Senate Bill 2304er

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  1

  2         An act relating to reinsurance; amending s.

  3         215.555, F.S.; revising the definition of the

  4         term "covered policy" for purposes of coverage

  5         by the Florida Hurricane Catastrophe Fund;

  6         revising the method of determining

  7         reimbursement to insurers by the Fund; amending

  8         s. 624.610, F.S.; setting the conditions for

  9         the allowance of credit for reinsurance;

10         providing definitions; providing for grounds

11         for denial or revocation of an assuming

12         insurer's accreditation; providing criteria for

13         the disallowance of credit for reinsurance for

14         a ceding insurer; providing for the payment of

15         costs and expenses; providing conditions for

16         the allowance or disallowance of credit for

17         reinsurance for assuming insurers maintaining

18         trust funds in qualified United States

19         financial institutions; providing intent that

20         there is no conflict with arbitration

21         agreements; providing for security; providing

22         for the inclusion of certain health maintenance

23         organizations within the term "ceding insurer";

24         providing conditions for the disallowance of

25         credit with respect to a ceding domestic

26         insurer; providing conditions for credit for

27         reinsurance in cases of insolvency; providing

28         for rights against a reinsurer; providing

29         prohibitions applying to authorized insurers,

30         other than certain surplus lines insurance;

31         providing procedures and information required


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  1         for a summary statement of each treaty;

  2         providing for exemptions from requirement of

  3         summary statements; providing for waiver;

  4         providing for cancellation; providing that

  5         there is no credit when there is no transfer of

  6         risk; granting authority to the Department of

  7         Insurance for rulemaking; requiring compliance

  8         with certain standards; requiring termination

  9         of approval of certain reinsurers under certain

10         circumstances; providing an effective date for

11         the application of cessions; providing an

12         effective date.

13

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

15

16         Section 1.  Paragraph (c) of subsection (2) and

17  subsection (4) of section 215.555, Florida Statutes, are

18  amended to read:

19         215.555  Florida Hurricane Catastrophe Fund.--

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

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

22  covering residential property in this state, including, but

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

24  owner's, condominium association, condominium unit owner's,

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

26  covering a residential structure or its contents issued by any

27  authorized insurer, including any joint underwriting

28  association or similar entity created pursuant to law.

29  Additionally, covered policies include policies covering the

30  peril of wind removed from the Florida Residential Property

31  and Casualty Joint Underwriting Association, created pursuant


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  1  to s. 627.351(6), or from the Florida Windstorm Underwriting

  2  Association, created pursuant to s. 627.351(2), by an

  3  authorized insurer under the terms and conditions of an

  4  executed assumption agreement between the authorized insurer

  5  and either such association. Each assumption agreement between

  6  either association and such authorized insurer must be

  7  approved by the Florida Department of Insurance prior to the

  8  effective date of the assumption, and the Department of

  9  Insurance must provide written notification to the board

10  within 15 working days after such approval. "Covered policy"

11  does not include any policy that excludes wind coverage or

12  hurricane coverage or any reinsurance agreement and does not

13  include any policy otherwise meeting this definition which is

14  issued by a surplus lines insurer or a reinsurer.

15         (4)  REIMBURSEMENT CONTRACTS.--

16         (a)  The board shall enter into a contract with each

17  insurer writing covered policies in this state to provide to

18  the insurer the reimbursement described in paragraphs

19  paragraph (b) and (d), in exchange for the reimbursement

20  premium paid into the fund under subsection (5). As a

21  condition of doing business in this state, each such insurer

22  shall enter into such a contract.

23         (b)1.  The contract shall contain a promise by the

24  board to reimburse the insurer for 45 percent, 75 percent, or

25  90 percent of its losses from each covered event in excess of

26  the insurer's retention, plus 5 percent of the reimbursed

27  losses to cover loss adjustment expenses.

28         2.  The insurer must elect one of the percentage

29  coverage levels specified in this paragraph and may, upon

30  renewal of a reimbursement contract, elect a lower percentage

31  coverage level if no revenue bonds issued under subsection (6)


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  1  after a covered event are outstanding, or elect a higher

  2  percentage coverage level, regardless of whether or not

  3  revenue bonds are outstanding. All members of an insurer group

  4  must elect the same percentage coverage level.  Any joint

  5  underwriting association, risk apportionment plan, or other

  6  entity created under s. 627.351 must elect the 90-percent

  7  coverage level.

