Senate Bill 1964

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    Florida Senate - 2000                                  SB 1964

    By Senator Silver





    38-1485-00

  1                      A bill to be entitled

  2         An act relating to insurance; amending s.

  3         627.0628, F.S.; providing that insurers may not

  4         use a model to determine hurricane-loss factors

  5         for use in a rate filing until the Florida

  6         Commission on Hurricane Loss Projection

  7         Methodology finds that a publicly owned model

  8         developed by the State University System is

  9         reliable to determine such factors; amending s.

10         627.351, F.S.; modifying membership of the

11         board of directors of the Florida Windstorm

12         Underwriting Association; providing for

13         assignment by the association of personal lines

14         residential policies located in a deauthorized

15         area to authorized insurers; providing criteria

16         for distributing assigned policies; providing

17         procedures; providing that assignment of a

18         policy does not affect the producing agent's

19         entitlement to unearned commission; providing

20         for appeals of assignment of policies to the

21         Department of Insurance; providing that a

22         failure to accept residential policies assigned

23         by the association is a willful violation of

24         the Florida Insurance Code; authorizing the

25         department to adopt rules; repealing s.

26         627.062(6), F.S., relating to rate standards;

27         providing an effective date.

28

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

30

31

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  1         Section 1.  Section 627.0628, Florida Statutes, is

  2  amended to read:

  3         627.0628  Florida Commission on Hurricane Loss

  4  Projection Methodology.--

  5         (1)  LEGISLATIVE FINDINGS AND INTENT.--

  6         (a)  Reliable projections of hurricane losses are

  7  necessary in order to assure that rates for residential

  8  property insurance meet the statutory requirement that rates

  9  be neither excessive nor inadequate.  The ability to

10  accurately project hurricane losses has been enhanced greatly

11  in recent years through the use of computer modeling.  It is

12  the public policy of this state to encourage the use of the

13  most sophisticated actuarial methods to assure that consumers

14  are charged lawful rates for residential property insurance

15  coverage.

16         (b)  The Legislature recognizes the need for expert

17  evaluation of computer models and other recently developed or

18  improved actuarial methodologies for projecting hurricane

19  losses, in order to resolve conflicts among actuarial

20  professionals, and in order to provide both immediate and

21  continuing improvement in the sophistication of actuarial

22  methods used to set rates charged to consumers.

23         (c)  It is the intent of the Legislature to create the

24  Florida Commission on Hurricane Loss Projection Methodology as

25  a panel of experts to provide the most actuarially

26  sophisticated guidelines and standards for projection of

27  hurricane losses possible, given the current state of

28  actuarial science.  It is the further intent of the

29  Legislature that such standards and guidelines must be used by

30  the State Board of Administration in developing reimbursement

31  premium rates for the Florida Hurricane Catastrophe Fund, and

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  1  may be used by insurers in rate filings under s. 627.062

  2  unless the way in which such standards and guidelines were

  3  applied by the insurer was erroneous, as shown by a

  4  preponderance of the evidence.

  5         (d)  It is the intent of the Legislature that such

  6  standards and guidelines be employed as soon as possible, and

  7  that they be subject to continuing review thereafter.

  8         (2)  COMMISSION CREATED.--

  9         (a)  There is created the Florida Commission on

10  Hurricane Loss Projection Methodology, which is assigned to

11  the State Board of Administration.  The commission shall be

12  administratively housed within the State Board of

13  Administration, but it shall independently exercise the powers

14  and duties specified in this section.

15         (b)  The commission shall consist of the following 11

16  members:

17         1.  The insurance consumer advocate.

18         2.  The Chief Operating Officer of the Florida

19  Hurricane Catastrophe Fund.

20         3.  The Executive Director of the Residential Property

21  and Casualty Joint Underwriting Association.

