimbursement obligations to other insurers. The entity's

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  1  final reimbursement for any contract year in which an advance

  2  has been made under this subparagraph must be reduced by an

  3  amount equal to the amount of the advance and any interest on

  4  such advance. In order to determine what amounts, if any, are

  5  due the entity, the board may require the entity to report its

  6  exposure and its losses at any time to determine retention

  7  levels and reimbursements payable.

  8         3.  The contract shall also provide specifically and

  9  solely with respect to any limited apportionment company under

10  s. 627.351(2)(b)4. s. 627.351(2)(b)3. that the board may, upon

11  application by such company, advance to such company up to the

12  lesser of:

13         a.  Ninety percent of the board's estimate of the

14  reimbursement due to such company, or

15         b.  Ninety percent of the company's share of the total

16  fund premiums applied to the board's currently available

17  liquid assets,

18

19  at market rates, if the company demonstrates to the board that

20  the immediate receipt of such moneys is essential to permit it

21  to pay claims for a covered event and if the board determines

22  that the fund's assets are sufficient and are sufficiently

23  liquid to permit the board to make an advance to such company

24  and at the same time fulfill its reimbursement obligations to

25  the insurers that are participants in the fund.  Such

26  company's final reimbursement for any contract year in which

27  an advance pursuant to this subparagraph has been made shall

28  be reduced by an amount equal to the amount of the advance and

29  interest thereon.  In order to determine what amounts, if any,

30  are due to such company, the board may require such company to

31  report its exposure and its losses at such times as may be

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  1  required to determine retention levels and loss reimbursements

  2  payable.

  3         (f)  The contract shall provide that in the event of

  4  the insolvency of an insurer, the fund shall pay directly to

  5  the Florida Insurance Guaranty Association for the benefit of

  6  Florida policyholders of the insurer the net amount of all

  7  reimbursement moneys owed to the insurer.  As used in this

  8  paragraph, the term "net amount of all reimbursement moneys"

  9  means that amount which remains after reimbursement for

10  preliminary or duplicate payments owed to private reinsurers

11  or other inuring reinsurance payments to private reinsurers

12  that satisfy statutory or contractual obligations of the

13  insolvent insurer attributable to covered events to such

14  reinsurers.  Such private reinsurers shall be reimbursed or

15  otherwise paid prior to payment to the Florida Insurance

16  Guaranty Association, notwithstanding any law to the contrary.

17  The guaranty association shall pay all claims up to the

18  maximum amount permitted by chapter 631; thereafter, any

19  remaining moneys shall be paid pro rata to claims not fully

20  satisfied. This paragraph does not apply to a joint

21  underwriting association, risk apportionment plan, or other

22  entity created under s. 627.351 or s. 627.3518.

23         (6)  REVENUE BONDS.--

24         (a)  General provisions.--

25         1.  Upon the occurrence of a hurricane and a

26  determination that the moneys in the fund are or will be

27  insufficient to pay reimbursement at the levels promised in

28  the reimbursement contracts, the board may take the necessary

29  steps under paragraph (b) or paragraph (c) for the issuance of

30  revenue bonds for the benefit of the fund.  The proceeds of

31  such revenue bonds may be used to make reimbursement payments

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  1  under reimbursement contracts; to refinance or replace

  2  previously existing borrowings or financial arrangements; to

  3  pay interest on bonds; to fund reserves for the bonds; to pay

  4  expenses incident to the issuance or sale of any bond issued

  5  under this section, including costs of validating, printing,

  6  and delivering the bonds, costs of printing the official

  7  statement, costs of publishing notices of sale of the bonds,

  8  and related administrative expenses; or for such other

  9  purposes related to the financial obligations of the fund as

10  the board may determine. The term of the bonds may not exceed

11  30 years. The board may pledge or authorize the corporation to

12  pledge all or a portion of all revenues under subsection (5)

13  and under subparagraph 3. to secure such revenue bonds and the

14  board may execute such agreements between the board and the

15  issuer of any revenue bonds and providers of other financing

16  arrangements under paragraph (7)(b) as the board deems

17  necessary to evidence, secure, preserve, and protect such

18  pledge. If reimbursement premiums received under subsection

19  (5) or earnings on such premiums are used to pay debt service

20  on revenue bonds, such premiums and earnings shall be used

21  only after the use of the moneys derived from assessments

22  under subparagraph 3.  The funds, credit, property, or taxing

23  power of the state or political subdivisions of the state

24  shall not be pledged for the payment of such bonds. The board

25  may also enter into agreements under paragraph (b) or

26  paragraph (c) for the purpose of issuing revenue bonds in the

27  absence of a hurricane upon a determination that such action

28  would maximize the ability of the fund to meet future

29  obligations.

30         2.  The Legislature finds and declares that the

31  issuance of bonds under this subsection is for the public

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  1  purpose of paying the proceeds of the bonds to insurers,

  2  thereby enabling insurers to pay the claims of policyholders

  3  to assure that policyholders are able to pay the cost of

  4  construction, reconstruction, repair, restoration, and other

  5  costs associated with damage to property of policyholders of

  6  covered policies after the occurrence of a hurricane. Revenue

  7  bonds may not be issued under this subsection until validated

  8  under chapter 75. The validation of at least the first

  9  obligations incurred pursuant to this subsection shall be

10  appealed to the Supreme Court, to be handled on an expedited

11  basis.

12         3.a.  If the board determines that the amount of

13  revenue produced under subsection (5) is insufficient to fund

14  the obligations, costs, and expenses of the fund, including

15  repayment of revenue bonds, the board shall direct the

16  Department of Insurance to levy an emergency assessment on

17  each insurer writing property and casualty business in this

18  state. For the purposes of this subsection, "insurer" means

19  any authorized insurer writing property casualty business in

20  this state, any joint underwriting association created under

21  s. 627.351, the FAIR Plan created pursuant to s. 627.3518 or a

22  similar entity created pursuant to law, and any eligible

23  surplus lines insurer which has issued covered policies

24  pursuant to s. 626.916(2), provided, as to such surplus lines

25  insurer, the emergency assessment shall be levied only on the

26  direct written premium attributable to the covered policies

27  issued pursuant to s. 626.916(2). Pursuant to the emergency

28  assessment, each such insurer shall pay to the fund by July 1

29  of each year an amount set by the board not exceeding 2

30  percent of its gross direct written premium for the prior year

31  from all property and casualty business in this state except

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  1  for workers' compensation, except that, if the Governor has

  2  declared a state of emergency under s. 252.36 due to the

  3  occurrence of a covered event, the amount of the assessment

  4  may be increased to an amount not exceeding 4 percent of such

  5  premium.  As used in this subsection, the term "property and

  6  casualty business" includes all lines of business identified

  7  on Form 2, Exhibit of Premiums and Losses, in the annual

  8  statement required by s. 624.424 and any rules adopted under

  9  such section, except for those lines identified as accident

10  and health insurance. The annual assessments under this

11  subparagraph shall continue as long as the revenue bonds

12  issued with respect to which the assessment was imposed are

13  outstanding, unless adequate provision has been made for the

14  payment of such bonds pursuant to the documents authorizing

15  issuance of the bonds.  An insurer shall not at any time be

16  subject to aggregate annual assessments under this

17  subparagraph of more than 2 percent of premium, except that in

18  the case of a declared emergency, an insurer shall not at any

19  time be subject to aggregate annual assessments under this

20  subparagraph of more than 4 percent of premium. Any rate

21  filing or portion of a rate filing reflecting a rate change

22  attributable entirely to the assessment levied under this

23  subparagraph shall be deemed approved when made, subject to

24  the authority of the Department of Insurance to require

25  actuarial justification as to the adequacy of any rate at any

26  time.  If the rate filing reflects only a rate change

27  attributable to the assessment under this paragraph, the

28  filing may consist of a certification so stating.

29         b.  Notwithstanding any other provision to the contrary

30  and subject to this subparagraph, at such time as the

31  Residential and Casualty Joint Underwriting Association,

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  1  established under s. 627.351(6), certifies to the department

  2  that the association no longer has any residential policies in

  3  force and arrangements have been made to satisfy the

  4  association's outstanding liabilities, including liabilities

  5  arising under letters of credit, bonding, or other financing

  6  mechanisms, and the department has verified the matters set

  7  forth in the certification, the department shall enter an

  8  order deactivating the association and terminating its plan of

  9  operation. Upon deactivation of the association, the premium

10  assessment of up to 4 percent under sub-subparagraph a. and

11  the aggregate assessment of up to 4 percent under

12  sub-subparagraph a. shall be augmented by additional

13  assessment authority, applicable against each insurer writing

14  property and casualty business in this state. Pursuant to the

15  augmented assessment, and upon declaration by the Governor of

16  a state of emergency under s. 252.36 due to the occurrence of

17  a covered event, each insurer shall pay an additional amount

18  set by the board not exceeding 6 percent of such insurer's

19  gross direct written premium for the prior year from all

20  property and casualty business in this state except for

21  workers compensation, accident and health, and motor vehicle

22  insurance. If the Internal Revenue Service issues a ruling

23  that the fund can issue tax exempt financing prior to the

24  effective date of the augmentation, the department shall not

25  proceed with the augmentation order. The augmentation of the

26  fund's assessment authority under this sub-subparagraph shall

27  not take effect until such time as the board certifies to the

28  department that the board has obtained confirmation from the

29  Internal Revenue Service that the augmentation would not

30  result in the loss of the fund's exemption from federal income

31  tax on accumulated funds.

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  1         (7)  ADDITIONAL POWERS AND DUTIES.--

  2         (a)  The board may procure reinsurance from reinsurers

  3  approved under s. 624.610 for the purpose of maximizing the

  4  capacity of the fund.

  5         (b)  In addition to borrowing under subsection (6), the

  6  board may also borrow from, or enter into other financing

  7  arrangements with, any market sources at prevailing interest

  8  rates.

  9         (c)  Each fiscal year, the Legislature shall

10  appropriate from the investment income of the Florida

11  Hurricane Catastrophe Fund an amount no less than $10 million

12  and no more than 35 percent of the investment income from the

13  prior fiscal year for the purpose of providing funding for

14  local governments, state agencies, public and private

15  educational institutions, and nonprofit organizations to

16  support programs intended to improve hurricane preparedness,

17  reduce potential losses in the event of a hurricane, provide

18  research into means to reduce such losses, educate or inform

19  the public as to means to reduce hurricane losses, assist the

20  public in determining the appropriateness of particular

21  upgrades to structures or in the financing of such upgrades,

22  or other actions to reduce the risk of protect local

23  infrastructure from potential damage from a hurricane. Moneys

24  shall first be available for appropriation under this

25  paragraph in fiscal year 1997-1998. Moneys in excess of the

26  $10 million specified in this paragraph shall not be available

27  for appropriation under this paragraph if the State Board of

28  Administration finds that an appropriation of investment

29  income from the fund would jeopardize the actuarial soundness

30  of the fund.

31

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  1         (d)  Of the moneys appropriated under paragraph (c) in

  2  any fiscal year:

  3         1.  Eighty-five percent shall be appropriated to the

  4  Department of Community Affairs for programs to improve the

  5  wind resistance of residences, including loan subsidies,

  6  grants, and demonstration projects; for cooperative programs

  7  with local governments, the federal government, and the

  8  Institute for Business and Home Safety; and for other efforts

  9  to prevent or reduce losses or reduce the cost of rebuilding

10  after a disaster.

11         2.  Ten percent shall be appropriated to the State

12  University System to fund programs and projects which have the

13  primary goal of reducing hurricane losses to residences.

14         3.  Five percent shall be appropriated to the

15  Department of Insurance to fund consumer education programs

16  with the primary focus of reducing property insurance costs to

17  consumers.

18         (e)(d)  The board may allow insurers to comply with

19  reporting requirements and reporting format requirements by

20  using alternative methods of reporting if the proper

21  administration of the fund is not thereby impaired and if the

22  alternative methods produce data which is consistent with the

23  purposes of this section.

24         (f)(e)  In order to assure the equitable operation of

25  the fund, the board may impose a reasonable fee on an insurer

26  to recover costs involved in reprocessing inaccurate,

27  incomplete, or untimely exposure data submitted by the

28  insurer.

29         Section 3.  Subsections (2), (3), and (4) of section

30  626.916, Florida Statutes, are renumbered as subsections (3),

31

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  1  (4), and (5), respectively, and new subsection (2) is added to

  2  said section, to read:

  3         626.916  Eligibility for export.--

  4         (2)(a)  Notwithstanding any other provision of this

  5  section, prior to assignment of policies pursuant to s.

  6  627.351(2)(g) and (6)(q), eligible surplus lines insurers

  7  which have a Best's rating of B++ or better and a capital and

  8  surplus of at least $25,000,000 shall be eligible to remove

  9  policies from the Residential Property and Casualty Joint

10  Underwriting Association and the Florida Windstorm

11  Underwriting Association and to insure such policies. The

12  policies may be removed without undertaking due diligence

13  pursuant to paragraph (1)(a) and shall be written at rates and

14  on forms no less favorable to the policyholder than those

15  provided by the association from which the policies are

16  removed. The removal shall be subject to approval by the

17  department based upon the criteria set forth in s.

18  627.3511(2)(a) and (c). All surplus lines insurers taking

19  association policies pursuant to this paragraph shall

20  purchase, and maintain for as long as the risks remain covered

21  by the insurer, reinsurance by entering into a reimbursement

22  contract with the State Board of Administration, which

23  reinsurance shall be applicable only to the removed policies.

24         (b) Pursuant to s. 627.351(2)(b)1., no risk for which

25  property coverage has been exported is eligible for windstorm

26  coverage through the Florida Windstorm Underwriting

27  Association.

28         Section 4.  Subsections (1), (3), (8), (9), (10), and

29  (11) of section 627.0629, Florida Statutes, are amended, and

30  subsections (12) and (13) are added to said section, to read:

31

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  1         627.0629  Residential property insurance; rate

  2  filings.--

  3         (1)  Effective July 1, 1994, a rate filing for

  4  residential property insurance must include appropriate

  5  discounts, credits, or other rate differentials, or

  6  appropriate reductions in deductibles, for properties on which

  7  fixtures actuarially demonstrated to reduce the amount of loss

  8  in a windstorm have been installed. The department, by rule,

  9  shall adopt appropriate credits to be used by each insurer in

10  residential property insurance rate filings unless the insurer

11  establishes by credible data maintained by the insurer that

12  different credits or rate differentials are supported for such

13  insurer's book of business.

14         (3)  A rate filing made on or after July 1, 1995, for

15  mobile home owner's insurance must include appropriate

16  discounts, credits, or other rate differentials for a mobile

17  home homes constructed to comply with American Society of

18  Civil Engineers Standard ANSI/ASCE 7-88, adopted by the United

19  States Department of Housing and Urban Development on July 13,

20  1994, provided the policyholder has, with respect to the

21  mobile home which is the subject of the discount, complied and

22  that also comply with all applicable tie-down requirements

23  provided by state law. The discount authorized under this

24  subsection shall be in addition to any other discounts,

25  credits, or rate differentials authorized under this code,

26  including those authorized under subsection (8).

27         (8)  An insurer shall may implement appropriate

28  discounts or other rate differentials of up to 10 percent of

29  the annual premium to mobile home owners who provide to the

30  insurer evidence of a current inspection of tie-downs for the

31  mobile home, certifying that the tie-downs have been properly

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  1  installed and are in good condition. Any discount or other

  2  rate differential implemented under this subsection shall be

  3  in addition to any discount, credit, or rate differential

  4  authorized under any other provision of this code including

  5  those authorized under subsection (3). The insurer shall not

  6  raise its base rate in order to offset the amount of the

  7  discount.

  8         (9)  The department, by rule, shall adopt the credits

  9  to be used by an insurer with respect to the rate charged for

10  a policy of residential property insurance excluding wind

11  coverage. Such credit shall be used by the insurer unless the

12  insurer demonstrates that some other credit is actuarially

13  justified. In adopting the rule, the department shall consider

14  statistical data, if any, furnished by one or more rating

15  organizations or other relevant insurer data.

16         (10)(9)  EVALUATION OF RESIDENTIAL PROPERTY STRUCTURAL

17  SOUNDNESS; ESTABLISHMENT OF THE BLUE RIBBON HOMES PROGRAM.--

18         (a)  It is the intent of the Legislature to provide a

19  program whereby homeowners may obtain an evaluation of the

20  wind resistance of their homes with respect to preventing

21  damage from hurricanes, together with a recommendation of

22  reasonable steps that may be taken to upgrade their homes to

23  better withstand hurricane force winds. Further, it is the

24  intent of the Legislature that the program provide for loan

25  subsidies and grants designed to improve the wind resistance

26  of owner-occupied residential properties.