  8         3.  The contract shall provide that reimbursement

  9  amounts shall not be reduced by reinsurance paid or payable to

10  the insurer from other sources; however, recoveries from such

11  other sources, taken together with reimbursements under the

12  contract, may not exceed 100 percent of the insurer's losses

13  from covered events.  If such recoveries and reimbursements

14  exceed 100 percent of the insurer's losses from covered

15  events, and if there is no agreement between the insurer and

16  the reinsurer to the contrary, any amount in excess of 100

17  percent of the insurer's losses shall be returned to the fund.

18         (c)1.  The contract shall also provide that the

19  obligation of the board with respect to all contracts covering

20  a particular contract year shall not exceed the actual

21  claims-paying capacity of the fund up to a limit of $11

22  billion for that contract year, unless the board determines

23  that there is sufficient estimated claims-paying capacity to

24  provide $11 billion of capacity for the current contract year

25  and an additional $11 billion of capacity for subsequent

26  contract years.  Upon such determination being made, the

27  estimated claims-paying capacity for the current contract year

28  shall be determined by adding to the $11 billion limit

29  one-half of the fund's estimated claims-paying capacity in

30  excess of $22 billion.

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  1         2.  The contract shall require the board to annually

  2  notify insurers of the fund's estimated borrowing capacity for

  3  the next contract year, the projected year-end balance of the

  4  fund, and the insurer's estimated share of total reimbursement

  5  premium to be paid to the fund.  For all regulatory and

  6  reinsurance purposes, an insurer may calculate its projected

  7  payout from the fund as its share of the total fund premium

  8  for the current contract year multiplied by the sum of the

  9  projected year-end fund balance and the estimated borrowing

10  capacity for that contract year as reported under this

11  paragraph. In May and October of each year, the board shall

12  publish in the Florida Administrative Weekly a statement of

13  the fund's estimated borrowing capacity and the projected

14  year-end balance of the fund for the current contract year.

15         (d)1.  For purposes of determining potential liability

16  and to aid in the sound administration of the fund, the

17  contract shall require each insurer to report such insurer's

18  losses from each covered event on an interim basis, as

19  directed by the board.  The contract shall require the insurer

20  to report to the board no later than December 31 of each year,

21  and quarterly thereafter, its reimbursable losses from covered

22  events for the year. The contract shall require the board to

23  determine and pay, as soon as practicable after receiving

24  these reports of reimbursable losses, the initial amount of

25  reimbursement due and adjustments to this amount based on

26  later loss information. The adjustments to reimbursement

27  amounts shall require the board to pay, or the insurer to

28  return, amounts reflecting the most recent calculation of

29  losses.

30         2.  In determining reimbursements pursuant to this

31  subsection, the contract shall provide that If the board


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  1  determines that the projected year-end balance of the fund,

  2  together with the amount that the board determines that it is

  3  possible to raise through revenue bonds issued under

  4  subsection (6) and through other borrowing and financing

  5  arrangements under paragraph (7)(b), are insufficient to pay

  6  reimbursement to all insurers at the level promised in the

  7  contract, the board shall:

  8         a.  First reimburse insurers writing covered policies,

  9  which insurers are in full compliance with this section and

10  have petitioned the Department of Insurance and qualified as

11  limited apportionment companies under s. 627.351(2)(b)3.  The

12  amount of such reimbursement shall be the lesser of $10

13  million or an amount equal to 10 times the insurer's

14  reimbursement premium for the current year.  The amount of

15  reimbursement paid under this sub-subparagraph may not exceed

16  the full amount of reimbursement promised in the reimbursement

17  contract. This sub-subparagraph does not apply with respect to

18  any contract year in which the year-end projected cash balance

19  of the fund, exclusive of any bonding capacity of the fund,

20  exceeds $2 billion. Only one member of any insurer group may

21  receive reimbursement under this sub-subparagraph.

22         b.  Next pay to each insurer such insurer's projected

23  payout, which is the amount of reimbursement it is owed, up to

24  an amount equal to the insurer's share of the actual premium

25  paid for that contract year, multiplied by the actual

26  claims-paying capacity available for that contract year;

27  provided, entities created pursuant to s. 627.351 shall be

28  further reimbursed in accordance with sub-subparagraph c.