22         4.  The Director of the Division of Emergency

23  Management of the Department of Community Affairs.

24         5.  The actuary member of the Florida Hurricane

25  Catastrophe Fund Advisory Council.

26         6.  Six members appointed by the Insurance

27  Commissioner, as follows:

28         a.  An employee of the Department of Insurance who is

29  an actuary responsible for property insurance rate filings.

30         b.  An actuary who is employed full time by a property

31  and casualty insurer which was responsible for at least 1

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  1  percent of the aggregate statewide direct written premium for

  2  homeowner's insurance in the calendar year preceding the

  3  member's appointment to the commission.

  4         c.  An expert in insurance finance who is a full time

  5  member of the faculty of the State University System and who

  6  has a background in actuarial science.

  7         d.  An expert in statistics who is a full time member

  8  of the faculty of the State University System and who has a

  9  background in insurance.

10         e.  An expert in computer system design who is a full

11  time member of the faculty of the State University System.

12         f.  An expert in meteorology who is a full time member

13  of the faculty of the State University System and who

14  specializes in hurricanes.

15         (c)  Members designated under subparagraphs (b)1.-5.

16  shall serve on the commission as long as they maintain the

17  respective offices designated in subparagraphs (b)1.-5.

18  Members appointed by the Insurance Commissioner under

19  subparagraph (b)6. shall serve on the commission until the end

20  of the term of office of the Insurance Commissioner who

21  appointed them, unless earlier removed by the Insurance

22  Commissioner for cause.  Vacancies on the commission shall be

23  filled in the same manner as the original appointment.

24         (d)  The State Board of Administration shall annually

25  appoint one of the members of the commission to serve as

26  chair.

27         (e)  Members of the commission shall serve without

28  compensation, but shall be reimbursed for per diem and travel

29  expenses pursuant to s. 112.061.

30         (f)  The State Board of Administration shall, as a cost

31  of administration of the Florida Hurricane Catastrophe Fund,

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  1  provide for travel, expenses, and staff support for the

  2  commission.

  3         (g)  There shall be no liability on the part of, and no

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

  5  of the commission, any member of the State Board of

  6  Administration, or any employee of the State Board of

  7  Administration for any action taken in the performance of

  8  their duties under this section. In addition, the commission

  9  may, in writing, waive any potential cause of action for

10  negligence of a consultant, contractor, or contract employee

11  engaged to assist the commission.

12         (3)  ADOPTION AND EFFECT OF STANDARDS AND GUIDELINES.--

13         (a)  The commission shall consider any actuarial

14  methods, principles, standards, models, or output ranges that

15  have the potential for improving the accuracy of or

16  reliability of the hurricane loss projections used in

17  residential property insurance rate filings.  The commission

18  shall, from time to time, adopt findings as to the accuracy or

19  reliability of particular methods, principles, standards,

20  models, or output ranges.

21         (b)  In establishing reimbursement premiums for the

22  Florida Hurricane Catastrophe Fund, the State Board of

23  Administration must, to the extent feasible, employ actuarial

24  methods, principles, standards, models, or output ranges found

25  by the commission to be accurate or reliable.

26         (c)  With respect to a rate filing under s. 627.062, an

27  insurer may employ actuarial methods, principles, standards,

28  models, or output ranges found by the commission to be

29  accurate or reliable to determine hurricane loss factors for

30  use in a rate filing under s. 627.062, which findings and

31  factors are admissible and relevant in consideration of a rate

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  1  filing by the department or in any arbitration or

  2  administrative or judicial review. Notwithstanding the

  3  provisions of subsection (1), an insurer may not avail itself

  4  of the provisions of this paragraph until the commission finds

  5  that a publicly owned model developed by the State University

  6  System is accurate and reliable for determining hurricane-loss

  7  factors for use in a rate filing under s. 627.062.

