Senate Bill 1904

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    Florida Senate - 1999                                  SB 1904

    By Senator Gutman





    2-1249-99

  1                      A bill to be entitled

  2         An act relating to insurance; amending s.

  3         627.351, F.S.; including surplus lines insurers

  4         in the Florida Windstorm Underwriting

  5         Association; modifying the makeup of the

  6         association's board; providing for assessments;

  7         providing for assessment protection; providing

  8         for rate approval; providing an effective date.

  9

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

11

12         Section 1.  Subsection (2) of section 627.351, Florida

13  Statutes, 1998 Supplement, is amended to read:

14         627.351  Insurance risk apportionment plans.--

15         (2)  WINDSTORM INSURANCE RISK APPORTIONMENT.--

16         (a)  Agreements may be made among property insurers

17  with respect to the equitable apportionment among them of

18  insurance which may be afforded applicants who are in good

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

20  through ordinary methods; and such insurers may agree among

21  themselves on the use of reasonable rate modifications for

22  such insurance. Such agreements and rate modifications shall

23  be subject to the applicable provisions of this chapter.

24         (b)  The department shall require all insurers holding

25  a certificate of authority to transact property insurance on a

26  direct basis in this state, including authorized surplus lines

27  insurers writing property insurance in this state, but not

28  including other than joint underwriting associations and other

29  entities formed pursuant to this section, to provide windstorm

30  coverage to applicants from areas determined to be eligible

31  pursuant to paragraph (c) who in good faith are entitled to,

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  1  but are unable to procure, such coverage through ordinary

  2  means; or it shall adopt a reasonable plan or plans for the

  3  equitable apportionment or sharing among such insurers of

  4  windstorm coverage, which may include formation of an

  5  association for this purpose. As used in this subsection, the

  6  term "property insurance" means insurance on real or personal

  7  property, as defined in s. 624.604, including insurance for

  8  fire, industrial fire, allied lines, farmowners multiperil,

  9  homeowners' multiperil, commercial multiperil, and mobile

10  homes, and including liability coverages on all such

11  insurance, but excluding inland marine as defined in s.

12  624.607(3) and excluding vehicle insurance as defined in s.

13  624.605(1)(a) other than insurance on mobile homes used as

14  permanent dwellings. The department shall adopt rules that

15  provide a formula for the recovery and repayment of any

16  deferred assessments.

17         1.  For the purpose of this section, properties

18  eligible for such windstorm coverage are defined as dwellings,

19  buildings, and other structures, including mobile homes which

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

21  with mobile home tie-down requirements prescribed by the

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

23  320.8325, and the contents of all such properties. An

24  applicant or policyholder is eligible for coverage only if an

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

26  or policyholder from an admitted insurer at approved rates.

27         2.a.(I)  All insurers required to be members of such

28  association shall participate in its writings, expenses, and

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

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

31  insurers. Such participation by member insurers shall be in

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  1  the proportion that the net direct premiums of each member

  2  insurer written for property insurance in this state during

  3  the preceding calendar year bear to the aggregate net direct

  4  premiums for property insurance of all member insurers, as

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

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

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

  8  written premiums for property insurance, reduced by premium

  9  for liability coverage and for the following if included in

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

11  association direct premiums booked; National Flood Insurance

12  Program direct premiums; and similar deductions specifically

13  authorized by the plan of operation and approved by the

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

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

16  issued a certificate of authority to transact property

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

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

19  certificate of authority to transact property insurance in the

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

21  other reports, and any other statistics that the commissioner

22  deems necessary, shall certify to the association the

23  aggregate direct premiums written for property insurance in

24  this state by all member insurers.

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

26  of directors consisting of the Insurance Consumer Advocate

27  appointed under s. 627.0613, 1 consumer representative

28  appointed by the Insurance Commissioner, 1 insurance agent

29  appointed by the Insurance Commissioner who is, at the time of

30  appointment, writing insurance with the Florida Windstorm

31  Underwriting Association, 1 consumer representative appointed

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  1  by the Governor, and 12 additional members appointed as

  2  specified in the plan of operation. One of the 12 additional

  3  members shall be elected by the domestic companies of this

  4  state on the basis of cumulative weighted voting based on the

  5  net direct premiums of domestic companies in this state, and

  6  one shall be elected by the surplus lines insurers on the

  7  basis of cumulative weighted voting based on the net direct

  8  premium of surplus lines written in this state. Nothing in the

  9  1997 amendments to this paragraph terminates the existing

10  board or the terms of any members of the board.

