House Bill 0609

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    Florida House of Representatives - 1999                 HB 609

        By Representatives Gottlieb, Rayson, Rojas, Chestnut, C.
    Smith, Sobel, Logan, Wasserman Schultz, Betancourt and Heyman





  1                      A bill to be entitled

  2         An act relating to insurance; amending s.

  3         627.351, F.S.; deleting provisions authorizing

  4         certain associations to require rate

  5         arbitration of rate filings; repealing s.

  6         627.062(6), F.S., relating to an insurer's

  7         alternative under rate standards to require

  8         arbitration of rate filings; providing an

  9         effective date.

10

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

12

13         Section 1.  Paragraph (b) of subsection (2) and

14  paragraph (d) of subsection (6) of section 627.351, Florida

15  Statutes, 1998 Supplement, are amended to read:

16         627.351  Insurance risk apportionment plans.--

17         (2)  WINDSTORM INSURANCE RISK APPORTIONMENT.--

18         (b)  The department shall require all insurers holding

19  a certificate of authority to transact property insurance on a

20  direct basis in this state, other than joint underwriting

21  associations and other entities formed pursuant to this

22  section, to provide windstorm coverage to applicants from

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

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

25  coverage through ordinary means; or it shall adopt a

26  reasonable plan or plans for the equitable apportionment or

27  sharing among such insurers of windstorm coverage, which may

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

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

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

31  624.604, including insurance for fire, industrial fire, allied

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  1  lines, farmowners multiperil, homeowners' multiperil,

  2  commercial multiperil, and mobile homes, and including

  3  liability coverages on all such insurance, but excluding

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

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

  6  insurance on mobile homes used as permanent dwellings. The

  7  department shall adopt rules that provide a formula for the

  8  recovery and repayment of any deferred assessments.

  9         1.  For the purpose of this section, properties

10  eligible for such windstorm coverage are defined as dwellings,

11  buildings, and other structures, including mobile homes which

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

13  with mobile home tie-down requirements prescribed by the

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

15  320.8325, and the contents of all such properties. An

16  applicant or policyholder is eligible for coverage only if an

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

18  or policyholder from an admitted insurer at approved rates.

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

20  association shall participate in its writings, expenses, and

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

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

23  insurers. Such participation by member insurers shall be in

24  the proportion that the net direct premiums of each member

25  insurer written for property insurance in this state during

26  the preceding calendar year bear to the aggregate net direct

27  premiums for property insurance of all member insurers, as

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

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

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

31  written premiums for property insurance, reduced by premium

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  1  for liability coverage and for the following if included in

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

  3  association direct premiums booked; National Flood Insurance

  4  Program direct premiums; and similar deductions specifically

  5  authorized by the plan of operation and approved by the

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

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

  8  issued a certificate of authority to transact property

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

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

11  certificate of authority to transact property insurance in the

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

13  other reports, and any other statistics that the commissioner

14  deems necessary, shall certify to the association the

15  aggregate direct premiums written for property insurance in

16  this state by all member insurers.

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

18  of directors consisting of the Insurance Consumer Advocate

19  appointed under s. 627.0613, 1 consumer representative

20  appointed by the Insurance Commissioner, 1 consumer

21  representative appointed by the Governor, and 12 additional

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

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

24  companies of this state on the basis of cumulative weighted

25  voting based on the net direct premiums of domestic companies

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

27  paragraph terminates the existing board or the terms of any

28  members of the board.

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

30  whereby a company voluntarily providing windstorm coverage in

31  affected areas will be relieved wholly or partially from

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  1  apportionment of a regular assessment pursuant to

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

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

  4  companies under common management may elect to have its

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

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

  7  group.

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

  9  apportionment to a company for emergency assessments collected

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

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

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

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

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

15  policies out of the Residential Property and Casualty Joint

16  Underwriting Association.  In order to qualify for the

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

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

19  from the Residential Property and Casualty Joint Underwriting

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

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

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

23  Counties and an additional 50 percent of the policies so

24  removed cover risks located in other coastal counties, and

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

26  so removed may exclude windstorm coverage.  With the approval

27  of the department, the association may waive these geographic

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

29  of 100,000 Residential Property and Casualty Joint

30  Underwriting Association policies or 15 percent of the total

31  number of Residential Property and Casualty Joint Underwriting

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  1  Association policies, provided the governing board of the

