Senate Bill 1914

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    Florida Senate - 1999                                  SB 1914

    By Senator Campbell





    33-1398-99

  1                      A bill to be entitled

  2         An act relating to the Florida Windstorm

  3         Underwriting Association; amending s. 627.351,

  4         F.S.; deleting a requirement that certain

  5         insureds lose their eligibility for the Florida

  6         Windstorm Underwriting Association under

  7         certain circumstances; providing an effective

  8         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, other than joint underwriting

27  associations and other entities formed pursuant to this

28  section, to provide windstorm coverage to applicants from

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

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

31  coverage through ordinary means; or it shall adopt a

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  1  reasonable plan or plans for the equitable apportionment or

  2  sharing among such insurers of windstorm coverage, which may

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

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

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

  6  624.604, including insurance for fire, industrial fire, allied

  7  lines, farmowners multiperil, homeowners' multiperil,

  8  commercial multiperil, and mobile homes, and including

  9  liability coverages on all such insurance, but excluding

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

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

12  insurance on mobile homes used as permanent dwellings. The

13  department shall adopt rules that provide a formula for the

14  recovery and repayment of any deferred assessments.

15         1.  For the purpose of this section, properties

16  eligible for such windstorm coverage are defined as dwellings,

17  buildings, and other structures, including mobile homes which

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

19  with mobile home tie-down requirements prescribed by the

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

21  320.8325, and the contents of all such properties. An

22  applicant or policyholder is eligible for coverage only if an

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

24  or policyholder from an admitted insurer at approved rates.

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

26  association shall participate in its writings, expenses, and

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

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

29  insurers. Such participation by member insurers shall be in

30  the proportion that the net direct premiums of each member

31  insurer written for property insurance in this state during

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  1  the preceding calendar year bear to the aggregate net direct

  2  premiums for property insurance of all member insurers, as

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

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

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

  6  written premiums for property insurance, reduced by premium

  7  for liability coverage and for the following if included in

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

  9  association direct premiums booked; National Flood Insurance

10  Program direct premiums; and similar deductions specifically

11  authorized by the plan of operation and approved by the

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

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

14  issued a certificate of authority to transact property

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

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

17  certificate of authority to transact property insurance in the

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

19  other reports, and any other statistics that the commissioner

20  deems necessary, shall certify to the association the

21  aggregate direct premiums written for property insurance in

22  this state by all member insurers.

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

24  of directors consisting of the Insurance Consumer Advocate

25  appointed under s. 627.0613, 1 consumer representative

26  appointed by the Insurance Commissioner, 1 consumer

27  representative appointed by the Governor, and 12 additional

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

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

30  companies of this state on the basis of cumulative weighted

31  voting based on the net direct premiums of domestic companies

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

  2  paragraph terminates the existing board or the terms of any

  3  members of the board.

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

  5  whereby a company voluntarily providing windstorm coverage in

  6  affected areas will be relieved wholly or partially from

  7  apportionment of a regular assessment pursuant to

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

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

10  companies under common management may elect to have its

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

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

13  group.

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

15  apportionment to a company for emergency assessments collected

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

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

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

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

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

21  policies out of the Residential Property and Casualty Joint

22  Underwriting Association.  In order to qualify for the

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

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

25  from the Residential Property and Casualty Joint Underwriting

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

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

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

29  Counties and an additional 50 percent of the policies so

30  removed cover risks located in other coastal counties, and

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

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  1  so removed may exclude windstorm coverage.  With the approval

