Senate Bill sb1220e2

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    SB 1220                                       Second Engrossed



  1                      A bill to be entitled

  2         An act relating to insurance; amending s.

  3         624.4072, F.S.; extending the term of the

  4         exemption from taxes and assessments on

  5         minority-owned property and casualty insurers;

  6         postponing the scheduled repeal of the law;

  7         amending ss. 624.3161, 626.171, F.S.; directing

  8         the department to adopt rules relating to

  9         market conduct examinations and license

10         applications; amending s. 626.9541, F.S.;

11         revising provisions relating to unfair

12         competition and deceptive practices; creating

13         s. 626.9552, F.S.; providing standards for

14         single interest insurance; amending s. 627.062,

15         F.S.; providing for filing forms for rate

16         standards; amending s. 627.0625, F.S.;

17         authorizing the department to adopt rules

18         relating to third-party claimants; amending s.

19         627.0651, F.S.; prohibiting motor vehicle

20         insurers from imposing a surcharge or a

21         discount due to certain factors; creating s.

22         627.385, F.S.; providing rules of conduct for

23         residual market board members; creating s.

24         627.4065, F.S.; providing for notice of right

25         to return health insurance policies; creating

26         s. 627.41345, F.S.; prohibiting an insurer or

27         agent from issuing or signing certain

28         certificates of insurance; providing that the

29         terms of the policy control in case of

30         conflict; amending s. 627.7015, F.S.; defining

31         the term "claim" for purposes of alternative


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    SB 1220                                       Second Engrossed



  1         procedures for resolving disputed property

  2         insurance claims; amending s. 627.7276, F.S.;

  3         providing for notice of coverage of automobile

  4         policies; creating s. 627.795, F.S.; providing

  5         guidelines for title insurance policies;

  6         amending s. 627.918, F.S.; directing the

  7         department to adopt rules relating to reporting

  8         formats; amending s. 641.3108, F.S.; requiring

  9         health maintenance organizations to provide

10         certain information to subscriber groups whose

11         contract is not renewed for certain reasons;

12         amending s. 627.7295, F.S.; providing an

13         additional exception to a requirement that a

14         minimum of 2 months' premium be collected to

15         issue a policy or binder for motor vehicle

16         insurance; amending s. 627.901, F.S.;

17         authorizing insurance agents and insurers that

18         finance premiums for certain policies to charge

19         interest or a service charge at a specified

20         rate on unpaid premiums on those policies;

21         creating s. 626.9651, F.S.; directing the

22         department to adopt rules to govern the use of

23         a consumer's nonpublic personal financial and

24         health information by health insurers and

25         health maintenance organizations; providing

26         standards governing the rules; amending s.

27         631.001, F.S.; providing construction and

28         purposes; providing a short title; amending s.

29         631.011, F.S.; providing additional

30         definitions; creating s. 631.025, F.S.;

31         specifying application to certain persons and


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    SB 1220                                       Second Engrossed



  1         entities; amending s. 631.041, F.S.; limiting

  2         application of certain time restrictions;

  3         correcting a cross-reference; creating s.

  4         631.113, F.S.; providing for tolling certain

  5         time limitations in certain actions; amending

  6         s. 631.141, F.S.; vesting the Department of

  7         Insurance with certain rights as receiver;

  8         amending s. 631.154, F.S.; including certain

  9         costs and expenses of the department in costs

10         and expenses entitled to be recovered by the

11         receiver under certain circumstances; creating

12         s. 631.156, F.S.; providing for investigations

13         by the department preliminary or incidental to

14         receivership proceedings; providing department

15         powers; authorizing the department to provide

16         certain information in such investigations;

17         granting the department certain discretionary

18         powers; creating s. 631.157, F.S.; imposing

19         liability on certain persons or entities for

20         certain actions; specifying amounts of damages;

21         providing construction; providing costs and

22         expenses entitled to be recovered by the

23         receiver under certain circumstances; providing

24         a time certain for bringing certain actions;

25         amending s. 631.57, F.S.; clarifying that the

26         association has the same legal defenses

27         available to the insolvent insurer; creating s.

28         631.3995, F.S.; providing procedures and

29         requirements for closing an estate; providing

30         for deposit of certain assets into the Closed

31         Estate Fund Trust Account; providing for uses


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    SB 1220                                       Second Engrossed



  1         of such account; providing for reopening

  2         certain proceedings; amending s. 631.54, F.S.;

  3         revising a definition; creating s. 817.2341,

  4         F.S.; providing criminal penalties for certain

  5         activities; providing an effective date.

  6

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

  8

  9         Section 1.  Section 624.4072, Florida Statutes, is

10  amended to read:

11         624.4072  Minority-owned property and casualty

12  insurers; limited exemption for taxation and assessments.--

13         (1)  A minority business that is at least 51 percent

14  owned by minority persons, as defined in s. 288.703(3),

15  initially issued a certificate of authority in this state as

16  an authorized insurer after May 1, 1998, to write property and

17  casualty insurance shall be exempt, for a period not to exceed

18  10 5 years from the date of receiving its certificate of

19  authority, from the following taxes and assessments:

20         (a)  Taxes imposed under ss. 175.101, 185.08, and

21  624.509;

22         (b)  Assessments by the Florida Residential Property

23  and Casualty Joint Underwriting Association or by the Florida

24  Windstorm Underwriting Association, as provided under s.

25  627.351, except for emergency assessments collected from

26  policyholders pursuant to s. 627.351(2)(b)2.d.(III) and

27  (6)(b)3.d. Any such insurer shall be a member insurer of the

28  Florida Windstorm Underwriting Association and the Florida

29  Residential Property and Casualty Joint Underwriting

30  Association. The premiums of such insurer shall be included in

31  determining, for the Florida Windstorm Underwriting


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    SB 1220                                       Second Engrossed



  1  Association, the aggregate statewide direct written premium

  2  for property insurance and in determining, for the Florida

  3  Residential Property and Casualty Joint Underwriting

  4  Association, the aggregate statewide direct written premium

  5  for the subject lines of business for all member insurers.

  6         (2)  Subsection (1) applies only to personal lines and

  7  commercial lines residential property insurance policies as

  8  defined in s. 627.4025, and applies only to an insurer that

  9  has employees in this state and has a home office or a

10  regional office in this state.  With respect to any tax year

11  or assessment year, the exemptions provided by subsection (1)

12  apply only if during the year an average of at least 10

13  percent of the insurer's Florida residential property policies

14  in force covered properties located in enterprise zones

15  designated pursuant to s. 290.0065.

16         (3)  The provision of the definition of "minority

17  person" in s. 288.703(3) that requires residency in Florida

18  shall not apply to the term "minority person" as used in this

19  section or s. 627.3511.

20         (4)  This section is repealed effective December 31,

21  July 1 2010 2003, and the tax and assessment exemptions

22  authorized by this section shall terminate on such date.

23         Section 2.  Subsection (6) is added to section

24  624.3161, Florida Statutes, to read:

25         624.3161  Market conduct examinations.--

26         (6)  The department shall adopt rules as necessary to

27  effectuate the market conduct examination process, to assure

28  compliance by the person examined with the applicable

29  provisions of the Insurance Code. Such rules shall not exceed

30  the authority of the statutes involved in the market conduct

31  examination.


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    SB 1220                                       Second Engrossed



  1         Section 3.  Subsection (8) is added to section 626.171,

  2  Florida Statutes, to read:

  3         626.171  Application for license.--

  4         (8)  The department shall adopt rules to effectuate the

  5  license application process, including photo identification,

  6  background checks and credit reports, prelicensing courses,

  7  the impact of criminal and law enforcement history, and other

  8  relevant information in an effort to determine an applicant's

  9  fitness and trustworthiness to engage in the business of

10  insurance.