  2  Residential Property and Casualty Joint Underwriting

  3  Association certifies that the take-out plan will materially

  4  reduce the Residential Property and Casualty Joint

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

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

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

  8  guarantees an additional year of renewability for all policies

  9  removed from the Residential Property and Casualty Joint

10  Underwriting Association, or for 2 additional years if the

11  insurer guarantees 2 additional years of renewability for all

12  policies removed from the Residential Property and Casualty

13  Joint Underwriting Association.

14         b.  Assessments to pay deficits in the association

15  under this subparagraph shall be included as an appropriate

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

17         c.  The Legislature finds that the potential for

18  unlimited deficit assessments under this subparagraph may

19  induce insurers to attempt to reduce their writings in the

20  voluntary market, and that such actions would worsen the

21  availability problems that the association was created to

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

23  remain fully responsible for paying regular assessments and

24  collecting emergency assessments for any deficits of the

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

26  to provide a means by which assessment liabilities may be

27  amortized over a period of years.

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

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

30  direct written premium for property insurance for the prior

31  calendar year for all member insurers, the association shall

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

  2  the deficit.

  3         (II)  When the deficit incurred in a particular

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

  9  aggregate statewide direct written premium for property

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

11  remaining deficit shall be recovered through emergency

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

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

14  that a deficit exceeds the amount that will be recovered

15  through regular assessments on member insurers, pursuant to

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

17  board shall levy, after verification by the department,

18  emergency assessments to be collected by member insurers and

19  by underwriting associations created pursuant to this section

20  which write property insurance, upon issuance or renewal of

21  property insurance policies other than National Flood

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

23  regular assessments. The amount of the emergency assessment

24  collected in a particular year shall be a uniform percentage

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

26  for all member insurers and underwriting associations,

27  excluding National Flood Insurance policy premiums, as

28  annually determined by the board and verified by the

29  department. The department shall verify the arithmetic

30  calculations involved in the board's determination within 30

31  days after receipt of the information on which the

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  1  determination was based. Notwithstanding any other provision

  2  of law, each member insurer and each underwriting association

  3  created pursuant to this section shall collect emergency

  4  assessments from its policyholders without such obligation

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

  6  deferment.  The emergency assessments so collected shall be

  7  transferred directly to the association on a periodic basis as

  8  determined by the association. The aggregate amount of

  9  emergency assessments levied under this sub-sub-subparagraph

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

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

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

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

14  percent of the aggregate statewide direct written premium for

15  property insurance written by member insurers and underwriting

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

17  commissions, required reserves, and other costs associated

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

19  proceeds of the emergency assessments under this

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

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

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

23  the board determines will efficiently recover the deficit. The

24  emergency assessments under this sub-sub-subparagraph shall

25  continue as long as any bonds issued or other indebtedness

26  incurred with respect to a deficit for which the assessment

27  was imposed remain outstanding, unless adequate provision has

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

29  pursuant to the document governing such bonds or other

30  indebtedness. Emergency assessments collected under this

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

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

  2  commissions; however, failure to pay the emergency assessment

  3  shall be treated as failure to pay premium.

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

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

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

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

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

  9  aggregate statewide net direct premium for property insurance

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

11  voluntary writings for that year.

12         (V)  If regular deficit assessments are made under

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

14  the Residential Property and Casualty Joint Underwriting

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

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

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

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

19  a market equalization surcharge in a percentage equal to the

20  total amount of such regular assessments divided by the

21  aggregate statewide direct written premium for property

22  insurance for member insurers for the prior calendar year.

23  Market equalization surcharges under this sub-sub-subparagraph

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

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

26  equalization surcharge shall be treated as failure to pay

27  premium.

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

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

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

31  assistance program, in conjunction with the association, for

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

  2  to avoid needless and indiscriminate proliferation,

  3  duplication, and fragmentation of such assistance programs,

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

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

  6  losses, regardless of whether or not the losses occurred

  7  within or outside of the territorial jurisdiction of the local

  8  government. Revenue bonds may not be issued until validated

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

10  declared by executive order or proclamation of the Governor

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

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

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

14  welfare of residents of this state and the protection and

15  preservation of the economic stability of insurers operating

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

17  permit certain municipalities or counties to issue bonds as

18  will provide relief to claimants and policyholders of the

19  association and insurers responsible for apportionment of plan

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

21  contracts with the association and with any other entity

22  created pursuant to this subsection as are necessary to carry

23  out this paragraph. Any bonds issued under this

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

25  received by the association from assessments under this

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

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

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

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

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

31  remain unsold 60 days after issuance, the department shall

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  1  require all insurers subject to assessment to purchase the

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

  3  shall be required to purchase that percentage of the unsold

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

  5  share of assessment liability under this subsection. An

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

  7  extent that the department determines that the purchase would

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

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

10  authority granted by subparagraph 6.