29         c.  Thereafter, establish, based on reimbursable

30  losses, the prorated reimbursement level at the highest level

31  for which any remaining fund balance or bond proceeds are


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  1  sufficient to reimburse entities created pursuant to s.

  2  627.351 for losses exceeding the amounts payable pursuant to

  3  sub-subparagraph b. for the current contract year.

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

  5  the contract shall provide that if an insurer demonstrates to

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

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

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

  9  insurer from becoming insolvent, the board shall advance the

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

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

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

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

14  the amount of the advance and interest thereon.

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

16  627.351, the contract shall also provide that the board may,

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

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

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

20  due to such entity; or

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

22  premium paid for that contract year, multiplied by the

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

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

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

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

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

28  sufficient and are sufficiently liquid to allow the board to

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

30  reimbursement obligations to other insurers. The entity's

31  final reimbursement for any contract year in which an advance


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

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

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

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

  5  exposure and its losses at any time to determine retention

  6  levels and reimbursements payable.

  7         3.  The contract shall also provide specifically and

  8  solely with respect to any limited apportionment company under

  9  s. 627.351(2)(b)3. that the board may, upon application by

10  such company, advance to such company the amount of the

11  estimated reimbursement payable to such company as calculated

12  pursuant to paragraph (d), at market interest rates, if the

13  board determines that the fund's assets are sufficient and are

14  sufficiently liquid to permit the board to make an advance to

15  such company and at the same time fulfill its reimbursement

16  obligations to the insurers that are participants in the fund.

17  Such company's final reimbursement for any contract year in

18  which an advance pursuant to this subparagraph has been made

19  shall be reduced by an amount equal to the amount of the

20  advance and interest thereon.  In order to determine what

21  amounts, if any, are due to such company, the board may

22  require such company to report its exposure and its losses at

23  such times as may be required to determine retention levels

24  and loss reimbursements payable.

25         (f)  In order to ensure that insurers have properly

26  reported the insured values on which the reimbursement premium

27  is based and to ensure that insurers have properly reported

28  the losses for which reimbursements have been made, the board

29  shall inspect, examine, and audit the records of each

30  insurer's covered policies at such times as the board deems

31  appropriate and in such manner as is consistent with generally


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  1  accepted auditing standards.  The costs of the audits shall be

  2  borne by the board.  However, in order to remove any incentive

  3  for an insurer to delay preparations for an audit, the board

  4  shall be reimbursed by the insurer for any audit expenses

  5  incurred in addition to the usual and customary costs of the

  6  audit, which additional expenses were incurred as a result of

  7  an insurer's failure, despite proper notice, to be prepared

  8  for the audit or as a result of an insurer's failure to

  9  provide requested information while the audit is in progress.

10  If the board finds any insurer's records or other necessary

11  information to be inadequate or inadequately posted, recorded,

12  or maintained, the board may employ experts to reconstruct,

13  rewrite, record, post, or maintain such records or

14  information, at the expense of the insurer being audited, if

15  such insurer has failed to maintain, complete, or correct such

16  records or deficiencies after the board has given the insurer

17  notice and a reasonable opportunity to do so. Any information

18  contained in an audit report, which information is described

19  in s. 215.557, is confidential and exempt from the provisions

20  of s. 119.07(1) and s. 24(a), Art. I of the State

21  Constitution, as provided in s. 215.557. Nothing in this

22  paragraph expands the exemption in s. 215.557.

23         (g)  The contract shall provide that in the event of

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

25  the Florida Insurance Guaranty Association for the benefit of

26  Florida policyholders of the insurer the net amount of all

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

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

29  means that amount which remains after reimbursement for:

30         1.  Preliminary or duplicate payments owed to private

31  reinsurers or other inuring reinsurance payments to private


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  1  reinsurers that satisfy statutory or contractual obligations

  2  of the insolvent insurer attributable to covered events to

  3  such reinsurers; or

  4         2.  Funds owed to a bank or other financial institution

  5  to cover obligations of the insolvent insurer under a credit

  6  agreement that assists the insolvent insurer in paying claims

  7  attributable to covered events.