  8         (d)  The commission shall adopt initial actuarial

  9  methods, principles, standards, models, or output ranges no

10  later than December 31, 1995.  The commission shall adopt

11  revisions to such actuarial methods, principles, standards,

12  models, or output ranges at least annually thereafter.  As

13  soon as possible, but no later than July 1, 1996, the

14  commission shall adopt revised actuarial methods, principles,

15  standards, models, or output ranges which include

16  specification of acceptable computer models or output ranges

17  derived from computer models.

18         Section 2.  Paragraph (b) of subsection (2) and

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

20  Statutes, are amended, and paragraph (f) is added to

21  subsection (2), to read:

22         627.351  Insurance risk apportionment plans.--

23         (2)  WINDSTORM INSURANCE RISK APPORTIONMENT.--

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 representative of a financial

26  institution engaging in residential mortgage lending within

27  the association's eligible areas, 1 representative of realtors

28  engaged in the sale of residential property within the

29  association's eligible areas, 1 representative who has

30  expertise in State Minimum Building Codes and coastal

31  construction, 1 association policyholder, 1 representative who

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  1  is a licensed property and casualty insurance agent, 1

  2  consumer representative appointed by the Insurance

  3  Commissioner, 1 consumer representative appointed by the

  4  Governor, and 7 12 additional members appointed as specified

  5  in the plan of operation. One of the 7 12 additional members

  6  shall be elected by the domestic companies of this state on

  7  the basis of cumulative weighted voting based on the net

  8  direct premiums of domestic companies in this state. Nothing

  9  in the 1997 amendments to this paragraph terminates the

10  existing 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 shall be included as an appropriate

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

30         c.  The Legislature finds that the potential for

31  unlimited deficit assessments under this subparagraph may

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  1  induce insurers to attempt to reduce their writings in the

  2  voluntary market, and that such actions would worsen the

  3  availability problems that the association was created to

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

  5  remain fully responsible for paying regular assessments and

  6  collecting emergency assessments for any deficits of the

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

  8  to provide a means by which assessment liabilities may be

  9  amortized over a period of years.

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

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

12  direct written premium for property insurance for the prior

13  calendar year for all member insurers, the association shall

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

15  the deficit.

16         (II)  When the deficit incurred in a particular

17  calendar year exceeds 10 percent of the aggregate statewide

18  direct written premium for property insurance for the prior

19  calendar year for all member insurers, the association shall

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

21  the greater of 10 percent of the deficit or 10 percent of the

22  aggregate statewide direct written premium for property

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

24  remaining deficit shall be recovered through emergency

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

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

27  that a deficit exceeds the amount that will be recovered

28  through regular assessments on member insurers, pursuant to

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

30  board shall levy, after verification by the department,

31  emergency assessments to be collected by member insurers and

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  1  by underwriting associations created pursuant to this section

  2  which write property insurance, upon issuance or renewal of

  3  property insurance policies other than National Flood

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

  5  regular assessments. The amount of the emergency assessment

  6  collected in a particular year shall be a uniform percentage

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

  8  for all member insurers and underwriting associations,

  9  excluding National Flood Insurance policy premiums, as

10  annually determined by the board and verified by the

11  department. The department shall verify the arithmetic

12  calculations involved in the board's determination within 30

13  days after receipt of the information on which the

14  determination was based. Notwithstanding any other provision

15  of law, each member insurer and each underwriting association

16  created pursuant to this section shall collect emergency

17  assessments from its policyholders without such obligation

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

19  deferment.  The emergency assessments so collected shall be

20  transferred directly to the association on a periodic basis as

21  determined by the association. The aggregate amount of

22  emergency assessments levied under this sub-sub-subparagraph

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

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

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

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

27  percent of the aggregate statewide direct written premium for

28  property insurance written by member insurers and underwriting

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

30  commissions, required reserves, and other costs associated

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

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  1  proceeds of the emergency assessments under this

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

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

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

  5  the board determines will efficiently recover the deficit. The

  6  emergency assessments under this sub-sub-subparagraph shall

  7  continue as long as any bonds issued or other indebtedness

  8  incurred with respect to a deficit for which the assessment

  9  was imposed remain outstanding, unless adequate provision has

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

11  pursuant to the document governing such bonds or other

12  indebtedness. Emergency assessments collected under this

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

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

15  commissions; however, failure to pay the emergency assessment

16  shall be treated as failure to pay premium.