27         (b)  To the extent that funds are provided for this

28  purpose in the General Appropriations Act, the Legislature

29  hereby authorizes the establishment of the Blue Ribbon Homes a

30  Program to be administered by the Florida Windstorm

31  Underwriting Association in consultation with the Department

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  1  of Community Affairs and the Institute for Business and Home

  2  Safety.

  3         (c)  The program shall provide grants to homeowners,

  4  for the purpose of providing homeowner applicants with funds

  5  to conduct an evaluation of the integrity of their homes with

  6  respect to withstanding hurricane force winds, recommendations

  7  to retrofit the homes to better withstand damage from such

  8  winds, and the estimated cost to make the recommended

  9  retrofits. Applicants who are insured by the Florida Windstorm

10  Underwriting Association shall be given priority for both

11  evaluations and mitigation funds.

12         (d)  The Department of Community Affairs shall

13  establish by rule standards to govern the quality of the

14  evaluation, the quality of the recommendations for

15  retrofitting, the eligibility of the persons conducting the

16  evaluation, and the selection of applicants under the program.

17  In establishing the rule, the department shall consult with

18  the advisory committee to minimize the possibility of fraud or

19  abuse in the evaluation and retrofitting process, and to

20  ensure that funds spent by homeowners acting on the

21  recommendations achieve positive results.

22         (e)  The Florida Windstorm Underwriting Association

23  shall identify areas of this state with the greatest wind risk

24  to residential properties and recommend annually to the

25  department priority target areas for such evaluations and

26  inclusion with the associated residential construction

27  mitigation program.

28         (11)(10)  A property insurance rate filing that

29  includes any adjustments related to premiums paid to the

30  Florida Hurricane Catastrophe Fund must include a complete

31  calculation of the insurer's catastrophe load, and the

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  1  information in the filing may not be limited solely to

  2  recovery of moneys paid to the fund.

  3         (12)  The Department of Insurance shall contract with

  4  one or more institutions of higher learning which are a part

  5  of the State University System for the development of a model

  6  or improved actuarial methodologies to be used by insurers as

  7  the standard in assessing hurricane risk and to project

  8  hurricane losses to be used in the development of rates for

  9  residential property insurance located in this state. In

10  developing the model or methodologies, the Department of

11  Insurance may, without a bidding process, negotiate and enter

12  into a contract or contracts with one or more institutions of

13  higher learning located in this state and, as necessary or

14  appropriate, with individual professionals or consultants

15  working in relation with such institutions, if any. The model

16  or methodologies shall include items or factors that should be

17  considered in light of local or regional conditions that may

18  affect the accuracy and reliability of the model when used in

19  specific rate filings. Any model or methodologies so developed

20  may be used by insurers in rate filings, and shall be used by

21  the Florida Hurricane Catastrophe Fund established under s.

22  215.555 in determining its reimbursement premiums, but shall

23  be subject to further review by the department on a case by

24  case basis. The model or methodologies shall be nonproprietary

25  and available for use in this state by insurers in developing

26  rates with respect to assessing hurricane risk and hurricane

27  losses.

28         (13)  When considering the reimbursement capacity of

29  the Florida Hurricane Catastrophe Fund, a rate filing for

30  residential property insurance shall include the effect of

31

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  1  premiums to be received by the fund during the policy period

  2  for which the rates are to be in effect.

  3         Section 5.  Subsection (13) of section 627.0651,

  4  Florida Statutes, is amended to read:

  5         627.0651  Making and use of rates for motor vehicle

  6  insurance.--

  7         (13)(a)  Underwriting rules not contained in rating

  8  manuals shall be filed for private passenger automobile

  9  insurance and residential coverage as described in s.

10  627.4025(1), including homeowners' insurance.

11         (b)  An insurer shall use only underwriting rules which

12  have been filed with the department pursuant to this

13  subsection or which are contained in an approved rating manual

14  of a licensed rating organization of which the insurer is a

15  subscriber or member.

16         (c)(b)  The submission of rates, rating schedules, and

17  rating manuals to the department by a licensed rating

18  organization of which an insurer is a member or subscriber

19  will be sufficient compliance with this subsection for any

20  insurer maintaining membership or subscribership in such

21  organization, to the extent that the insurer uses the rates,

22  rating schedules, and rating manuals of such organization.

23  All such information shall be available for public inspection,

24  upon receipt by the department, during usual business hours.

25         (d)(c)  The filing requirements of this subsection do

26  not apply to commercial inland marine risks.

27         Section 6.  Subsection (2) and paragraph (d) of

28  subsection (6) of section 627.351, Florida Statutes, are

29  amended, and paragraphs (o), (p), and (q) are added to

30  subsection (6) of said section, to read:

31         627.351  Insurance risk apportionment plans.--

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  1         (2)  WINDSTORM INSURANCE RISK APPORTIONMENT.--

  2         (a)  Agreements may be made among property insurers

  3  with respect to the equitable apportionment among them of

  4  insurance which may be afforded applicants who are in good

  5  faith entitled to, but are unable to procure, such insurance

  6  through ordinary methods; and such insurers may agree among

  7  themselves on the use of reasonable rate modifications for

  8  such insurance. Such agreements and rate modifications shall

  9  be subject to the applicable provisions of this chapter.

10         (b)  The department shall require all insurers holding

11  a certificate of authority to transact property insurance on a

12  direct basis in this state, other than joint underwriting

13  associations and other entities formed pursuant to this

14  section, to provide windstorm coverage to applicants from

15  areas determined to be eligible pursuant to paragraph (c) who

16  in good faith are entitled to, but are unable to procure, such

17  coverage through ordinary means; or it shall adopt a

18  reasonable plan or plans for the equitable apportionment or

19  sharing among such insurers of windstorm coverage, which may

20  include formation of an association for this purpose. As used

21  in this subsection, the term "property insurance" means

22  insurance on real or personal property, as defined in s.

23  624.604, including insurance for fire, industrial fire, allied

24  lines, farmowners' multiperil, homeowners' multiperil,

25  commercial multiperil, and mobile homes, and including

26  liability coverages on all such insurance, but excluding

27  inland marine as defined in s. 624.607(3) and excluding

28  vehicle insurance as defined in s. 624.605(1)(a) other than

29  insurance on mobile homes used as permanent dwellings. The

30  department shall adopt rules that provide a formula for the

31  recovery and repayment of any deferred assessments.

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  1         1.  For the purpose of this section, properties

  2  eligible for such windstorm coverage are defined as dwellings,

  3  buildings, and other structures, including mobile homes which

  4  are used as dwellings and which are tied down in compliance

  5  with mobile home tie-down requirements prescribed by the

  6  Department of Highway Safety and Motor Vehicles pursuant to s.

  7  320.8325, and the contents of all such properties. An

  8  applicant or policyholder is eligible for coverage only if an

  9  offer of coverage cannot be obtained by or for the applicant

10  or policyholder from an admitted insurer at approved rates. No

11  applicant or policyholder is eligible for association coverage

12  if his or her property insurance is placed with a surplus

13  lines insurer pursuant to s. 626.916.

14         2.  Notwithstanding the provisions of subparagraph 1.,

15  after July 1, 2000, properties that are residential risks as

16  described in s. 627.4025 that are not located in Monroe

17  County, on a coastal barrier island, or seaward of the

18  intracoastal waterway shall no longer be eligible for coverage

19  by the association. Further, pursuant to paragraph (e),

20  eligibility for coverage by the association shall not be

21  extended to any area that was not eligible on March 1, 1997.

22         3.2.a.(I)  All insurers required to be members of such

23  association shall participate in its writings, expenses, and

24  losses. Surplus of the association shall be retained for the

25  payment of claims and shall not be distributed to the member

26  insurers. Such participation by member insurers shall be in

27  the proportion that the net direct premiums of each member

28  insurer written for property insurance in this state during

29  the preceding calendar year bear to the aggregate net direct

30  premiums for property insurance of all member insurers, as

31  reduced by any credits for voluntary writings, in this state

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  1  during the preceding calendar year. For the purposes of this

  2  subsection, the term "net direct premiums" means direct

  3  written premiums for property insurance, reduced by premium

  4  for liability coverage and for the following if included in

  5  allied lines: rain and hail on growing crops; livestock;

  6  association direct premiums booked; National Flood Insurance

  7  Program direct premiums; and similar deductions specifically

  8  authorized by the plan of operation and approved by the

  9  department. A member's participation shall begin on the first

10  day of the calendar year following the year in which it is

11  issued a certificate of authority to transact property

12  insurance in the state and shall terminate 1 year after the

13  end of the calendar year during which it no longer holds a

14  certificate of authority to transact property insurance in the

15  state. The commissioner, after review of annual statements,

16  other reports, and any other statistics that the commissioner

17  deems necessary, shall certify to the association the

18  aggregate direct premiums written for property insurance in

19  this state by all member insurers.

20         (II)  The plan of operation shall provide for a board

21  of directors consisting of the Insurance Consumer Advocate

22  appointed under s. 627.0613, 1 consumer representative

23  appointed by the Insurance Commissioner, 1 consumer

24  representative appointed by the Governor, and 12 additional

25  members appointed as specified in the plan of operation. One

26  of the 12 additional members shall be elected by the domestic

27  companies of this state on the basis of cumulative weighted

28  voting based on the net direct premiums of domestic companies

29  in this state. Nothing in the 1997 amendments to this

30  paragraph terminates the existing board or the terms of any

31  members of the board.

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  1         (III)  The plan of operation shall provide a formula

  2  whereby a company voluntarily providing windstorm coverage in

  3  affected areas will be relieved wholly or partially from

  4  apportionment of a regular assessment pursuant to

  5  sub-sub-subparagraph d.(I) or sub-sub-subparagraph d.(II).

  6         (IV)  A company which is a member of a group of

  7  companies under common management may elect to have its

  8  credits applied on a group basis, and any company or group may

  9  elect to have its credits applied to any other company or

10  group.

11         (V)  There shall be no credits or relief from

12  apportionment to a company for emergency assessments collected

13  from its policyholders under sub-sub-subparagraph d.(III).

14         (VI)  The plan of operation may also provide for the

15  award of credits, for a period not to exceed 3 years, from a

16  regular assessment pursuant to sub-sub-subparagraph d.(I) or

17  sub-sub-subparagraph d.(II) as an incentive for taking

18  policies out of the Residential Property and Casualty Joint

19  Underwriting Association, the FAIR Plan established under s.

20  627.3518, or the association.  In order to qualify for the

21  exemption under this sub-sub-subparagraph, the take-out plan

22  must provide that at least 40 percent of the policies removed

23  from the Residential Property and Casualty Joint Underwriting

24  Association cover risks located in Dade, Broward, and Palm

25  Beach Counties or at least 30 percent of the policies so

26  removed cover risks located in Dade, Broward, and Palm Beach

27  Counties and an additional 50 percent of the policies so

28  removed cover risks located in other coastal counties, and

29  must also provide that no more than 15 percent of the policies

30  so removed may exclude windstorm coverage.  With the approval

31  of the department, the association may waive these geographic

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  1  criteria for a take-out plan that removes at least the lesser

  2  of 100,000 Residential Property and Casualty Joint

  3  Underwriting Association policies or 15 percent of the total

  4  number of Residential Property and Casualty Joint Underwriting

  5  Association policies, provided the governing board of the

  6  Residential Property and Casualty Joint Underwriting

  7  Association certifies that the take-out plan will materially

  8  reduce the Residential Property and Casualty Joint

  9  Underwriting Association's 100-year probable maximum loss from

10  hurricanes.  With the approval of the department, the board

11  may extend such credits for an additional year if the insurer

12  guarantees an additional year of renewability for all policies

13  removed from the Residential Property and Casualty Joint

14  Underwriting Association, or for 2 additional years if the

15  insurer guarantees 2 additional years of renewability for all

16  policies removed from the Residential Property and Casualty

17  Joint Underwriting Association.

18         (VII)  The plan of the association shall provide for a

19  method whereby insurers who voluntarily assume policies from

20  the association may receive a reduction in the number of

21  assignments such insurers would otherwise receive pursuant to

22  paragraph (g). Nothing in this sub-sub-subparagraph shall

23  preclude the incorporation into the plan of other incentives

24  to encourage voluntary writings of residential property

25  insurance which have high windstorm or hurricane risk.

26         b.  Assessments to pay deficits in the association

27  under this subparagraph shall be included as an appropriate

28  factor in the making of rates as provided in s. 627.3512.

29         c.  The Legislature finds that the potential for

30  unlimited deficit assessments under this subparagraph may

31  induce insurers to attempt to reduce their writings in the

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  1  voluntary market, and that such actions would worsen the

  2  availability problems that the association was created to

  3  remedy. It is the intent of the Legislature that insurers

  4  remain fully responsible for paying regular assessments and

  5  collecting emergency assessments for any deficits of the

  6  association; however, it is also the intent of the Legislature

  7  to provide a means by which assessment liabilities may be

  8  amortized over a period of years.

  9         d.(I)  When the deficit incurred in a particular

10  calendar year is 10 percent or less of the aggregate statewide

11  direct written premium for property insurance for the prior

12  calendar year for all member insurers, the association shall

13  levy an assessment on member insurers in an amount equal to

14  the deficit.

15         (II)  When the deficit incurred in a particular

16  calendar year exceeds 10 percent of the aggregate statewide

17  direct written premium for property insurance for the prior

18  calendar year for all member insurers, the association shall

19  levy an assessment on member insurers in an amount equal to

20  the greater of 10 percent of the deficit or 10 percent of the

21  aggregate statewide direct written premium for property

22  insurance for the prior calendar year for member insurers. Any

23  remaining deficit shall be recovered through emergency

24  assessments under sub-sub-subparagraph (III).

25         (III)  Upon a determination by the board of directors

26  that a deficit exceeds the amount that will be recovered

27  through regular assessments on member insurers, pursuant to

28  sub-sub-subparagraph (I) or sub-sub-subparagraph (II), the

29  board shall levy, after verification by the department,

30  emergency assessments to be collected by member insurers and

31  by underwriting associations created pursuant to this section

                                  28

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  1  which write property insurance, upon issuance or renewal of

  2  property insurance policies other than National Flood

  3  Insurance policies in the year or years following levy of the

  4  regular assessments. The amount of the emergency assessment

  5  collected in a particular year shall be a uniform percentage

  6  of that year's direct written premium for property insurance

  7  for all member insurers and underwriting associations,

  8  excluding National Flood Insurance policy premiums, as

  9  annually determined by the board and verified by the

10  department. The department shall verify the arithmetic

11  calculations involved in the board's determination within 30

12  days after receipt of the information on which the

13  determination was based. Notwithstanding any other provision

14  of law, each member insurer and each underwriting association

15  created pursuant to this section shall collect emergency

16  assessments from its policyholders without such obligation

17  being affected by any credit, limitation, exemption, or

18  deferment.  The emergency assessments so collected shall be

19  transferred directly to the association on a periodic basis as

20  determined by the association. The aggregate amount of

21  emergency assessments levied under this sub-sub-subparagraph

22  in any calendar year may not exceed the greater of 10 percent

23  of the amount needed to cover the original deficit, plus

24  interest, fees, commissions, required reserves, and other

25  costs associated with financing of the original deficit, or 10

26  percent of the aggregate statewide direct written premium for

27  property insurance written by member insurers and underwriting

28  associations for the prior year, plus interest, fees,

29  commissions, required reserves, and other costs associated

30  with financing the original deficit. The board may pledge the

31  proceeds of the emergency assessments under this

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  1  sub-sub-subparagraph as the source of revenue for bonds, to

  2  retire any other debt incurred as a result of the deficit or

  3  events giving rise to the deficit, or in any other way that

  4  the board determines will efficiently recover the deficit. The

  5  emergency assessments under this sub-sub-subparagraph shall

  6  continue as long as any bonds issued or other indebtedness

  7  incurred with respect to a deficit for which the assessment

  8  was imposed remain outstanding, unless adequate provision has

  9  been made for the payment of such bonds or other indebtedness

10  pursuant to the document governing such bonds or other

11  indebtedness. Emergency assessments collected under this

12  sub-sub-subparagraph are not part of an insurer's rates, are

13  not premium, and are not subject to premium tax, fees, or

14  commissions; however, failure to pay the emergency assessment

15  shall be treated as failure to pay premium.

16         (IV)  Each member insurer's share of the total regular

17  assessments under sub-sub-subparagraph (I) or

18  sub-sub-subparagraph (II) shall be in the proportion that the

19  insurer's net direct premium for property insurance in this

20  state, for the year preceding the assessment bears to the

21  aggregate statewide net direct premium for property insurance

22  of all member insurers, as reduced by any credits for

23  voluntary writings for that year.

24         (V)  If regular deficit assessments are made under

25  sub-sub-subparagraph (I) or sub-sub-subparagraph (II), or by

26  the Residential Property and Casualty Joint Underwriting

27  Association under sub-subparagraph (6)(b)3.a. or

28  sub-subparagraph (6)(b)3.b., the association shall levy upon

29  the association's policyholders, as part of its next rate

30  filing, or by a separate rate filing solely for this purpose,

31  a market equalization surcharge in a percentage equal to the

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  1  total amount of such regular assessments divided by the

  2  aggregate statewide direct written premium for property

  3  insurance for member insurers for the prior calendar year.