  8

  9  Such private reinsurers, banks, or other financial

10  institutions shall be reimbursed or otherwise paid prior to

11  payment to the Florida Insurance Guaranty Association,

12  notwithstanding any law to the contrary.  The guaranty

13  association shall pay all claims up to the maximum amount

14  permitted by chapter 631; thereafter, any remaining moneys

15  shall be paid pro rata to claims not fully satisfied. This

16  paragraph does not apply to a joint underwriting association,

17  risk apportionment plan, or other entity created under s.

18  627.351.

19         Section 2.  Section 624.610, Florida Statutes, is

20  amended to read:

21         (Substantial rewording of section. See

22         s. 624.610, F.S., for present text.)

23         624.610  Reinsurance.--

24         (1)  The purpose of this section is to protect the

25  interests of insureds, claimants, ceding insurers, assuming

26  insurers, and the public.  It is the intent of the Legislature

27  to ensure adequate regulation of insurers and reinsurers and

28  adequate protection for those to whom they owe obligations.

29  In furtherance of that state interest, the Legislature

30  requires that upon the insolvency of a non-United States

31  insurer or reinsurer which provides security to fund its


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  1  United States obligations in accordance with this section,

  2  such security shall be maintained in the United States and

  3  claims shall be filed with and valued by the State Insurance

  4  Commissioner with regulatory oversight, and the assets shall

  5  be distributed in accordance with the insurance laws of the

  6  state in which the trust is domiciled that are applicable to

  7  the liquidation of domestic United States insurance companies.

  8  The Legislature declares that the matters contained in this

  9  section are fundamental to the business of insurance in

10  accordance with 15 U.S.C. ss. 1011-1012.

11         (2)  Credit for reinsurance must be allowed a ceding

12  insurer as either an asset or a deduction from liability on

13  account of reinsurance ceded only when the reinsurer meets the

14  requirements of paragraph (3)(a), paragraph (3)(b), or

15  paragraph (3)(c). Credit must be allowed under paragraph

16  (3)(a) or paragraph (3)(b) only for cessions of those kinds or

17  lines of business that the assuming insurer is licensed,

18  authorized, or otherwise permitted to write or assume in its

19  state of domicile or, in the case of a United States branch of

20  an alien assuming insurer, in the state through which it is

21  entered and licensed or authorized to transact insurance or

22  reinsurance.

23         (3)(a)  Credit must be allowed when the reinsurance is

24  ceded to an assuming insurer that is authorized to transact

25  insurance or reinsurance in this state.

26         (b)1.  Credit must be allowed when the reinsurance is

27  ceded to an assuming insurer that is accredited as a reinsurer

28  in this state. An accredited reinsurer is one that:

29         a.  Files with the department evidence of its

30  submission to this state's jurisdiction;

31


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  1         b.  Submits to this state's authority to examine its

  2  books and records;

  3         c.  Is licensed or authorized to transact insurance or

  4  reinsurance in at least one state or, in the case of a United

  5  States branch of an alien assuming insurer, is entered

  6  through, licensed, or authorized to transact insurance or

  7  reinsurance in at least one state;

  8         d.  Files annually with the department a copy of its

  9  annual statement filed with the insurance department of its

10  state of domicile any quarterly statements if required by its

11  state of domicile or such quarterly statements if specifically

12  requested by the department, and a copy of its most recent

13  audited financial statement; and

14         (I)  Maintains a surplus as regards policyholders in an

15  amount not less than $20 million and whose accreditation has

16  not been denied by the department within 90 days after its

17  submission; or

18         (II)  Maintains a surplus as regards policyholders in

19  an amount not less than $20 million and whose accreditation

20  has been approved by the department.

21         2.  The department may deny or revoke an assuming

22  insurer's accreditation if the assuming insurer does not

23  submit the required documentation pursuant to subparagraph 1.,

24  if the assuming insurer fails to meet all of the standards

25  required of an accredited reinsurer, or if the assuming

26  insurer's accreditation would be hazardous to the

27  policyholders of this state. In determining whether to deny or

28  revoke accreditation, the department may consider the

29  qualifications of the assuming insurer with respect to all the

30  following subjects:

31         a.  Its financial stability;


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  1         b.  The lawfulness and quality of its investments;

  2         c.  The competency, character, and integrity of its

  3  management;

  4         d.  The competency, character, and integrity of persons

  5  who own or have a controlling interest in the assuming

  6  insurer; and

  7         e.  Whether claims under its contracts are promptly and

  8  fairly adjusted and are promptly and fairly paid in accordance

  9  with the law and the terms of the contracts.