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

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

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

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

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

22  aggregate statewide net direct premium for property insurance

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

24  voluntary writings for that year.

25         (V)  If regular deficit assessments are made under

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

27  the Residential Property and Casualty Joint Underwriting

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

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

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

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

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  1  a market equalization surcharge in a percentage equal to the

  2  total amount of such regular assessments divided by the

  3  aggregate statewide direct written premium for property

  4  insurance for member insurers for the prior calendar year.

  5  Market equalization surcharges under this sub-sub-subparagraph

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

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

  8  equalization surcharge shall be treated as failure to pay

  9  premium.

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

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

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

13  assistance program, in conjunction with the association, for

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

15  to avoid needless and indiscriminate proliferation,

16  duplication, and fragmentation of such assistance programs,

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

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

19  losses, regardless of whether or not the losses occurred

20  within or outside of the territorial jurisdiction of the local

21  government. Revenue bonds may not be issued until validated

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

23  declared by executive order or proclamation of the Governor

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

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

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

27  welfare of residents of this state and the protection and

28  preservation of the economic stability of insurers operating

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

30  permit certain municipalities or counties to issue bonds as

31  will provide relief to claimants and policyholders of the

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  1  association and insurers responsible for apportionment of plan

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

  3  contracts with the association and with any other entity

  4  created pursuant to this subsection as are necessary to carry

  5  out this paragraph. Any bonds issued under this

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

  7  received by the association from assessments under this

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

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

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

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

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

13  remain unsold 60 days after issuance, the department shall

14  require all insurers subject to assessment to purchase the

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

16  shall be required to purchase that percentage of the unsold

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

18  share of assessment liability under this subsection. An

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

20  extent that the department determines that the purchase would

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

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

23  authority granted by subparagraph 6.

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

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

26  percent or more of its total countrywide property insurance

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

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

29  apportionment company. The apportionment of such a member

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

31  not exceed its gross participation, which shall not be

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

  2  shall a limited apportionment company be required to

  3  participate in any apportionment of losses pursuant to

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

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

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

  7  apportionment company shall collect from its policyholders any

  8  emergency assessment imposed under sub-sub-subparagraph

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

10  determines that any regular assessment will result in an

11  impairment of the surplus of a limited apportionment company,

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

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

14  deferment of an emergency assessment to be collected from

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

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

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

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

19  but not for an emergency assessment collected from

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

21  opinion of the commissioner, payment of such regular

22  assessment would endanger or impair the solvency of the member

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

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

25  such assessment is deferred may be assessed against the other

26  member insurers in a manner consistent with the basis for

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

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

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

30  rules for classification of risks and rate modifications

31

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  1  consistent with the objective of providing and maintaining

  2  funds sufficient to pay catastrophe losses.

  3         b.  The association may require arbitration of a rate

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

  5  Legislature that the rates for coverage provided by the

  6  association be actuarially sound and not competitive with

  7  approved rates charged in the admitted voluntary market such

  8  that the association functions as a residual market mechanism

  9  to provide insurance only when the insurance cannot be

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

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

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

13  line of business are reflective of approved rates in the

14  voluntary market for hurricane coverage for each line of

15  business in the various areas eligible for association

16  coverage.

17         c.  The association shall provide for windstorm

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

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

20  for personal lines residential risks. If coverage with the

21  association is sought for a residential risk valued in excess

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

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

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

25  located in the authorized market. The association must accept

26  a commercial lines residential risk with limits above $10

27  million or a personal lines residential risk with limits above

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

29  market.  The association may write coverage above the limits

30  specified in this subparagraph with or without facultative or

31

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  1  other reinsurance coverage, as the association determines

  2  appropriate.