  4  Market equalization surcharges under this sub-sub-subparagraph

  5  are not considered premium and are not subject to commissions,

  6  fees, or premium taxes; however, failure to pay a market

  7  equalization surcharge shall be treated as failure to pay

  8  premium.

  9         e.  The governing body of any unit of local government,

10  any residents of which are insured under the plan, may issue

11  bonds as defined in s. 125.013 or s. 166.101 to fund an

12  assistance program, in conjunction with the association, for

13  the purpose of defraying deficits of the association. In order

14  to avoid needless and indiscriminate proliferation,

15  duplication, and fragmentation of such assistance programs,

16  any unit of local government, any residents of which are

17  insured by the association, may provide for the payment of

18  losses, regardless of whether or not the losses occurred

19  within or outside of the territorial jurisdiction of the local

20  government. Revenue bonds may not be issued until validated

21  pursuant to chapter 75, unless a state of emergency is

22  declared by executive order or proclamation of the Governor

23  pursuant to s. 252.36 making such findings as are necessary to

24  determine that it is in the best interests of, and necessary

25  for, the protection of the public health, safety, and general

26  welfare of residents of this state and the protection and

27  preservation of the economic stability of insurers operating

28  in this state, and declaring it an essential public purpose to

29  permit certain municipalities or counties to issue bonds as

30  will provide relief to claimants and policyholders of the

31  association and insurers responsible for apportionment of plan

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  1  losses. Any such unit of local government may enter into such

  2  contracts with the association and with any other entity

  3  created pursuant to this subsection as are necessary to carry

  4  out this paragraph. Any bonds issued under this

  5  sub-subparagraph shall be payable from and secured by moneys

  6  received by the association from assessments under this

  7  subparagraph, and assigned and pledged to or on behalf of the

  8  unit of local government for the benefit of the holders of

  9  such bonds. The funds, credit, property, and taxing power of

10  the state or of the unit of local government shall not be

11  pledged for the payment of such bonds. If any of the bonds

12  remain unsold 60 days after issuance, the department shall

13  require all insurers subject to assessment to purchase the

14  bonds, which shall be treated as admitted assets; each insurer

15  shall be required to purchase that percentage of the unsold

16  portion of the bond issue that equals the insurer's relative

17  share of assessment liability under this subsection. An

18  insurer shall not be required to purchase the bonds to the

19  extent that the department determines that the purchase would

20  endanger or impair the solvency of the insurer. The authority

21  granted by this sub-subparagraph is additional to any bonding

22  authority granted by subparagraph 6.

23         4.3.  The plan shall also provide that any member with

24  a surplus as to policyholders of $20 million or less writing

25  25 percent or more of its total countrywide property insurance

26  premiums in this state may petition the department, within the

27  first 90 days of each calendar year, to qualify as a limited

28  apportionment company. The apportionment of such a member

29  company in any calendar year for which it is qualified shall

30  not exceed its gross participation, which shall not be

31  affected by the formula for voluntary writings. In no event

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  1  shall a limited apportionment company be required to

  2  participate in any apportionment of losses pursuant to

  3  sub-sub-subparagraph 3.d.(I) 2.d.(I) or sub-sub-subparagraph

  4  3.d.(II) 2.d.(II) in the aggregate which exceeds $50 million

  5  after payment of available plan funds in any calendar year.

  6  However, a limited apportionment company shall collect from

  7  its policyholders any emergency assessment imposed under

  8  sub-sub-subparagraph 3.d.(III) 2.d.(III). The plan shall

  9  provide that, if the department determines that any regular

10  assessment will result in an impairment of the surplus of a

11  limited apportionment company, the department may direct that

12  all or part of such assessment be deferred. However, there

13  shall be no limitation or deferment of an emergency assessment

14  to be collected from policyholders under sub-sub-subparagraph

15  3.d.(III) 2.d.(III).

16         5.4.  The plan shall provide for the deferment, in

17  whole or in part, of a regular assessment of a member insurer

18  under sub-sub-subparagraph 3.d.(I) 2.d.(I) or

19  sub-sub-subparagraph 3.d.(II) 2.d.(II), but not for an

20  emergency assessment collected from policyholders under

21  sub-sub-subparagraph 3.d.(III) 2.d.(III), if, in the opinion

22  of the commissioner, payment of such regular assessment would

23  endanger or impair the solvency of the member insurer. In the

24  event a regular assessment against a member insurer is

25  deferred in whole or in part, the amount by which such

26  assessment is deferred may be assessed against the other

27  member insurers in a manner consistent with the basis for

28  assessments set forth in sub-sub-subparagraph 3.d.(I) 2.d.(I)

29  or sub-sub-subparagraph 3.d.(II) 2.d.(II).

30         6.5.a.  The plan of operation may include deductibles

31  and rules for classification of risks and rate modifications

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  1  consistent with the objective of providing and maintaining

  2  funds sufficient to pay catastrophe losses.

  3         b.  The association may require arbitration of a rate

  4  filing under s. 627.062(6). It is the intent of the

  5  Legislature that the rates for coverage provided by the

  6  association be actuarially sound and not competitive with

  7  approved rates charged in the admitted voluntary market such

  8  that the association functions as a residual market mechanism

  9  to provide insurance only when the insurance cannot be

10  procured in the voluntary market.  The plan of operation shall

11  provide a mechanism to assure that, beginning no later than

12  January 1, 1999, the rates charged by the association for each

13  line of business are reflective of approved rates in the

14  voluntary market for hurricane coverage for each line of

15  business in the various areas eligible for association

16  coverage.

17         c.  The association shall provide for windstorm

18  coverage on residential properties in limits up to $10 million

19  for commercial lines residential risks and up to $1 million

20  for personal lines residential risks. If coverage with the

21  association is sought for a residential risk valued in excess

22  of these limits, coverage shall be available to the risk up to

23  the replacement cost or actual cash value of the property, at

24  the option of the insured, if coverage for the risk cannot be

25  located in the authorized market. The association must accept

26  a commercial lines residential risk with limits above $10

27  million or a personal lines residential risk with limits above

28  $1 million if coverage is not available in the authorized

29  market.  The association may write coverage above the limits

30  specified in this subparagraph with or without facultative or

31

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  1  other reinsurance coverage, as the association determines

  2  appropriate.

  3         d.  The plan of operation must provide objective

  4  criteria and procedures, approved by the department, to be

  5  uniformly applied for all applicants in determining whether an

  6  individual risk is so hazardous as to be uninsurable. In

  7  making this determination and in establishing the criteria and

  8  procedures, the following shall be considered:

  9         (I)  Whether the likelihood of a loss for the

10  individual risk is substantially higher than for other risks

11  of the same class; and

12         (II)  Whether the uncertainty associated with the

13  individual risk is such that an appropriate premium cannot be

14  determined.

15

16  The acceptance or rejection of a risk by the association

17  pursuant to such criteria and procedures must be construed as

18  the private placement of insurance, and the provisions of

19  chapter 120 do not apply.

20         e.  The policies issued by the association must provide

21  that if the association obtains an offer from an authorized

22  insurer to cover the risk at its approved rates under either a

23  standard policy including wind coverage or, if consistent with

24  the insurer's underwriting rules as filed with the department,

25  a basic policy including wind coverage, the risk is no longer

26  eligible for coverage through the association. Upon

27  termination of eligibility, the association shall provide

28  written notice to the policyholder and agent of record stating

29  that the association policy must be canceled as of 60 days

30  after the date of the notice because of the offer of coverage

31  from an authorized insurer. Other provisions of the insurance

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  1  code relating to cancellation and notice of cancellation do

  2  not apply to actions under this sub-subparagraph.

  3         f.  Association policies and applications must include

  4  a notice that the association policy could, under this

  5  section, be replaced with a policy issued by an authorized

  6  insurer that does not provide coverage identical to the

  7  coverage provided by the association. The notice shall also

  8  specify that acceptance of association coverage creates a

  9  conclusive presumption that the applicant or policyholder is

10  aware of this potential.

11         7.6.a.  The plan of operation may authorize the

12  formation of a private nonprofit corporation, a private

13  nonprofit unincorporated association, a partnership, a trust,

14  a limited liability company, or a nonprofit mutual company

15  which may be empowered, among other things, to borrow money by

16  issuing bonds or by incurring other indebtedness and to

17  accumulate reserves or funds to be used for the payment of

18  insured catastrophe losses. The plan may authorize all actions

19  necessary to facilitate the issuance of bonds, including the

20  pledging of assessments or other revenues.

21         b.  Any entity created under this subsection, or any

22  entity formed for the purposes of this subsection, may sue and

23  be sued, may borrow money; issue bonds, notes, or debt

24  instruments; pledge or sell assessments, market equalization

25  surcharges and other surcharges, rights, premiums, contractual

26  rights, projected recoveries from the Florida Hurricane

27  Catastrophe Fund, other reinsurance recoverables, and other

28  assets as security for such bonds, notes, or debt instruments;

29  enter into any contracts or agreements necessary or proper to

30  accomplish such borrowings; and take other actions necessary

31  to carry out the purposes of this subsection. The association

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  1  may issue bonds or incur other indebtedness, or have bonds

  2  issued on its behalf by a unit of local government pursuant to

  3  subparagraph (g)2., in the absence of a hurricane or other

  4  weather-related event, upon a determination by the association

  5  subject to approval by the department that such action would

  6  enable it to efficiently meet the financial obligations of the

  7  association and that such financings are reasonably necessary

  8  to effectuate the requirements of this subsection. Any such

  9  entity may accumulate reserves and retain surpluses as of the

10  end of any association year to provide for the payment of

11  losses incurred by the association during that year or any

12  future year. The association shall incorporate and continue

13  the plan of operation and articles of agreement in effect on

14  the effective date of chapter 76-96, Laws of Florida, to the

15  extent that it is not inconsistent with chapter 76-96, and as

16  subsequently modified consistent with chapter 76-96. The board

17  of directors and officers currently serving shall continue to

18  serve until their successors are duly qualified as provided

19  under the plan. The assets and obligations of the plan in

20  effect immediately prior to the effective date of chapter

21  76-96 shall be construed to be the assets and obligations of

22  the successor plan created herein.

23         c.  In recognition of s. 10, Art. I of the State

24  Constitution, prohibiting the impairment of obligations of

25  contracts, it is the intent of the Legislature that no action

26  be taken whose purpose is to impair any bond indenture or

27  financing agreement or any revenue source committed by

28  contract to such bond or other indebtedness issued or incurred

29  by the association or any other entity created under this

30  subsection.

31

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  1         8.7.  On such coverage, an agent's remuneration shall

  2  be that amount of money payable to the agent by the terms of

  3  his or her contract with the company with which the business

  4  is placed. However, no commission will be paid on that portion

  5  of the premium which is in excess of the standard premium of

  6  that company.

  7         9.8.  Subject to approval by the department, the

  8  association may establish different eligibility requirements

  9  and operational procedures for any line or type of coverage

10  for any specified eligible area or portion of an eligible area

11  if the board determines that such changes to the eligibility

12  requirements and operational procedures are justified due to

13  the voluntary market being sufficiently stable and competitive

14  in such area or for such line or type of coverage and that

15  consumers who, in good faith, are unable to obtain insurance

16  through the voluntary market through ordinary methods would

17  continue to have access to coverage from the association. When

18  coverage is sought in connection with a real property

19  transfer, such requirements and procedures shall not provide

20  for an effective date of coverage later than the date of the

21  closing of the transfer as established by the transferor, the

22  transferee, and, if applicable, the lender.

23         10.9.  Notwithstanding any other provision of law:

24         a.  The pledge or sale of, the lien upon, and the

25  security interest in any rights, revenues, or other assets of

26  the association created or purported to be created pursuant to

27  any financing documents to secure any bonds or other

28  indebtedness of the association shall be and remain valid and

29  enforceable, notwithstanding the commencement of and during

30  the continuation of, and after, any rehabilitation,

31  insolvency, liquidation, bankruptcy, receivership,

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  1  conservatorship, reorganization, or similar proceeding against

  2  the association under the laws of this state or any other

  3  applicable laws.

  4         b.  No such proceeding shall relieve the association of

  5  its obligation, or otherwise affect its ability to perform its

  6  obligation, to continue to collect, or levy and collect,

  7  assessments, market equalization or other surcharges,

  8  projected recoveries from the Florida Hurricane Catastrophe

  9  Fund, reinsurance recoverables, or any other rights, revenues,

10  or other assets of the association pledged.

11         c.  Each such pledge or sale of, lien upon, and

12  security interest in, including the priority of such pledge,

13  lien, or security interest, any such assessments, emergency

14  assessments, market equalization or renewal surcharges,

15  projected recoveries from the Florida Hurricane Catastrophe

16  Fund, reinsurance recoverables, or other rights, revenues, or

17  other assets which are collected, or levied and collected,

18  after the commencement of and during the pendency of or after

19  any such proceeding shall continue unaffected by such

20  proceeding.

21         d.  As used in this subsection, the term "financing

22  documents" means any agreement, instrument, or other document

23  now existing or hereafter created evidencing any bonds or

24  other indebtedness of the association or pursuant to which any

25  such bonds or other indebtedness has been or may be issued and

26  pursuant to which any rights, revenues, or other assets of the

27  association are pledged or sold to secure the repayment of

28  such bonds or indebtedness, together with the payment of

29  interest on such bonds or such indebtedness, or the payment of

30  any other obligation of the association related to such bonds

31  or indebtedness.

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  1         e.  Any such pledge or sale of assessments, revenues,

  2  contract rights or other rights or assets of the association

  3  shall constitute a lien and security interest, or sale, as the

  4  case may be, that is immediately effective and attaches to

  5  such assessments, revenues, contract, or other rights or

  6  assets, whether or not imposed or collected at the time the

  7  pledge or sale is made. Any such pledge or sale is effective,

  8  valid, binding, and enforceable against the association or

  9  other entity making such pledge or sale, and valid and binding

10  against and superior to any competing claims or obligations

11  owed to any other person or entity, including policyholders in

12  this state, asserting rights in any such assessments,

13  revenues, contract, or other rights or assets to the extent

14  set forth in and in accordance with the terms of the pledge or

15  sale contained in the applicable financing documents, whether

16  or not any such person or entity has notice of such pledge or

17  sale and without the need for any physical delivery,

18  recordation, filing, or other action.

19         f.  There shall be no liability on the part of, and no

20  cause of action of any nature shall arise against, any member

21  insurer or its agents or employees, agents or employees of the

22  association, members of the board of directors of the

23  association, or the department or its representatives, for any

24  action taken by them in the performance of their duties or

25  responsibilities under this subsection. Such immunity does not

26  apply to actions for breach of any contract or agreement

27  pertaining to insurance, or any willful tort.

28         (c)  The provisions of paragraph (b) are applicable

29  only with respect to:

30         1.  Those areas that were eligible for coverage under

31  this subsection on April 9, 1993; or

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  1         2.  Any county or area as to which the department,

  2  after public hearing, finds that the following criteria exist:

  3         a.  Due to the lack of windstorm insurance coverage in

  4  the county or area so affected, economic growth and

  5  development is being deterred or otherwise stifled in such

  6  county or area, mortgages are in default, and financial

  7  institutions are unable to make loans;

  8         b.  The county or area so affected has adopted and is

  9  enforcing the structural requirements of the State Minimum

10  Building Codes, as defined in s. 553.73, for new construction

11  and has included adequate minimum floor elevation requirements

12  for structures in areas subject to inundation; and

13         c.  Extending windstorm insurance coverage to such

14  county or area is consistent with and will implement and

15  further the policies and objectives set forth in applicable

16  state laws, rules, and regulations governing coastal

17  management, coastal construction, comprehensive planning,

18  beach and shore preservation, barrier island preservation,

19  coastal zone protection, and the Coastal Zone Protection Act

20  of 1985.

21

22  Any time after the department has determined that the criteria

23  referred to in this subparagraph do not exist with respect to

24  any county or area of the state, it may, after a subsequent

25  public hearing, declare that such county or area is no longer

26  eligible for windstorm coverage through the plan.

27         (d)  For the purpose of evaluating whether the criteria

28  of paragraph (c) are met, such criteria shall be applied as

29  the situation would exist if policies had not been written by

30  the Florida Residential Property and Casualty Joint

31

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  1  Underwriting Association and property insurance for such

  2  policyholders was not available.

  3         (e)  Notwithstanding the provisions of subparagraph

  4  (c)2. or paragraph (d), eligibility shall not be extended to

  5  any area that was not eligible on March 1, 1997, except that

  6  the department may act with respect to any petition on which a

  7  hearing was held prior to the effective date of this act. This

  8  paragraph is repealed on October 1, 1998.