11         Section 4.  Paragraphs (o) and (w) of subsection (1) of

12  section 626.9541, Florida Statutes, are amended to read:

13         626.9541  Unfair methods of competition and unfair or

14  deceptive acts or practices defined.--

15         (1)  UNFAIR METHODS OF COMPETITION AND UNFAIR OR

16  DECEPTIVE ACTS.--The following are defined as unfair methods

17  of competition and unfair or deceptive acts or practices:

18         (o)  Illegal dealings in premiums; excess or reduced

19  charges for insurance.--

20         1.  Knowingly collecting any sum as a premium or charge

21  for insurance, which is not then provided, or is not in due

22  course to be provided, subject to acceptance of the risk by

23  the insurer, by an insurance policy issued by an insurer as

24  permitted by this code.

25         2.  Knowingly collecting as a premium or charge for

26  insurance any sum in excess of or less than the premium or

27  charge applicable to such insurance, in accordance with the

28  applicable classifications and rates as filed with and

29  approved by the department, and as specified in the policy;

30  or, in cases when classifications, premiums, or rates are not

31  required by this code to be so filed and approved, premiums


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    SB 1220                                       Second Engrossed



  1  and charges in excess of or less than those specified in the

  2  policy and as fixed by the insurer.  This provision shall not

  3  be deemed to prohibit the charging and collection, by surplus

  4  lines agents licensed under part VIII of this chapter, of the

  5  amount of applicable state and federal taxes, or fees as

  6  authorized by s. 626.916(4), in addition to the premium

  7  required by the insurer or the charging and collection, by

  8  licensed agents, of the exact amount of any discount or other

  9  such fee charged by a credit card facility in connection with

10  the use of a credit card, as authorized by subparagraph (q)3.,

11  in addition to the premium required by the insurer. This

12  subparagraph shall not be construed to prohibit collection of

13  a premium for a universal life or a variable or indeterminate

14  value insurance policy made in accordance with the terms of

15  the contract.

16         3.a.  Imposing or requesting an additional premium for

17  a policy of motor vehicle liability, personal injury

18  protection, medical payment, or collision insurance or any

19  combination thereof or refusing to renew the policy solely

20  because the insured was involved in a motor vehicle accident

21  unless the insurer's file contains information from which the

22  insurer in good faith determines that the insured was

23  substantially at fault in the accident.

24         b.  An insurer which imposes and collects such a

25  surcharge or which refuses to renew such policy shall, in

26  conjunction with the notice of premium due or notice of

27  nonrenewal, notify the named insured that he or she is

28  entitled to reimbursement of such amount or renewal of the

29  policy under the conditions listed below and will subsequently

30  reimburse him or her or renew the policy, if the named insured

31  demonstrates that the operator involved in the accident was:


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    SB 1220                                       Second Engrossed



  1         (I)  Lawfully parked;

  2         (II)  Reimbursed by, or on behalf of, a person

  3  responsible for the accident or has a judgment against such

  4  person;

  5         (III)  Struck in the rear by another vehicle headed in

  6  the same direction and was not convicted of a moving traffic

  7  violation in connection with the accident;

  8         (IV)  Hit by a "hit-and-run" driver, if the accident

  9  was reported to the proper authorities within 24 hours after

10  discovering the accident;

11         (V)  Not convicted of a moving traffic violation in

12  connection with the accident, but the operator of the other

13  automobile involved in such accident was convicted of a moving

14  traffic violation;

15         (VI)  Finally adjudicated not to be liable by a court

16  of competent jurisdiction;

17         (VII)  In receipt of a traffic citation which was

18  dismissed or nolle prossed; or

19         (VIII)  Not at fault as evidenced by a written

20  statement from the insured establishing facts demonstrating

21  lack of fault which are not rebutted by information in the

22  insurer's file from which the insurer in good faith determines

23  that the insured was substantially at fault.

24         c.  In addition to the other provisions of this

25  subparagraph, an insurer may not fail to renew a policy if the

26  insured has had only one accident in which he or she was at

27  fault within the current 3-year period. However, an insurer

28  may nonrenew a policy for reasons other than accidents in

29  accordance with s. 627.728. This subparagraph does not

30  prohibit nonrenewal of a policy under which the insured has

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    SB 1220                                       Second Engrossed



  1  had three or more accidents, regardless of fault, during the

  2  most recent 3-year period.

  3         4.  Imposing or requesting an additional premium for,

  4  or refusing to renew, a policy for motor vehicle insurance

  5  solely because the insured committed a noncriminal traffic

  6  infraction as described in s. 318.14 unless the infraction is:

  7         a.  A second infraction committed within an 18-month

  8  period, or a third or subsequent infraction committed within a

  9  36-month period.

10         b.  A violation of s. 316.183, when such violation is a

11  result of exceeding the lawful speed limit by more than 15

12  miles per hour.

13         5.  Upon the request of the insured, the insurer and

14  licensed agent shall supply to the insured the complete proof

15  of fault or other criteria which justifies the additional

16  charge or cancellation.

17         6.  No insurer shall impose or request an additional

18  premium for motor vehicle insurance, cancel or refuse to issue

19  a policy, or refuse to renew a policy because the insured or

20  the applicant is a handicapped or physically disabled person,

21  so long as such handicap or physical disability does not

22  substantially impair such person's mechanically assisted

23  driving ability.

24         7.  No insurer may cancel or otherwise terminate any

25  insurance contract or coverage, or require execution of a

26  consent to rate endorsement, during the stated policy term for

27  the purpose of offering to issue, or issuing, a similar or

28  identical contract or coverage to the same insured with the

29  same exposure at a higher premium rate or continuing an

30  existing contract or coverage with the same exposure at an

31  increased premium.


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    SB 1220                                       Second Engrossed



  1         8.  No insurer may issue a nonrenewal notice on any

  2  insurance contract or coverage, or require execution of a

  3  consent to rate endorsement, for the purpose of offering to

  4  issue, or issuing, a similar or identical contract or coverage

  5  to the same insured at a higher premium rate or continuing an

  6  existing contract or coverage at an increased premium without

  7  meeting any applicable notice requirements.

  8         9.  No insurer shall, with respect to premiums charged

  9  for motor vehicle insurance, unfairly discriminate solely on

10  the basis of age, sex, marital status, location of the risk,

11  accidents more than 3 years old, or scholastic achievement.

12         10.  Imposing or requesting an additional premium for

13  motor vehicle comprehensive or uninsured motorist coverage

14  solely because the insured was involved in a motor vehicle

15  accident or was convicted of a moving traffic violation.

16         11.  No insurer shall cancel or issue a nonrenewal

17  notice on any insurance policy or contract without complying

18  with any applicable cancellation or nonrenewal provision

19  required under the Florida Insurance Code.

20         12.  No insurer shall impose or request an additional

21  premium, cancel a policy, or issue a nonrenewal notice on any

22  insurance policy or contract because of any traffic infraction

23  when adjudication has been withheld and no points have been

24  assessed pursuant to s. 318.14(9) and (10).  However, this

25  subparagraph does not apply to traffic infractions involving

26  accidents in which the insurer has incurred a loss due to the

27  fault of the insured.

28         (w)  Soliciting or accepting new or renewal insurance

29  risks by insolvent or impaired insurer prohibited; penalty.--

30         1.  Whether or not delinquency proceedings as to the

31  insurer have been or are to be initiated, but while such


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    SB 1220                                       Second Engrossed



  1  insolvency or impairment exists, no director or officer of an

  2  insurer, except with the written permission of the Department

  3  of Insurance, shall authorize or permit the insurer to solicit

  4  or accept new or renewal insurance risks in this state after

  5  such director or officer knew, or reasonably should have

  6  known, that the insurer was insolvent or impaired. "Impaired"

  7  includes impairment for capital or surplus, as defined in s.

