House Bill hb1787

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    Florida House of Representatives - 2001                HB 1787

        By Representative Berfield






  1                      A bill to be entitled

  2         An act relating to warranty associations;

  3         amending s. 634.011, F.S.; defining "additive

  4         product"; revising the definitions of "motor

  5         vehicle service agreement" and "salesperson";

  6         amending s. 634.044, F.S.; including part

  7         inventories among the allowable assets of a

  8         service agreement company; amending s. 634.137,

  9         F.S.; providing for submission of financial

10         reports to the Department of Insurance in a

11         computer-readable form; amending s. 634.171,

12         F.S.; providing that a motor vehicle service

13         agreement company is not required to be

14         licensed as a salesperson to solicit, sell,

15         issue, or otherwise transact the motor vehicle

16         service agreements issued by the company;

17         repealing s. 634.281, F.S., which provides that

18         service agreement companies and their

19         salespersons shall be subject to pt. X of ch.

20         626, F.S., relating to viatical settlements;

21         creating s. 634.2815, F.S.; prohibiting

22         engaging in any trade practice determined to be

23         an unfair method of competition or an unfair or

24         deceptive act or practice involving the

25         business of motor vehicle service agreements;

26         creating s. 634.282, F.S.; defining unfair

27         methods of competition and unfair or deceptive

28         acts or practices; creating s. 634.2825, F.S.;

29         requiring vendors and lenders to separately

30         state and identify the amount charged and to be

31         paid for a motor vehicle service agreement;

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  1         providing applicability; creating s. 634.283,

  2         F.S.; providing power of the Department of

  3         Insurance to examine and investigate the

  4         affairs of persons involved in the business of

  5         motor vehicle service agreements in the state;

  6         creating s. 634.284, F.S.; authorizing the

  7         department to conduct hearings with respect to

  8         specified prohibited practices; providing a

  9         fine for failure to comply with a subpoena or

10         an order directing discovery; creating s.

11         634.285, F.S.; providing for the issuance of

12         cease and desist orders by the department;

13         providing specified penalties; creating s.

14         634.286, F.S.; providing for appeals of orders

15         of the department; creating s. 634.287, F.S.;

16         providing penalties for violation of a cease

17         and desist order of the department; creating s.

18         634.288, F.S.; providing for civil liability;

19         amending s. 634.301, F.S.; revising the

20         definition of "home warranty"; amending s.

21         634.3077, F.S.; eliminating specified assets to

22         be deducted in computing the net asset

23         requirement of a home warranty association;

24         creating s. 634.3078, F.S.; specifying

25         allowable assets and liabilities with respect

26         to the determination of the financial condition

27         of a service warranty association; amending s.

28         634.313, F.S.; providing for submission of

29         annual statements and financial reports to the

30         Department of Insurance in a computer-readable

31         form; amending s. 634.318, F.S.; providing that

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  1         a home warranty association is not required to

  2         be licensed as a salesperson to solicit, sell,

  3         issue, or otherwise transact the home warranty

  4         agreements issued by the association; amending

  5         s. 634.331, F.S.; revising terminology with

  6         respect to coverage of property for sale;

  7         amending s. 634.336, F.S.; including

  8         advertising, offering, or providing a free home

  9         warranty as an inducement to specified

10         purchases or sales among acts or practices

11         which constitute unfair methods of competition

12         and unfair or deceptive acts or practices;

13         amending s. 634.415, F.S.; providing for

14         submission of statements and reports to the

15         Department of Insurance in a computer-readable

16         form; amending s. 634.419, F.S.; providing that

17         a service warranty association is not required

18         to be licensed as a sales representative to

19         solicit, sell, or issue service warranty

20         agreements issued by the association; amending

21         s. 634.436, F.S.; including advertising,

22         offering, or providing a free service warranty

23         as an inducement to specified purchases or

24         sales among acts or practices which constitute

25         unfair methods of competition and unfair or

26         deceptive acts or practices; amending ss.

27         624.124 and 628.4615, F.S.; correcting cross

28         references; providing an effective date.

29

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

31

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  1         Section 1.  Subsections (2) through (16) of section

  2  634.011, Florida Statutes, are renumbered as subsections (3)

  3  through (17), respectively, present subsections (7) and (13)

  4  are amended, and a new subsection (2) is added to said

  5  section, to read:

  6         634.011  Definitions.--As used in this part, the term:

  7         (2)  "Additive product" means any fuel supplement, oil

  8  supplement, or any other supplement product added to a motor

  9  vehicle for the purpose of increasing or enhancing the

10  performance or improving the longevity of such motor vehicle.

11         (8)(7)  "Motor vehicle service agreement" or "service

12  agreement" means any contract or agreement indemnifying the

13  service agreement holder for the motor vehicle listed on the

14  service agreement and arising out of the ownership, operation,

15  and use of the motor vehicle against loss caused by failure of

16  any mechanical or other component part, or any mechanical or

17  other component part that does not function as it was

18  originally intended; however, nothing in this part shall

19  prohibit or affect the giving, free of charge, of the usual

20  performance guarantees by manufacturers or dealers in

21  connection with the sale of motor vehicles; and provided

22  further, however, transactions exempt under s. 624.125 shall

23  be expressly excluded from this definition and are exempt from

24  the provisions of this part. The term "motor vehicle service

25  agreement" includes any contract or agreement which provides

26  the coverage or protection defined in this subsection and is

27  issued or provided in conjunction with an additive product

28  applied to the motor vehicle which is the subject of such

29  contract or agreement.

30         (14)(13)  "Salesperson" means any dealership,

31  corporation, partnership, or sole proprietorship employed or

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  1  otherwise retained by an insurer or motor vehicle service

  2  agreement company for the purpose of selling or issuing motor

  3  vehicle service agreements or for the purpose of soliciting or

  4  retaining other salespersons.