  3         d.  The plan of operation must provide objective

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

  5  uniformly applied for all applicants in determining whether an

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

  7  making this determination and in establishing the criteria and

  8  procedures, the following shall be considered:

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

10  individual risk is substantially higher than for other risks

11  of the same class; and

12         (II)  Whether the uncertainty associated with the

13  individual risk is such that an appropriate premium cannot be

14  determined.

15

16  The acceptance or rejection of a risk by the association

17  pursuant to such criteria and procedures must be construed as

18  the private placement of insurance, and the provisions of

19  chapter 120 do not apply.

20         e.  The policies issued by the association must provide

21  that if the association obtains an offer from an authorized

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

23  standard policy including wind coverage or, if consistent with

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

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

26  eligible for coverage through the association. Upon

27  termination of eligibility, the association shall provide

28  written notice to the policyholder and agent of record stating

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

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

31  from an authorized insurer. Other provisions of the insurance

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  1  code relating to cancellation and notice of cancellation do

  2  not apply to actions under this sub-subparagraph.

  3         f.  Association policies and applications must include

  4  a notice that the association policy could, under this

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

  6  insurer that does not provide coverage identical to the

  7  coverage provided by the association. The notice shall also

  8  specify that acceptance of association coverage creates a

  9  conclusive presumption that the applicant or policyholder is

10  aware of this potential.

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

12  of a private nonprofit corporation, a private nonprofit

13  unincorporated association, a partnership, a trust, a limited

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

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

16  bonds or by incurring other indebtedness and to accumulate

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

18  catastrophe losses. The plan may authorize all actions

19  necessary to facilitate the issuance of bonds, including the

20  pledging of assessments or other revenues.

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

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

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

24  instruments; pledge or sell assessments, market equalization

25  surcharges and other surcharges, rights, premiums, contractual

26  rights, projected recoveries from the Florida Hurricane

27  Catastrophe Fund, other reinsurance recoverables, and other

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

29  enter into any contracts or agreements necessary or proper to

30  accomplish such borrowings; and take other actions necessary

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

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

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

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

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

  5  subject to approval by the department that such action would

  6  enable it to efficiently meet the financial obligations of the

  7  association and that such financings are reasonably necessary

  8  to effectuate the requirements of this subsection. Any such

  9  entity may accumulate reserves and retain surpluses as of the

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

11  losses incurred by the association during that year or any

12  future year. The association shall incorporate and continue

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

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

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

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

17  of directors and officers currently serving shall continue to

18  serve until their successors are duly qualified as provided

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

20  effect immediately prior to the effective date of chapter

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

22  the successor plan created herein.

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

24  Constitution, prohibiting the impairment of obligations of

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

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

27  financing agreement or any revenue source committed by

28  contract to such bond or other indebtedness issued or incurred

29  by the association or any other entity created under this

30  subsection.

31

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

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

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

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

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

  6  company.

  7         8.  Subject to approval by the department, the

  8  association may establish different eligibility requirements

  9  and operational procedures for any line or type of coverage

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

11  if the board determines that such changes to the eligibility

12  requirements and operational procedures are justified due to

13  the voluntary market being sufficiently stable and competitive

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

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

16  through the voluntary market through ordinary methods would

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

18  coverage is sought in connection with a real property

19  transfer, such requirements and procedures shall not provide

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

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

22  transferee, and, if applicable, the lender.

23         9.  Notwithstanding any other provision of law:

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

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

26  the association created or purported to be created pursuant to

27  any financing documents to secure any bonds or other

28  indebtedness of the association shall be and remain valid and

29  enforceable, notwithstanding the commencement of and during

30  the continuation of, and after, any rehabilitation,

31  insolvency, liquidation, bankruptcy, receivership,

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  1  conservatorship, reorganization, or similar proceeding against

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

  3  applicable laws.