  9         (f)1.  The association shall afford to all insurers an

10  opportunity to remove packages of policies from the

11  association. Policies shall be packaged by the association

12  with each package of policies to include specified rates,

13  forms, renewal conditions, and method of removal, including

14  whether the removal shall take effect upon policy cancellation

15  by the association, or upon association policy expiration, as

16  approved by the department. Each policy shall be written for

17  at least one full annual policy term using the specified rates

18  and forms. Thereafter, each policy shall be renewed for at

19  least two additional 1-year terms either using the specified

20  rates and forms, or at the insurers rates and on its forms,

21  which forms must provide substantially similar coverage.

22         2.  The association may act as an excess of loss

23  reinsurer of an insurer withdrawing policies from the

24  association. The coverage provided by the association may be

25  on an occurrence basis or an annual aggregate basis. The term

26  of any such reinsurance shall not exceed 12 months plus

27  additional time, if required, for runoff protection. The

28  association may agree to write more than one renewal of the

29  reinsurance contract but may not make any contractual

30  commitment of more than 36 months total duration. The terms

31  and conditions of the reinsurances written by the association

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  1  shall generally follow those available to insurers in the

  2  commercial market, except the premium cost of coverage may be

  3  less than in the commercial market in recognition of the fact

  4  that it is in the association's interests to facilitate the

  5  removal of policies from the association by insurers. The

  6  association shall appoint a three member reinsurance advisory

  7  committee to analyze all proposed reinsurance transactions and

  8  make recommendations to the association. The department shall

  9  approve each reinsurance contract entered into by the

10  association after determination that the contract is a

11  reasonable and prudent means to depopulate the association.

12         (g)1.  Beginning January 1, 2000, every authorized

13  insurer writing residential coverage in this state must accept

14  assignments of policies from the association, as provided in

15  this paragraph.

16         2.  Assigned policies shall be written on association

17  forms at association rates. Assignment of a policy shall not

18  affect the producing agent's entitlement to unearned

19  commission. If the policy is assigned to an insurer with which

20  the producing agent has a contract, the producing agent shall

21  retain the business. If the policy is assigned to an insurer

22  that is using the services of a managing general agent, the

23  producing agent is entitled to act as the brokering agent. If

24  the agent is not appointed or offered an appointment with the

25  assuming insurer or not brokering the business with a managing

26  general agent being used by the assuming insurer, the agent

27  shall receive an assignment fee of $50, payable by the

28  association.

29         3.  If an insurer believes that the assignment of risks

30  would result in the insurer's insolvency or impair the

31  insurer's capital and surplus under the respective definitions

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  1  provided in s. 631.011(9), (10), and (11), and reasonable

  2  means to avoid the insolvency or impairment are not available,

  3  the insurer may petition the department for deferment or

  4  revision, in whole or in part, of the selection and assignment

  5  of such risks. The insurer shall bear the burden of proving

  6  such resulting insolvency or impairment of capital or surplus.

  7  If a deferment or revision of assignment of risks is granted,

  8  the insurer shall remain subject to assignment of risks in

  9  response to subsequent annual filings.

10         4.a.  The association shall identify the commercial

11  lines residential policies and the personal lines residential

12  policies which must be assigned to each insurer. The

13  identified policies shall not include any risk located in

14  Monroe County, on a coastal barrier island as defined in s.

15  161.54, or seaward of the intracoastal waterway. The selection

16  and subsequent assignment shall be coordinated by the

17  association among the various insurers by allocating the

18  distribution of the removed policies among such insurers in

19  such a manner as to limit adverse solvency consequences, to

20  avoid excess concentration of policies in any one area with

21  respect to the insurer's personal lines residential coverage

22  book of business, to take into account the characteristics of

23  risks underwritten in the voluntary market by the assigned

24  insurer and to attempt to match assigned risks as closely as

25  possible to the insurers expertise, and to take into account

26  variations in the market value of the assigned risks. The

27  association shall provide for credits to insurers for removing

28  policies pursuant to paragraph (f) with respect to assignments

29  made pursuant to this paragraph.

30         b.  If the nonwind property coverage for a risk

31  assigned is underwritten by a surplus lines insurer, an offer

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  1  to underwrite such coverage by the insurer to which the wind

  2  coverage is assigned shall preclude renewal by the surplus

  3  lines insurer, as the risk shall no longer be eligible for

  4  export.

  5         c.  The initial selection of policies to be assigned

  6  shall be accomplished no later than January 1, 2000, and the

  7  actual assignment shall be accomplished no later than July 1,

  8  2000. However, the failure of the association to meet the July

  9  1, 2000, deadline shall not constitute a defense to acceptance

10  of the assignment by the insurer. The assignments shall be

11  made to each insurer such that each insurer's share of the

12  total property exposure assigned is approximately equal to

13  such insurer's proportional share of net direct premium for

14  the second year preceding the assignment as set forth in

15  sub-sub-subparagraph (b)4.a.(I), less any credits. Sequential

16  rounds of assignments shall be made to each insurer at such

17  insurer's proportional share until all policies which are

18  subject to assignment have been assigned.

19         d.  If more than one insurer within an insurer group is

20  authorized to write residential coverage in this state,

21  insurers in the group receiving the assignments may cede the

22  assignments among authorized members of the group as the group

23  desires so long as the assuming insurer meets all statutory

24  requirements with respect to solvency, the cession will not

25  adversely affect the interests of the policyholders to be

26  placed, and the ceding insurer retains liability for losses on

27  the policies if the assuming insurer is unable to meet its

28  obligations under the policies.

29         e.  Groups of insurers not under common ownership or

30  management may form a limited assignment distribution

31  arrangement.

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  1         f.  No insurer receiving assignments under this

  2  paragraph shall be eligible for any association assessment

  3  credits or bonuses authorized under this paragraph or under s.

  4  627.3511 with respect to assigned policies.

  5         5.  Each insurer with which policies are assigned must

  6  assume each policy for the duration of the policy's term, at

  7  association rates on association forms, and must renew each

  8  policy for at least one additional 1-year term, using

  9  association rates and forms, unless canceled by the insurer

10  for a lawful reason other than reduction of hurricane exposure

11  or unless nonrenewed by the policyholder. Thereafter, the

12  policy shall be renewed for at least two 1-year terms at

13  association rates and on association forms, or at the

14  insurer's rates, which rates shall be no greater than the

15  association rates, and on its forms, which forms shall include

16  substantially similar terms. Nothing in this subparagraph

17  shall preclude an insurer from offering an assigned

18  policyholder coverage for nonwind perils. If such offer is

19  accepted, the insurer may satisfy its assignment obligations

20  with regard to that risk by writing all perils coverage at

21  such insurer's approved rates and on its approved forms. For

22  each assigned policy canceled or nonrenewed by the insurer for

23  any reason during the coverage period required by this

24  paragraph, the insurer shall accept from the association, if

25  available, one additional policy covering a risk similar to

26  the risk covered by the canceled or nonrenewed policy.

27         6.  If an insurer fails to accept the residential

28  policies selected by the association, the failure shall be

29  treated as a willful violation of the Florida Insurance Code.

30  Each policy refused or rejected by an insurer shall constitute

31  a separate violation.

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  1         7.  For the purposes of this paragraph:

  2         a.  "Residential coverage" has the same meaning as

  3  provided in s. 627.4025.

  4         b.  "Insurer" means an insurer, other than a joint

  5  underwriting association, authorized to write property and

  6  casualty insurance in this state, provided, if the insurer is

  7  a member of an insurer group of which more than one member is

  8  authorized to write property and casualty insurance in this

  9  state, "insurer" means all authorized members of the group,

10  collectively or individually as the group elects, which

11  election shall be indicated in the reports required under this

12  section, and once made, shall not be changed for the calendar

13  year, and the group shall be bound by such election. As used

14  in this subsection, "insurer group" means the insurer group

15  required to be reported in the holding company registration

16  statement as provided in s. 628.801 and rules adopted under

17  such section.

18         8.a.  The department may adopt rules to implement the

19  provisions of this subsection. In adopting such rules, the

20  department may adopt any reasonable methods to accomplish the

21  essential purpose of this subsection, which is to depopulate

22  the association of residential risks through voluntary writing

23  and by requiring insurers to accept assignments of policies

24  from the association. The rules may provide for the method of

25  assignment including take-outs, assumptions, and other methods

26  as appropriate and alternative methods of selection and

27  assignment directed to limiting adverse solvency consequences

28  to affected insurers.

29         b.  The department may require the revision or

30  amendment of the association's plan of operation or bylaws as

31

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  1  necessary to implement this section or to accomplish the

  2  section's purpose.

  3         c.  The department may require the revision or

  4  amendment of the plan of operation or bylaws of the market

  5  assistance plan, established under s. 627.3515, if any, as

  6  necessary to implement this section or to accomplish the

  7  purpose of this section.

  8         (6)  RESIDENTIAL PROPERTY AND CASUALTY JOINT

  9  UNDERWRITING ASSOCIATION.--

10         (d)1.  It is the intent of the Legislature that the

11  rates for coverage provided by the association be actuarially

12  sound and not competitive with approved rates charged in the

13  admitted voluntary market, so that the association functions

14  as a residual market mechanism to provide insurance only when

15  the insurance cannot be procured in the voluntary market.

16  Rates shall include an appropriate catastrophe loading factor

17  that reflects the actual catastrophic exposure of the

18  association and recognizes that the association has little or

19  no capital or surplus; and the association shall carefully

20  review each rate filing to assure that provider compensation

21  is not excessive.

22         2.  For each county, the average rates of the

23  association for each line of business for personal lines

24  residential policies shall be no lower than the average rates

25  charged by the insurer that had the highest average rate in

26  that county among the 20 insurers with the greatest total

27  direct written premium in the state for that line of business

28  in the preceding year, except that with respect to mobile home

29  coverages, the average rates of the association shall be no

30  lower than the average rates charged by the insurer that had

31  the highest average rate in that county among the 5 insurers

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  1  with the greatest total written premium for mobile home

  2  owner's policies in the state in the preceding year.

  3         3.  Rates for commercial residential coverage shall not

  4  be subject to the requirements of subparagraph 2., but shall

  5  be subject to all other requirements of this paragraph and s.

  6  627.062.

  7         4.  Nothing in this paragraph shall require or allow

  8  the association to adopt a rate that is inadequate under s.

  9  627.062 or to reduce rates approved under s. 627.062.

10         5.  The association may require arbitration of a filing

11  pursuant to s. 627.062(6). Rate filings of the association

12  under this paragraph shall be made on a use and file basis

13  under s. 627.062(2)(a)2. The association shall make a rate

14  filing at least once a year, but no more often than quarterly.

15         (o)  The association shall afford to all insurers an

16  opportunity to remove packages of policies from the

17  association. Policies shall be packaged by the association

18  with each package of policies to include specified rates,

19  forms, and method of removal, including whether the removal

20  shall take effect upon policy cancellation by the association,

21  or upon association policy expiration, as approved by the

22  department. Each policy shall be written for at least one full

23  annual policy term using the specified rates and forms.

24  Thereafter, each policy shall be renewed for at least two

25  additional 1-year terms either using the specified rates and

26  forms, or at the insurer's rates and on the insurer's forms

27  which forms must provide substantially similar coverage.

28         (p)  Prior to January 1, 1999, the FAIR Plan

29  established under s. 627.3518 shall analyze policies insured

30  by the association and designate those policies for removal by

31  the FAIR Plan. Policies designated by the FAIR Plan shall

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  1  remain eligible for takeout by any method provided in this

  2  paragraph or s. 627.3511 until removed by the FAIR Plan. All

  3  designated policies remaining in the association on July 1,

  4  1999, shall be removed by the FAIR Plan and upon removal shall

  5  be underwritten by the FAIR Plan in such a manner as to avoid

  6  any coverage gap. The association shall pay to the FAIR Plan

  7  all unearned premium for the policies removed. The designated

  8  policies shall be those policies which cover substandard or

  9  low-value risks determined by the FAIR Plan to be eligible for

10  coverage under the Plan's plan of operation.

11         (q)1.  Beginning on January 1, 1999, every authorized

12  insurer writing residential coverage in this state must accept

13  assignments of policies from the association, as provided in

14  this paragraph. The assigned policies shall not include

15  policies designated for removal by the FAIR Plan.

16         2.  Assigned policies shall be written on association

17  forms at association base rates. Assignment of a policy shall

18  not affect the producing agent's entitlement to unearned

19  commission. If the policy is assigned to an insurer with which

20  the producing agent has a contract, the producing agent shall

21  retain the business. If the policy is assigned to an insurer

22  that is using the services of a managing general agent, the

23  producing agent is entitled to act as the brokering agent. If

24  the agent is not appointed or offered an appointment with the

25  assuming insurer or not brokering the business with a managing

26  general agent being used by the assuming insurer, the agent

27  shall receive an assignment fee of $50, payable by the

28  association.

29         3.  If an insurer believes that the assignment of risks

30  would result in the insurer's insolvency or impair the

31  insurer's capital and surplus under the respective definitions

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  1  provided in s. 631.011(9), (10), and (11), and reasonable

  2  means to avoid the insolvency or impairment are not available,

  3  the insurer may petition the department for deferment or

  4  revision, in whole or in part, of the selection and assignment

  5  of such risks. The insurer shall bear the burden of proving

  6  such resultant insolvency or impairment of capital and

  7  surplus. If a deferment or revision of assignment of risks is

  8  granted, the insurer shall remain subject to assignment of

  9  risks in response to subsequent annual filings.

10         4.a.  The association shall select the policies which

11  must be assigned to each insurer. The selection and subsequent

12  assignment shall be coordinated by the association among the

13  various insurers by allocating the distribution of the removed

14  policies among such insurers in such a manner as to limit

15  adverse solvency consequences, to avoid excess concentration

16  of policies in any one area with respect to the insurer's

17  personal lines residential coverage book of business, to take

18  into account the characteristics of risks underwritten in the

19  voluntary market by the assigned insurer and to attempt to

20  match assigned risks as closely as possible to the insurers

21  expertise, and to take into account variations in the market

22  value of the assigned risks. The association shall provide for

23  credits to insurers for removing policies pursuant to

24  paragraph (o) with respect to assignments made pursuant to

25  this paragraph.

26         b.  The initial selection of policies to be assigned

27  shall be accomplished by January 1, 1999, or as soon

28  thereafter as reasonably possible. The actual assignments

29  shall be accomplished no later than July 1, 1999. However, the

30  failure of the association to meet the July 1, 1999, deadline

31  shall not constitute a defense to acceptance of the assignment

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  1  by the insurer. Assignments shall continue until there are no

  2  policies with the association. The assignments shall be made

  3  to each insurer such that each insurer's share of the total

  4  property exposure assigned is approximately equal to such

  5  insurer's proportional share of direct written premium as

  6  provided in sub-subparagraph (b)3.c. Sequential rounds of

  7  assignments shall be made to each insurer at such insurer's

  8  proportional share until all policies which are subject to

  9  assignment have been assigned.

10         c.  If more than one insurer within an insurer group is

11  authorized to write residential coverage in this state,

12  insurers in the group receiving the assignments may cede the

13  assignments among authorized members of the group as the group

14  desires so long as the assuming insurer meets all statutory

15  requirements with respect to solvency, the cession will not

16  adversely affect the interests of the policyholders to be

17  placed, and the ceding insurer retains liability for losses on

18  the policies if the assuming insurer is unable to meet its

19  obligations under the policies.

20         d.  Groups of insurers not under common ownership or

21  management may form a limited assignment distribution

22  arrangement.

23         e.  No insurer receiving assignments under this

24  paragraph shall be eligible for association assessment credits

25  or bonuses authorized under this subsection or under s.

26  627.3511 with respect to assigned policies.

27         5.  Each insurer with which policies are assigned must

28  assume each policy for the duration of the policy's term, at

29  association rates on association forms, and must renew each

30  policy for at least one additional 1-year term using

31  association rates and forms, unless canceled by the insurer

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  1  for a lawful reason other than reduction of hurricane exposure

  2  or unless nonrenewed by the policyholder. Thereafter, the

  3  policy shall be renewed for at least two 1-year terms at

  4  association rates and on association forms, or at the

  5  insurer's rates, which rates shall be no greater than the

  6  association rates, and on the insurer's forms, which forms

  7  shall include substantially similar terms. For each assigned

  8  policy canceled or nonrenewed by the insurer for any reason

  9  during the coverage period required by this paragraph, the

10  insurer shall accept from the association, if available, one

11  additional policy covering a risk similar to the risk covered

12  by the canceled or nonrenewed policy.

13         6.  If an insurer fails to accept the personal lines

14  residential policies selected by the association, the failure

15  shall be treated as a willful violation of the Florida

16  Insurance Code. Each policy refused or rejected by an insurer

17  shall constitute a separate violation.

18         7.  For the purposes of this paragraph:

19         a.  "Residential coverage" has the same meaning

20  provided in s. 627.4025.