10         3.  Credit must not be allowed a ceding insurer if the

11  assuming insurer's accreditation has been revoked by the

12  department after notice and the opportunity for a hearing.

13         4.  The actual costs and expenses incurred by the

14  department to review a reinsurer's request for accreditation

15  and subsequent reviews must be charged to and collected from

16  the requesting reinsurer. If the reinsurer fails to pay the

17  actual costs and expenses promptly when due, the department

18  may refuse to accredit the reinsurer or may revoke the

19  reinsurer's accreditation.

20         (c)1.  Credit must be allowed when the reinsurance is

21  ceded to an assuming insurer that maintains a trust fund in a

22  qualified United States financial institution, as defined in

23  paragraph (5)(b), for the payment of the valid claims of its

24  United States ceding insurers and their assigns and successors

25  in interest. To enable the department to determine the

26  sufficiency of the trust fund, the assuming insurer shall

27  report annually to the department information substantially

28  the same as that required to be reported on the NAIC Annual

29  Statement form by authorized insurers. The assuming insurer

30  shall submit to examination of its books and records by the

31  department and bear the expense of examination.


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  1         2.a.  Credit for reinsurance must not be granted under

  2  this subsection unless the form of the trust and any

  3  amendments to the trust have been approved by:

  4         (I)  The commissioner of the state in which the trust

  5  is domiciled; or

  6         (II)  The commissioner of another state who, pursuant

  7  to the terms of the trust instrument, has accepted principal

  8  regulatory oversight of the trust.

  9         b.  The form of the trust and any trust amendments must

10  be filed with the commissioner of every state in which the

11  ceding insurer beneficiaries of the trust are domiciled. The

12  trust instrument must provide that contested claims are valid

13  and enforceable upon the final order of any court of competent

14  jurisdiction in the United States. The trust must vest legal

15  title to its assets in its trustees for the benefit of the

16  assuming insurer's United States ceding insurers and their

17  assigns and successors in interest. The trust and the assuming

18  insurer are subject to examination as determined by the

19  commissioner.

20         c.  The trust remains in effect for as long as the

21  assuming insurer has outstanding obligations due under the

22  reinsurance agreements subject to the trust. No later than

23  February 28 of each year, the trustee of the trust shall

24  report to the commissioner in writing the balance of the trust

25  and list the trust's investments at the preceding year end,

26  and shall certify that the trust will not expire prior to the

27  following December 31.

28         3.  The following requirements apply to the following

29  categories of assuming insurer:

30         a.  The trust fund for a single assuming insurer

31  consists of funds in trust in an amount not less than the


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  1  assuming insurer's liabilities attributable to reinsurance

  2  ceded by United States ceding insurers, and, in addition, the

  3  assuming insurer shall maintain a trusteed surplus of not less

  4  than $20 million. The funds in the trust and trusteed surplus

  5  consist of assets of a quality substantially similar to that

  6  required in part II of chapter 625.

  7         b.(I)  In the case of a group including incorporated

  8  and individual unincorporated underwriters:

  9         (A)  For reinsurance ceded under reinsurance agreements

10  with an inception, amendment, or renewal date on or after

11  August 1, 1995, the trust consists of a trusteed account in an

12  amount not less than the group's several liabilities

13  attributable to business ceded by United States domiciled

14  ceding insurers to any member of the group;

15         (B)  For reinsurance ceded under reinsurance agreements

16  with an inception date on or before July 31, 1995, and not

17  amended or renewed after that date, notwithstanding the other

18  provisions of this section, the trust consists of a trusteed

19  account in an amount not less than the group's several

20  insurance and reinsurance liabilities attributable to business

21  written in the United States; and

22         (C)  In addition to these trusts, the group shall

23  maintain in trust a trusteed surplus of which $100 million

24  must be held jointly for the benefit of the United States

25  domiciled ceding insurers of any member of the group for all

26  years of account.

27         (II)  The incorporated members of the group must not be

28  engaged in any business other than underwriting of a member of

29  the group, and are subject to the same level of regulation and

30  solvency control by the group's domiciliary regulator as the

31  unincorporated members.