  8  631.011(12)(9) and (13)(10).

  9         2.  Any such director or officer, upon conviction of a

10  violation of this paragraph, is guilty of a felony of the

11  third degree, punishable as provided in s. 775.082, s.

12  775.083, or s. 775.084.

13         Section 5.  Section 626.9552, Florida Statutes, is

14  created to read:

15         626.9552  Single interest insurance.--

16         (1)  When single interest insurance is written at the

17  expense of the purchaser or borrower in connection with a

18  finance or loan transaction, a clear and concise statement

19  must be furnished the purchaser or borrower advising the

20  purchaser or borrower that the insurance effected is solely

21  for the interest of the financing entity, and that no

22  protection thereunder exists for the benefit of the purchaser

23  or borrower. When single interest insurance is written, no

24  effort may be made by the insurer to recover the amount of any

25  payment from the borrower. Single interest insurance policies

26  must be clearly stamped or printed on the declarations page,

27  "Single Interest Only----No Subrogation." Single interest

28  insurance is to be placed only after it has been determined

29  that no other kind of insurance can be placed on the risk,

30  except with the consent of the purchaser or borrower. Single

31  interest may be written in cases of inland marine installment


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    SB 1220                                       Second Engrossed



  1  sales floater policies. If insurance cannot be obtained for

  2  the dual protection of the purchaser or borrower, and the

  3  seller or lender or financing entity for all the coverages

  4  contemplated, or if obtained, is canceled by the insurer

  5  before expiration, the seller or lender or financing entity

  6  may obtain insurance to protect his or her interest in the

  7  motor vehicle or other personal property, and the purchaser or

  8  borrower may be required to pay the cost thereof. In such

  9  event the seller or lender or financing entity shall promptly

10  notify the purchaser or borrower that such insurance cannot be

11  obtained, or has been canceled, and credit to the purchaser or

12  borrower the difference between the amount charged for dual

13  protection insurance and the actual cost of such single

14  interest insurance, less, in the event of cancellation, the

15  earned premium on the dual interest insurance for the period

16  it was in force. If the purchaser or borrower procures

17  acceptable dual interest insurance within 30 days after the

18  date of such notice and provides the seller or lender, or

19  finance entity with evidence that the premium therefore has

20  been paid, there is no charge to him or her for the single

21  interest coverage. As used in this section, the term

22  "financing entity" means a finance company, bank, or other

23  lending institution. However, those lenders licensed under the

24  Consumer Finance Act, chapter 516, must provide coverage

25  issued in the name of the borrower containing the customary

26  mortgagee or loss payee clause.

27         (2)  If a certificate is issued under a master policy,

28  the same coverage as provided in an individual policy will

29  apply.

30         (3)  The provisions of this section do not apply to

31  title insurance as defined in s. 624.608.


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    SB 1220                                       Second Engrossed



  1         Section 6.  Paragraph (a) of subsection (2) of section

  2  627.062, Florida Statutes, is amended to read:

  3         627.062  Rate standards.--

  4         (2)  As to all such classes of insurance:

  5         (a)  Insurers or rating organizations shall establish

  6  and use rates, rating schedules, or rating manuals to allow

  7  the insurer a reasonable rate of return on such classes of

  8  insurance written in this state. Copies A copy of rates,

  9  rating schedules, rating manuals, premium credits or discount

10  schedules, and surcharge schedules, and changes thereto, shall

11  be filed with the department under one of the following

12  procedures:

13         1.  If the filing is made at least 90 days before the

14  proposed effective date and the filing is not implemented

15  during the department's review of the filing and any

16  proceeding and judicial review, then such filing shall be

17  considered a "file and use" filing.  In such case, the

18  department shall finalize its review by issuance of a notice

19  of intent to approve or a notice of intent to disapprove

20  within 90 days after receipt of the filing. The notice of

21  intent to approve and the notice of intent to disapprove

22  constitute agency action for purposes of the Administrative

23  Procedure Act. Requests for supporting information, requests

24  for mathematical or mechanical corrections, or notification to

25  the insurer by the department of its preliminary findings

26  shall not toll the 90-day period during any such proceedings

27  and subsequent judicial review. The rate shall be deemed

28  approved if the department does not issue a notice of intent

29  to approve or a notice of intent to disapprove within 90 days

30  after receipt of the filing.

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    SB 1220                                       Second Engrossed



  1         2.  If the filing is not made in accordance with the

  2  provisions of subparagraph 1., such filing shall be made as

  3  soon as practicable, but no later than 30 days after the

  4  effective date, and shall be considered a "use and file"

  5  filing.  An insurer making a "use and file" filing is

  6  potentially subject to an order by the department to return to

  7  policyholders portions of rates found to be excessive, as

  8  provided in paragraph (h).

  9         Section 7.  Subsection (4) is added to section

10  627.0625, Florida Statutes, to read:

11         627.0625  Commercial property and casualty risk

12  management plans.--

13         (4)  Commercial motor vehicle policies that are issued

14  to satisfy mandatory financial responsibility requirements of

15  a state or local government must provide first dollar coverage

16  to third-party claimants without a deductible. With respect to

17  such practices, the department may adopt rules necessary to

18  assure that claims are administered fairly as required by law.

19         Section 8.  Subsection (8) of section 627.0651, Florida

20  Statutes, is amended to read:

21         627.0651  Making and use of rates for motor vehicle

22  insurance.--

23         (8)  Rates are not unfairly discriminatory if averaged

24  broadly among members of a group; nor are rates unfairly

25  discriminatory even though they are lower than rates for

26  nonmembers of the group.  However, such rates are unfairly

27  discriminatory if they are not actuarially measurable and

28  credible and sufficiently related to actual or expected loss

29  and expense experience of the group so as to assure that

30  nonmembers of the group are not unfairly discriminated

31  against. Use of a single United States Postal Service zip code


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    SB 1220                                       Second Engrossed



  1  as a rating territory shall be deemed unfairly discriminatory.

  2  An insurer may not impose a surcharge or discount for

  3  liability coverages based on the type of vehicle without

  4  providing acceptable actuarial justification.

  5         Section 9.  Section 627.385, Florida Statutes, is

  6  created to read:

  7         627.385  Conduct of residual market board members.--

  8         (1)(a)  For various insurance coverages, a residual

  9  market has been created by legislation to provide a market of

10  last resort for individuals unable to secure coverage in the

11  voluntary market.

12         (b)  Each residual market's enabling legislation calls

13  for the establishment of a board of governors or directors

14  that operates subject to a plan of operation. The board, in

15  carrying out its obligations, must engage in business

16  transactions in order to provide and administer the required

17  coverage and maintain adequate funds to support the plan. In

18  order for the board to fully execute its responsibilities

19  required by law, conflict of interest or inappropriate

20  activity by board members, or the appearance thereof, with

21  regard to member insurers or policyholders of the residual

22  market mechanism must be avoided. The Legislature has

23  determined that the provisions set forth in subsection (2) are

24  necessary to protect the public interest by ensuring fair,

25  reasonable, and beneficial board practice and activity.

26         (c)  This section applies to the Florida Medical

27  Malpractice Joint Underwriting Association, the Florida

28  Automobile Joint Underwriting Association, the Florida

29  Workers' Compensation Joint Underwriting Association, the

30  Florida Comprehensive Health Association, the Florida

31  Windstorm Underwriting Association, the Florida Property and


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    SB 1220                                       Second Engrossed



  1  Casualty Joint Underwriting Association, the Florida

  2  Residential Property and Casualty Joint Underwriting

  3  Association, and the board members thereof.

  4         (2)  To ensure that the board is free from potential

  5  conflict or inappropriate behavior the following are adopted

  6  in the plan of operation of the subject residual market in

  7  this state.