  2  of the department, the association may waive these geographic

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

  4  of 100,000 Residential Property and Casualty Joint

  5  Underwriting Association policies or 15 percent of the total

  6  number of Residential Property and Casualty Joint Underwriting

  7  Association policies, provided the governing board of the

  8  Residential Property and Casualty Joint Underwriting

  9  Association certifies that the take-out plan will materially

10  reduce the Residential Property and Casualty Joint

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

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

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

14  guarantees an additional year of renewability for all policies

15  removed from the Residential Property and Casualty Joint

16  Underwriting Association, or for 2 additional years if the

17  insurer guarantees 2 additional years of renewability for all

18  policies removed from the Residential Property and Casualty

19  Joint Underwriting Association.

20         b.  Assessments to pay deficits in the association

21  under this subparagraph shall be included as an appropriate

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

23         c.  The Legislature finds that the potential for

24  unlimited deficit assessments under this subparagraph may

25  induce insurers to attempt to reduce their writings in the

26  voluntary market, and that such actions would worsen the

27  availability problems that the association was created to

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

29  remain fully responsible for paying regular assessments and

30  collecting emergency assessments for any deficits of the

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

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  1  to provide a means by which assessment liabilities may be

  2  amortized over a period of years.

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

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

  5  direct written premium for property insurance for the prior

  6  calendar year for all member insurers, the association shall

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

  8  the deficit.

  9         (II)  When the deficit incurred in a particular

10  calendar year exceeds 10 percent 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 greater of 10 percent of the deficit or 10 percent of the

15  aggregate statewide direct written premium for property

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

17  remaining deficit shall be recovered through emergency

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

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

20  that a deficit exceeds the amount that will be recovered

21  through regular assessments on member insurers, pursuant to

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

23  board shall levy, after verification by the department,

24  emergency assessments to be collected by member insurers and

25  by underwriting associations created pursuant to this section

26  which write property insurance, upon issuance or renewal of

27  property insurance policies other than National Flood

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

29  regular assessments. The amount of the emergency assessment

30  collected in a particular year shall be a uniform percentage

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

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  1  for all member insurers and underwriting associations,

  2  excluding National Flood Insurance policy premiums, as

  3  annually determined by the board and verified by the

  4  department. The department shall verify the arithmetic

  5  calculations involved in the board's determination within 30

  6  days after receipt of the information on which the

  7  determination was based. Notwithstanding any other provision

  8  of law, each member insurer and each underwriting association

  9  created pursuant to this section shall collect emergency

10  assessments from its policyholders without such obligation

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

12  deferment.  The emergency assessments so collected shall be

13  transferred directly to the association on a periodic basis as

14  determined by the association. The aggregate amount of

15  emergency assessments levied under this sub-sub-subparagraph

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

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

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

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

20  percent of the aggregate statewide direct written premium for

21  property insurance written by member insurers and underwriting

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

23  commissions, required reserves, and other costs associated

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

25  proceeds of the emergency assessments under this

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

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

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

29  the board determines will efficiently recover the deficit. The

30  emergency assessments under this sub-sub-subparagraph shall

31  continue as long as any bonds issued or other indebtedness

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  1  incurred with respect to a deficit for which the assessment

  2  was imposed remain outstanding, unless adequate provision has

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

  4  pursuant to the document governing such bonds or other

  5  indebtedness. Emergency assessments collected under this

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

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

  8  commissions; however, failure to pay the emergency assessment

  9  shall be treated as failure to pay premium.

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

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

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

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

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

15  aggregate statewide net direct premium for property insurance

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

17  voluntary writings for that year.

18         (V)  If regular deficit assessments are made under

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

20  the Residential Property and Casualty Joint Underwriting

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

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

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

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

25  a market equalization surcharge in a percentage equal to the

26  total amount of such regular assessments divided by the

27  aggregate statewide direct written premium for property

28  insurance for member insurers for the prior calendar year.

29  Market equalization surcharges under this sub-sub-subparagraph

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

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

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  1  equalization surcharge shall be treated as failure to pay

  2  premium.