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  1         (III)  Within 90 days after its financial statements

  2  are due to be filed with the group's domiciliary regulator,

  3  the group shall provide to the commissioner an annual

  4  certification by the group's domiciliary regulator of the

  5  solvency of each underwriter member or, if a certification is

  6  unavailable, financial statements, prepared by independent

  7  public accountants, of each underwriter member of the group.

  8         (d)  Credit must be allowed when the reinsurance is

  9  ceded to an assuming insurer not meeting the requirements of

10  paragraph (a), paragraph (b), or paragraph (c), but only as to

11  the insurance of risks located in jurisdictions in which the

12  reinsurance is required to be purchased by a particular entity

13  by applicable law or regulation of that jurisdiction.

14         (e)  If the assuming insurer is not authorized or

15  accredited to transact insurance or reinsurance in this state

16  pursuant to paragraph (a) or paragraph (b), the credit

17  permitted by paragraph (c) must not be allowed unless the

18  assuming insurer agrees in the reinsurance agreements:

19         1.a.  That in the event of the failure of the assuming

20  insurer to perform its obligations under the terms of the

21  reinsurance agreement, the assuming insurer, at the request of

22  the ceding insurer, shall submit to the jurisdiction of any

23  court of competent jurisdiction in any state of the United

24  States, will comply with all requirements necessary to give

25  the court jurisdiction, and will abide by the final decision

26  of the court or of any appellate court in the event of an

27  appeal; and

28         b.  To designate the commissioner, pursuant to s.

29  48.151, or a designated attorney as its true and lawful

30  attorney upon whom may be served any lawful process in any

31


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  1  action, suit, or proceeding instituted by or on behalf of the

  2  ceding company.

  3         2.  This paragraph is not intended to conflict with or

  4  override the obligation of the parties to a reinsurance

  5  agreement to arbitrate their disputes, if this obligation is

  6  created in the agreement.

  7         (f)  If the assuming insurer does not meet the

  8  requirements of paragraph (a) or paragraph (b), the credit

  9  permitted by paragraph (c) is not allowed unless the assuming

10  insurer agrees in the trust agreements, in substance, to the

11  following conditions:

12         1.  Notwithstanding any other provisions in the trust

13  instrument, if the trust fund is inadequate because it

14  contains an amount less than the amount required by paragraph

15  (c), or if the grantor of the trust has been declared

16  insolvent or placed into receivership, rehabilitation,

17  liquidation, or similar proceedings under the laws of its

18  state or country of domicile, the trustee shall comply with an

19  order of the commissioner with regulatory oversight over the

20  trust or with an order of a United States court of competent

21  jurisdiction directing the trustee to transfer to the

22  commissioner with regulatory oversight all of the assets of

23  the trust fund.

24         2.  The assets must be distributed by and claims must

25  be filed with and valued by the commissioner with regulatory

26  oversight in accordance with the laws of the state in which

27  the trust is domiciled which are applicable to the liquidation

28  of domestic insurance companies.

29         3.  If the commissioner with regulatory oversight

30  determines that the assets of the trust fund or any part

31  thereof are not necessary to satisfy the claims of the United


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  1  States ceding insurers of the grantor of the trust, the assets

  2  or part thereof must be returned by the commissioner with

  3  regulatory oversight to the trustee for distribution in

  4  accordance with the trust agreement.

  5         4.  The grantor shall waive any right otherwise

  6  available to it under United States law which is inconsistent

  7  with this provision.

  8         (4)  An asset allowed or a deduction from liability

  9  taken for the reinsurance ceded by an insurer to an assuming

10  insurer not meeting the requirements of subsections (2) and

11  (3) is allowed in an amount not exceeding the liabilities

12  carried by the ceding insurer. The deduction must be in the

13  amount of funds held by or on behalf of the ceding insurer,

14  including funds held in trust for the ceding insurer, under a

15  reinsurance contract with the assuming insurer as security for

16  the payment of obligations thereunder, if the security is held

17  in the United States subject to withdrawal solely by, and

18  under the exclusive control of, the ceding insurer, or, in the

19  case of a trust, held in a qualified United States financial

20  institution, as defined in paragraph (5)(b). This security may

21  be in the form of:

22         (a)  Cash in United States dollars;

23         (b)  Securities listed by the Securities Valuation

24  Office of the National Association of Insurance Commissioners

25  and qualifying as admitted assets pursuant to part II of

26  chapter 625;

27         (c)  Clean, irrevocable, unconditional letters of

28  credit, issued or confirmed by a qualified United States

29  financial institution, as defined in paragraph (5)(a),

30  effective no later than December 31 of the year for which the

31  filing is made, and in the possession of, or in trust for, the


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  1  ceding company on or before the filing date of its annual

  2  statement; or

  3         (d)  Any other form of security acceptable to the

  4  department.