21         b.  "Insurer" means an insurer, other than a joint

22  underwriting association, authorized to write property and

23  casualty insurance in this state, provided, if the insurer is

24  a member of an insurer group of which more than one member is

25  authorized to write property and casualty insurance in this

26  state, "insurer" means all authorized members of the group,

27  collectively or individually as the group elects, which

28  election shall be indicated in the reports required under this

29  section, and once made, shall not be changed for the reporting

30  year, and the group shall be bound by such election. As used

31  in this section, "insurer group" means the insurer group

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  1  required to be reported in the holding company registration

  2  statement as provided in s. 628.801 and rules adopted under

  3  such section.

  4         8.a.  The department may adopt rules to implement the

  5  provisions of this subsection. In adopting the rules, the

  6  department may adopt any reasonable methods to accomplish the

  7  essential purpose of this section, which is to depopulate the

  8  association of personal lines residential risks through

  9  voluntary writings and by requiring insurers to accept

10  assignments of policies from the association. The rules may

11  provide for the method of assignment including take-outs,

12  assumptions, and other methods as appropriate and alternative

13  methods of selection and assignment directed to limiting

14  adverse solvency consequences to affected insurers.

15         b.  The department may require the revision or

16  amendment of the association's plan of operation or bylaws as

17  necessary to implement this section or to accomplish the

18  section's purpose.

19         c.  The department may require the revision or

20  amendment of the plan of operation or bylaws of the market

21  assistance plan established under s. 627.3515, if any, as

22  necessary to implement this section or to accomplish the

23  section's purpose.

24         9.  The plan of the association shall provide for a

25  method whereby insurers who voluntarily assume policies from

26  the association may receive a reduction in the number of

27  assignments such insurers would otherwise receive from the

28  association. Nothing in this subparagraph shall preclude the

29  incorporation into the plan of other incentives to encourage

30  voluntary writings of residential property insurance which

31  have a high windstorm or hurricane risk.

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  1         Section 7.  Paragraph (b) of subsection (1) and

  2  subsection (5) of section 627.3513, Florida Statutes, are

  3  amended to read:

  4         627.3513  Standards for sale of bonds by underwriting

  5  associations.--

  6         (1)

  7         (b)  "Association" or "associations," for purposes of

  8  this section, means the Florida Windstorm Underwriting

  9  Association and the Residential Property and Casualty Joint

10  Underwriting Association as established pursuant to s.

11  627.351(2) and (6), the FAIR Plan established under s.

12  627.3518, and any corporation or other entity established

13  pursuant to those subsections.

14         (5)  This section is not intended to restrict or

15  prohibit the employment of professional services relating to

16  bonds issued under s. 627.351(2) or (6) or s. 627.3518 or the

17  issuance of bonds by the associations.

18         Section 8.  Section 627.3515, Florida Statutes, is

19  amended to read:

20         627.3515  Market assistance plan; property and casualty

21  risks.--

22         (1)(a)  The department shall adopt a market assistance

23  plan to assist in the placement of risks of applicants who are

24  unable to procure property insurance as defined in s. 624.604,

25  or casualty insurance as defined in s. 624.605(1)(b), (e),

26  (f), (g), or (h), or residential coverage as described in s.

27  627.4025 from authorized insurers when such insurance is

28  otherwise generally available from insurers authorized to

29  transact and actually writing that kind and class of insurance

30  in this state. Through such measures as are found appropriate

31  by the board of governors, the market assistance plan shall

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  1  take affirmative steps to assist in the removal from the

  2  Residential Property and Casualty Joint Underwriting

  3  Association established under s. 627.351, the Florida

  4  Windstorm Underwriting Association established under s.

  5  627.351, and the FAIR Plan established under s. 627.3518 any

  6  risk that can be placed in the voluntary market. All property

  7  and casualty insurers licensed in this state shall participate

  8  in the plan.

  9         (b)  The market assistance plan shall actively assist

10  the Florida Windstorm Underwriting Association, the

11  Residential Property and Casualty Joint Underwriting

12  Association, and the FAIR Plan with respect to depopulation or

13  policy take-outs or assumptions by authorized insurers from

14  those associations and, to that end, the market assistance

15  plan, the Florida Windstorm Underwriting Association, the

16  Residential Property and Casualty Joint Underwriting

17  Association, and the FAIR Plan shall work together, cooperate,

18  and coordinate depopulation or policy removal efforts.

19         (c)1.  The market assistance plan shall analyze the

20  residential risks insured by the Florida Windstorm

21  Underwriting Association on an ongoing basis. The analysis

22  shall include, but not be limited to:

23         a.  A review of whether the underlying insurer is an

24  authorized insurer or an eligible surplus lines insurer.

25         b.  The location of the risk.

26         c.  The characteristics of the risk, such as

27  substandard conditions, including conditions relating to

28  construction, heating, wiring, evidence of previous fires, or

29  general deterioration.

30

31

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  1         d.  Housekeeping factors which affect insurability,

  2  such as vacancy, overcrowding, and storage of rubbish or

  3  flammable materials.

  4         e.  Other specific factors of ownership, condition,

  5  occupancy, or maintenance which are violative of public policy

  6  and result in unreasonable exposure to loss.

  7         f.  Hurricane risk factors, including geographic

  8  factors which result in high risk of hurricane loss exposure.

  9         2.  The purposes of the analysis shall be:

10         a.  To develop a plan to identify risks which are

11  likely to be insurable in the authorized market.

12         b.  To package such risks for removal or take-out from

13  the Florida Windstorm Underwriting Association.

14         c.  To obtain a better overall view of the legitimate

15  factors that make a risk uninsurable or difficult to place on

16  the authorized market.

17         3.  Beginning 90 days after the effective date of this

18  act, the market assistance plan shall provide to the

19  department quarterly reports reflecting the ongoing risk

20  analysis, with a final report prior to January 1, 2000. The

21  reports shall include recommendations to enhance policy

22  removal and takeouts and may include legislative

23  recommendations. The analysis may be conducted by a

24  consultant.

25         (d)  Beginning on July 1, 1999, the market assistance

26  plan shall begin placement of residential coverage risks

27  unable to procure coverage in the voluntary market through

28  assignment or placement with the FAIR Plan, as appropriate.

29  Every authorized insurer writing residential coverage in this

30  state shall accept assignments of policies from the market

31  assistance plan, as follows:

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  1         1.  No risk shall be placed with the FAIR Plan without

  2  first being reviewed by the market assistance plan. In

  3  reviewing the risk, the market assistance plan shall identify

  4  those risks which may be eligible for placement with the FAIR

  5  Plan, which risks shall be forwarded to the FAIR Plan. All

  6  other residential coverage risks, except those that do not

  7  meet the minimum underwriting standards of the FAIR Plan,

  8  shall be assigned by the market assistance plan. The FAIR Plan

  9  shall underwrite the risks forwarded by the market assistance

10  plan and may reject risks which the Plan determines are

11  ineligible for coverage either because such risks do not meet,

12  or because such risks exceed, underwriting standards.

13         2.  Assigned policies shall be written on forms and at

14  rates filed by the market assistance plan with, and approved

15  by, the department pursuant to ss. 627.062, 627.0629, 627.410,

16  and 627.411 and for such purpose the market assistance plan

17  may file forms and rates for use by assigned insurers. The

18  market assistance plan may contract with a rating

19  organization, licensed pursuant to s. 627.221, to compile data

20  and file rates in accordance with this subparagraph. The

21  initial rates and forms of the market assistance plan shall be

22  those approved for use by the Residential Property and

23  Casualty Joint Underwriting Association as of July 1, 1999.

24  The assignments shall be provided for in the plan and shall be

25  made on a continuing rotating basis to each insurer such that

26  each insurer's share of the total property exposure assignment

27  is approximately equal to such insurer's proportional share of

28  net direct written premium for residential property insurance

29  issued in this state for the preceding year as that share

30  bears to the aggregate statewide direct written premium for

31

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  1  residential property insurance written in this state for that

  2  year for all insurers subject to the assignments.

  3         3.  If an insurer believes that the assignment of risks

  4  would result in the insurer's insolvency or impair the

  5  insurer's capital and surplus under the respective definitions

  6  provided in s. 631.011(9), (10), and (11), the insurer may

  7  petition the department for deferment or revision, in whole or

  8  in part, of the selection and assignment of such risks. The

  9  insurer shall bear the burden of proving such resulting

10  insolvency or impairment of capital or surplus. If a deferment

11  or revision of assignment of risks is granted, the insurer

12  shall remain subject to assignment of risks in response to

13  subsequent annual filings.

14         4.a.  The market assistance plan shall identify the

15  commercial lines residential policies and the personal lines

16  residential policies which must be assigned to each insurer.

17  The identified policies shall not include wind coverage for

18  any risk located in any Florida Windstorm Underwriting

19  Association eligible area and any such risk shall be forwarded

20  to the Florida Windstorm Underwriting Association for wind

21  coverage and assigned for all other covered perils. The

22  identified policies shall not include any policy covering a

23  substandard or low-value risk eligible for placement with the

24  FAIR Plan established under s. 627.3518. The selection and

25  subsequent assignment shall be coordinated by the market

26  assistance plan among the various insurers by allocating the

27  distribution of the removed policies among such insurers in

28  such a manner as to limit adverse solvency consequences, to

29  avoid excess concentration of policies in any one area with

30  respect to the insurer's residential coverage book of

31  business, to take into account the characteristics of risks

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  1  underwritten in the voluntary market by the assigned insurer

  2  and to attempt to match assigned risks as closely as possible

  3  to the insurers expertise, and to take into account variations

  4  in the market value of the assigned risks.

  5         b.  If more than one insurer within an insurer group is

  6  to write residential coverage in this state, insurers in the

  7  group receiving the assignments may cede the assignments among

  8  authorized members of the group as the group desires so long

  9  as the assuming insurer meets all statutory requirements with

10  respect to solvency, the cession will not adversely affect the

11  interests of the policyholders to be placed, and the ceding

12  insurer retains liability for losses on the policies if the

13  assuming insurer is unable to meet its obligations under the

14  policies.

15         c.  No insurer receiving assignments under this

16  paragraph shall be eligible for any assessment credits or

17  bonuses authorized under s. 627.3511 with respect to assigned

18  policies.

19         5.  Each insurer with assigned policies must renew each

20  policy at rates and on forms specified by the market

21  assistance plan for at least three additional 1-year terms,

22  unless canceled by the insurer for a lawful reason other than

23  reduction of hurricane exposure or unless nonrenewed by the

24  policyholder. For each assigned policy canceled or nonrenewed

25  by the insurer for any reason during the coverage period

26  required by this paragraph, the insurer shall accept from the

27  market assistance plan, if available, one additional policy

28  covering a risk similar to the risk covered by the canceled or

29  nonrenewed policy.

30         6.  If an insurer fails to accept the residential

31  policies selected by the market assistance plan, the failure

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  1  shall be treated as a willful violation of the Florida

  2  Insurance Code. Each policy refused or rejected by an insurer

  3  shall constitute a separate violation.

  4         7.  For the purposes of this paragraph and paragraphs

  5  (b) and (c):

  6         a.  "Residential coverage" has the same meaning

  7  provided in s. 627.4025.

  8         b.  "Insurer" means an insurer, other than a joint

  9  underwriting association, authorized to write residential

10  coverage insurance in this state, provided, if the insurer is

11  a member of an insurer group of which more than one member is

12  authorized to write residential coverage insurance in this

13  state, "insurer" means all authorized members of the group,

14  collectively or individually as the group elects, which

15  election shall be indicated in the reports required under this

16  section, and once made, shall not be changed for the calendar

17  year, and the group shall be bound by such election. As used

18  in this section, "insurer group" means the insurer group

19  required to be reported in the holding company registration

20  statement as provided in s. 628.801 and rules adopted under

21  such section.

22         8.a.  The department may adopt rules to implement the

23  provisions of this subsection. In adopting the rules, the

24  department may adopt any reasonable methods to accomplish the

25  essential purpose of this subsection, which is to properly

26  distribute insurable risks within the voluntary market and

27  substandard or low-value risks to the FAIR Plan. The rules may

28  provide for the method of assignment, including limiting

29  adverse solvency consequences to affected insurers.

30         b.  The department may require the revision or

31  amendment of the market assistance plan's plan of operation or

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  1  bylaws as necessary to implement this section or to accomplish

  2  the section's purpose.

  3         9.  Groups of insurers not under common ownership or

  4  management may form a limited assignment distribution

  5  arrangement whereby one or more members of the arrangement

  6  write assigned risk business on behalf of the members of the

  7  arrangement in return for consideration from the other

  8  participating insurers for not writing the business.

  9         (2)(a)  Each person serving as a member of the board of

10  governors of the Residential Property and Casualty Joint

11  Underwriting Association shall also serve as a member of the

12  board of governors of the market assistance plan.

13         (b)  The plan shall be funded through payments from the

14  Residential Property and Casualty Joint Underwriting

15  Association and annual assessments of residential property

16  insurers in the amount of $450. After July 1, 1999, the plan

17  funding obligations of the Residential Property and Casualty

18  Joint Underwriting Association shall be transferred to the

19  FAIR Plan.

20         (c)  The plan is not required to assist in the

21  placement of any workers' compensation, employer's liability,

22  malpractice, or motor vehicle insurance coverage.

23         Section 9.  Section 627.3516, Florida Statutes, is

24  amended to read:

25         627.3516  Residential property insurance market

26  coordinating council.--The Florida Windstorm Underwriting

27  Association, and the Residential Property and Casualty Joint

28  Underwriting Association, while in existence, the FAIR Plan,

29  after being established, and the market assistance plan shall

30  create a residual property insurance market coordinating

31  council to assure that each association is informed of the

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  1  activities and plans of the other. The coordinating council

  2  shall consist of the insurance consumer advocate, who shall

  3  chair the council, the executive director of each of the

  4  associations, and the chair of the governing board of each of

  5  the associations. The coordinating council may, from time to

  6  time, recommend to the Insurance Commissioner presiding

  7  officers of the Legislature proposals to improve coordination

  8  between the associations or eliminate unnecessary duplication

  9  of efforts; however, any such recommendation must also include

10  an analysis of the impact of the recommendation on the

11  financial arrangements of each association and on the state's

12  efforts to restore the voluntary property insurance market.

13  The coordinating council shall, on March 1 of each year,

14  provide a report of its activities during the preceding year

15  to the Insurance Commissioner presiding officers of the

16  Legislature.

17         Section 10.  Section 627.3518, Florida Statues, is

18  created read:

19         627.3518  Fair Access to Insurance Requirements (FAIR)

20  Plan.--

21         (1) PURPOSES.--

22         (a)  The purpose of this section is to assure, by

23  establishment of a plan to ensure fair access to insurance

24  requirements, the availability of residential property

25  insurance for risks that are owner occupied, low value, and

26  high hazard, and that are unable to obtain residential

27  property insurance in the authorized market due to the

28  condition of the property, the structural soundness of the

29  property, or other matters relating to the condition of the

30  home, other than risk of loss due to hurricane damage.

31

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  1         (b)  The purpose of this section is also to authorize

  2  the plan to act as a facilitator in assisting in the upgrading

  3  of owner-occupied low-value high-hazard residential property

  4  and in obtaining necessary resources to accomplish the

  5  purposes of this section. To this end the association shall

  6  cooperate with state and local government as well as financial

  7  institutions, nonprofit foundations, and other entities.

  8         (2)  DEFINITIONS.--For purposes of this section, unless

  9  the provision of this section or the context otherwise

10  requires:

11         (a)  "Association" means the FAIR Plan Association

12  created under subsection (3) to assist eligible persons in

13  securing residential insurance coverage.

14         (b)  "High hazard" means a residential coverage risk

15  which presents a greater hazard of risk than a typical

16  residential property due to:

17         1.  The physical condition of the property;

18         2.  A building code violation;

19         3.  Construction under an antiquated building code or a

20  former construction not meeting current building codes;

21         4.  Deteriorated or improper wiring; or

22         5.  The present condition of the residential property

23  as to housekeeping, including, but not limited to,

24  overcrowding or storage of rubbish or flammable materials.

25

26  The term "high hazard" does not include hazard relating to

27  hurricane or windstorm factors.

28         (c)  "Residential coverage" means personal lines

29  residential coverage as provided in s. 627.4025.

30         (d)  "Net direct written premium" means gross direct

31  premiums charged with respect to property in this state on all

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  1  policies of residential coverage including the residential

  2  coverage premium components of all multi-peril policies, less

  3  return premiums, dividends paid or credited to policyholders,

  4  or the unused or unabsorbed portions of premium deposits.

  5         (e)  "Insurer" or "member insurer" means an authorized

  6  insurer, as defined by s. 624.09, as to residential coverage

  7  in this state.