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

12  whereby a company voluntarily providing windstorm coverage in

13  affected areas will be relieved wholly or partially from

14  apportionment of a regular assessment pursuant to

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

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

17  companies under common management may elect to have its

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

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

20  group.

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

22  apportionment to a company for emergency assessments collected

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

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

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

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

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

28  policies out of the Residential Property and Casualty Joint

29  Underwriting Association.  In order to qualify for the

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

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

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  1  from the Residential Property and Casualty Joint Underwriting

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

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

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

  5  Counties and an additional 50 percent of the policies so

  6  removed cover risks located in other coastal counties, and

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

  8  so removed may exclude windstorm coverage.  With the approval

  9  of the department, the association may waive these geographic

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

11  of 100,000 Residential Property and Casualty Joint

12  Underwriting Association policies or 15 percent of the total

13  number of Residential Property and Casualty Joint Underwriting

14  Association policies, provided the governing board of the

15  Residential Property and Casualty Joint Underwriting

16  Association certifies that the take-out plan will materially

17  reduce the Residential Property and Casualty Joint

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

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

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

21  guarantees an additional year of renewability for all policies

22  removed from the Residential Property and Casualty Joint

23  Underwriting Association, or for 2 additional years if the

24  insurer guarantees 2 additional years of renewability for all

25  policies removed from the Residential Property and Casualty

26  Joint Underwriting Association.

27         b.  Assessments to pay deficits in the association

28  under this subparagraph and premiums paid by members for

29  insurance purchased under the provisions of sub-subparagraph

30  4.b. shall be included as an appropriate factor in the making

31  of rates as provided in s. 627.3512.

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  1         c.  The Legislature finds that the potential for

  2  unlimited deficit assessments under this subparagraph may

  3  induce insurers to attempt to reduce their writings in the

  4  voluntary market, and that such actions would worsen the

  5  availability problems that the association was created to

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

  7  remain fully responsible for paying regular assessments and

  8  collecting emergency assessments for any deficits of the

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

10  to provide a means by which assessment liabilities may be

11  amortized over a period of years.

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

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

14  direct written premium for property insurance for the prior

15  calendar year for all member insurers, the association shall

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

17  the deficit.

18         (II)  When the deficit incurred in a particular

19  calendar year exceeds 10 percent of the aggregate statewide

20  direct written premium for property insurance for the prior

21  calendar year for all member insurers, the association shall

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

23  the greater of 10 percent of the deficit or 10 percent of the

24  aggregate statewide direct written premium for property

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

26  remaining deficit shall be recovered through emergency

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

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

29  that a deficit exceeds the amount that will be recovered

30  through regular assessments on member insurers, pursuant to

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

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  1  board shall levy, after verification by the department,

  2  emergency assessments to be collected by member insurers and

  3  by underwriting associations created pursuant to this section

  4  which write property insurance, upon issuance or renewal of

  5  property insurance policies other than National Flood

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

  7  regular assessments. The amount of the emergency assessment

  8  collected in a particular year shall be a uniform percentage

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

10  for all member insurers and underwriting associations,

11  excluding National Flood Insurance policy premiums, as

12  annually determined by the board and verified by the

13  department. The department shall verify the arithmetic

14  calculations involved in the board's determination within 30

15  days after receipt of the information on which the

16  determination was based. Notwithstanding any other provision

17  of law, each member insurer and each underwriting association

18  created pursuant to this section shall collect emergency

19  assessments from its policyholders without such obligation

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

21  deferment.  The emergency assessments so collected shall be

22  transferred directly to the association on a periodic basis as

23  determined by the association. The aggregate amount of

24  emergency assessments levied under this sub-sub-subparagraph

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

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

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

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

29  percent of the aggregate statewide direct written premium for

30  property insurance written by member insurers and underwriting

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

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  1  commissions, required reserves, and other costs associated

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

  3  proceeds of the emergency assessments under this

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

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

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

  7  the board determines will efficiently recover the deficit. The

  8  emergency assessments under this sub-sub-subparagraph shall

  9  continue as long as any bonds issued or other indebtedness

10  incurred with respect to a deficit for which the assessment

11  was imposed remain outstanding, unless adequate provision has

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

13  pursuant to the document governing such bonds or other

14  indebtedness. Emergency assessments collected under this

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

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

17  commissions; however, failure to pay the emergency assessment

18  shall be treated as failure to pay premium.