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

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

13  percent or more of its total countrywide property insurance

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

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

16  apportionment company. The apportionment of such a member

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

18  not exceed its gross participation, which shall not be

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

20  shall a limited apportionment company be required to

21  participate in any apportionment of losses pursuant to

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

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

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

25  apportionment company shall collect from its policyholders any

26  emergency assessment imposed under sub-sub-subparagraph

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

28  determines that any regular assessment will result in an

29  impairment of the surplus of a limited apportionment company,

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

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

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  1  deferment of an emergency assessment to be collected from

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

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

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

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

  6  but not for an emergency assessment collected from

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

  8  opinion of the commissioner, payment of such regular

  9  assessment would endanger or impair the solvency of the member

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

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

12  such assessment is deferred may be assessed against the other

13  member insurers in a manner consistent with the basis for

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

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

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

17  rules for classification of risks and rate modifications

18  consistent with the objective of providing and maintaining

19  funds sufficient to pay catastrophe losses.

20         b.  The association may require arbitration of a rate

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

22  Legislature that the rates for coverage provided by the

23  association be actuarially sound and not competitive with

24  approved rates charged in the admitted voluntary market such

25  that the association functions as a residual market mechanism

26  to provide insurance only when the insurance cannot be

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

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

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

30  line of business are reflective of approved rates in the

31  voluntary market for hurricane coverage for each line of

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  1  business in the various areas eligible for association

  2  coverage.

  3         c.  The association shall provide for windstorm

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

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

  6  for personal lines residential risks. If coverage with the

  7  association is sought for a residential risk valued in excess

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

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

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

11  located in the authorized market. The association must accept

12  a commercial lines residential risk with limits above $10

13  million or a personal lines residential risk with limits above

14  $1 million if coverage is not available in the authorized

15  market.  The association may write coverage above the limits

16  specified in this subparagraph with or without facultative or

17  other reinsurance coverage, as the association determines

18  appropriate.

19         d.  The plan of operation must provide objective

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

21  uniformly applied for all applicants in determining whether an

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

23  making this determination and in establishing the criteria and

24  procedures, the following shall be considered:

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

26  individual risk is substantially higher than for other risks

27  of the same class; and

28         (II)  Whether the uncertainty associated with the

29  individual risk is such that an appropriate premium cannot be

30  determined.

31

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  1  The acceptance or rejection of a risk by the association

  2  pursuant to such criteria and procedures must be construed as

  3  the private placement of insurance, and the provisions of

  4  chapter 120 do not apply.

  5         e.  The policies issued by the association must provide

  6  that if the association obtains an offer from an authorized

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

  8  standard policy including wind coverage or, if consistent with

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

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

11  eligible for coverage through the association. Upon

12  termination of eligibility, the association shall provide

13  written notice to the policyholder and agent of record stating

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

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

16  from an authorized insurer. Other provisions of the insurance

17  code relating to cancellation and notice of cancellation do

18  not apply to actions under this sub-subparagraph.

19         f.  Association policies and applications must include

20  a notice that the association policy could, under this

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

22  insurer that does not provide coverage identical to the

23  coverage provided by the association. The notice shall also

24  specify that acceptance of association coverage creates a

25  conclusive presumption that the applicant or policyholder is

26  aware of this potential.

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

28  of a private nonprofit corporation, a private nonprofit

29  unincorporated association, a partnership, a trust, a limited

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

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

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  1  bonds or by incurring other indebtedness and to accumulate

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

  3  catastrophe losses. The plan may authorize all actions

  4  necessary to facilitate the issuance of bonds, including the

  5  pledging of assessments or other revenues.

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

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

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

  9  instruments; pledge or sell assessments, market equalization

10  surcharges and other surcharges, rights, premiums, contractual

11  rights, projected recoveries from the Florida Hurricane

12  Catastrophe Fund, other reinsurance recoverables, and other

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

14  enter into any contracts or agreements necessary or proper to

15  accomplish such borrowings; and take other actions necessary

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

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

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

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

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

21  subject to approval by the department that such action would

22  enable it to efficiently meet the financial obligations of the

23  association and that such financings are reasonably necessary

24  to effectuate the requirements of this subsection. Any such

25  entity may accumulate reserves and retain surpluses as of the

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

27  losses incurred by the association during that year or any

28  future year. The association shall incorporate and continue

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

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

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

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

  2  of directors and officers currently serving shall continue to

  3  serve until their successors are duly qualified as provided

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

  5  effect immediately prior to the effective date of chapter

  6  76-96 shall be construed to be the assets and obligations of

  7  the successor plan created herein.