  8         (3)  FAIR Plan Association; membership.--

  9         (a)  The FAIR Plan Association is hereby created. The

10  association shall operate under the supervision and approval

11  of a board of governors consisting of 15 individuals,

12  including one who is elected as chairperson. The board shall

13  be established under the direction of the department on or

14  before July 1, 1998, and shall consist of the insurance

15  consumer advocate appointed under s. 627.0613 and 14 members

16  appointed by the Insurance Commissioner, consisting of:

17         1.  Four consumer representatives, two of whom must be

18  individuals who are minority persons as defined in s.

19  288.703(3), and one of whom shall have expertise in the field

20  of mortgage lending.

21         2.  Two representatives of the insurance industry, at

22  least one of whom must be an individual who is a minority

23  person as defined in s. 288.703(3).

24         3.  Three representatives of the member insurers, two

25  of whom shall be representatives of insurers with expertise in

26  the underwriting of low value residential coverage.

27         4.  One member who is a representative of residential

28  property and casualty insurance agents.

29         5.  Two individuals representing nonprofit

30  organizations involved in assistance to low income persons.

31

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  1         6.  Two individuals who are experts with respect to

  2  residential building codes used in this state.

  3         (b)1.  Each insurer, as a condition of authority to

  4  transact insurance with respect to residential coverage in

  5  this state, shall participate in the association in accordance

  6  with this section and an approved plan of operation. A member

  7  insurer's participation shall begin on the first day of the

  8  calendar year following the year in which the member was

  9  issued a certificate of authority to transact insurance for

10  residential coverage lines of business in this state and shall

11  terminate one year after the end of the first calendar year

12  during which the member no longer holds such certificate.

13         2.  To the extent necessary to secure funds for payment

14  of covered claims and also to pay reasonable costs to

15  administer such payments and other costs and expenses of the

16  association, including, but not limited to, those relating to

17  association debts, letters of credit, bonds, and the funding

18  of the market assistance plan pursuant to s. 627.3515(2)(b),

19  the department, upon certification of the board, shall levy

20  assessments in the proportion that each insurer's net direct

21  written premiums in this state bears to the total of such net

22  direct written premiums received in this state by all such

23  insurers for the preceding calendar year. Assessments shall be

24  remitted to and administered by the board in the manner

25  specified by the approved plan of operation. Each insurer so

26  assessed shall have at least 30 days' written notice as to the

27  date the assessment is due and payable. Each assessment shall

28  be made as a uniform percentage applicable to the net direct

29  written premiums of each insurer. Assessments levied against

30  any insurer shall not exceed in a single year more than 2

31  percent of that insurer's net direct written premiums in this

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  1  state during the calendar year next preceding the date of such

  2  assessments. The board shall certify to the department the

  3  need for annual assessments as to a particular calendar year

  4  and any startup or interim assessments that the board deems to

  5  be necessary to sustain operations as to a particular year

  6  pending the receipt of annual assessments. Upon verification,

  7  the department shall approve such certification, and the board

  8  shall levy such annual, startup, or interim assessments. The

  9  board shall take all reasonable and prudent steps necessary to

10  collect the amount of assessment due from each member insurer,

11  including, if prudent, filing suit to collect such assessment.

12  If the board is unable to collect an assessment from any

13  member insurer, the uncollected assessments shall be levied as

14  an additional assessment against the participating member

15  insurers and any member insurer required to pay an additional

16  assessment as a result of such failure to pay shall have a

17  cause of action against such nonpaying member insurer.

18         3.  If sufficient funds from such assessments, together

19  with funds previously raised, are not available in any year to

20  make all the payments or reimbursements owing to insurers for

21  such year, the funds available shall be prorated and the

22  unpaid portion shall be paid as soon thereafter as funds

23  become available. The costs of forming the board and

24  establishing a plan of operation shall be borne by the

25  Residential Property and Casualty Joint Underwriting

26  Association.

27         4.  Assessments shall be included as an appropriate

28  factor in the making of rates.

29         5.  Except as otherwise provided, no state funds of any

30  kind shall be allocated or paid to such association or any

31  account of the association.

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  1         6.a.(I)  In addition to assessments otherwise

  2  authorized in subparagraph 2., as a temporary measure related

  3  to costs and expenses caused by a catastrophic event, and to

  4  the extent necessary to secure the funds necessary to pay or

  5  to retire indebtedness, including, without limitation, the

  6  principal, redemption premium, if any, and interest on, and

  7  related costs of issuance of, bonds issued under s. 125.013 or

  8  s. 166.111 or otherwise, and the funding of any reserves and

  9  other payments required under the bond resolution or trust

10  indenture pursuant to which such bonds have been issued, the

11  department, upon certification by the board, shall levy

12  additional assessments upon insurers holding a certificate of

13  authority. The assessments payable under this

14  sub-sub-subparagraph by any insurer shall not exceed in any

15  year more than 2 percent of that insurer's direct written

16  premiums, net of refunds, in this state during the preceding

17  calendar year.

18         (II)  The governing body of any unit of local

19  government, any residents of which are insured by the

20  association, may issue bonds, as defined in s. 125.013 or s.

21  166.101, from time to time to fund an assistance program, in

22  conjunction with the association, for the purpose of defraying

23  deficits of the association. In order to avoid needless and

24  indiscriminate proliferation, duplication, and fragmentation

25  of such assistance programs, any such unit of local government

26  may provide for the payment of losses, regardless of whether

27  or not the losses occurred within or outside of the

28  territorial jurisdiction of the local government. Revenue

29  bonds may not be issued until validated pursuant to chapter

30  75, unless a state of emergency is declared by executive order

31  or proclamation of the Governor pursuant to s. 252.36 making

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  1  such findings as are necessary to determine that it is in the

  2  best interests of, and necessary for, the protection of the

  3  public health, safety, and general welfare of residents of

  4  this state and the protection and preservation of the economic

  5  stability of insurers operating in this state, and declaring

  6  it an essential public purpose to permit certain

  7  municipalities or counties to issue such bonds as will permit

  8  relief to claimants and policyholders of the joint

  9  underwriting association and insurers responsible for

10  apportionment of association losses. Any such unit of local

11  government may enter into such contracts with the association

12  and with any other entity created pursuant to this subsection

13  as are necessary to implement this sub-sub-subparagraph. Any

14  bonds issued under this sub-sub-subparagraph shall be payable

15  from and secured by moneys received by the association from

16  assessments under this subparagraph and assigned and pledged

17  to or on behalf of the unit of local government for the

18  benefit of the holders of such bonds. The funds, credit,

19  property, and taxing power of the state or of the unit of

20  local government shall not be pledged for the payment of such

21  bonds. If any of the bonds remain unsold 60 days after

22  issuance, the department shall require all insurers subject to

23  assessment to purchase the bonds, which shall be treated as

24  admitted assets. Each insurer shall be required to purchase

25  that percentage of the unsold portion of the bond issue that

26  equals the insurer's relative share of assessment liability

27  under this subparagraph. An insurer shall not be required to

28  purchase the bonds to the extent that the department

29  determines that the purchase would endanger or impair the

30  solvency of the insurer.

31

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  1         (III)  Any assessments authorized under this

  2  subparagraph shall be levied by the department upon insurers,

  3  upon certification by the board as to the need for such

  4  assessments, in each year that bonds are outstanding, in such

  5  amounts up to the 2 percent limit as required in order to

  6  provide for the full and timely payment of the principal of,

  7  redemption premium, if any, and interest on, such bonds and

  8  any related costs of issuing such bonds. The assessments

  9  provided for in this subparagraph are hereby assigned and

10  pledged to any bond agent, for the benefit of the holders of

11  such bonds, in order to enable the bond agent to provide for

12  the payment of the principal of, redemption premium, if any,

13  and interest on such bonds, the cost of issuing such bonds,

14  and the funding of any reserves and other payments required

15  under the bond resolution or trust indenture pursuant to which

16  such bonds have been issued, without the necessity for any

17  further action by the association, the department, or any

18  other party. To the extent that bonds are issued under this

19  subparagraph, the proceeds of assessments levied under this

20  subparagraph shall be remitted directly to and administered by

21  the trustee appointed for such bonds.

22         (IV)  The assessments authorized under this

23  subparagraph shall continue as long as any bonds issued or

24  other indebtedness incurred with respect to a deficit for

25  which the assessment was imposed remain outstanding, unless

26  adequate provision has been made for the payment of such bonds

27  or other indebtedness pursuant to the documents governing such

28  bonds or other indebtedness.

29         b.  In order to ensure that insurers paying assessments

30  levied under this subparagraph continue to charge rates that

31  are not inadequate or excessive, within 90 days after being

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  1  notified of such assessments, each insurer that is to be

  2  assessed pursuant to this subparagraph shall make a property

  3  insurance rate filing pursuant to s. 627.062. If the filing

  4  reflects a rate change that, as a percentage, is equal to the

  5  difference between the rate of such assessment and the rate of

  6  the previous year's assessment under this subparagraph, the

  7  filing shall consist of a certification containing a statement

  8  to that effect and shall be deemed approved when made, subject

  9  to the department's continuing authority to require actuarial

10  justification as to the adequacy of any rate at any time. Any

11  rate change of a different percentage shall be subject to the

12  standards and procedures of s. 627.062.

13         (c)  The FAIR Plan is not a state agency, board, or

14  commission. However, for the purposes of s. 199.183(1), the

15  FAIR Plan shall be considered a political subdivision of the

16  state and shall be exempt from the corporate income tax.

17         (d)  Notwithstanding any other provision of law:

18         1.  The pledge or sale of, the lien upon, and the

19  security interest in any rights, revenues, or other assets of

20  the association, created or purported to be created pursuant

21  to any financing documents to secure any bonds or other

22  indebtedness of the association, are valid and shall remain

23  valid and enforceable, notwithstanding the commencement of,

24  during the continuation of, and after any rehabilitation,

25  insolvency, liquidation, bankruptcy, receivership,

26  conservatorship, reorganization, or similar proceeding against

27  the association under the laws of this state.

28         2.  No such proceeding shall relieve the association of

29  its obligation, or otherwise affect its ability to perform its

30  obligation, to continue to collect, or levy and collect,

31  assessments, market equalization, or other surcharges under

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  1  paragraph (b), or any other rights, revenues, or other assets

  2  of the association pledged pursuant to any financing

  3  documents.

  4         3.  Each such pledge or sale of, lien upon, and

  5  security interest in, including the priority of such pledge,

  6  lien, or security interest, any such assessments, market

  7  equalization, or other surcharges, or other rights, revenues,

  8  or other assets which are collected, or levied and collected,

  9  after the commencement of and during the pendency of, or

10  after, any such proceeding, shall continue unaffected by such

11  proceeding. As used in this subsection, the term "financing

12  documents" means any agreement, instrument, or other document

13  now existing or hereafter created evidencing any bonds or

14  other indebtedness of the association or pursuant to which any

15  such bonds or other indebtedness has been or may be issued and

16  pursuant to which any rights, revenues, or other assets of the

17  association are pledged or sold to secure the repayment of

18  such bonds or indebtedness, together with the payment of

19  interest on such bonds or such indebtedness, or the payment of

20  any other obligation of the association related to such bonds

21  or indebtedness.

22         4.  Any such pledge or sale of assessments, revenues,

23  contract rights, or other rights or assets of the association

24  shall constitute a lien and security interest, or sale, as the

25  case may be, that is immediately effective and attaches to

26  such assessments, revenues, or contract rights or other rights

27  or assets, whether or not imposed or collected at the time the

28  pledge or sale is made. Any such pledge or sale is effective,

29  valid, binding, and enforceable against the association or

30  other entity making such pledge or sale and valid and binding

31  against and superior to any competing claims or obligations

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  1  owed to any other person or entity, including policyholders in

  2  this state, asserting rights in any such assessments,

  3  revenues, or contract rights or other rights or assets to the

  4  extent set forth in and in accordance with the terms of the

  5  pledge or sale contained in the applicable financing

  6  documents, whether or not any such person or entity has notice

  7  of such pledge or sale and without the need for any physical

  8  delivery, recordation, filing, or other action.

  9         (e)  The association shall contract with the Florida

10  Hurricane Catastrophe Fund, established under s. 215.555, with

11  respect to the association's covered policies and pay the

12  appropriate reimbursement premium for such policies.

13         (4)  THE PLAN OF OPERATION.--

14         (a)  Within 90 days after the effective date of this

15  act, the association shall submit to the department for review

16  a proposed plan of operation, consistent with the provisions

17  of this section, creating an association consisting of all

18  insurers licensed to write and engaged in writing in this

19  state, on a direct basis, residential coverage or any

20  component of such coverage in homeowner's or other dwelling

21  multi-peril policies. Every such insurer shall be a member of

22  the association and shall remain a member as a condition of

23  its authority to transact insurance business in this state.

24         (b)  The plan shall be subject to the approval of the

25  department by order and shall go into effect upon approval by

26  the department. The department may, at any time, withdraw

27  approval or may, at any time after approval has been given,

28  revoke the approval if necessary to carry out the purposes of

29  this section. The withdrawal or revocation of approval shall

30  not affect the validity of any policies executed prior to the

31  date of the withdrawal or revocation. If the department

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  1  disapproves or withdraws or revokes approval to any part of

  2  the plan of operation, the association shall within 30 days

  3  after such disapproval, withdrawal, or revocation submit to

  4  the department for review an appropriately revised plan or

  5  part of such plan, and if the association fails to do so, or

  6  if the revision is unacceptable, the department shall approve,

  7  by order, such plan of operation or part of such plan as the

  8  department deems necessary to carry out the purpose of this

  9  section.

10         (c)1.  The association may, on its own initiative or at

11  the request of the department, amend the plan of operation,

12  subject to approval by order of the department.

13         2.  The department or any person designated by the

14  department may review and examine all the books, records,

15  files, papers, and documents that relate to operation of the

16  association, and may summon, qualify, and examine as witnesses

17  all persons having knowledge of such operations, including

18  officers, agents, or employees of the association.

19         (d)  The plan shall provide for the identification of

20  policies of the Residential Property and Casualty Joint

21  Underwriting Association eligible for coverage by the

22  association and assumption of such policies pursuant to s.

23  627.351(6)(p).

24         (e)  The plan shall provide for effective dates for

25  coverage consistent with industry practice, provided the

26  effective date of the coverage system adopted under the plan

27  is selected to provide an adequate system of control to limit

28  or eliminate the possibility of fraud in the establishment of

29  effective dates.

30         (f)1.  The plan shall require that a certificate of

31  eligibility accompany the application for coverage. To be

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  1  eligible, the insurance applicant must be unable to procure

  2  residential coverage from authorized insurers for reasons

  3  other than risk of loss due to hurricane damage. The applicant

  4  shall be required to document a diligent effort by filing a

  5  certificate of eligibility evidencing rejections, and the

  6  reasons for such rejections, by three authorized insurers who,

  7  at the time of rejection, were authorized to write and

  8  actually writing the kind and class of insurance sought by the

  9  applicant. In addition, to be eligible for coverage by the

10  association, the applicant must meet the requirements of this

11  section. The certificate shall indicate the names of the

12  insurers and the insurers' representatives that rejected the

13  residential property coverage for the applicant.

14         2.  The certificate shall be attested to by an agent to

15  verify its accuracy and completeness.

16         3.  Upon a determination by the association that a

17  certificate of eligibility is defective due to an omission or

18  mistake which is immaterial to determining the eligibility of

19  the applicant for coverage, the association shall immediately

20  provide written notice of any defect to the insured and to the

21  agent of record. The notice shall inform the applicant that

22  the applicant has a reasonable period as specified in the

23  plan, but at least 10 days after the postmark date of the

24  notice, to correct any defect and postmark the correction or

25  missing information for return to the plan.

26         4.  If any defect is not corrected within such time

27  period, the policy shall be cancelable upon 10 days notice by

28  registered or certified mail to the policyholders. Providing a

29  photocopy of the application or certificate denoting any

30  specific defects shall be adequate to comply with the

31  requirement to specify the defects in the certificate.

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  1         5.  For purposes of this paragraph, failure to provide

  2  a required telephone number, time of day, producer number,

  3  producer signature, date, or information that is omitted but

  4  can be determined by questions answered or information

  5  provided in other sections of the application, or documents

  6  submitted as part of the application, shall be considered an

  7  omission or mistake immaterial to determining the eligibility

  8  of the applicant for the plan coverage. A certificate of

  9  eligibility that is submitted to the association as to which

10  the applicant's agent did not demonstrate a good faith effort

11  in completing or in which the applicant's agent has made a

12  willful misrepresentation shall not be subject to this

13  paragraph. If the defect is material to determining the

14  eligibility of the applicant for coverage, the policy may be

15  canceled in accordance with the provisions of subparagraph 4.

16         (g)  In no case shall the association underwrite a

17  residential risk exceeding $60,000 in property damage coverage

18  for the insured structure or such lower limits of coverage as

19  the plan of operation may provide. The $60,000 maximum limit

20  for property damage coverage shall be adjusted annually based

21  on the most recent consumer price index.