  5         (5)(a)  For purposes of paragraph (4)(c) regarding

  6  letters of credit, a "qualified United States financial

  7  institution" means an institution that:

  8         1.  Is organized or, in the case of a United States

  9  office of a foreign banking organization, is licensed under

10  the laws of the United States or any state thereof;

11         2.  Is regulated, supervised, and examined by United

12  States or state authorities having regulatory authority over

13  banks and trust companies; and

14         3.  Has been determined by either the department or the

15  Securities Valuation Office of the National Association of

16  Insurance Commissioners to meet such standards of financial

17  condition and standing as are considered necessary and

18  appropriate to regulate the quality of financial institutions

19  whose letters of credit will be acceptable to the department.

20         (b)  For purposes of those provisions of this law which

21  specify institutions that are eligible to act as a fiduciary

22  of a trust, a "qualified United States financial institution"

23  means an institution that is a member of the Federal Reserve

24  System or that has been determined by the department to meet

25  the following criteria:

26         1.  Is organized or, in the case of a United States

27  branch or agency office of a foreign banking organization, is

28  licensed under the laws of the United States or any state

29  thereof and has been granted authority to operate with

30  fiduciary powers; and

31


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  1         2.  Is regulated, supervised, and examined by federal

  2  or state authorities having regulatory authority over banks

  3  and trust companies.

  4         (6)  For the purposes of this section only, the term

  5  "ceding insurer" includes any health maintenance organization

  6  operating under a certificate of authority issued under part I

  7  of chapter 641.

  8         (7)  After notice and an opportunity for a hearing, the

  9  department may disallow any credit that it finds would be

10  contrary to the proper interests of the policyholders or

11  stockholders of a ceding domestic insurer.

12         (8)  Credit must be allowed to any ceding insurer for

13  reinsurance otherwise complying with this section only when

14  the reinsurance is payable by the assuming insurer on the

15  basis of the liability of the ceding insurer under the

16  contract or contracts reinsured without diminution because of

17  the insolvency of the ceding insurer. Such credit must be

18  allowed to the ceding insurer for reinsurance otherwise

19  complying with this section only when the reinsurance

20  agreement provides that payments by the assuming insurer will

21  be made directly to the ceding insurer or its receiver, except

22  when:

23         (a)  The reinsurance contract specifically provides

24  payment to the named insured, assignee, or named beneficiary

25  of the policy issued by the ceding insurer in the event of the

26  insolvency of the ceding insurer; or

27         (b)  The assuming insurer, with the consent of the

28  named insured, has assumed the policy obligations of the

29  ceding insurer as direct obligations of the assuming insurer

30  in substitution for the obligations of the ceding insurer to

31  the named insured.


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  1         (9)  No person, other than the ceding insurer, has any

  2  rights against the reinsurer which are not specifically set

  3  forth in the contract of reinsurance or in a specific written,

  4  signed agreement between the reinsurer and the person.

  5         (10)  An authorized insurer may not knowingly accept as

  6  assuming reinsurer any risk covering subject of insurance

  7  which is resident, located, or to be performed in this state

  8  and which is written directly by any insurer not then

  9  authorized to transact such insurance in this state, other

10  than as to surplus lines insurance lawfully written under part

11  VIII of chapter 626.

12         (11)(a)  Any domestic or commercially domiciled insurer

13  ceding directly written risks of loss under this section

14  shall, within 30 days after receipt of a cover note or similar

15  confirmation of coverage, or, without exception, no later than

16  6 months after the effective date of the reinsurance treaty,

17  file with the department one copy of a summary statement

18  containing the following information about each treaty:

19         1.  The contract period;

20         2.  The nature of the reinsured's business;

21         3.  An indication as to whether the treaty is

22  proportional, nonproportional, coinsurance, modified

23  coinsurance, or indemnity, as applicable;

24         4.  The ceding company's loss retention per risk;

25         5.  The reinsured limits;

26         6.  Any special contract restrictions;

27         7.  A schedule of reinsurers assuming the risks of

28  loss;

29         8.  An indication as to whether payments to the

30  assuming insurer are based on written premiums or earned

31  premiums;


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  1         9.  Identification of any intermediary or broker used

  2  in obtaining the reinsurance and the commission paid to such

  3  intermediary or broker if known; and

  4         10.  Ceding commissions and allowances.