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

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

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

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

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

24  aggregate statewide net direct premium for property insurance

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

26  voluntary writings for that year.

27         (V)  If regular deficit assessments are made under

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

29  the Residential Property and Casualty Joint Underwriting

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

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

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

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

  3  a market equalization surcharge in a percentage equal to the

  4  total amount of such regular assessments divided by the

  5  aggregate statewide direct written premium for property

  6  insurance for member insurers for the prior calendar year.

  7  Market equalization surcharges under this sub-sub-subparagraph

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

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

10  equalization surcharge shall be treated as failure to pay

11  premium.

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

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

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

15  assistance program, in conjunction with the association, for

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

17  to avoid needless and indiscriminate proliferation,

18  duplication, and fragmentation of such assistance programs,

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

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

21  losses, regardless of whether or not the losses occurred

22  within or outside of the territorial jurisdiction of the local

23  government. Revenue bonds may not be issued until validated

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

25  declared by executive order or proclamation of the Governor

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

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

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

29  welfare of residents of this state and the protection and

30  preservation of the economic stability of insurers operating

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

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  1  permit certain municipalities or counties to issue bonds as

  2  will provide relief to claimants and policyholders of the

  3  association and insurers responsible for apportionment of plan

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

  5  contracts with the association and with any other entity

  6  created pursuant to this subsection as are necessary to carry

  7  out this paragraph. Any bonds issued under this

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

  9  received by the association from assessments under this

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

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

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

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

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

15  remain unsold 60 days after issuance, the department shall

16  require all insurers subject to assessment to purchase the

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

18  shall be required to purchase that percentage of the unsold

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

20  share of assessment liability under this subsection. An

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

22  extent that the department determines that the purchase would

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

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

25  authority granted by subparagraph 6.

26         3.  The plan shall also provide that any member with a

27  surplus as to policyholders of $20 million or less writing 25

28  percent or more of its total countrywide property insurance

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

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

31  apportionment company. The apportionment of such a member

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

  2  not exceed its gross participation, which shall not be

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

  4  shall a limited apportionment company be required to

  5  participate in any apportionment of losses pursuant to

  6  sub-sub-subparagraph 2.d.(I) or sub-sub-subparagraph 2.d.(II)

  7  in the aggregate which exceeds $50 million after payment of

  8  available plan funds in any calendar year. However, a limited

  9  apportionment company shall collect from its policyholders any

10  emergency assessment imposed under sub-sub-subparagraph

11  2.d.(III). The plan shall provide that, if the department

12  determines that any regular assessment will result in an

13  impairment of the surplus of a limited apportionment company,

14  the department may direct that all or part of such assessment

15  be deferred. However, there shall be no limitation or

16  deferment of an emergency assessment to be collected from

17  policyholders under sub-sub-subparagraph 2.d.(III).

18         4.a.  The plan shall provide for the deferment, in

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

20  under sub-sub-subparagraph 2.d.(I) or sub-sub-subparagraph

21  2.d.(II), but not for an emergency assessment collected from

22  policyholders under sub-sub-subparagraph 2.d.(III), if, in the

23  opinion of the commissioner, payment of such regular

24  assessment would endanger or impair the solvency of the member

25  insurer. In the event a regular assessment against a member

26  insurer is deferred in whole or in part, the amount by which

27  such assessment is deferred may be assessed against the other

28  member insurers in a manner consistent with the basis for

29  assessments set forth in sub-sub-subparagraph 2.d.(I) or

30  sub-sub-subparagraph 2.d.(II).

31

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  1         b.  The association shall develop and offer to all

  2  members a policy of insurance that provides the member with

  3  protection in whole or in part for any regular assessment. The

  4  coverage must be developed after consultation with the

  5  members, and the premium must not be inadequate, excessive, or

  6  unfairly discriminatory. The association shall use premiums

  7  collected for such coverage to reduce future regular

  8  assessments or to purchase reinsurance intended to reduce

  9  future regular assessments. The rates are considered approved

10  unless there is question as to the credibility of the data

11  used to determine the loss and expense experience. The use of

12  hurricane models of the Florida Windstorm Underwriting

13  Association's choice may not be disapproved by the department.

14  If the department has reason to question the credibility of

15  the loss and expense data, the department must initiate

16  proceedings to disapprove the rate and so notify the

17  association or shall finalize its review within 60 days after

18  receipt of filing. Unless the department issues a notice under

19  this paragraph, the filing is considered approved 60 days

20  after its receipt by the department.