  5         Section 2.  Subsection (1) of section 634.044, Florida

  6  Statutes, is amended to read:

  7         634.044  Assets and liabilities.--

  8         (1)  ASSETS.--In any determination of the financial

  9  condition of a service agreement company, there shall be

10  allowed as assets only those assets that are owned by the

11  service agreement company and which assets consist of:

12         (a)  Cash in the possession of the service agreement

13  company, or in transit under its control, including the true

14  balance of any deposit in a solvent bank, savings and loan

15  association, or trust company which is domiciled in the United

16  States.

17         (b)  Investments, securities, properties, and loans

18  acquired or held in accordance with this part, and in

19  connection therewith the following items:

20         1.  Interest due or accrued on any bond or evidence of

21  indebtedness which is not in default and which is not valued

22  on a basis including accrued interest.

23         2.  Declared and unpaid dividends on stock and shares,

24  unless the amount of the dividends has otherwise been allowed

25  as an asset.

26         3.  Interest due or accrued upon a collateral loan

27  which is not in default in an amount not to exceed 1 year's

28  interest thereon.

29         4.  Interest due or accrued on deposits or certificates

30  of deposit in solvent banks, savings and loan associations,

31  and trust companies domiciled in the United States, and

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  1  interest due or accrued on other assets, if such interest is

  2  in the judgment of the department a collectible asset.

  3         5.  Interest due or accrued on current mortgage loans,

  4  in an amount not exceeding in any event the amount, if any, of

  5  the excess of the value of the property less delinquent taxes

  6  thereon over the unpaid principal; but in no event shall

  7  interest accrued for a period in excess of 90 days be allowed

  8  as an asset.

  9         6.  Rent due or accrued on real property if such rent

10  is not in arrears for more than 3 months.  However, in no

11  event shall rent accrued for a period in excess of 90 days be

12  allowed as an asset.

13         7.  The unaccrued portion of taxes paid prior to the

14  due date on real property.

15         (c)  Furniture, fixtures, furnishings, vehicles, and

16  equipment, if the original cost of each item is at least $200,

17  which cost shall be amortized in full over a period not to

18  exceed 5 calendar years, unless otherwise approved by the

19  department.

20         (d)  Part inventories maintained for the purpose of

21  servicing products warranted. Part inventories must be listed

22  at cost. Service agreement companies are required to maintain

23  records to support valuation of part inventories.

24         (e)(d)  The liquidation value of or prepaid expenses.

25         (f)(e)  Other assets or receivables, not inconsistent

26  with the provisions of this section, deemed by the department

27  to be available for the payment of losses and claims, at

28  values to be determined by the department.

29

30  The department, upon determining that a service agreement

31  company's asset has not been evaluated according to applicable

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  1  law or that it does not qualify as an asset, shall require the

  2  service agreement company to properly reevaluate the asset or

  3  replace the asset with an asset suitable to the department

  4  within 30 days of written notification by the department of

  5  this determination, if the removal of the asset from the

  6  organization's assets would impair the company's solvency.

  7         Section 3.  Subsection (5) is added to section 634.137,

  8  Florida Statutes, to read:

  9         634.137  Financial and statistical reporting

10  requirements.--

11         (5)  The department may by rule require each motor

12  vehicle service agreement company to submit to the department,

13  as the department may designate, all or part of the

14  information contained in the financial reports required by

15  this section in a computer-readable form compatible with the

16  electronic data processing system specified by the department.

17         Section 4.  Section 634.171, Florida Statutes, is

18  amended to read:

19         634.171  Salesperson to be licensed and

20  appointed.--Salespersons for motor vehicle service agreement

21  companies and insurers shall be licensed, appointed, renewed,

22  continued, reinstated, or terminated as prescribed in chapter

23  626 for insurance representatives in general.  However, they

24  shall be exempt from all other provisions of chapter 626

25  including fingerprinting, photo identification, education, and

26  examination provisions.  License, appointment, and other fees

27  shall be those prescribed in s. 624.501.  A licensed and

28  appointed salesperson shall be directly responsible and

29  accountable for all acts of her or his employees and other

30  representatives.  Each service agreement company or insurer

31  shall, on forms prescribed by the department, within 30 days

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  1  after termination of the appointment, notify the department of

  2  such termination.  No employee or salesperson of a motor

  3  vehicle service agreement company or insurer may directly or

  4  indirectly solicit or negotiate insurance contracts, or hold

  5  herself or himself out in any manner to be an insurance agent

  6  or solicitor, unless so qualified, licensed, and appointed

  7  therefor under the Florida Insurance Code. A motor vehicle

  8  service agreement company is not required to be licensed as a

  9  salesperson to solicit, sell, issue, or otherwise transact the

10  motor vehicle service agreements issued by the motor vehicle

11  service agreement company.

12         Section 5.  Section 634.281, Florida Statutes, is

13  repealed:

14         634.281  Unfair trade practices.--Service agreement

15  companies and their salespersons shall be subject to the

16  provisions of part X of chapter 626.

17         Section 6.  Section 634.2815, Florida Statutes, is

18  created to read:

19         634.2815  Unfair methods of competition and unfair or

20  deceptive acts or practices prohibited.--No person may engage

21  in this state in any trade practice which is defined in this

22  part as, or determined pursuant to s. 634.282 to be, an unfair

23  method of competition or an unfair or deceptive act or

24  practice involving the business of motor vehicle service

25  agreements.

26         Section 7.  Section 634.282, Florida Statutes, is

27  created to read:

28         634.282  Unfair methods of competition and unfair or

29  deceptive acts or practices defined.--The following methods,

30  acts, or practices are defined as unfair methods of

31  competition and unfair or deceptive acts or practices:

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  1         (1)  MISREPRESENTATION AND FALSE

  2  ADVERTISING.--Knowingly making, issuing, circulating, or

  3  causing to be made, issued, or circulated, any estimate,

  4  illustration, circular, statement, sales presentation,

  5  omission, or comparison which:

  6         (a)  Misrepresents the benefits, advantages,

  7  conditions, or terms of any motor vehicle service agreement.

  8         (b)  Is misleading or is a misrepresentation as to the

  9  financial condition of any person.