  5         (b)  The summary statement must be signed and attested

  6  to by either the chief executive officer or the chief

  7  financial officer of the reporting insurer. In addition to the

  8  summary statement, the Insurance Commissioner may require the

  9  filing of any supporting information relating to the ceding of

10  such risks as she or he deems necessary. If the summary

11  statement prepared by the ceding insurer discloses that the

12  net effect of a reinsurance treaty or treaties (or series of

13  treaties with one or more affiliated reinsurers entered into

14  for the purpose of avoiding the following threshold amount) at

15  any time results in an increase of more than 25 percent to the

16  insurer's surplus as to policyholders, then the insurer shall

17  certify in writing to the department that the relevant

18  reinsurance treaty or treaties comply with the accounting

19  requirements contained in any rule adopted by the department

20  under subsection (14). If such certificate is filed after the

21  summary statement of such reinsurance treaty or treaties, the

22  insurer shall refile the summary statement with the

23  certificate. In any event, the certificate must state that a

24  copy of the certificate was sent to the reinsurer under the

25  reinsurance treaty.

26         (c)  This subsection applies to cessions of directly

27  written risk or loss. This subsection does not apply to

28  contracts of facultative reinsurance or to any ceding insurer

29  with surplus as to policyholders that exceeds $100 million as

30  of the immediately preceding December 31. Additionally, any

31  ceding insurer otherwise subject to this section with less


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  1  than $500,000 in direct premiums written in this state during

  2  the preceding calendar year or with less than 1,000

  3  policyholders at the end of the preceding calendar year is

  4  exempt from the requirements of this subsection. However, any

  5  ceding insurer otherwise subject to this section with more

  6  than $250,000 in direct premiums written in this state during

  7  the preceding calendar quarter is not exempt from the

  8  requirements of this subsection.

  9         (d)  An authorized insurer not otherwise exempt from

10  the provisions of this subsection shall provide the

11  information required by this subsection with underlying and

12  supporting documentation upon written request of the

13  department.

14         (e)  The department may, upon a showing of good cause,

15  waive the requirements of this subsection.

16         (12)  If the department finds that a reinsurance

17  agreement creates a substantial risk of insolvency to either

18  insurer entering into the reinsurance agreement, the

19  department may by order require a cancellation of the

20  reinsurance agreement.

21         (13)  No credit shall be allowed for reinsurance with

22  regard to which the reinsurance agreement does not create a

23  meaningful transfer of risk of loss to the reinsurer.

24         (14)  The department may adopt rules implementing the

25  provisions of this section. Rules are authorized to protect

26  the interests of insureds, claimants, ceding insurers,

27  assuming insurers, and the public. These rules shall be in

28  substantial compliance with:

29         (a)  The National Association of Insurance

30  Commissioners model regulations relating to credit for

31  reinsurance;


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  1         (b)  Version 1999 of the National Association of

  2  Insurance Commissioners Accounting Practices and Procedures

  3  Manual; and

  4         (c)  The National Association of Insurance

  5  Commissioners model regulation for Credit for Reinsurance and

  6  Life and Health Reinsurance Agreements.

  7

  8  The department may further adopt rules to provide for

  9  transition from existing requirements for the approval of

10  reinsurers to the accreditation of reinsurers pursuant to this

11  section.

12         (15)  Any reinsurer approved pursuant to s.

13  624.610(3)(a)2., as such provision existed prior to July 1,

14  2000, which fails to obtain accreditation pursuant to this

15  section prior to December 30, 2003, shall have its approval

16  terminated by operation of law on that date.

17         (16)  This act shall apply to all cessions on or after

18  January 1, 2001, under reinsurance agreements that have an

19  inception, anniversary, or renewal date on or after January 1,

20  2001.

21         Section 3.  This act shall take effect June 1, 2000.

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