21         5.a.  The plan of operation may include deductibles and

22  rules for classification of risks and rate modifications

23  consistent with the objective of providing and maintaining

24  funds sufficient to pay catastrophe losses.

25         b.  The association may require arbitration of a rate

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

27  Legislature that the rates for coverage provided by the

28  association be actuarially sound and not competitive with

29  approved rates charged in the admitted voluntary market such

30  that the association functions as a residual market mechanism

31  to provide insurance only when the insurance cannot be

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

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

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

  4  line of business are reflective of approved rates in the

  5  voluntary market for hurricane coverage for each line of

  6  business in the various areas eligible for association

  7  coverage.

  8         c.  The association shall provide for windstorm

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

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

11  for personal lines residential risks. If coverage with the

12  association is sought for a residential risk valued in excess

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

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

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

16  located in the authorized market. The association must accept

17  a commercial lines residential risk with limits above $10

18  million or a personal lines residential risk with limits above

19  $1 million if coverage is not available in the authorized

20  market.  The association may write coverage above the limits

21  specified in this subparagraph with or without facultative or

22  other reinsurance coverage, as the association determines

23  appropriate.

24         d.  The plan of operation must provide objective

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

26  uniformly applied for all applicants in determining whether an

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

28  making this determination and in establishing the criteria and

29  procedures, the following shall be considered:

30

31

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

  2  individual risk is substantially higher than for other risks

  3  of the same class; and

  4         (II)  Whether the uncertainty associated with the

  5  individual risk is such that an appropriate premium cannot be

  6  determined.

  7

  8  The acceptance or rejection of a risk by the association

  9  pursuant to such criteria and procedures must be construed as

10  the private placement of insurance, and the provisions of

11  chapter 120 do not apply.

12         e.  The policies issued by the association must provide

13  that if the association obtains an offer from an authorized

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

15  standard policy including wind coverage or, if consistent with

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

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

18  eligible for coverage through the association. Upon

19  termination of eligibility, the association shall provide

20  written notice to the policyholder and agent of record stating

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

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

23  from an authorized insurer. Other provisions of the insurance

24  code relating to cancellation and notice of cancellation do

25  not apply to actions under this sub-subparagraph.

26         f.  Association policies and applications must include

27  a notice that the association policy could, under this

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

29  insurer that does not provide coverage identical to the

30  coverage provided by the association. The notice shall also

31  specify that acceptance of association coverage creates a

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  1  conclusive presumption that the applicant or policyholder is

  2  aware of this potential.

  3         6.a.  The plan of operation may authorize the formation

  4  of a private nonprofit corporation, a private nonprofit

  5  unincorporated association, a partnership, a trust, a limited

  6  liability company, or a nonprofit mutual company which may be

  7  empowered, among other things, to borrow money by issuing

  8  bonds or by incurring other indebtedness and to accumulate

  9  reserves or funds to be used for the payment of insured

10  catastrophe losses. The plan may authorize all actions

11  necessary to facilitate the issuance of bonds, including the

12  pledging of assessments or other revenues.

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

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

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

16  instruments; pledge or sell assessments, market equalization

17  surcharges and other surcharges, rights, premiums, contractual

18  rights, projected recoveries from the Florida Hurricane

19  Catastrophe Fund, other reinsurance recoverables, and other

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

21  enter into any contracts or agreements necessary or proper to

22  accomplish such borrowings; and take other actions necessary

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

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

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

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

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

28  subject to approval by the department that such action would

29  enable it to efficiently meet the financial obligations of the

30  association and that such financings are reasonably necessary

31  to effectuate the requirements of this subsection. Any such

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  1  entity may accumulate reserves and retain surpluses as of the

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

  3  losses incurred by the association during that year or any

  4  future year. The association shall incorporate and continue

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

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

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

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

  9  of directors and officers currently serving shall continue to

10  serve until their successors are duly qualified as provided

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

12  effect immediately prior to the effective date of chapter

13  76-96 shall be construed to be the assets and obligations of

14  the successor plan created herein.