10         (c)  Uses any name or title of any contract

11  misrepresenting the true nature thereof.

12         (d)  Is a misrepresentation for the purpose of

13  inducing, or tending to induce, the lapse, forfeiture,

14  exchange, conversion, or surrender of any motor vehicle

15  service agreement.

16         (2)  FALSE INFORMATION AND ADVERTISING

17  GENERALLY.--Knowingly making, publishing, disseminating,

18  circulating, or placing before the public, or causing,

19  directly or indirectly, to be made, published, disseminated,

20  circulated, or placed before the public:

21         (a)  In a newspaper, magazine, or other publication;

22         (b)  In the form of a notice, circular, pamphlet,

23  letter, or poster;

24         (c)  Over any radio or television station; or

25         (d)  Over the Internet, electronically, or in any other

26  way,

27

28  an advertisement, announcement, or statement containing any

29  assertion, representation, or statement with respect to the

30  business of motor vehicle service agreements, which assertion,

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  1  representation, or statement is untrue, deceptive, or

  2  misleading.

  3         (3)  DEFAMATION.--Knowingly making, publishing,

  4  disseminating, or circulating, directly or indirectly, or

  5  aiding, abetting, or encouraging the making, publishing,

  6  disseminating, or circulating of, any oral or written

  7  statement, or any pamphlet, circular, article, or literature,

  8  which is false or maliciously critical of, or derogatory to,

  9  any person and which is calculated to injure such person.

10         (4)  BOYCOTT, COERCION, AND INTIMIDATION.--Entering

11  into any agreement to commit, or by any concerted action

12  committing, any act of boycott, coercion, or intimidation

13  resulting in, or tending to result in, unreasonable restraint

14  of, or monopoly in, the business of motor vehicle service

15  agreements.

16         (5)  FALSE STATEMENTS AND ENTRIES.--

17         (a)  Knowingly:

18         1.  Filing with any supervisory or other public

19  official;

20         2.  Making, publishing, disseminating, or circulating;

21         3.  Delivering to any person;

22         4.  Placing before the public; or

23         5.  Causing, directly or indirectly, to be made,

24  published, disseminated, circulated, delivered to any person,

25  or placed before the public,

26

27  any false statement.

28         (b)  Knowingly making any false entry of a material

29  fact in any book, report, or statement of any person, or

30  knowingly failing to make a true entry of any material fact

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  1  pertaining to the business of such person in any book, report,

  2  or statement of such person.

  3         (6)  UNFAIR DISCRIMINATION.--Knowingly making or

  4  permitting any unfair discrimination between individuals of

  5  the same actuarially supportable class and essentially the

  6  same hazard, in the amount of premium, policy fees, or rates

  7  charged for any motor vehicle service agreement, in any of the

  8  terms or conditions of such agreement, or in any other manner

  9  whatsoever.

10         (7)  UNLAWFUL REBATES.--Except as otherwise expressly

11  provided by law, or in an applicable filing with the

12  department, knowingly:

13         (a)  Permitting, or offering to make, or making, any

14  contract or agreement as to such contract other than as

15  plainly expressed in the motor vehicle service agreement

16  issued thereon;

17         (b)  Paying, allowing, or giving, or offering to pay,

18  allow, or give, directly or indirectly, as inducement to such

19  motor vehicle service agreement, any unlawful rebate of

20  premiums payable on the agreement, any special favor or

21  advantage in the benefits thereon, or any valuable

22  consideration or inducement not specified in the agreement;

23         (c)  Giving, selling, or purchasing, or offering to

24  give, sell, or purchase, as an inducement to such motor

25  vehicle service agreement or in connection therewith, any

26  stocks, bonds, or other securities of any insurance company,

27  service agreement company, or other corporation, association,

28  or partnership, or any dividends or profits accrued thereon,

29  or anything of value not specified in the motor vehicle

30  service agreement.

31         (8)  UNFAIR CLAIM SETTLEMENT PRACTICES.--

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  1         (a)  Attempting to settle claims on the basis of an

  2  application or any other material document which was altered

  3  without notice to, or knowledge or consent of, the service

  4  agreement holder;

  5         (b)  Making a material misrepresentation to the service

  6  agreement holder for the purpose and with the intent of

  7  effecting settlement of such claims, loss, or damage under

  8  such contract on less favorable terms than those provided in,

  9  and contemplated by, such contract; or

10         (c)  Committing or performing with such frequency as to

11  indicate a general business practice any of the following

12  practices:

13         1.  Failure to adopt and implement internal standards

14  for the investigation of claims;

15         2.  Misrepresentation of pertinent facts or contract

16  provisions relating to coverages at issue;

17         3.  Failure to acknowledge and act promptly upon

18  communications with respect to claims;

19         4.  Denial of claims without conducting reasonable

20  investigations based upon available information;

21         5.  Failure to affirm or deny full or partial coverage

22  of claims and, as to partial coverage, the dollar amount or

23  extent of coverage, or failure to provide a written statement

24  that the claim is being investigated, upon written request of

25  the service agreement holder within 30 days after

26  proof-of-loss statements have been completed;

27         6.  Failure to promptly provide a reasonable

28  explanation to the service agreement holder of the basis in

29  the contract in relation to the facts or applicable law for

30  denial of a claim or for the offer of a compromise settlement;

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  1         7.  Failure to promptly notify the service agreement

  2  holder of any additional information necessary for the

  3  processing of a claim; or

  4         8.  Failure to clearly explain the nature of the

  5  requested information and the reasons such information is

  6  necessary.

  7         (9)  FAILURE TO MAINTAIN PROCEDURES FOR HANDLING

  8  COMPLAINTS.--Failing to maintain a complete record of all

  9  complaints received since the date of the last examination.

10  For purposes of this paragraph, "complaint" means any written

11  communication primarily expressing a grievance.

12         (10)  DISCRIMINATORY REFUSAL TO ISSUE A

13  CONTRACT.--Refusing to issue a contract solely because of an

14  individual's race, color, creed, marital status, sex, or

15  national origin.