22         (h)  Only owner-occupied residential risks shall be

23  eligible for coverage by the association.

24         (i)  Windstorm coverage from a risk underwritten by the

25  FAIR Plan, which risk is located within an eligible area under

26  the Florida Windstorm Underwriting Association, shall be

27  placed with the Florida Windstorm Underwriting Association.

28         (j)  The standards and criteria used in underwriting by

29  the association shall be reasonable and specified in or

30  incorporated by reference in the plan of operation of the

31

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  1  association and shall be designed to allow coverage for risks

  2  that are low value and high hazard.

  3         (k)  The plan of operation shall include minimum

  4  underwriting standards, which risks must meet or exceed to be

  5  eligible for coverage by the association. Prohibited

  6  conditions include:

  7         1.  The existence of an order of condemnation or other

  8  order requiring that the property be vacated or demolished.

  9         2.  The existence of specific characteristics of

10  ownership, condition, occupancy, or maintenance which are

11  violative of public policy.

12         3.  The existence of specific characteristics of

13  ownership, condition, occupancy, or maintenance which result

14  in unreasonable exposure to loss.

15         4.  The existence of hazardous conditions or use within

16  the control of the owner to correct.

17         5.  The premises are vacant.

18         (l)  The plan of operation shall include rating

19  criteria, including, but not limited to:

20         1.  Condition of the structure.

21         2.  Age of the structure.

22         3.  Prior loss history.

23         4.  Housekeeping factors which affect insurability,

24  such as vacancy, overcrowding, and storage of rubbish or

25  flammable materials.

26         (m)  Neighborhood or area location, or any hazard

27  beyond the control of the residential property owner, shall

28  not be deemed to be acceptable criteria for rejecting a risk.

29  The association shall establish a coverage review committee

30  which shall include one or more persons familiar with the

31  coverage concerns of mortgagors of residential dwellings,

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  1  including, but not limited to, licensed financial

  2  institutions. The committee shall make recommendations to the

  3  association of coverage standards which meet the needs of

  4  mortgagees. The association shall provide to the department

  5  copies of the recommendations when making related form

  6  filings.

  7         (n)  If the risk does not meet the minimum underwriting

  8  standards but can be improved to meet or exceed the standards,

  9  the association shall promptly advise the applicant or

10  policyholder what improvements should be made to the risk, and

11  the notification and advice to the applicant or policyholder

12  shall state which improvements by the applicant or

13  policyholder are necessary for continued coverage by the

14  association. When the applicant has made the necessary

15  improvements, the applicant may notify the association which,

16  when so notified, shall verify that the necessary improvements

17  have been made.

18         (o)  The acceptance or rejection of a risk by the

19  association shall be construed as the private placement of

20  insurance and the provisions of chapter 120 shall not apply.

21         (p)  If the property is subject to one or more

22  substandard conditions, but the property is still eligible for

23  coverage through the association, surcharges may be imposed in

24  conformity with any applicable high hazard rating plan

25  approved for use by the association.

26         (q)1.  The plan shall provide for methods to encourage

27  persons to secure residential coverage through the voluntary

28  market from an insurer authorized to transact residential

29  coverage in this state by informing such persons of the

30  necessary steps to take in order to secure the such insurance.

31  The plan shall provide for the involvement of the association

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  1  in programs designed to aid persons in the rehabilitation of

  2  their properties so as to become eligible for coverage in the

  3  voluntary market. The plan shall provide for the association

  4  to cooperate with the state and local government, financial

  5  institutions, and nonprofit foundations and other entities in

  6  facilitating the rehabilitation of such properties.

  7         2.  Nothing in this section precludes an insurer

  8  authorized to transact residential coverage from removing a

  9  risk from the association at any time for coverage by the

10  insurer removing such risk. Each policyholder, as a part of

11  the coverage document, shall agree to the possibility of a

12  removal by any means whatsoever, which may include a novation

13  of the association issued policy, mid-term policy

14  cancellation, or upon expiration of the term of the policy. No

15  risk is eligible for coverage by the association if an insurer

16  authorized to transact residential property coverage is

17  willing to underwrite the risk.

18         (r)  The plan of the association may provide for a

19  method whereby insurers who voluntarily write residential

20  coverage on risks located in areas formerly designated as

21  eligible areas for coverage under the Florida Windstorm

22  Underwriting Association may receive a reduction in the

23  insurer's assessments which the insurer would otherwise

24  receive from the association. Nothing in this subsection

25  precludes the incorporation in the plan of other incentives to

26  voluntary writings of residential coverage for owner-occupied,

27  low value, and high hazard risks.

28         (s)  The proposed plan shall authorize the association

29  to assume and cede reinsurance.

30         (t)  Under the plan, each insurer shall participate in

31  the writings, expenses, and losses of the association in the

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  1  proportion that the insurer's premiums written during the

  2  preceding calendar year bear to the aggregate premiums written

  3  by all insurers in the program, excluding that portion of the

  4  premiums written attributable to the operation of the

  5  association as governed by paragraph (c).

  6         (u)  The plan shall provide for the deferment, in whole

  7  or in part, of the assessment of a member insurer if the

  8  department finds that payment of the assessment would endanger

  9  or impair the solvency of the insurer. If an assessment

10  against a member insurer is deferred in whole or in part, the

11  amount by which such assessment is deferred may be assessed

12  against the other member insurers in a manner consistent with

13  the basis for assessments set forth in paragraph (3)(b).

14         (v)  The plan shall provide that if assessments are

15  made under paragraph (3)(b), or by the Florida Windstorm

16  Underwriting Association under s. 627.351(2)(b)3.d.(I) or

17  (II), the association shall levy upon association

18  policyholders in the association's next rate filing, or by a

19  separate rate filing solely for this purpose, a market

20  equalization surcharge in a percentage equal to the total

21  amount of such regular assessments divided by the aggregate

22  statewide direct written premium for residential coverage for

23  member insurers for the prior calendar year. Market

24  equalization surcharges under this paragraph are not

25  considered premium and are not subject to commissions, fees,

26  or premium taxes, however, failure to pay a market

27  equalization surcharge shall be treated as failure to pay

28  premium.

29         (w)  The plan shall provide that association policies

30  and applications must include a notice that the association

31  policy could, under this section or s. 627.3511, be replaced

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  1  with a policy issued by an admitted insurer that does not

  2  provide coverage identical to the coverage provided by the

  3  association. The notice shall also specify that acceptance of

  4  association coverage creates a conclusive presumption that the

  5  applicant or policyholder is aware of such potential.

  6         (5)  IMMUNITY FROM LIABILITY; PROCUREMENT.--

  7         (a)1.  There shall be no liability on the part of, and

  8  no cause of action of any nature shall arise against, any

  9  member insurer or agents or employees of a member insurer, the

10  association or agents or employees of the association, or the

11  members of the board of governors for any action taken by such

12  persons or association in the performance of duties required

13  under this section. Such immunity does not apply to actions

14  for breach of any contract or agreement pertaining to

15  insurance, or any other willful tort.

16         2.  There shall be no liability on the part of, and no

17  cause of action of any nature shall arise against, the

18  Insurance Commissioner or the department or employees or

19  agents of the department for any action taken by such persons

20  or the department in the performance of duties required under

21  this section. The provisions of s. 768.28 shall apply with

22  respect to any such action.

23         (b)  The association shall not be subject to the

24  requirements of chapter 287 or any other law or rule governing

25  procurement of commodities or services or to any state law

26  governing leasing of office space. However, to the extent

27  practicable, the association, except when purchasing legal,

28  auditing, or appraisal services, shall apply the principles of

29  competitive procurement by formal invitation to bid or by

30  requests for proposals and negotiated procurement.

31

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  1         (6)  FEDERAL REINSURANCE PROGRAM.--In addition to any

  2  powers conferred upon the department by this section or any

  3  other law, the department may do anything necessary to enable

  4  this state and any insurer participating in any program

  5  approved by the department to fully participate in any federal

  6  program of reinsurance which may be enacted for purposes

  7  similar to the purposes of this section.

  8         (7)  REPORTS CONCERNING RISKS INSURED.--The department

  9  may require information or reports from the FAIR Plan

10  concerning risks insured under the plan as the department

11  deems necessary to effect the purposes of this section.

12         (8)  RATES AND FORMS.--Rates and forms for the FAIR

13  Plan shall be subject to ss. 627.062, 627.0629, 627.410, and

14  627.411 and other applicable provisions of the Florida

15  Insurance Code and rules adopted under the code. The plan

16  shall not return unexpended portions of premiums to members.

17  The forms shall be specifically tailored to the exigencies of

18  underwriting low-value and high-hazard risks and the rates

19  shall be actuarially sound with respect to these risks.

20  However, the rates and the forms shall not include any

21  provision which would penalize the policyholder for his or her

22  income level, neighborhood, or for other factors contrary to

23  public policy.

24         (9)  POWERS OF THE ASSOCIATION.--The association shall

25  have all powers necessary and proper to carry out the purposes

26  of this section and may:

27         (a)  Employ or retain necessary staff, including legal

28  staff and consultants.

29         (b)  Reimburse the staff, consultants, and board

30  members for travel and expenses.

31

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  1         (c)  Borrow funds necessary to effectuate the purposes

  2  of this section in accordance with provisions of this section

  3  and with the plan of operation.

  4         (d)  Sue or be sued, provided that service of process

  5  shall be made upon the person registered with the department

  6  as agent for the receipt of service of process.

  7         (e)  Negotiate and become a party to such contracts as

  8  are necessary to carry out the purpose of this section.

  9  Without limitation, the association may enter into such

10  contracts with a county, municipality, or bond agent as

11  necessary in order for the county, municipality, or bond agent

12  to issue bonds under s. 125.013 or s. 166.111 or under any

13  other authority. In connection with the issuance of such bonds

14  and the entering into of the necessary contracts, the

15  association may agree to such terms and conditions as it deems

16  necessary and proper.

17         (f)  Provide that the association may employ or

18  otherwise contract with individuals or other entities to

19  provide administrative or professional services that may be

20  appropriate to effectuate the plan. The association shall have

21  the power to borrow funds, by issuing bonds or by incurring

22  other indebtedness, and shall have other powers reasonably

23  necessary to effectuate the requirements of this subsection.

24  The association may issue bonds or incur other indebtedness,

25  or have bonds issued on behalf of the association by a unit of

26  local government pursuant to paragraph (c) in the absence of a

27  hurricane or other weather-related event, upon a determination

28  by the association, subject to approval by the department,

29  that such action would enable the association to efficiently

30  meet its financial obligations and that such financings are

31  reasonably necessary to effectuate the requirements of this

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  1  subsection. The association may take any action needed to

  2  facilitate tax-free status for any such bonds or indebtedness,

  3  including formation of trusts or other affiliated entities.

  4  The association may pledge assessments, projected recoveries

  5  from the Florida Hurricane Catastrophe Fund, other reinsurance

  6  recoverables, market equalization and other surcharges, and

  7  other funds available to the association as security for bonds

  8  or other indebtedness. Pursuant to s. 10, Art. I of the State

  9  Constitution, prohibiting the impairment of obligations of

10  contracts, it is the intent of the Legislature that no action

11  be taken whose purpose is to impair any bond indenture or

12  financing agreement or any revenue source committed by

13  contract to such bond or other indebtedness.

14         (g)  Exercise other powers as are necessary and proper

15  to carry out the functions and duties of the association.

16         Section 11.  Subsection (2) of section 627.4091,

17  Florida Statutes, is amended to read:

18         627.4091  Specific reasons for denial, cancellation, or

19  nonrenewal.--

20         (2)(a)  Each notice of nonrenewal or cancellation must

21  be accompanied by the specific reasons for nonrenewal or

22  cancellation, including the specific underwriting reasons, if

23  applicable.

24         (b)  An insurer may not cancel or nonrenew a policy

25  providing residential coverage as described in s. 627.4025(1)

26  for an underwriting reason unless the insurer provides the

27  policyholder, in writing, with the underwriting reason for the

28  cancellation or nonrenewal. The reason stated must be based

29  upon a specific underwriting rule on file with the department

30  or contained in an approved rating manual of a licensed rating

31  organization of which the insurer is a subscriber or member,

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  1  must cite to the specific underwriting rule being invoked as a

  2  basis for the cancellation or nonrenewal, and must state or

  3  paraphrase such underwriting rule.

  4         Section 12.  Subsection (2) of section 627.4133,

  5  Florida Statutes, is amended, and subsection (4) is added to

  6  said section, to read:

  7         627.4133  Notice of cancellation, nonrenewal, or

  8  renewal premium.--

  9         (2)  With respect to any personal lines or commercial

10  residential property insurance policy, including, but not

11  limited to, any homeowner's, mobile home owner's, farmowner's,

12  condominium association, condominium unit owner's, apartment

13  building, or other policy covering a residential structure or

14  its contents:

15         (a)  The insurer shall give the named insured at least

16  45 days' advance written notice of the renewal premium.

17         (b)  The insurer shall give the named insured written

18  notice of nonrenewal, cancellation, or termination at least 90

19  days prior to the effective date of the nonrenewal,

20  cancellation, or termination. The notice must include the

21  reason or reasons for the nonrenewal, cancellation, or

22  termination, except that:

23         1.  When cancellation is for nonpayment of premium, at

24  least 10 days' written notice of cancellation accompanied by

25  the reason therefor shall be given.

26         2.  When such cancellation or termination occurs during

27  the first 90 days during which the insurance is in force and

28  the insurance is canceled or terminated for reasons other than

29  nonpayment of premium, at least 20 days' written notice of

30  cancellation or termination accompanied by the reason therefor

31  shall be given except where there has been a material

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  1  misstatement or misrepresentation that is material to the

  2  acceptance of the risk or to the hazard assumed or failure to

  3  comply with the underwriting requirements established by the

  4  insurer. During the 20 day notice period, if a cancellation or

  5  termination is for failure to comply with an underwriting

  6  requirement established by the insurer, the insurer shall

  7  allow the insured 20 days to correct the failure prior to the

  8  cancellation or termination and if the failure is corrected

  9  the policy shall not be cancelled or terminated for that

10  reason.

11

12  After the policy has been in effect for 90 days, the policy

13  shall not be canceled by the insurer except when there has

14  been a material misstatement, a nonpayment of premium, a

15  failure to comply with the insurer's underwriting requirements

16  within 90 days after notice to the policyholder of the failure

17  provided the policyholder does not correct the failure during

18  the 90-day period established by the insurer within 90 days of

19  the date of effectuation of coverage, or a substantial change

20  in the risk covered by the policy or when the cancellation is

21  for all insureds under such policies for a given class of

22  insureds. This paragraph does not apply to individually rated

23  risks having a policy term of less than 90 days.

24         (c)  If the insurer fails to provide the notice

25  required by this subsection or fails to comply with the

26  requirements of s. 627.0651(13) or s. 627.4091, other than the

27  10-day nonpayment of premium notice, the coverage provided to

28  the named insured shall remain in effect until the effective

29  date of replacement coverage or until the expiration of a

30  period of days after the notice is given equal to the required

31  notice period, whichever occurs first. The premium for the

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  1  coverage shall remain the same during any such extension

  2  period except that, in the event of failure to provide notice

  3  of nonrenewal, if the rate filing then in effect would have

  4  resulted in a premium reduction, the premium during such

  5  extension shall be calculated based on the later rate filing.

  6         (4)  With respect to any personal lines residential

  7  property insurance policy, if the insured property is sold,

  8  and a replacement property is purchased by the named insured

  9  within 6 months after the closing of the sale of the insured

10  property, the insurer providing the property insurance

11  coverage on the insured property sold shall offer coverage for

12  such replacement property if the replacement property is of a

13  type for which the insurer has approved rates and forms, and

14  does not represent a substantial change in risk covered by the

15  insurer.

16         Section 13.  Section 627.4138, Florida Statutes, is

17  created to read:

18         627.4138  Residential coverage; restrictions on

19  cancellation or nonrenewal.--

20         (1)  For purposes of this section, the term

21  "residential coverage" shall have the same meaning as provided

22  in s. 627.4025.

23         (2)  An insurer may not cancel or nonrenew a policy of

24  residential coverage because of a property damage claim that

25  arose due to causes which were not within the control of the

26  policyholder and does not exceed 25 percent of the insured

27  value of the dwelling, unless there has been a similar claim

28  by the policyholder within the previous 5-year period.

29         (3)  With regard to policyholders who have maintained

30  residential coverage with an insurer for a period of at least

31  10 years, such insurer may not cancel or nonrenew coverage for

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  1  such policyholder solely on the basis of a single claim which

  2  was not intentionally or willfully caused by the policyholder.

  3         (4)  An insurer may not use as grounds for cancellation

  4  or nonrenewal of a policy of residential coverage notice to

  5  the insurer of damage to an insured property if a claim is not

  6  filed.