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

16  Constitution, prohibiting the impairment of obligations of

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

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

19  financing agreement or any revenue source committed by

20  contract to such bond or other indebtedness issued or incurred

21  by the association or any other entity created under this

22  subsection.

23         7.  On such coverage, an agent's remuneration shall be

24  that amount of money payable to the agent by the terms of his

25  or her contract with the company with which the business is

26  placed. However, no commission will be paid on that portion of

27  the premium which is in excess of the standard premium of that

28  company.

29         8.  Subject to approval by the department, the

30  association may establish different eligibility requirements

31  and operational procedures for any line or type of coverage

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

  2  if the board determines that such changes to the eligibility

  3  requirements and operational procedures are justified due to

  4  the voluntary market being sufficiently stable and competitive

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

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

  7  through the voluntary market through ordinary methods would

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

  9  coverage is sought in connection with a real property

10  transfer, such requirements and procedures shall not provide

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

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

13  transferee, and, if applicable, the lender.

14         9.  Notwithstanding any other provision of law:

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

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

17  the association created or purported to be created pursuant to

18  any financing documents to secure any bonds or other

19  indebtedness of the association shall be and remain valid and

20  enforceable, notwithstanding the commencement of and during

21  the continuation of, and after, any rehabilitation,

22  insolvency, liquidation, bankruptcy, receivership,

23  conservatorship, reorganization, or similar proceeding against

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

25  applicable laws.

26         b.  No such proceeding shall relieve the association of

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

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

29  assessments, market equalization or other surcharges,

30  projected recoveries from the Florida Hurricane Catastrophe

31

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

  2  or other assets of the association pledged.

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

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

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

  6  assessments, market equalization or renewal surcharges,

  7  projected recoveries from the Florida Hurricane Catastrophe

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

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

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

11  any such proceeding shall continue unaffected by such

12  proceeding.

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

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

15  now existing or hereafter created evidencing any bonds or

16  other indebtedness of the association or pursuant to which any

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

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

19  association are pledged or sold to secure the repayment of

20  such bonds or indebtedness, together with the payment of

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

22  any other obligation of the association related to such bonds

23  or indebtedness.

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

25  contract rights or other rights or assets of the association

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

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

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

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

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

31  valid, binding, and enforceable against the association or

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

  2  against and superior to any competing claims or obligations

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

  4  this state, asserting rights in any such assessments,

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

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

  7  sale contained in the applicable financing documents, whether

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

  9  sale and without the need for any physical delivery,

10  recordation, filing, or other action.

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

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

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

14  association, members of the board of directors of the

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

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

17  responsibilities under this subsection. Such immunity does not

18  apply to actions for breach of any contract or agreement

19  pertaining to insurance, or any willful tort.

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

21  only with respect to:

22         1.  Those areas that were eligible for coverage under

23  this subsection on April 9, 1993; or

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

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

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

27  the county or area so affected, economic growth and

28  development is being deterred or otherwise stifled in such

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

30  institutions are unable to make loans;

31

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

  2  enforcing the structural requirements of the State Minimum

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

  4  and has included adequate minimum floor elevation requirements

  5  for structures in areas subject to inundation; and

  6         c.  Extending windstorm insurance coverage to such

  7  county or area is consistent with and will implement and

  8  further the policies and objectives set forth in applicable

  9  state laws, rules, and regulations governing coastal

10  management, coastal construction, comprehensive planning,

11  beach and shore preservation, barrier island preservation,

12  coastal zone protection, and the Coastal Zone Protection Act

13  of 1985.

14

15  Any time after the department has determined that the criteria

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

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

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

19  eligible for windstorm coverage through the plan.

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

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

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

23  the Florida Residential Property and Casualty Joint

24  Underwriting Association and property insurance for such

25  policyholders was not available.

26         (e)  Notwithstanding the provisions of subparagraph

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

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

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

30  hearing was held prior to May 9, 1997.

31

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  1         Section 2.  This act shall take effect upon becoming a

  2  law.

  3

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  5                          SENATE SUMMARY

  6    Includes surplus lines insurers in the Florida Windstorm
      Underwriting Association. Modifies the composition of the
  7    association's board. Provides for assessments and for
      assessment protection. Provides for rate approval.
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