  8         c.  In recognition of 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 issued or incurred

14  by the association or any other entity created under this

15  subsection.

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

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

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

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

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

21  company.

22         8.  Subject to approval by the department, the

23  association may establish different eligibility requirements

24  and operational procedures for any line or type of coverage

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

26  if the board determines that such changes to the eligibility

27  requirements and operational procedures are justified due to

28  the voluntary market being sufficiently stable and competitive

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

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

31  through the voluntary market through ordinary methods would

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

  2  coverage is sought in connection with a real property

  3  transfer, such requirements and procedures shall not provide

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

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

  6  transferee, and, if applicable, the lender.

  7         9.  Notwithstanding any other provision of law:

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

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

10  the association created or purported to be created pursuant to

11  any financing documents to secure any bonds or other

12  indebtedness of the association shall be and remain valid and

13  enforceable, notwithstanding the commencement of and during

14  the continuation of, and after, any rehabilitation,

15  insolvency, liquidation, bankruptcy, receivership,

16  conservatorship, reorganization, or similar proceeding against

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

18  applicable laws.

19         b.  No such proceeding shall relieve the association of

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

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

22  assessments, market equalization or other surcharges,

23  projected recoveries from the Florida Hurricane Catastrophe

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

25  or other assets of the association pledged.

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

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

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

29  assessments, market equalization or renewal surcharges,

30  projected recoveries from the Florida Hurricane Catastrophe

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

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    Florida House of Representatives - 1999                 HB 609

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

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

  3  any such proceeding shall continue unaffected by such

  4  proceeding.

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

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

  7  now existing or hereafter created evidencing any bonds or

  8  other indebtedness of the association or pursuant to which any

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

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

11  association are pledged or sold to secure the repayment of

12  such bonds or indebtedness, together with the payment of

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

14  any other obligation of the association related to such bonds

15  or indebtedness.

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

17  contract rights or other rights or assets of the association

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

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

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

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

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

23  valid, binding, and enforceable against the association or

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

25  against and superior to any competing claims or obligations

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

27  this state, asserting rights in any such assessments,

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

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

30  sale contained in the applicable financing documents, whether

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

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  1  sale and without the need for any physical delivery,

  2  recordation, filing, or other action.

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

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

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

  6  association, members of the board of directors of the

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

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

  9  responsibilities under this subsection. Such immunity does not

10  apply to actions for breach of any contract or agreement

11  pertaining to insurance, or any willful tort.

12         (6)  RESIDENTIAL PROPERTY AND CASUALTY JOINT

13  UNDERWRITING ASSOCIATION.--

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

15  rates for coverage provided by the association be actuarially

16  sound and not competitive with approved rates charged in the

17  admitted voluntary market, so that the association functions

18  as a residual market mechanism to provide insurance only when

19  the insurance cannot be procured in the voluntary market.

20  Rates shall include an appropriate catastrophe loading factor

21  that reflects the actual catastrophic exposure of the

22  association and recognizes that the association has little or

23  no capital or surplus; and the association shall carefully

24  review each rate filing to assure that provider compensation

25  is not excessive.

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

27  association for each line of business for personal lines

28  residential policies shall be no lower than the average rates

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

30  that county among the 20 insurers with the greatest total

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

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    Florida House of Representatives - 1999                 HB 609

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

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

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

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

  5  with the greatest total written premium for mobile home

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

  7         3.  Rates for commercial residential coverage shall not

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

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

10  627.062.

11         4.  Nothing in this paragraph shall require or allow

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

13  627.062 or to reduce rates approved under s. 627.062.

14         5.  The association may require arbitration of a filing

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

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

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

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

19         Section 2.  Subsection (6) of section 627.062, Florida

20  Statutes, is repealed.

21         Section 3.  This act shall take effect October 1, 1999.

22

23            *****************************************

24                          HOUSE SUMMARY

25
      Deletes provisions authorizing insurers, the Florida
26    Windstorm Underwriting Association, and the Residential
      Property and Casualty Joint Underwriting Association to
27    require rate arbitration of rate filings rather than
      demanding a rate hearing.
28

29

30

31

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