  8         (a)  A board member may not act as a servicing carrier

  9  or administering entity for the subject plan, other than a

10  claim adjustment contract open to all members of the plan.

11         (b)  A board member or board member representative may

12  not use his or her position to foster or facilitate any

13  special pecuniary gain for himself or herself, his or her

14  member company, or any other entity in which the board member

15  or board member representative or the member company has a

16  substantial financial interest, except as otherwise provided

17  in paragraph (a).

18         (c)  A board member or board member representative may

19  not use his or her position on the board to secure or promote

20  any business relationship from which he or she may derive a

21  financial gain.

22         (d)  A board member or designee may not receive any

23  gift or gratuity, except as provided in s. 112.3248, other

24  than meals, while acting in his or her capacity as a board

25  member.

26         (3)  Board members and board member representatives

27  shall maintain reasonable board expenses based on state travel

28  policy as set forth in s. 112.061. The board shall develop a

29  detailed policy regarding board member travel, which policy

30  must be based on s. 112.061 and is subject to the approval of

31  the department.


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    SB 1220                                       Second Engrossed



  1         Section 10.  Section 627.4065, Florida Statutes, is

  2  created to read:

  3         627.4065  Insured's right to return policy; notice.--A

  4  health insurance policy issued or issued for delivery in this

  5  state must have printed or stamped thereon or attached thereto

  6  a notice in a prominent place stating in substance that the

  7  policyholder may return the policy to the insurer within 10

  8  days after its delivery and may have the premium paid refunded

  9  if, after examination of the policy or contract, the

10  policyholder is not satisfied with it for any reason. The

11  notice must provide that if the policyholder, pursuant to such

12  notice, returns the policy or contract to the insurer at its

13  home office or branch office or to the agent through whom it

14  was purchased, it is considered void from the beginning and

15  the parties are in the same position as if no policy or

16  contract had been issued. This section does not apply to group

17  policies, single premium nonrenewable policies or travel

18  accident policies.

19         Section 11.  Section 627.41345, Florida Statutes, is

20  created to read:

21         627.41345  Certificate of insurance.--An insurer or

22  agent may not issue or sign a certificate of insurance that

23  contains terms or conditions that differ from those in the

24  policy under which the certificate of insurance is issued. In

25  the event of a conflict, the terms of the policy under which

26  the certificate of insurance is issued shall control.

27         Section 12.  Subsection (9) is added to section

28  627.7015, Florida Statutes, to read:

29         627.7015  Alternative procedure for resolution of

30  disputed property insurance claims.--

31


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    SB 1220                                       Second Engrossed



  1         (9)  For purposes of this section, the term "claim"

  2  refers to any dispute between an insurer and an insured

  3  relating to a material issue of fact other than a dispute:

  4         (a)  With respect to which the insurer has a reasonable

  5  basis to suspect fraud;

  6         (b)  Where, based on agreed-upon facts as to the cause

  7  of loss, there is no coverage under the policy;

  8         (c)  With respect to which the insurer has a reasonable

  9  basis to believe that the claimant has intentionally made a

10  material misrepresentation of fact which is relevant to the

11  claim, and the entire request for payment of a loss has been

12  denied on the basis of the material misrepresentation; or

13         (d)  Where the amount in controversy is less than $500,

14  unless the parties agree to mediate a dispute involving a

15  lesser amount.

16         Section 13.  Section 627.7276, Florida Statutes, is

17  amended to read:

18         627.7276  Notice of limited coverage.--

19         (1)  The following notice of limited coverage shall An

20  automobile policy that does not contain coverage for bodily

21  injury and property damage must be clearly stamped or printed

22  on any automobile insurance policy that provides coverage only

23  for first-party damage to the insured vehicle, but does not

24  provide coverage for bodily injury liability, property damage

25  liability, or personal injury protection to the effect that

26  such coverage is not included in the policy in the following

27  manner:

28

29         "THIS POLICY DOES NOT PROVIDE BODILY INJURY

30         LIABILITY, AND PROPERTY DAMAGE LIABILITY, OR

31         PERSONAL INJURY PROTECTION INSURANCE OR ANY


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    SB 1220                                       Second Engrossed



  1         OTHER COVERAGE FOR WHICH A SPECIFIC PREMIUM

  2         CHARGE IS NOT MADE, AND DOES NOT COMPLY WITH

  3         ANY FINANCIAL RESPONSIBILITY LAW OR WITH THE

  4         FLORIDA MOTOR VEHICLE NO-FAULT LAW."

  5

  6         (2)  This legend must appear on the policy declaration

  7  page and on the filing back of the policy and be printed in a

  8  contrasting color from that used on the policy and in type

  9  larger than the largest type used in the text thereof, as an

10  overprint or by a rubber stamp impression.

11         Section 14.  Section 627.795, Florida Statutes, is

12  created to read:

13         627.795  Policy exceptions.--

14         (1)  A title insurance commitment must be issued on all

15  real estate closing transactions when a title insurance policy

16  is to be issued, except for multiple conveyances on the same

17  property such as timesharing.

18         (2)  A gap exception may not be deleted on a commitment

19  until the time of closing.

20         Section 15.  Subsection (1) of section 627.918, Florida

21  Statutes, is amended to read:

22         627.918  Reporting formats.--

23         (1)  The department shall require that the reporting

24  provided for in this part be made on forms adopted established

25  by the department or in a format compatible with the

26  department's its electronic data processing equipment. The

27  department shall adopt by rule standards for such approval.

28         Section 16.  Subsection (3) of section 641.3108,

29  Florida Statutes, is amended to read:

30         641.3108  Notice of cancellation of contract.--

31


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    SB 1220                                       Second Engrossed



  1         (3)  In the case of a health maintenance contract

  2  issued to an employer or person holding the contract on behalf

  3  of the subscriber group, the health maintenance organization

  4  may make the notification through the employer or group

  5  contract holder, and, if the health maintenance organization

  6  elects to take this action through the employer or group

  7  contract holder, the organization shall be deemed to have

  8  complied with the provisions of this section upon notifying

  9  the employer or group contract holder of the requirements of

10  this section and requesting the employer or group contract

11  holder to forward to all subscribers the notice required

12  herein. If a subscriber group contract is not renewed due to

13  claim experience, the subscriber group is entitled to receive

14  information concerning its loss ratio. If requested by a

15  subscriber group, a detailed claim experience record may be

16  provided at a reasonable expense. The record shall maintain

17  subscriber confidentiality.

18         Section 17.  Subsection (7) of section 627.7295,

19  Florida Statutes, is amended to read:

20         627.7295  Motor vehicle insurance contracts.--

21         (7)  A policy of private passenger motor vehicle

22  insurance or a binder for such a policy may be initially

23  issued in this state only if the insurer or agent has

24  collected from the insured an amount equal to 2 months'

25  premium.  An insurer, agent, or premium finance company may

26  not directly or indirectly take any action resulting in the

27  insured having paid from the insured's own funds an amount

28  less than the 2 months' premium required by this subsection.

29  This subsection applies without regard to whether the premium

30  is financed by a premium finance company or is paid pursuant

31  to a periodic payment plan of an insurer or an insurance


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    SB 1220                                       Second Engrossed



  1  agent.  This subsection does not apply if an insured or member

  2  of the insured's family is renewing or replacing a policy or a

  3  binder for such policy written by the same insurer or a member

  4  of the same insurer group.  This subsection does not apply to

  5  an insurer that issues private passenger motor vehicle

  6  coverage primarily to active duty or former military personnel

  7  or their dependents. This subsection does not apply if all

  8  policy payments are paid pursuant to a payroll deduction plan

  9  or an automatic electronic funds transfer payment plan from

10  the policyholder, provided that the first policy payment may

11  be is made by cash, cashier's check, check, or a money order.