16         (11)  MISREPRESENTATION IN SERVICE AGREEMENT

17  APPLICATIONS.--Knowingly making a false or fraudulent written

18  or oral statement or representation on, or relative to, an

19  application or negotiation for a motor vehicle service

20  agreement for the purpose of obtaining a fee, commission,

21  money, or other benefit from any insurer, service agreement

22  company, agent, broker, salesperson, or individual.

23         (12)  FREE SERVICE AGREEMENTS.--

24         (a)  Advertising, offering, or providing a free motor

25  vehicle service agreement as an inducement to the purchase or

26  sale of real or personal property or of services directly or

27  indirectly connected with such real or personal property.

28         (b)  For the purposes of this subsection, a "free"

29  motor vehicle service agreement is:

30

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  1         1.  A motor vehicle service agreement for which no

  2  identifiable and additional charge is made to the purchaser of

  3  such real property, personal property, or services.

  4         2.  A motor vehicle service agreement for which an

  5  identifiable or additional charge is made in an amount less

  6  than the cost of such motor vehicle service agreement as to

  7  the seller or other person, other than the service agreement

  8  company, providing the same.

  9         3.  Using the word "free" or words which imply the

10  provision of a motor vehicle service agreement without a cost

11  in connection with the advertising or offering for sale of any

12  kind of goods, merchandise, or services.

13         (13)  ILLEGAL DEALINGS IN PREMIUMS; EXCESS OR REDUCED

14  CHARGES FOR MOTOR VEHICLE SERVICE AGREEMENTS.--

15         (a)  Knowingly collecting any sum as a premium or

16  charge for a motor vehicle service agreement, which is not

17  then provided, or is not in due course to be provided, subject

18  to acceptance of the risk by a service agreement company or an

19  insurer, by a motor vehicle service agreement issued by a

20  service agreement company or an insurer as permitted by this

21  part.

22         (b)  Knowingly collecting as a premium or charge for a

23  motor vehicle service agreement any sum in excess of or less

24  than the premium or charge applicable to such motor vehicle

25  service agreement, in accordance with the applicable

26  classifications and rates as filed with the department, and as

27  specified in the motor vehicle service agreement.

28         (14)  INTERLOCKING OWNERSHIP AND MANAGEMENT.--

29         (a)  Any motor vehicle service agreement company may

30  retain, invest in, or acquire the whole or any part of the

31  capital of any other motor vehicle service agreement company,

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  1  or have a common management with any other motor vehicle

  2  service agreement company, unless such retention, investment,

  3  acquisition, or common management is inconsistent with any

  4  other provision of this part, or unless by reason thereof the

  5  business of such insurers with the public is conducted in a

  6  manner which substantially lessens competition generally in

  7  the insurance business.

  8         (b)  Any person otherwise qualified may be a director

  9  of two or more motor vehicle service agreement companies which

10  are competitors, unless the effect thereof is substantially to

11  lessen competition between motor vehicle service agreement

12  companies generally or materially tend to create a monopoly.

13         (15)  FALSE CLAIMS; OBTAINING OR RETAINING MONEY

14  DISHONESTLY.--

15         (a)  Any salesperson who causes to be presented to any

16  motor vehicle service agreement company a false claim for

17  payment, knowing the same to be false; or

18         (b)  Any salesperson who represents any motor vehicle

19  service agreement company or collects or does business without

20  the authority of the motor vehicle service agreement company,

21  secures cash advances by false statements, or fails to turn

22  over when required, or satisfactorily account for, all

23  collections of such motor vehicle service agreement company,

24

25  shall, in addition to the other penalties provided in this

26  act, commit a misdemeanor of the second degree, punishable as

27  provided in s. 775.082 or s. 775.083.

28         (16)  SLIDING.--Sliding is the act or practice of:

29         (a)  Representing to the applicant that a specific

30  ancillary coverage or product is required by law in

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  1  conjunction with the purchase of a motor vehicle service

  2  agreement when such coverage or product is not required;

  3         (b)  Representing to the applicant that a specific

  4  ancillary coverage or product is included in the motor vehicle

  5  service agreement contract applied for without an additional

  6  charge when such charge is required; or

  7         (c)  Charging an applicant for a specific ancillary

  8  coverage or product, in addition to the cost of the motor

  9  vehicle service agreement coverage applied for, without the

10  informed consent of the applicant.

11

12  No provision of this section shall be deemed to prohibit a

13  service agreement company or a licensed insurer from giving to

14  service agreement holders, prospective service agreement

15  holders, and others for the purpose of advertising, any

16  article of merchandise having a value of not more than $25.

17         Section 8.  Section 634.2825, Florida Statutes, is

18  created to read:

19         634.2825  Motor vehicle service agreement cost

20  specified in "price package".--

21         (1)  When the premium or charge for a motor vehicle

22  service agreement or involving such property or merchandise is

23  included in the overall purchase price or financing of the

24  purchase of merchandise or property, the vendor or lender

25  shall separately state and identify the amount charged and to

26  be paid for the motor vehicle service agreement, and the

27  classifications, if any, upon which based; and the inclusion

28  or exclusion of the cost of a motor vehicle service agreement

29  in such purchase price or financing shall not increase,

30  reduce, or otherwise affect any other factor involved in the

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  1  cost of merchandise, property, or financing as to the

  2  purchaser or borrower.

  3         (2)  This section does not apply to transactions which

  4  are subject to the provisions of part I of chapter 520,

  5  entitled "The Motor Vehicle Retail Sales Finance Act."

  6         Section 9.  Section 634.283, Florida Statutes, is

  7  created to read:

  8         634.283  Power of department to examine and

  9  investigate.--The department has the power to examine and

10  investigate the affairs of every person involved in the

11  business of motor vehicle service agreements in this state in

12  order to determine whether such person has been or is engaged

13  in any unfair method of competition or in any unfair or

14  deceptive act or practice prohibited by s. 634.2815.