  4         b.  No such proceeding shall relieve the association of

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

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

  7  assessments, market equalization or other surcharges,

  8  projected recoveries from the Florida Hurricane Catastrophe

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

10  or other assets of the association pledged.

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

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

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

14  assessments, market equalization or renewal surcharges,

15  projected recoveries from the Florida Hurricane Catastrophe

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

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

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

19  any such proceeding shall continue unaffected by such

20  proceeding.

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

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

23  now existing or hereafter created evidencing any bonds or

24  other indebtedness of the association or pursuant to which any

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

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

27  association are pledged or sold to secure the repayment of

28  such bonds or indebtedness, together with the payment of

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

30  any other obligation of the association related to such bonds

31  or indebtedness.

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

  2  contract rights or other rights or assets of the association

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

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

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

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

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

  8  valid, binding, and enforceable against the association or

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

10  against and superior to any competing claims or obligations

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

12  this state, asserting rights in any such assessments,

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

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

15  sale contained in the applicable financing documents, whether

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

17  sale and without the need for any physical delivery,

18  recordation, filing, or other action.

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

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

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

22  association, members of the board of directors of the

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

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

25  responsibilities under this subsection. Such immunity does not

26  apply to actions for breach of any contract or agreement

27  pertaining to insurance, or any willful tort.

28         (f)1.  After December 31, 2000, the association may not

29  accept an application for coverage for a risk located in the

30  deauthorized area. As used in this paragraph, the term

31

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  1  "deauthorized area" means the area between I-95 and U.S. 1 in

  2  Miami-Dade, Broward, and Palm Beach Counties.

  3         2.  Until January 1, 2001, the association shall afford

  4  to all authorized insurers an opportunity to voluntarily

  5  remove policies located in the deauthorized area from the

  6  association. Each policy must be written for at least three

  7  full annual policy terms, using rates and forms approved by

  8  the department.

  9         3.a.  Beginning January 1, 2001, every authorized

10  insurer writing personal lines residential coverage in this

11  state must accept assignments of personal lines residential

12  policies located in the deauthorized area from the

13  association, as provided in this paragraph.

14         b.  By January 1, 2001, the association shall identify

15  the personal lines residential policies in the deauthorized

16  area that will be assigned to each insurer. The association

17  shall provide each insurer access to information concerning

18  each policy assigned to the insurer. The selection and

19  subsequent assignment must be coordinated by the association

20  among the various insurers by allocating the distribution of

21  the assigned policies among such insurers in such a manner as

22  to limit adverse solvency consequences; to avoid excess

23  concentration of policies in any one area with respect to the

24  insurer's personal lines residential coverage book of

25  business; to take into account the characteristics of risks

26  underwritten in the voluntary market by the assigned insurer

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

28  the insurer's expertise; and to take into account variations

29  in the market value of the assigned risks.

30         c.  The assignments must be made to each insurer such

31  that each insurer's share of the policies assigned is

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  1  approximately equal to that insurer's proportional share of

  2  personal lines residential insurance policies written in this

  3  state. Insurers that voluntarily remove policies from the

  4  deauthorized area may receive a reduction in the number of

  5  assignments such insurers would otherwise receive from the

  6  association.

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

  8  authorized to write personal lines residential coverage in

  9  this state, insurers in the group receiving the assignments

10  may cede the assignments among authorized members of the group

11  as approved by the department.

12         e.  Each insurer to which policies are assigned must

13  renew each policy for at least 3 years, unless canceled by the

14  insurer for a lawful reason other than reduction of hurricane

15  exposure or unless nonrenewed by the policyholder. Nothing in

16  this paragraph precludes an insurer from offering an assigned

17  policyholder coverage for nonwind perils. If such an offer is

18  accepted, the insurer may satisfy its assignment obligations

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

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

21  each assigned policy canceled or nonrenewed by the insurer for

22  any reason during the coverage period required by this

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

24  available, one additional policy covering a risk similar to

25  the risk covered by the canceled or nonrenewed policy.