  7         (5)  The provisions of this section shall supplement

  8  and shall not restrict or replace any other provision of the

  9  Florida Insurance Code relating to the cancellation or

10  nonrenewal of a policy of residential coverage.

11         Section 14.  Legislative findings; required rate

12  reductions.--

13         (1)  The Legislature finds that:

14         (a)  The capability of the Florida Hurricane

15  Catastrophe Fund established under s. 215.555, Florida

16  Statutes, to provide reinsurance coverage to insurers has been

17  substantially enhanced by this act.

18         (b)  The act has established the Fair Access to

19  Insurance Requirements (FAIR) Plan.

20         (c)  The act has provided for the winding down of the

21  Residential Property and Casualty Insurance Joint Underwriting

22  Association established under s. 627.351(6), Florida Statutes.

23         (d)  The act has provided that the Residential Property

24  and Casualty Joint Underwriting Association will cease issuing

25  policies.

26         (e)  The act has provided that the Florida Windstorm

27  Underwriting Association, established under s. 627.351(2),

28  Florida Statutes, will reduce the geographical area in which

29  the such association writes policies covering commercial and

30  noncommercial residential property insurance risks.

31

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  1         (f)  As a consequence, the act has resulted in cost

  2  savings in taxes, administrative costs and other expenses

  3  related to overhead, and other savings in the writing of

  4  residential property insurance.

  5         (g)  It is fair and just and the interest of the public

  6  welfare requires that such savings be passed on to residential

  7  property insurance policyholders in the form of premium

  8  reductions.

  9         (2)(a)  Within 60 days after the department issues an

10  order deactivating the Residential Property and Casualty Joint

11  Underwriting Association and terminating, pursuant to s.

12  215.55(6)(a)3.b., Florida Statutes, the association's plan of

13  operation, each insurer writing residential coverage as

14  described in s. 627.4025, Florida Statutes, in this state,

15  with respect to such coverage shall reduce its rates by 15

16  percent. When an insurer files to reduce its rates by 15

17  percent, the insurer shall file a certification with the

18  department that the rate adjustment has been made, together

19  with copies of the amended rating manual pages reflecting the

20  adjustment. In lieu of filing to reduce rates by 15 percent,

21  an insurer may elect to refile its rates provided the insurer

22  demonstrates that the level of percentage savings to be passed

23  on to policyholders in view of the savings resulting from the

24  elimination of the Residential Property and Casualty Joint

25  Underwriting Association and the augmentation of the Florida

26  Hurricane Catastrophe Fund is justified and produces a rate

27  differential other than 15 percent.

28         (b)  After July 1, 2000, each insurer writing

29  residential property insurance in this state, with respect to

30  such insurance shall reflect in such insurer's next

31  residential property insurance rate filing with the Department

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  1  of Insurance any savings resulting from the reduced writings

  2  of the Florida Windstorm Underwriting Association and the

  3  augmentation of the Florida Hurricane Catastrophe Fund. When

  4  the insurer files its rates, the insurer shall justify the

  5  level of percentage savings to be passed on to policyholders

  6  in view of the savings indicated pursuant to this act.

  7         Section 15.  The Department of Insurance adopt any

  8  rules necessary to implement the provisions of this act.

  9         Section 16.  Paragraph (d) of subsection (2) of section

10  624.4071, Florida Statutes, is amended to read:

11         624.4071  Special purpose homeowner insurance

12  company.--

13         (2)  A special purpose homeowner insurance company must

14  have a parent company, and both companies must meet the

15  requirements of this subsection in order for the subsidiary to

16  qualify for and maintain a certificate of authority under this

17  section.

18         (d)  The special purpose homeowner insurance company

19  must:

20         1.  Have and maintain at least $10 million in surplus

21  and otherwise satisfy the requirements of s. 624.4095.

22         2.  Be a member of the Florida Insurance Guaranty

23  Association and the Florida Hurricane Catastrophe Fund, and be

24  subject to any of their required assessments and premium

25  charges. However, a special purpose homeowner insurance

26  company may not be a member of the Florida Windstorm

27  Underwriting Association or the Florida Residential Property

28  and Casualty Joint Underwriting Association, and neither the

29  company nor its policyholders are subject to any assessments

30  by these associations except for emergency assessments

31  collected from policyholders pursuant to s.

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  1  627.351(2)(b)3.2.d.(III) and (6)(b)3.d. For the sole purpose

  2  of levying and collecting emergency assessments and

  3  determining the statewide written premium for property

  4  insurance, special purpose homeowner insurance companies shall

  5  be considered member insurers of the Florida Windstorm

  6  Underwriting Association and the Florida Residential Property

  7  and Casualty Joint Underwriting Association.

  8         3.  Offer coverage for all perils, including windstorm,

  9  in providing residential coverage as defined in s. 627.4025. A

10  special purpose homeowner insurance company's rates must be

11  filed with the department. After a period of 1 year from the

12  date a company receives a certificate of authority, the

13  company's rates are subject to department approval under s.

14  627.062.

15         Section 17.  Subsection (5) of section 626.918, Florida

16  Statutes, is amended to read:

17         626.918  Eligible surplus lines insurers.--

18         (5)  When it appears that any particular insurance risk

19  which is eligible for export, but on which insurance coverage,

20  in whole or in part, is not procurable from the eligible

21  surplus lines insurers, after a search of eligible surplus

22  lines insurers, then the surplus lines agent may file a

23  supplemental signed statement setting forth such facts and

24  advising the department that such part of the risk as shall be

25  unprocurable, as aforesaid, is being placed with named

26  unauthorized insurers, in the amounts and percentages set

27  forth in the statement.  Such named unauthorized insurer

28  shall, however, before accepting any risk in this state,

29  deposit with the department cash or securities acceptable to

30  the department of the market value of $50,000 for each

31  individual risk, contract, or certificate, which deposit shall

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  1  be held by the department for the benefit of Florida

  2  policyholders only; and the surplus lines agent shall procure

  3  from such unauthorized insurer and file with the department a

  4  certified copy of its statement of condition as of the close

  5  of the last calendar year.  If such statement reveals,

  6  including both capital and surplus, net assets of at least

  7  that amount required for licensure of a domestic insurer, then

  8  the surplus lines agent may proceed to consummate such

  9  contract of insurance.  Whenever any insurance risk, or any

10  part thereof, is placed with an unauthorized insurer, as

11  provided herein, the policy, binder, or cover note shall

12  contain a statement signed by the insured and the agent with

13  the following notation: "The insured is aware that certain

14  insurers participating in this risk have not been approved to

15  transact business in Florida nor have they been declared

16  eligible as surplus lines insurers by the Department of

17  Insurance of Florida.  The placing of such insurance by a duly

18  licensed surplus lines agent in Florida shall not be construed

19  as approval of such insurer by the Department of Insurance of

20  Florida.  Consequently, the insured is aware that the insured

21  has severely limited the assistance available under the

22  insurance laws of Florida.  The insured is further aware that

23  he or she may be charged a reasonable per policy fee, as

24  provided in s. 626.916(5)(4), Florida Statutes, for each

25  policy certified for export." All other provisions of this

26  code shall apply to such placement the same as if such risks

27  were placed with an eligible surplus lines insurer.

28         Section 18.  Subsection (6) of section 626.932, Florida

29  Statutes, is amended to read:

30         626.932  Surplus lines tax.--

31

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  1         (6)  For the purposes of this section, the term

  2  "premium" means the consideration for insurance by whatever

  3  name called and includes any assessment, or any membership,

  4  policy, survey, inspection, service, or similar fee or charge

  5  in consideration for an insurance contract, which items are

  6  deemed to be a part of the premium.  The per-policy fee

  7  authorized by s. 626.916(5)(4) is specifically included within

  8  the meaning of the term "premium." However, the service fee

  9  imposed pursuant to s. 626.9325 is excluded from the meaning

10  of the term "premium."

11         Section 19.  Subsection (6) of section 626.9325,

12  Florida Statutes, is amended to read:

13         626.9325  Service fee.--

14         (6)  For the purposes of this section, the term

15  "premium" means the consideration for insurance by whatever

16  name called and includes any assessment, or any membership,

17  policy, survey, inspection, service, or similar fee or charge

18  in consideration for an insurance contract, which items are

19  deemed to be a part of the premium.  The per-policy fee

20  authorized by s. 626.916(5)(4) is specifically included within

21  the meaning of the term "premium."

22         Section 20.  Paragraph (o) of subsection (1) of section

23  626.9541, Florida Statutes, is amended to read:

24         626.9541  Unfair methods of competition and unfair or

25  deceptive acts or practices defined.--

26         (1)  UNFAIR METHODS OF COMPETITION AND UNFAIR OR

27  DECEPTIVE ACTS.--The following are defined as unfair methods

28  of competition and unfair or deceptive acts or practices:

29         (o)  Illegal dealings in premiums; excess or reduced

30  charges for insurance.--

31

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  1         1.  Knowingly collecting any sum as a premium or charge

  2  for insurance, which is not then provided, or is not in due

  3  course to be provided, subject to acceptance of the risk by

  4  the insurer, by an insurance policy issued by an insurer as

  5  permitted by this code.

  6         2.  Knowingly collecting as a premium or charge for

  7  insurance any sum in excess of or less than the premium or

  8  charge applicable to such insurance, in accordance with the

  9  applicable classifications and rates as filed with and

10  approved by the department, and as specified in the policy;

11  or, in cases when classifications, premiums, or rates are not

12  required by this code to be so filed and approved, premiums

13  and charges in excess of or less than those specified in the

14  policy and as fixed by the insurer.  This provision shall not

15  be deemed to prohibit the charging and collection, by surplus

16  lines agents licensed under part VIII of this chapter, of the

17  amount of applicable state and federal taxes, or fees as

18  authorized by s. 626.916(5)(4), in addition to the premium

19  required by the insurer or the charging and collection, by

20  licensed agents, of the exact amount of any discount or other

21  such fee charged by a credit card facility in connection with

22  the use of a credit card, as authorized by subparagraph (q)3.,

23  in addition to the premium required by the insurer.  This

24  subparagraph shall not be construed to prohibit collection of

25  a premium for a universal life or a variable or indeterminate

26  value insurance policy made in accordance with the terms of

27  the contract.

28         3.a.  Imposing or requesting an additional premium for

29  a policy of motor vehicle liability, personal injury

30  protection, medical payment, or collision insurance or any

31  combination thereof or refusing to renew the policy solely

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  1  because the insured was involved in a motor vehicle accident

  2  unless the insurer's file contains information from which the

  3  insurer in good faith determines that the insured was

  4  substantially at fault in the accident.

  5         b.  An insurer which imposes and collects such a

  6  surcharge or which refuses to renew such policy shall, in

  7  conjunction with the notice of premium due or notice of

  8  nonrenewal, notify the named insured that he or she is

  9  entitled to reimbursement of such amount or renewal of the

10  policy under the conditions listed below and will subsequently

11  reimburse him or her or renew the policy, if the named insured

12  demonstrates that the operator involved in the accident was:

13         (I)  Lawfully parked;

14         (II)  Reimbursed by, or on behalf of, a person

15  responsible for the accident or has a judgment against such

16  person;

17         (III)  Struck in the rear by another vehicle headed in

18  the same direction and was not convicted of a moving traffic

19  violation in connection with the accident;

20         (IV)  Hit by a "hit-and-run" driver, if the accident

21  was reported to the proper authorities within 24 hours after

22  discovering the accident;

23         (V)  Not convicted of a moving traffic violation in

24  connection with the accident, but the operator of the other

25  automobile involved in such accident was convicted of a moving

26  traffic violation;

27         (VI)  Finally adjudicated not to be liable by a court

28  of competent jurisdiction;

29         (VII)  In receipt of a traffic citation which was

30  dismissed or nolle prossed; or

31

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  1         (VIII)  Not at fault as evidenced by a written

  2  statement from the insured establishing facts demonstrating

  3  lack of fault which are not rebutted by information in the

  4  insurer's file from which the insurer in good faith determines

  5  that the insured was substantially at fault.

  6         c.  In addition to the other provisions of this

  7  subparagraph, an insurer may not fail to renew a policy if the

  8  insured has had only one accident in which he or she was at

  9  fault within the current 3-year period. However, an insurer

10  may nonrenew a policy for reasons other than accidents in

11  accordance with s. 627.728.  This subparagraph does not

12  prohibit nonrenewal of a policy under which the insured has

13  had three or more accidents, regardless of fault, during the

14  most recent 3-year period.

15         4.  Imposing or requesting an additional premium for,

16  or refusing to renew, a policy for motor vehicle insurance

17  solely because the insured committed a noncriminal traffic

18  infraction as described in s. 318.14 unless the infraction is:

19         a.  A second infraction committed within an 18-month

20  period, or a third or subsequent infraction committed within a

21  36-month period.

22         b.  A violation of s. 316.183, when such violation is a

23  result of exceeding the lawful speed limit by more than 15

24  miles per hour.

25         5.  Upon the request of the insured, the insurer and

26  licensed agent shall supply to the insured the complete proof

27  of fault or other criteria which justifies the additional

28  charge or cancellation.

29         6.  No insurer shall impose or request an additional

30  premium for motor vehicle insurance, cancel or refuse to issue

31  a policy, or refuse to renew a policy because the insured or

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  1  the applicant is a handicapped or physically disabled person,

  2  so long as such handicap or physical disability does not

  3  substantially impair such person's mechanically assisted

  4  driving ability.

  5         7.  No insurer may cancel or otherwise terminate any

  6  insurance contract or coverage, or require execution of a

  7  consent to rate endorsement, during the stated policy term for

  8  the purpose of offering to issue, or issuing, a similar or

  9  identical contract or coverage to the same insured with the

10  same exposure at a higher premium rate or continuing an

11  existing contract or coverage with the same exposure at an

12  increased premium.

13         8.  No insurer may issue a nonrenewal notice on any

14  insurance contract or coverage, or require execution of a

15  consent to rate endorsement, for the purpose of offering to

16  issue, or issuing, a similar or identical contract or coverage

17  to the same insured at a higher premium rate or continuing an

18  existing contract or coverage at an increased premium without

19  meeting any applicable notice requirements.

20         9.  No insurer shall, with respect to premiums charged

21  for motor vehicle insurance, unfairly discriminate solely on

22  the basis of age, sex, marital status, or scholastic

23  achievement.

24         10.  Imposing or requesting an additional premium for

25  motor vehicle comprehensive or uninsured motorist coverage

26  solely because the insured was involved in a motor vehicle

27  accident or was convicted of a moving traffic violation.

28         11.  No insurer shall cancel or issue a nonrenewal

29  notice on any insurance policy or contract without complying

30  with any applicable cancellation or nonrenewal provision

31  required under the Florida Insurance Code.

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  1         12.  No insurer shall impose or request an additional

  2  premium, cancel a policy, or issue a nonrenewal notice on any

  3  insurance policy or contract because of any traffic infraction

  4  when adjudication has been withheld and no points have been

  5  assessed pursuant to s. 318.14(9) and (10).  However, this

  6  subparagraph does not apply to traffic infractions involving

  7  accidents in which the insurer has incurred a loss due to the

  8  fault of the insured.

  9         Section 21.  The sum of $2,000,000 is hereby

10  appropriated from the Insurance Commissioner's Regulatory

11  Trust Fund to the Department of Insurance for fiscal year

12  1998-1999 for the purpose of funding any contract authorized

13  under s. 627.0629(12), Florida Statutes.

14         Section 22.  The sum of $300,000 is hereby appropriated

15  from the Insurance Commissioners Regulatory Trust Fund to the

16  Department of Insurance for fiscal year 1998-1999 for the

17  purpose of funding two positions and administrative expenses

18  of the department in implementing the provisions of this act.

19         Section 23.  Subsection (6) of section 627.062, Florida

20  Statutes, and section 627.0628, Florida Statutes, are hereby

21  repealed.

22         Section 24.  If any provision of this act or the

23  application thereof to any person or circumstance is held

24  invalid, the invalidity shall not affect other provisions or

25  applications of the act which can be given effect without the

26  invalid provision or application, and to this end the

27  provisions of this act are declared severable.

28         Section 25.  This act shall take effect upon becoming a

29  law.

30

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  1            *****************************************

  2                          HOUSE SUMMARY

  3
      Eliminates the Residential Property and Casualty Joint
  4    Underwriting Association, reduces the geographic scope of
      the Florida Windstorm Underwriting Association, and
  5    expands the financing capabilities of the Florida
      Hurricane Catastrophe Fund. Establishes the Florida
  6    Access to Insurance Requirements (FAIR) Plan to ensure
      fair access to insurance requirements, to assure the
  7    availability of residential property insurance for risks
      that are owner occupied, low value and high hazard, and
  8    that are unable to obtain residential property insurance
      in the authorized market and creates the Florida FAIR
  9    Plan Association to facilitate in assisting in the
      upgrading of owner-occupied low-value high-hazard
10    residential property. See bill for details.

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