12  This subsection and subsection (4) do not apply if all policy

13  payments to an insurer are paid pursuant to an automatic

14  electronic funds transfer payment plan from an agent or a

15  managing general agent, or if the policy is issued pursuant to

16  the transfer of a book of business by an agent from one

17  insurer to another, provided that and if the policy includes,

18  at a minimum, personal injury protection pursuant to ss.

19  627.730-627.7405; motor vehicle property damage liability

20  pursuant to s. 627.7275; and bodily injury liability in at

21  least the amount of $10,000 because of bodily injury to, or

22  death of, one person in any one accident and in the amount of

23  $20,000 because of bodily injury to, or death of, two or more

24  persons in any one accident. This subsection and subsection

25  (4) do not apply if an insured has had a policy in effect for

26  at least 6 months, the insured's agent is terminated by the

27  insurer that issued the policy, and the insured obtains

28  coverage on the policy's renewal date with a new company

29  through the terminated agent.

30         Section 18.  Subsection (1) of section 627.901, Florida

31  Statutes, is amended to read:


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    SB 1220                                       Second Engrossed



  1         627.901  Premium financing by an insurance agent or

  2  agency.--

  3         (1)  A general lines agent may make reasonable service

  4  charges for financing insurance premiums on policies issued or

  5  business produced by such an agent or agency, s. 626.9541

  6  notwithstanding.  The service charge shall not exceed $1 per

  7  installment, or a $6 total service charge per year, for any

  8  premium balance of $120 or less.  For any premium balance

  9  greater than $120 but not more than $220, the service charge

10  shall not exceed $9 per year.  The maximum service charge for

11  any premium balance greater than $220 shall not exceed $12 per

12  year.  In lieu of such service charges, an insurance agent or

13  agency may charge interest or service charges, which may be

14  level amounts and subject to endorsement changes, that in the

15  aggregate do not exceed a rate of interest not to exceed 18

16  percent simple interest per year on the average unpaid balance

17  as billed over the term of the policy.

18         Section 19.  Section 626.9651, Florida Statutes, is

19  created to read:

20         626.9651  Privacy.--The department shall adopt rules

21  consistent with other provisions of the Insurance Code to

22  govern the use of a consumer's nonpublic personal financial

23  and health information.  These rules shall be based on,

24  consistent with, and not more restrictive than the National

25  Association of Insurance Commissioners' Privacy of Consumer

26  Financial and Health Information Regulation adopted September

27  26, 2000, by the National Association of Insurance

28  Commissioners, provided, however, the rules shall permit the

29  use and disclosure of nonpublic personal health information

30  for scientific, medical, or public policy research in

31  accordance with federal law.  In addition, these rules shall


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    SB 1220                                       Second Engrossed



  1  be consistent with, and not more restrictive than, the

  2  standards contained in Title V of the Gramm-Leach-Bliley Act

  3  of 1999 (Pub. L. No. 106-102).  Any health insurer or health

  4  maintenance organization determined by the department to be in

  5  compliance with, or to be actively undertaking compliance

  6  with, the consumer privacy protection rules promulgated by the

  7  United States Department of Health and Human Services, in

  8  conformance with the Health Insurance Portability and

  9  Affordability Act, shall be deemed in compliance with this

10  section.  This section shall take effect July 1, 2001.

11         Section 20.  Section 631.001, Florida Statutes, is

12  amended to read:

13         (Substantial rewording of section.

14         See s. 631.001, F.S., for present text.)

15         631.001  Construction; purposes.--

16         (1)  The underlying purposes and policies of the

17  provisions of this part, which are integral elements of the

18  regulation of the business of insurance and are of vital

19  public interest and concern, are to:

20         (a)  Protect the interests of insureds, claimants,

21  creditors, and the public.

22         (b)  Provide a comprehensive scheme for the

23  receivership of insurers.

24         (c)  Establish this state as a reciprocal state in

25  those states which, in substance and effect, enact the

26  National Association of Insurance Commissioners Rehabilitation

27  and Liquidation Model Act or the Uniform Insurers Liquidation

28  Act.

29         (d)  Make more efficient the administration of insurer

30  receiverships on an interstate and international basis.

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    SB 1220                                       Second Engrossed



  1         (e)  Provide prompt corrective measures for any

  2  potentially dangerous condition in an insurer.

  3         (f)  Implement improved methods for rehabilitating

  4  insurers, which methods involve the cooperation and management

  5  expertise of the insurance industry.

  6         (g)  Enhance the efficiency and economy of liquidation

  7  through clarification and specification of the law to minimize

  8  legal uncertainty and litigation.

  9         (h)  Lessen the problems of interstate rehabilitation

10  and liquidation of an entity subject to the provisions of this

11  part by facilitating cooperation between states in the

12  liquidation process and by extension of the scope of personal

13  jurisdiction over debtors of the insurer outside this state.

14         (i)  Establish a system which equitably apportions any

15  unavoidable loss.

16         (j)  Maximize recovery of assets for the benefit of the

17  insurer and its policyholders, creditors, and estate.

18         (2)  This part shall be liberally construed to effect

19  the purposes stated in subsection (1) and shall specifically

20  authorize the department in its capacity as administrator,

21  conservator, rehabilitator, receiver, liquidator, or similar

22  capacity to pursue any actions for damages or other recoveries

23  on behalf of the insurer and its policyholders, creditors, and

24  estate.

25         (3)  This part may be cited as the "Insurers

26  Rehabilitation and Liquidation Act."

27         Section 21.  Section 631.011, Florida Statutes, is

28  amended to read:

29         631.011  Definitions.--For the purpose of this part,

30  the term:

31


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    SB 1220                                       Second Engrossed



  1         (1)  "Affiliate" means any entity which exercises

  2  control over or is controlled by the insurer, directly or

  3  indirectly through:

  4         (a)  Equity ownership of voting securities;

  5         (b)  Common managerial control; or

  6         (c)  Collusive participation by the management of the

  7  insurer and affiliate in the management of the insurer or the

  8  affiliate.

  9         (2)  "Ancillary state" means, any state other than a

10  domiciliary state.

11         (3)  "Assets," as used in this section subsections

12  (8)-(10), means only allowed assets as defined in chapter 625.

13         (4)  "Bona fide holder for value" means a holder who,

14  while not possessing information that would lead a reasonable

15  person in the holder's position to believe that the insurer is

16  financially impaired, and while unaware of the imminence or

17  pendency of any receivership proceeding against the insurer,

18  has, in the exercise of reasonable business judgment,

19  exchanged his or her own funds, assets, or property for funds,

20  assets, or property of the insurer having an equivalent market

21  value.

22         (5)(4)  "Court" refers to the circuit court in which

23  the receivership proceeding is pending.

24         (6)(5)  "Delinquency proceeding" means any proceeding

25  commenced against an insurer pursuant to this chapter for the

26  purpose of liquidating, rehabilitating, reorganizing, or

27  conserving such insurer.

28         (7)(6)  "Domiciliary state" means the state in which an

29  insurer is incorporated or organized or, in the case of an

30  insurer incorporated or organized in a foreign country, the

31  state in which such insurer, having become authorized to do


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    SB 1220                                       Second Engrossed



  1  business in such state, has, at the commencement of a

  2  delinquency proceeding, the largest amount of its assets held

  3  in trust and assets held on deposit for the benefit of its

  4  policyholders or policyholders and creditors in the United

  5  States; and any such insurer is deemed to be domiciled in such

  6  state.

  7         (8)  "Fair consideration" means that consideration

  8  which is given for property or assets of an insurer when, in

  9  exchange for the property or assets and in good faith,

10  property is conveyed, services are rendered, or an enforceable

11  obligation not invalidated by the receivership proceedings is

12  created, having a value to the insurer of not less than the

13  value of the property or assets given in exchange.