15         Section 10.  Section 634.284, Florida Statutes, is

16  created to read:

17         634.284 Prohibited practices; hearings, witnesses,

18  appearances, production of books, and service of process.--

19         (1)  Whenever the department has reason to believe that

20  any person has engaged, or is engaging, in this state in any

21  unfair method of competition or any unfair or deceptive act or

22  practice as defined in s. 634.282, or is engaging in the

23  business of motor vehicle service agreements without being

24  properly licensed as required by this part, and that a

25  proceeding by the department in respect thereto would be in

26  the interest of the public, the department shall conduct or

27  cause to have conducted a hearing in accordance with chapter

28  120.

29         (2)  The department, a duly empowered hearing officer,

30  or an administrative law judge shall, during the conduct of

31  such hearing, have those powers enumerated in s. 120.569;

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  1  however, the penalty for failure to comply with a subpoena or

  2  with an order directing discovery is limited to a fine not to

  3  exceed $1,000 per violation.

  4         (3)  A statement of charges, notice, or order under

  5  this part may be served by anyone duly authorized by the

  6  department, either in the manner provided by law for service

  7  of process in civil actions or by certifying and mailing a

  8  copy thereof to the person affected by such statement, notice,

  9  order, or other process at her or his residence or principal

10  office or place of business. The verified return by the person

11  so serving such statement, notice, order, or other process,

12  setting forth the manner of the service is proof of the same;

13  and the return postcard receipt for such statement, notice,

14  order, or other process, certified and mailed as provided in

15  this subsection, is proof of service of the same.

16         Section 11.  Section 634.285, Florida Statutes, is

17  created to read:

18         634.285  Cease and desist and penalty orders.--After

19  the hearing provided for in s. 634.284, the department shall

20  enter a final order in accordance with s. 120.569. If it is

21  determined that the person charged has engaged in an unfair or

22  deceptive act or practice or the unlawful transaction of a

23  service agreement business, the department also shall issue an

24  order requiring the violator to cease and desist from engaging

25  in such method of competition, act, or practice or the

26  unlawful transaction of service agreement business. Further,

27  the department may, at its discretion, order any one or more

28  of the following penalties:

29         (1)  The suspension or revocation of such person's

30  license, or eligibility for any license, if the person knew,

31

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  1  or reasonably should have known, that she or he was in

  2  violation of this part.

  3         (2)  If it is determined that the person charged has

  4  provided or offered to provide motor vehicle service

  5  agreements without proper licensure, the imposition of an

  6  administrative penalty not to exceed $1,000 for each service

  7  agreement contract offered or effectuated.

  8         Section 12.  Section 634.286, Florida Statutes, is

  9  created to read:

10         634.286  Appeals from orders of the department.--Any

11  person subject to an order of the department under s. 634.285

12  may obtain a review of such order by filing an appeal

13  therefrom in accordance with the provisions and procedures for

14  appeal from the orders of the department in general under s.

15  120.68.

16         Section 13.  Section 634.287, Florida Statutes, is

17  created to read:

18         634.287  Penalty for violation of cease and desist

19  order.--Any person who violates a cease and desist order of

20  the department under s. 634.285 while such order is in effect,

21  after notice and hearing as provided in s. 634.284, is

22  subject, at the discretion of the department, to any one or

23  more of the following penalties:

24         (1)  A monetary penalty of not more than $50,000 as to

25  all matters determined in such hearing.

26         (2)  The suspension or revocation of such person's

27  license or eligibility to hold a license.

28         Section 14.  Section 634.288, Florida Statutes, is

29  created to read:

30         634.288 Civil liability.--The provisions of this part

31  are cumulative to rights under the general civil and common

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  1  law, and no action of the department will abrogate such rights

  2  to damages or other relief in any court.

  3         Section 15.  Subsection (4) of section 634.301, Florida

  4  Statutes, is amended to read:

  5         634.301  Definitions.--As used in this part, the term:

  6         (4)  "Home warranty" or "warranty" means any contract

  7  or agreement:

  8         (a)  Offered in connection with the sale of residential

  9  property;

10         (b)  Offered in connection with a loan of $5,000 or

11  more which is secured by residential property that is the

12  subject of the warranty, but not in connection with the sale

13  of such property; or

14         (c)  Offered in connection with a home improvement of

15  $7,500 or more for residential property that is the subject of

16  the warranty, but not in connection with the sale of such

17  property;

18

19  whereby a person undertakes to indemnify the warranty holder

20  against the cost of repair or replacement, or actually

21  furnishes repair or replacement, of any structural component

22  or appliance of a home, necessitated by wear and tear or an

23  inherent defect of any such structural component or appliance

24  or necessitated by the failure of an inspection to detect the

25  likelihood of any such loss. However, this part does not

26  prohibit the giving of usual performance guarantees by either

27  the builder of a home or the manufacturer or seller of an

28  appliance, as long as no identifiable charge is made for such

29  guarantee.  This part does not permit the provision of

30  indemnification against consequential damages arising from the

31  failure of any structural component or appliance of a home,

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  1  which practice constitutes the transaction of insurance

  2  subject to all requirements of the insurance code.  This part

  3  does not apply to service contracts entered into between

  4  consumers and nonprofit organizations or cooperatives the

  5  members of which consist of condominium associations and

  6  condominium owners and which perform repairs and maintenance

  7  for appliances or maintenance of the residential property.

  8  This part does not apply to a contract or agreement offered in

  9  connection with the sale of residential property by a service

10  warranty association in compliance with part III of this

11  chapter, provided such contract or agreement only relates to

12  the systems and appliances of the covered residential property

13  and does not cover any structural component of the residential

14  property.

15         Section 16.  Section 634.3077, Florida Statutes, is

16  amended to read:

17         634.3077  Financial requirements.--

18         (1)  An association licensed under this part shall

19  maintain a funded, unearned premium reserve account,

20  consisting of unencumbered assets, equal to a minimum of 25

21  percent of the gross written premiums received by it from all

22  warranty contracts in force.  Such assets shall be held in the

23  form of cash or invested in securities for investments as

24  provided in part II of chapter 625.