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

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

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

  6  assistance program, in conjunction with the association, for

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

  8  to avoid needless and indiscriminate proliferation,

  9  duplication, and fragmentation of such assistance programs,

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

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

12  losses, regardless of whether or not the losses occurred

13  within or outside of the territorial jurisdiction of the local

14  government. Revenue bonds may not be issued until validated

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

16  declared by executive order or proclamation of the Governor

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

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

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

20  welfare of residents of this state and the protection and

21  preservation of the economic stability of insurers operating

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

23  permit certain municipalities or counties to issue bonds as

24  will provide relief to claimants and policyholders of the

25  association and insurers responsible for apportionment of plan

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

27  contracts with the association and with any other entity

28  created pursuant to this subsection as are necessary to carry

29  out this paragraph. Any bonds issued under this

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

31  received by the association from assessments under this

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

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

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

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

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

  6  remain unsold 60 days after issuance, the department shall

  7  require all insurers subject to assessment to purchase the

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

  9  shall be required to purchase that percentage of the unsold

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

11  share of assessment liability under this subsection. An

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

13  extent that the department determines that the purchase would

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

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

16  authority granted by subparagraph 6.

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

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

19  percent or more of its total countrywide property insurance

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

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

22  apportionment company. The apportionment of such a member

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

24  not exceed its gross participation, which shall not be

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

26  shall a limited apportionment company be required to

27  participate in any apportionment of losses pursuant to

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

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

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

31  apportionment company shall collect from its policyholders any

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  1  emergency assessment imposed under sub-sub-subparagraph

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

  3  determines that any regular assessment will result in an

  4  impairment of the surplus of a limited apportionment company,

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

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

  7  deferment of an emergency assessment to be collected from

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

  9         4.  The plan shall provide for the deferment, in whole

10  or in part, of a regular assessment of a member insurer under

11  sub-sub-subparagraph 2.d.(I) or sub-sub-subparagraph 2.d.(II),

12  but not for an emergency assessment collected from

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

14  opinion of the commissioner, payment of such regular

15  assessment would endanger or impair the solvency of the member

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

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

18  such assessment is deferred may be assessed against the other

19  member insurers in a manner consistent with the basis for

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

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

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

23  rules for classification of risks and rate modifications

24  consistent with the objective of providing and maintaining

25  funds sufficient to pay catastrophe losses.

26         b.  The association may require arbitration of a rate

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

28  Legislature that the rates for coverage provided by the

29  association be actuarially sound and not competitive with

30  approved rates charged in the admitted voluntary market such

31  that the association functions as a residual market mechanism

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  1  to provide insurance only when the insurance cannot be

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

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

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

  5  line of business are reflective of approved rates in the

  6  voluntary market for hurricane coverage for each line of

  7  business in the various areas eligible for association

  8  coverage.

  9         c.  The association shall provide for windstorm

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

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

12  for personal lines residential risks. If coverage with the

13  association is sought for a residential risk valued in excess

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

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

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

17  located in the authorized market. The association must accept

18  a commercial lines residential risk with limits above $10

19  million or a personal lines residential risk with limits above

20  $1 million if coverage is not available in the authorized

21  market.  The association may write coverage above the limits

22  specified in this subparagraph with or without facultative or

23  other reinsurance coverage, as the association determines

24  appropriate.

25         d.  The plan of operation must provide objective

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

27  uniformly applied for all applicants in determining whether an

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

29  making this determination and in establishing the criteria and

30  procedures, the following shall be considered:

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

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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;

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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.

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

  2  law.

  3

  4            *****************************************

  5                          SENATE SUMMARY

  6    Deletes the provision that policies of the Florida
      Windstorm Underwriting Association must provide that if
  7    the association obtains an offer from an authorized
      insurer to cover the risk at its approved rates under
  8    either a standard policy including wind coverage or, if
      consistent with the insurer's underwriting rules as filed
  9    with the Department of Insurance, a basic policy
      including wind coverage, the risk is no longer eligible
10    for coverage through the association. Deletes the
      provision that the association's policies and
11    applications must include a notice that the association
      policy could be replaced with a policy issued by an
12    authorized insurer that does not provide coverage
      identical to the coverage provided by the association.
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