14         (9)(7)  "Foreign country" means territory not in any

15  state.

16         (10)(8)  "General assets" means all property, real,

17  personal, or otherwise, not specifically mortgaged, pledged,

18  deposited, or otherwise encumbered for the security or benefit

19  of specified persons or a limited class or classes of persons,

20  and as to such specifically encumbered property the term

21  includes all such property or its proceeds in excess of the

22  amount necessary to discharge the sum or sums secured thereby.

23  Assets held in trust and assets held on deposit for the

24  security or benefit of all policyholders or all policyholders

25  and creditors in the United States shall be deemed general

26  assets.

27         (11)  "Good faith," as applied to a transferee or

28  transferor under this part, means honesty in fact and

29  intention and includes the exercise of reasonable business

30  judgment, together with the absence of information that would

31  lead a reasonable person in the same position to know that the


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    SB 1220                                       Second Engrossed



  1  insurer is financially impaired or insolvent and together with

  2  the absence of knowledge regarding the imminence or pendency

  3  of any receivership proceeding against the insurer.

  4         (12)(9)  "Impairment of capital" means that the minimum

  5  surplus required to be maintained in s. 624.408 has been

  6  dissipated and the insurer is not possessed of assets at least

  7  equal to all its liabilities together with its total issued

  8  and outstanding capital stock, if a stock insurer, or the

  9  minimum surplus or net trust fund required by s. 624.407, if a

10  mutual, reciprocal, or business trust insurer.

11         (13)(10)  "Impairment of surplus" means that the

12  surplus of a stock insurer, the additional surplus of a mutual

13  or reciprocal insurer, or the additional net trust fund of a

14  business trust insurer does not comply with the requirements

15  of s. 624.408.

16         (14)(11)  "Insolvency" means that all the assets of the

17  insurer, if made immediately available, would not be

18  sufficient to discharge all its liabilities or that the

19  insurer is unable to pay its debts as they become due in the

20  usual course of business. When the context of any provision of

21  this code so indicates, insolvency also includes and is

22  defined as "impairment of surplus," as defined in subsection

23  (13)(9), and "impairment of capital," as defined in subsection

24  (12)(8).

25         (15)(12)  "Insurer," in addition to persons so defined

26  under s. 624.03, also includes persons purporting to be

27  insurers or organizing, or holding themselves out as

28  organizing, in this state for the purpose of becoming insurers

29  and all insurers who have insureds resident in this state.

30

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    SB 1220                                       Second Engrossed



  1         (16)(13)  "Liabilities," as used in subsections (12)

  2  and (14) (8)-(10), means all liabilities, including those

  3  specifically required in s. 625.041.

  4         (17)(14)  "Person" includes natural persons,

  5  corporations, partnerships, trusts, estates, and sole

  6  proprietorships.

  7         (18)  "Property," with respect to an insolvent entity,

  8  includes all right, title, and interest of the insolvent

  9  entity whether legal or equitable, tangible or intangible, or

10  choate or inchoate and includes choses in action, contract

11  rights, and any other interest recognized under the laws of

12  this state.  When an order of conservation, rehabilitation, or

13  liquidation is entered, the term also includes entitlements

14  that existed prior to the entry of the order and those that

15  may arise by operation of the provisions of this chapter or

16  other provisions of law allowing the department to avoid prior

17  transfers or assert other rights in its capacity as receiver.

18  The term also includes all records and data that are otherwise

19  the property of the insolvent insurer, however stored,

20  including, but not limited to, claims and claim files,

21  application files, litigation files, premium records, rate

22  books, underwriting manuals, personnel records, or financial

23  records, or similar records within the possession, custody, or

24  control of a managing general agent, third-party

25  administrator, management company, accountant, attorney,

26  affiliate, or other person. The term does not include

27  privileged or confidential documents of an insolvent insurer

28  generated by a third party.

29         (19)(15)  "Receiver" means a receiver, liquidator,

30  rehabilitator, or conservator, as the context may require.

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    SB 1220                                       Second Engrossed



  1         (20)(16)  "Reciprocal state" means any state other than

  2  this state in which in substance and effect the provisions of

  3  the Insurers Rehabilitation and Liquidation Act are in force,

  4  including the provisions requiring that the commissioner of

  5  insurance or equivalent insurance supervisory official be the

  6  receiver of a delinquent insurer.

  7         (21)(17)  "Secured claim" means any claim secured by

  8  mortgage, trust deed, pledge, deposit as security, escrow, or

  9  otherwise but does not include a special deposit claim, a

10  claim against general assets, or a claim based on mere

11  possession.  The term also includes a claim which more than 4

12  months before the commencement of a delinquency proceeding in

13  the state of the insurer's domicile has become a lien upon

14  specific assets by reason of judicial process.

15         (22)(18)  "Special deposit claim" means any claim

16  secured by a deposit made pursuant to statute for the security

17  or benefit of a limited class or classes of persons, but not

18  including any general assets.

19         (23)(19)  "State" is as defined in s. 624.08.

20         Section 22.  Section 631.025, Florida Statutes, is

21  created to read:

22         631.025  Persons and entities subject to this

23  part.--Delinquency proceedings authorized by this part may be

24  initiated against any insurer as defined in s. 631.011(15) if

25  the statutory grounds are present as to that insurer, and the

26  receivership court may exercise jurisdiction over any person

27  required to cooperate with the department pursuant to s.

28  631.391 and over all persons made subject to the court's

29  jurisdiction by other provisions of law. Such persons include,

30  but are not limited to:

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    SB 1220                                       Second Engrossed



  1         (1)  A person who is transacting or has transacted

  2  insurance business in or from this state and against whom

  3  claims arising from that business exist or may exist in the

  4  future.

  5         (2)  A person who purports to transact an insurance

  6  business in this state, and any person or entity who acts as

  7  an insurer, transacts insurance, or otherwise engages in

  8  insurance activities in or from this state, with or without a

  9  certificate of authority or proper authority from the

10  department.

11         (3)  An insurer who has insureds residing in this

12  state.

13         (4)  All other persons organized or in the process of

14  organizing with the intent to transact an insurance business

15  in this state.

16         Section 23.  Paragraph (d) of subsection (1) of section

17  631.041, Florida Statutes, is amended, and subsection (6) is

18  added to that section, to read:

19         631.041  Automatic stay; relief from stay;

20  injunctions.--

21         (1)  An application or petition under s. 631.031

22  operates as a matter of law as an automatic stay applicable to

23  all persons and entities, other than the receiver, which shall

24  be permanent and survive the entry of an order of

25  conservation, rehabilitation, or liquidation, and which shall

26  prohibit:

27         (d)  Any act to create, perfect, or enforce a lien

28  against property of the insurer, except that a secured claim

29  as defined in s. 631.011(21)(17) may proceed under s. 631.191

30  after the order of liquidation is entered;

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    SB 1220                                       Second Engrossed



  1         (6)  No statute of limitations or defense of laches

  2  shall run with respect to any action by or against an insurer

  3  between the filing of a petition for conservation,

  4  rehabilitation, or liquidation against an insurer and the

  5  order granting or denying that petition.  If the petition is

  6  denied, any action against the insurer that might have been

  7  commenced when the petition was filed may be commenced for at

  8  least 60 days after the order denying such relief.