25         (2)  An association shall maintain, at a minimum, net

26  assets equal to one-sixth of the written premiums it receives

27  for the issuance and delivery of any binder or warranty in

28  force.  Net assets may be less than one-sixth of the premiums

29  written provided the association has net assets of not less

30  than $500,000 and maintains a funded, unearned premium reserve

31  account consisting of unencumbered assets equal to a minimum

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  1  of 40 percent of the gross written premiums received by it

  2  from all warranty contracts in force which shall be held in

  3  the form of cash or invested in securities for investments as

  4  provided in part II of chapter 625.

  5         (3)  In computing the net asset requirement, goodwill;

  6  franchises; customer lists; patents or trademarks; receivables

  7  from or advances to officers, directors, employees,

  8  salespersons, or affiliated companies; and assets deposited

  9  outside the United States shall be deducted from the net

10  assets of the association.

11         (3)(4)  An association shall not be required to set up

12  an unearned premium reserve if it has purchased contractual

13  liability insurance which demonstrates to the satisfaction of

14  the department that 100 percent of its claim exposure is

15  covered by such insurance.  Such contractual liability

16  insurance shall be obtained from an insurer that holds a

17  certificate of authority to do business within the state or

18  from an insurer approved by the department as financially

19  capable of meeting the obligations incurred pursuant to the

20  policy.  For purposes of this subsection, the contractual

21  liability policy shall contain the following provisions:

22         (a)  In the event that the home warranty association is

23  unable to fulfill its obligation under its contracts issued in

24  this state for any reason, including insolvency, bankruptcy,

25  or dissolution, the contractual liability insurer will pay

26  losses and unearned premiums under such plans directly to

27  persons making claims under such contracts.

28         (b)  The insurer issuing the policy shall assume full

29  responsibility for the administration of claims in the event

30  of the inability of the association to do so.

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  1         (c)  The policy may not be canceled or not renewed by

  2  either the insurer or the association unless 60 days' written

  3  notice thereof has been given to the department by the insurer

  4  before the date of such cancellation or nonrenewal.

  5         (4)(5)  An association that purchases contractual

  6  liability insurance on the warranties that it issues shall

  7  provide the department with claim statistics required to be

  8  filed by associations not purchasing such insurance.

  9         Section 17.  Section 634.3078, Florida Statutes, is

10  created to read:

11         634.3078  Assets and liabilities.--

12         (1)  ASSETS.--In any determination of the financial

13  condition of a home warranty association, there shall be

14  allowed as assets only those assets that are owned by the home

15  warranty association company and which assets consist of:

16         (a)  Cash in the possession of the home warranty

17  association, or in transit under its control, including the

18  true balance of any deposit in a solvent bank, savings and

19  loan association, or trust company which is domiciled in the

20  United States.

21         (b)  Investments, securities, properties, and loans

22  acquired or held in accordance with this part, and in

23  connection therewith the following items:

24         1.  Interest due or accrued on any bond or evidence of

25  indebtedness which is not in default and which is not valued

26  on a basis including accrued interest.

27         2.  Declared and unpaid dividends on stock and shares,

28  unless the amount of the dividends has otherwise been allowed

29  as an asset.

30

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  1         3.  Interest due or accrued upon a collateral loan

  2  which is not in default in an amount not to exceed 1 year's

  3  interest thereon.

  4         4.  Interest due or accrued on deposits or certificates

  5  of deposit in solvent banks, savings and loan associations,

  6  and trust companies domiciled in the United States, and

  7  interest due or accrued on other assets, if such interest is

  8  in the judgment of the department a collectible asset.

  9         5.  Interest due or accrued on current mortgage loans,

10  in an amount not exceeding in any event the amount, if any, of

11  the excess of the value of the property less delinquent taxes

12  thereon over the unpaid principal; but in no event shall

13  interest accrued for a period in excess of 90 days be allowed

14  as an asset.

15         6.  Rent due or accrued on real property if such rent

16  is not in arrears for more than 3 months. However, in no event

17  shall rent accrued for a period in excess of 90 days be

18  allowed as an asset.

19         7.  The unaccrued portion of taxes paid prior to the

20  due date on real property.

21         (c)  Furniture, fixtures, furnishings, vehicles, and

22  equipment, if the original cost of each item is at least $200,

23  which cost shall be amortized in full over a period not to

24  exceed 5 calendar years, unless otherwise approved by the

25  department.

26         (d)  Part inventories maintained for the purpose of

27  servicing products warranted. Part inventories must be listed

28  at cost. Home warranty associations companies are required to

29  maintain records to support valuation of part inventories.

30         (e)  The liquidation value or prepaid expenses.

31

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  1         (f)  Other assets or receivables, not inconsistent with

  2  the provisions of this section, deemed by the department to be

  3  available for the payment of losses and claims, at values to

  4  be determined by the department.

  5

  6  The department, upon determining that a home warranty

  7  association's asset has not been evaluated according to

  8  applicable law or that it does not qualify as an asset, shall

  9  require the home warranty association to properly reevaluate

10  the asset or replace the asset with an asset suitable to the

11  department within 30 days of written notification by the

12  department of this determination, if the removal of the asset

13  from the organization's assets would impair the company's

14  solvency.

15         (2)  ASSETS NOT ALLOWED.--In addition to assets

16  impliedly excluded by the provisions of subsection (1), the

17  following assets expressly shall not be allowed as assets in

18  any determination of the financial condition of a home

19  warranty association:

20         (a)  Goodwill, agreement holder lists, patents, trade

21  names, agreements not to compete, and other like intangible

22  assets.

23         (b)  Any note or account receivable from or advances to

24  officers, directors, or controlling stockholders, whether

25  secured or not, and advances to employees, agents, or other

26  persons on personal security only.

27         (c)  Stock of the home warranty association owned by it

28  directly or owned by it through any entity in which the

29  organization owns or controls, directly or indirectly, more

30  than 25 percent of the ownership interest.