26         f.  Assignment of a policy does not affect the

27  producing agent's entitlement to unearned commission. If the

28  policy is assigned to an insurer with which the producing

29  agent has a contract, the producing agent shall retain the

30  business. If the policy is assigned to an insurer that is

31  using the services of a managing general agent, the producing

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  1  agent is entitled to act as the brokering agent. If the agent

  2  is not appointed or offered an appointment with the assuming

  3  insurer or not brokering the business with a managing general

  4  agent being used by the assuming insurer, the agent shall

  5  receive an assignment fee of $50, payable by the association.

  6         g.  If an insurer believes that the assignment of risks

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

  8  insurer's capital and surplus, as those terms are defined in

  9  s. 631.011(9), (10), and (11), and reasonable means to avoid

10  the insolvency or impairment are unavailable, the insurer may

11  petition the department for revision, in whole or in part, of

12  the selection and assignment of such risks. The insurers shall

13  bear the burden of proving such resulting insolvency or

14  impairment of capital or surplus.

15         4.  The failure of an insurer to accept the residential

16  policies selected by the association, constitutes a willful

17  violation of the Florida Insurance Code. Each policy refused

18  or rejected by an insurer constitutes a separate violation.

19         5.  The department may adopt rules to administer this

20  paragraph.

21         6.  The department may require the revision or

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

23  necessary for the purposes of this paragraph.

24         7.  The department may require the revision or

25  amendment of any plan of operation or bylaws of the market

26  assistance plan established under s. 627.3515 as necessary for

27  the purposes of this paragraph.

28         (6)  RESIDENTIAL PROPERTY AND CASUALTY JOINT

29  UNDERWRITING ASSOCIATION.--

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

31  rates for coverage provided by the association be actuarially

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  1  sound and not competitive with approved rates charged in the

  2  admitted voluntary market, so that the association functions

  3  as a residual market mechanism to provide insurance only when

  4  the insurance cannot be procured in the voluntary market.

  5  Rates shall include an appropriate catastrophe loading factor

  6  that reflects the actual catastrophic exposure of the

  7  association and recognizes that the association has little or

  8  no capital or surplus; and the association shall carefully

  9  review each rate filing to assure that provider compensation

10  is not excessive.

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

12  association for each line of business for personal lines

13  residential policies shall be no lower than the average rates

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

15  that county among the 20 insurers with the greatest total

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

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

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

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

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

21  with the greatest total written premium for mobile home

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

23         3.  Rates for commercial residential coverage shall not

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

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

26  627.062.

27         4.  Nothing in this paragraph shall require or allow

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

29  627.062 or to reduce rates approved under s. 627.062.

30         5.  The association may require arbitration of a filing

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

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

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

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

  4         Section 3.  Subsection (6) of section 627.062, Florida

  5  Statutes, is repealed:

  6         Section 4.  This act shall take effect upon becoming a

  7  law.

  8

  9            *****************************************

10                          SENATE SUMMARY

11    Provides that insurers may not use a model to determine
      hurricane-loss factors for use in a rate filing until the
12    Florida Commission on Hurricane Loss Projection
      Methodology finds that a publicly owned model developed
13    by the State University System is reliable to determine
      such factors. Modifies the membership of the board of
14    directors of the Florida Windstorm Underwriting
      Association. Provides for the assignment by the
15    association of personal lines residential policies
      located in a deauthorized area as defined to authorized
16    insurers. Provides for the distribution of assigned
      policies. Provides procedures. Provides that assignment
17    of a policy does not affect the producing agent's
      entitlement  to unearned commissions. Provides for an
18    appeal of the association's assignment of policies to the
      Department of Insurance. Provides that a failure to
19    accept residential policies assigned by the association
      is a willful violation of the Florida Insurance Code.
20    Authorizes the department to adopt rules. Repeals s.
      627.062(6), F.S., relating to rate standards.
21

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