  9         Section 24.  Section 631.113, Florida Statutes, is

10  created to read:

11         631.113  Extension of time.--

12         (1)  The running of any unexpired statute of

13  limitations as to any claims brought by the administrator,

14  conservator, rehabilitator, receiver, or liquidator, or an

15  official or agency exercising powers pursuant to this chapter

16  seeking damages or other recoveries on behalf of an insurer,

17  its policyholders, its creditors, or its estate, shall be

18  tolled for a period of 4 years from the entry of an order

19  placing the administrator, conservator, rehabilitator,

20  receiver, liquidator, or similar official or agency over the

21  insurer, provided, if the delinquency proceedings brought

22  pursuant to this chapter against the insurer terminate in less

23  than 4 years, such tolling shall cease at the time when the

24  proceedings are finally concluded, including all appeals

25  therefrom. Further, the right of action does not accrue and

26  the limitations period for any such action does not run during

27  the time when the insurer is controlled by parties acting

28  contrary to the company's interests or when the facts giving

29  rise to such claim are fraudulently concealed from regulatory

30  authorities or from any members of company management.  The

31  provisions of chapter 95 shall be construed so as to be


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    SB 1220                                       Second Engrossed



  1  consistent with the provisions of this section.  The receiver

  2  may institute any action or proceeding on behalf of the estate

  3  of the insurer while any statute of limitation is tolled

  4  pursuant to this section.  The tolling shall be in addition to

  5  any other applicable tolling provision.

  6         (2)  For actions not covered by subsection (1), if any

  7  unexpired time period is fixed, by any agreement or in any

  8  proceeding, for doing any act for the benefit of the estate,

  9  the receiver shall have 180 days, or such longer period as the

10  receivership court may allow for good cause shown, from the

11  entry of the order of rehabilitation or liquidation to perform

12  the act.

13         Section 25.  Present subsections (6) through (9) of

14  section 631.141, Florida Statutes, are renumbered as

15  subsections (7) through (10), respectively, and a new

16  subsection (6) is added to that section to read:

17         631.141  Conduct of delinquency proceeding; domestic

18  and alien insurers.--

19         (6)  The department as receiver is vested with and may

20  assert all rights belonging to policyholders, creditors, and

21  the estate as well as all rights of the entity or entities in

22  receivership, except to the extent that an individual claim is

23  personal and unique to that claimant and recovery thereon

24  could not inure to the benefit of the estate or to other

25  claimants.

26         Section 26.  Paragraph (d) of subsection (6) of section

27  631.154, Florida Statutes, is amended to read:

28         631.154  Funds or other property in the possession of

29  third person.--

30

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    SB 1220                                       Second Engrossed



  1         (6)  Should the receiver be successful in establishing

  2  its claim or any part thereof, the receiver shall be entitled

  3  to recover judgment for the following:

  4         (d)  All costs, investigative and other expenses, which

  5  include the department's in-house staff and staff attorney's

  6  expenses, costs, and salaries, expended in necessary to the

  7  recovery of the property or funds, and reasonable attorney's

  8  fees.

  9         Section 27.  Section 631.156, Florida Statutes, is

10  created to read:

11         631.156  Investigation by the department.--

12         (1)  Preliminary or incidental to a petition for

13  receivership proceedings, the department may, and if appointed

14  receiver shall, undertake a full investigation to determine

15  the causes and reasons for the insolvency, the discovery and

16  location of assets to be recovered, the recovery of such

17  assets, whether the filing of false statements with the

18  department contributed to the insolvency, and, in conjunction

19  with the department's Division of Insurance Fraud or any other

20  appropriate agency of state or federal government, whether any

21  law of this state, any other state, or the Federal Government

22  relating to the solvency of the insurer has been violated.  In

23  the furtherance of such investigation, the department may:

24         (a)  Examine and review any and all documents that are

25  reasonably calculated to disclose or lead to the disclosure of

26  the causes and reasons for the insolvency, the discovery and

27  location of assets to be recovered, the recovery of such

28  assets, the truth or falsity of statements filed with the

29  department, and whether any law of this state, any other

30  state, or the Federal Government has been violated.

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    SB 1220                                       Second Engrossed



  1         (b)  Take statements or depositions under oath of any

  2  person whose testimony is reasonably calculated to disclose or

  3  lead to the disclosure of the causes and reasons for the

  4  insolvency, the discovery of and location of assets to be

  5  recovered, the recovery of such assets, the truth or falsity

  6  of statements filed with the department, and whether any law

  7  of this state, any other state, or the Federal Government has

  8  been violated.

  9         (c)  Request the court having jurisdiction over the

10  receivership proceedings to issue any necessary subpoenas.

11         (d)  Examine and review the books, records, and

12  documents of any affiliate, controlling person, officer,

13  director, manager, trustee, agent, adjuster, employee, or

14  independent contractor of any insurer or affiliate and any

15  other person who possesses any executive authority over, or

16  who exercises or has exercised any control over, any segment

17  of the affairs of the insurer or affiliate, to the extent such

18  examination is reasonably calculated to disclose or lead to

19  the disclosure of the causes and reasons for the insolvency,

20  the discovery and location of assets to be recovered, the

21  recovery of such assets, the truth or falsity of statements

22  filed with the department, and whether any law of this state,

23  any other state, or the Federal Government has been violated.

24         (2)  In its capacity as receiver, the department may

25  provide documents, books and records, other investigative

26  products, work product, and analysis, including copies of any

27  or all of the foregoing items, to the Division of Insurance

28  Fraud or any other appropriate agency of state or federal

29  government.  The sharing of information, investigative

30  products, or analysis shall not waive any work product or

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    SB 1220                                       Second Engrossed



  1  other privilege that would otherwise apply under common law,

  2  chapter 119, or any other law.

  3         (3)  The department, as the court's receiver, is

  4  granted the discretion to determine what books, records,

  5  documents, or testimony would be reasonably calculated to

  6  disclose or lead to the disclosure of the causes and reasons

  7  for the insolvency, the discovery and location of assets to be

  8  recovered, the recovery of the assets, the truth or falsity of

  9  statements filed with the department, and whether any law of

10  this state or of the United States has been violated, subject

11  to the court's power to review such determination or appoint a

12  general master to review such determination.  A party

13  asserting that any documents requested by the department under

14  this section are not subject to review, or that any particular

15  testimony may not be obtained, shall present such contention

16  by written motion to the receivership court within 20 days

17  after receipt of the request and shall be fully responsible

18  for the loss of any evidence which occurs after the department

19  first informs said party of its request therefor.  The court

20  shall, as expeditiously as possible, determine whether the

21  department has abused its discretion in seeking such evidence

22  or testimony, with the objecting party having the burden of

23  proof.  A party who fails to produce the requested evidence or

24  testimony without filing a proper timely objection, or who

25  having unsuccessfully asserted such objection fails thereafter

26  to furnish the evidence or testimony, within the time provided

27  by the court or the department, shall be subject to the

28  contempt powers of the court, in addition to any other

29  applicable penalties which may be provided in the Florida

30  Insurance Code or other law.

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    SB 1220                                       Second Engrossed



  1         Section 28.  Section 631.157, Florida Statutes, is

  2  created to read:

  3         631.157  Civil action by the receiver.--

  4         (1)  Any person who is engaged in the business of

  5  insurance or who acts as or is an officer, director, agent, or

  6  employee of any person engaged in the business of insurance,

  7  or is involved, other than as an insured or beneficiary under

  8  a policy of insurance, in a transaction relating to the

  9  conduct of affairs of such a business, and who willfully

10  obtains or uses, as defined in s. 812.012(2), any asset or

11  property, including, but not limited to, moneys, funds,

12  premiums, credits, or other property of an insurer, shall be

13  liable to the department as receiver for the use and benefit

14  of an insolvent insurer's estate, creditors, and

15  policyholders, as follows:

16         (a)  If such obtaining or using did not jeopardize the

17  safety and soundness of an insurer and was not a significant

18  cause of such insurer's being placed in conservation,

19  rehabilitation, or liquidation, such person shall be liable

20  only for the full amount of any asset obtained or used, plus

21  prejudgment interest provided by law.