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  1         (d)  Leasehold improvements, stationery, and

  2  literature, except that leasehold improvements made prior to

  3  October 1, 2001, shall be allowed as an asset and shall be

  4  amortized over the shortest of the following periods:

  5         1.  The life of the lease.

  6         2.  The useful life of the improvements.

  7         3.  The 3-year period following October 1, 2001.

  8         (e)  Furniture, fixtures, furnishings, vehicles, and

  9  equipment, other than those items authorized under paragraph

10  (1)(c).

11         (f)  Notes or other evidences of indebtedness which are

12  secured by mortgages or deeds of trust which are in default

13  and beyond the express period specified in the instrument for

14  curing the default.

15         (g)  Bonds in default for more than 60 days.

16         (h)  Deferred costs other than the liquidation value of

17  prepaid expenses except for those companies that reserve 100

18  percent of gross written premium.

19         (i)  Any note, account receivable, advance, or other

20  evidence of indebtedness, or investment in:

21         1.  The parent of the home warranty association;

22         2.  Any entity directly or indirectly controlled by the

23  home warranty association's parent;

24         3.  An affiliate of the parent or the home warranty

25  association; or

26         4.  Officers, directors, shareholders, employees, or

27  salespersons of the home warranty association; however,

28  premium receivables under 45 days old may be considered an

29  admitted asset.

30

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  1  The department may, however, allow all or a portion of such

  2  asset, at values to be determined by the department, if deemed

  3  by the department to be available for the payment of losses

  4  and claims.

  5         (3)  LIABILITIES.--In any determination of the

  6  financial condition of a home warranty association,

  7  liabilities to be charged against its assets shall include,

  8  but not be limited to:

  9         (a)  The amount, in conformity with generally accepted

10  accounting principles, necessary to pay all of its unpaid

11  losses and claims incurred for or on behalf of an agreement

12  holder, on or prior to the end of the reporting period,

13  whether reported or unreported.

14         (b)  Taxes, expenses, and other obligations due or

15  accrued at the date of the statement.

16         (c)  Reserve for unearned premiums.

17

18  The department, upon determining that the home warranty

19  association has failed to report liabilities that should have

20  been reported, shall require a correct report which reflects

21  the proper liabilities to be submitted by the home warranty

22  association to the department within 10 working days of

23  receipt of written notification.

24         Section 18.  Subsection (5) is added to section

25  634.313, Florida Statutes, to read:

26         634.313  Tax on premiums; annual statement; reports.--

27         (5)  The department may by rule require each home

28  warranty association to submit to the department, as the

29  department may designate, all or part of the information

30  contained in the financial reports required by this section in

31

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  1  a computer-readable form compatible with the electronic data

  2  processing system specified by the department.

  3         Section 19.  Section 634.318, Florida Statutes, is

  4  amended to read:

  5         634.318  License and appointment of sales

  6  representatives.--Sales representatives for home warranty

  7  associations and insurers shall be licensed, appointed,

  8  renewed, continued, reinstated, or terminated in the same

  9  manner as prescribed in chapter 626 for insurance

10  representatives in general, except they shall be exempt from

11  the fingerprinting, photo identification card, education, and

12  examination provisions. License, appointment, and other fees

13  shall be those as prescribed in s. 624.501.  No employee or

14  sales representative of a home warranty association or insurer

15  may directly or indirectly solicit or negotiate insurance

16  contracts, or hold herself or himself out in any manner to be

17  an insurance agent or solicitor, unless so qualified,

18  licensed, and appointed therefor under the insurance code. A

19  home warranty association is not required to be licensed as a

20  sales representative to solicit, sell, issue, or otherwise

21  transact the home warranty agreements issued by the home

22  warranty association.

23         Section 20.  Section 634.331, Florida Statutes, is

24  amended to read:

25         634.331  Coverage of property for sale.--A home

26  warranty may provide coverage of residential property during

27  the listing period of such property for a period not to exceed

28  12 months, provided that the home warranty company charges the

29  warranty purchaser a separately identifiable charge for the

30  listing list period coverage in an amount equal to at least 15

31  percent of the annual premium charged for the home warranty

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  1  and the charge for such coverage is due at the earlier of the

  2  end of the listing period or the date the sale of the

  3  residential property is closed.

  4         Section 21.  Subsection (9) is added to section

  5  634.336, Florida Statutes, to read:

  6         634.336  Unfair methods of competition and unfair or

  7  deceptive acts or practices defined.--The following methods,

  8  acts, or practices are defined as unfair methods of

  9  competition and unfair or deceptive acts or practices:

10         (9)  FREE HOME WARRANTIES PROHIBITED.--

11         (a)  Advertising, offering, or providing a free home

12  warranty as an inducement to the purchase or sale of real or

13  personal property or of services directly or indirectly

14  connected with such real or personal property.

15         (b)  For the purposes of this subsection, a "free" home

16  warranty is:

17         1.  A home warranty for which no identifiable and

18  additional charge is made to the purchaser of such real

19  property, personal property, or services.

20         2.  A home warranty for which an identifiable or

21  additional charge is made in an amount less than the cost of

22  such home warranty as to the seller or other person, other

23  than the home warranty association, providing the same, except

24  that this provision does not apply to home warranty coverage

25  provided during the listing period of a home.

26         3.  Using the word "free" or words which imply the

27  provision of a home warranty without a cost in connection with

28  the advertising or offering for sale of any kind of goods,

29  merchandise, or services.

30         Section 22.  Subsection (6) is added to section

31  634.415, Florida Statutes, to read:

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  1         634.415  Tax on premiums; annual statement; reports;

  2  quarterly statements.--

  3         (6)  The department may by rule require each service

  4  warranty association to submit to the department, as the

  5  department may designate, all or part of the information

  6  contained in the financial statements and reports required by

  7  this section in a computer-readable form compatible with the

  8  electronic data processing system specified by the department.

  9         Section 23.  Section 634.419, Florida Statutes, is

10  amended to read:

11         634.419  License and appointment required.--No person

12  or entity shall solicit, negotiate, advertise, or effectuate

13  service warranty contracts in this state unless such person or

14  entity is licensed and appointed as a sales representative.

15  Sales representatives shall be responsible for the actions of

16  persons under their supervision.  However, a service warranty

17  association licensed as such under this part shall not be

18  required to be licensed and appointed as a sales

19  representative to advertise, solicit, sell, or issue its

20  products.

21         Section 24.  Subsection (8) is added to section

22  634.436, Florida Statutes, to read:

23         634.436  Unfair methods of competition and unfair or

24  deceptive acts or practices defined.--The following methods,

25  acts, or practices are defined as unfair methods of

26  competition and unfair or deceptive acts or practices:

27         (8)  FREE SERVICE WARRANTIES.--

28         (a)  Advertising, offering, or providing a free service

29  warranty as an inducement to the purchase or sale of real or

30  personal property or of services directly or indirectly

31  connected with such real or personal property.

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  1         (b)  For the purposes of this subsection, a "free"

  2  service warranty is:

  3         1.  A service warranty for which no identifiable and

  4  additional charge is made to the purchaser of such real

  5  property, personal property, or services.

  6         2.  A service warranty for which an identifiable or

  7  additional charge is made in an amount less than the cost of

  8  such service warranty as to the seller or other person, other

  9  than the service warranty association, providing the same.

10         3.  Using the word "free" or words which imply the

11  provision of a service warranty without a cost in connection

12  with the advertising or offering for sale of any kind of

13  goods, merchandise, or services.

14         Section 25.  Section 624.124, Florida Statutes, is

15  amended to read:

16         624.124  Motor vehicle services; exemption from

17  code.--Any person may, in exchange for fees, dues, charges, or

18  other consideration, provide any of the following services

19  related to the ownership, operation, use, or maintenance of a

20  motor vehicle without being deemed an insurer and without

21  being subject to the provisions of this code:

22         (1)  Towing service.

23         (2)  Procuring from an insurer group coverage for bail

24  and arrest bonds or for accidental death and dismemberment.

25         (3)  Emergency service.

26         (4)  Procuring prepaid legal services, or providing

27  reimbursement for legal services, except that this shall not

28  be deemed to be an exemption from chapter 642.

29         (5)  Offering assistance in locating or recovering

30  stolen or missing motor vehicles.

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  1         (6)  Paying emergency living and transportation

  2  expenses of the owner of a motor vehicle when the motor

  3  vehicle is damaged.

  4

  5  For purposes of this section, "motor vehicle" has the same

  6  meaning specified by s. 634.011(7)(6).

  7         Section 26.  Paragraph (a) of subsection (1) of section

  8  628.4615, Florida Statutes, is amended to read:

  9         628.4615  Specialty insurers; acquisition of

10  controlling stock, ownership interest, assets, or control;

11  merger or consolidation.--

12         (1)  For the purposes of this section, the term

13  "specialty insurer" means any person holding a license or

14  certificate of authority as:

15         (a)  A motor vehicle service agreement company

16  authorized to issue motor vehicle service agreements as those

17  terms are defined in s. 634.011(8)(7) and (9) (8);

18         Section 27.  This act shall take effect upon becoming a

19  law.

20

21

22

23

24

25

26

27

28

29

30

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  1            *****************************************

  2                          HOUSE SUMMARY

  3
      Revises and creates various provisions within pt. I of
  4    ch. 634, F.S., relating to motor vehicle service
      agreement companies. Defines "additive product" and
  5    revises the definitions of "motor vehicle service
      agreement" and "salesperson." Includes part inventories
  6    among the allowable assets of a motor vehicle service
      agreement company. Provides for submission of financial
  7    reports to the Department of Insurance in a
      computer-readable form. Provides that a motor vehicle
  8    service agreement company is not required to be licensed
      as a salesperson to solicit, sell, issue, or otherwise
  9    transact the motor vehicle service agreements issued by
      the company. Repeals provisions which require motor
10    vehicle service agreement companies and their
      salespersons to be subject to pt. X of ch. 626, F.S.,
11    relating to viatical settlements. Prohibits engaging in
      unfair or deceptive acts or practices involving the
12    business of motor vehicle service agreements and defines
      such acts and practices. Requires vendors and lenders to
13    separately state and identify the amount charged and to
      be paid for a motor vehicle service agreement. Provides
14    investigative power of the Department of Insurance.
      Authorizes the department to conduct hearings with
15    respect to specified prohibited practices. Provides a
      fine for failure to comply with a subpoena or an order
16    directing discovery. Provides for the issuance of cease
      and desist orders by the department. Provides specified
17    penalties.  Provides for appeals of orders of the
      department. Provides penalties for violation of a cease
18    and desist order of the department.

19
      With respect to pt. II of ch. 634, F.S., relating to home
20    warranty associations, revises the definition of "home
      warranty." Eliminates specified assets to be deducted in
21    computing the net asset requirements of a home warranty
      association. Specifies allowable assets and liabilities
22    with respect to the determination of the financial
      condition of a service warranty association. Provides for
23    submission of financial reports to the Department of
      Insurance in a computer-readable form. Provides that a
24    home warranty association is not required to be licensed
      as a salesperson to solicit, sell, issue, or otherwise
25    transact the home warranty agreements issued by the
      association. Includes advertising, offering, or providing
26    a free home warranty as an inducement to specified
      purchases or sales among acts or practices which
27    constitute unfair methods of competition and unfair or
      deceptive acts or practices.
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29    With respect to pt. III of ch. 634, F.S., relating to
      service warranty associations, provides for submission of
30    statements and reports to the Department of Insurance in
      a computer-readable form. Provides that a service
31    warranty association is not required to be licensed as a
      sales representative to solicit, sell, or issue service
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    Florida House of Representatives - 2001                HB 1787

    752-111-01






  1    warranty agreements issued by the association. Includes
      advertising, offering, or providing a free service
  2    warranty as an inducement to specified purchases or sales
      among acts or practices which constitute unfair methods
  3    of competition and unfair or deceptive acts or practices.

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