22         (b)  If such obtaining or using jeopardized the safety

23  and soundness of an insurer or was a significant cause of such

24  insurer's being placed in conservation, rehabilitation, or

25  liquidation, such person shall be liable for triple the full

26  amount of any asset obtained or used, plus prejudgment

27  interest provided by law on the original amount.

28         (2)  Any person who is engaged in the business of

29  insurance or who acts as or is an officer, director, agent, or

30  employee of any person engaged in the business of insurance,

31  or is involved, other than as an insured or beneficiary under


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    SB 1220                                       Second Engrossed



  1  a policy of insurance, in a transaction relating to the

  2  conduct of affairs of such a business, and who, while having

  3  actual knowledge or such constructive knowledge as should have

  4  been obtained through reasonable inquiry by a person in such

  5  position, if such person knowingly misreports, or knowingly

  6  makes any false entry of, a material fact in any book, report,

  7  or statement of an insurer with the intent to deceive such

  8  insurer, including any officer, employee, or agent of such

  9  insurer, the department, or any agent or examiner appointed by

10  the department to examine the affairs of such person or of the

11  insurer, concerning the financial condition or solvency of

12  such business, shall be liable to the department as receiver

13  for the use and benefit of an insolvent insurer's estate,

14  creditors, and policyholders, as follows:

15         (a)  If such misreporting did not jeopardize the safety

16  and soundness of an insurer and was not a significant cause of

17  such insurer's being placed in conservation, rehabilitation,

18  or liquidation, such person shall be liable only for the full

19  amount of any asset misreported.

20         (b)  If such misreporting jeopardized the safety and

21  soundness of an insurer or was a significant cause of such

22  insurer's being placed in conservation, rehabilitation, or

23  liquidation, such person shall be liable for triple the full

24  amount of any asset misreported.

25         (3)  If the asset or property that has been obtained or

26  used was reported to the department as being available to the

27  insurer as an admitted asset and such asset is unavailable to

28  the receiver for payment of the obligations of the insurer at

29  the time when a receivership proceeding is instituted, the

30  obtaining or using shall be presumed to have jeopardized the

31  safety and soundness of the insurer and to have been a


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    SB 1220                                       Second Engrossed



  1  significant cause of such insurer's being placed in

  2  conservation, rehabilitation, or liquidation, with the burden

  3  of proof on the defendants to show otherwise.

  4         (4)  If the receiver is successful in establishing a

  5  claim under this section, the receiver shall be entitled to

  6  recover all of its costs, investigative and other expenses,

  7  which shall include the department's in-house staff and staff

  8  attorney's expenses, costs, and salaries, expended in the

  9  prosecution of the action, and reasonable attorney's fees.

10  The receiver shall be exempt from the provisions of s. 57.111.

11         (5)  An action under this section may be brought at any

12  time before the expiration of 4 years after the entry of the

13  initial order of rehabilitation or liquidation under this part

14  but shall be filed before the time the receivership proceeding

15  is closed or dismissed.

16         Section 29.  Paragraph (b) of subsection (1) of section

17  631.57, Florida Statutes, is amended to read:

18         631.57  Powers and duties of the association.--

19         (1)  The association shall:

20         (b)  Be deemed the insurer to the extent of its

21  obligation on the covered claims, and, to such extent, shall

22  have all rights, duties, defenses, and obligations of the

23  insolvent insurer as if the insurer had not become insolvent.

24  In no event shall the association be liable for any penalties

25  or interest.

26         Section 30.  Section 631.3995, Florida Statutes, is

27  created to read:

28         631.3995  Closing of estate; Closed Estate Fund Trust

29  Account.--

30         (1)  When all assets justifying the expense of

31  collection and distribution have been marshaled and


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    SB 1220                                       Second Engrossed



  1  distributed under this part, the department shall petition the

  2  court to terminate the liquidation proceedings and to close

  3  the estate. The court may grant such other relief as may be

  4  appropriate, including, but not limited to, a full discharge

  5  of all liability and responsibility of the liquidator, the

  6  reservation of assets for administrative expenses incurred in

  7  the closing of the estate, and any other actions the

  8  department feels necessary or appropriate for closing the

  9  estate.

10         (2)  Any remaining reserved assets that are provided

11  for in subsection (1) and that may not be practicably or

12  economically distributed to claimants shall be deposited into

13  a segregated account to be known as the Closed Estate Fund

14  Trust Account, if created by law.  The department may use

15  moneys held in the account for paying the administrative

16  expenses of companies subject to this part that lack

17  sufficient assets to allow the department to perform its

18  duties and obligations under this part. An annual audit of the

19  Closed Estate Fund Trust Account shall be performed regardless

20  of its balance.

21         (3)  The department may petition the court to reopen

22  the proceedings for good cause shown, including the marshaling

23  of additional assets, and the court may enter such other

24  orders as may be deemed appropriate.

25         Section 31.  Subsection (3) of section 631.54, Florida

26  Statutes, is amended to read:

27         631.54  Definitions.--As used in this part:

28         (3)  "Covered claim" means an unpaid claim, including

29  one of unearned premiums, which arises out of, and is within

30  the coverage, and not in excess of, the applicable limits of

31  an insurance policy to which this part applies, issued by an


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    SB 1220                                       Second Engrossed



  1  insurer, if such insurer becomes an insolvent insurer after

  2  October 1, 1970, and the claimant or insured is a resident of

  3  this state at the time of the insured event or the property

  4  from which the claim arises is permanently located in this

  5  state. "Covered claim" shall not include any amount due any

  6  reinsurer, insurer, insurance pool, or underwriting

  7  association, as subrogation, contribution, indemnification,

  8  recoveries or otherwise.  Member insurers shall have no right

  9  of subrogation against the insured of any insolvent member.

10         Section 32.  Section 817.2341, Florida Statutes, is

11  created to read:

12         817.2341  Crimes by or affecting persons engaged in the

13  administration of any insurer or entity organized pursuant to

14  chapter 624 or chapter 641.--

15         (1)(a)  Any person who makes a false entry of a

16  material fact in any book, report, or statement relating to a

17  transaction of an insurer or entity organized pursuant to

18  chapter 624 or chapter 641, intending thereby to deceive any

19  person about the financial condition or solvency of such

20  insurer or entity, commits a felony of the third degree,

21  punishable as provided in s. 775.082, s. 775.083, or s.

22  775.084.

23         (b)  If such false entry of a material fact is made

24  with the intent to deceive any person as to the impairment of

25  capital, as defined in s. 631.011(12), of such insurer or

26  entity or is the significant cause of such insurer or entity

27  being placed in conservation, rehabilitation, or liquidation

28  by a court, the offense is a felony of the first degree,

29  punishable as provided in s. 775.082, s. 775.083, or s.

30  775.084.

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    SB 1220                                       Second Engrossed



  1         (2)(a) Any person who knowingly makes a material false

  2  statement or report to the department or any agent of the

  3  department, or who knowingly and materially overvalues any

  4  property in any document or report prepared to be presented to

  5  the department or any agent of the department, commits a

  6  felony of the third degree, punishable as provided in s.

  7  775.082, s. 775.083, or s. 775.084.

  8         (b)  If such material false statement or report or such

  9  material overvaluation is made with the intent to deceive any

10  person as to the impairment of capital, as defined in s.

11  631.011(12), of an insurer or entity organized pursuant to

12  chapter 624 or chapter 641, or is the significant cause of

13  such insurer or entity being placed in conservation,

14  rehabilitation, or liquidation by a court, the offense is a

15  felony of the first degree, punishable as provided in s.

16  775.082, s. 775.083, or s. 775.084.

17         Section 33.  This act shall take effect July 1, 2001.

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