Senate Bill sb2234c1

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    Florida Senate - 2001                           CS for SB 2234

    By the Committee on Banking and Insurance; and Senator Garcia





    311-1783-01

  1                      A bill to be entitled

  2         An act relating to insurance; amending s.

  3         627.351, F.S.; renaming the Residential

  4         Property and Casualty Joint Underwriting

  5         Association as the Citizens Property Insurance

  6         Corporation to provide residential and

  7         commercial property insurance; requiring

  8         insurers writing property insurance to be

  9         assessed by the corporation; providing for

10         dividing the revenues, assets, liabilities,

11         losses, and expenses of the corporation into

12         three accounts; providing for emergency

13         assessments for policyholders of assessable

14         insurers; providing a plan of operation;

15         providing for a board of governors; providing

16         that the corporation is not required to obtain

17         a certificate of authority from the Department

18         of Insurance; providing that the corporation is

19         not required to be a member of the Florida

20         Insurance Guaranty Association; requiring the

21         corporation to pay assessments pledged by the

22         association to secure bonds to pay covered

23         claims arising from insurer insolvencies caused

24         by hurricane losses; providing for transfer of

25         policies of the association and the Florida

26         Windstorm Underwriting Association to the

27         corporation; providing for a transfer of assets

28         and liabilities; requiring the associations to

29         take actions necessary to further such

30         transfers; providing that such transfers do not

31         affect the coverage of "covered policies";

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  1         providing for the redesignation of certain

  2         coverage as the high-risk account of the

  3         corporation; providing that such account be

  4         treated as if it were a separate insurer for

  5         certain purposes; providing that the personal

  6         lines and commercial lines accounts be treated

  7         as a single insurer for certain purposes;

  8         providing that the department may postpone the

  9         October 1, 2001, effective date of transfer

10         under the act; providing legislative intent not

11         to interfere with the rights of creditors, to

12         preserve the obligations of the association,

13         and to assure that outstanding financing

14         agreements pass unchanged to the corporation;

15         amending s. 631.55, F.S.; creating a medical

16         malpractice account within the Florida

17         Insurance Guaranty Association; amending s.

18         627.351, F.S.; eliminating the provisions

19         making a risk no longer eligible for coverage

20         in the Florida Windstorm Underwriting

21         Association if an offer of coverage is made by

22         an authorized insurer; providing an effective

23         date.

24

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

26

27         Section 1.  Subsection (6) of section 627.351, Florida

28  Statutes, is amended to read:

29         627.351  Insurance risk apportionment plans.--

30         (6)  CITIZENS RESIDENTIAL PROPERTY INSURANCE

31  CORPORATION AND CASUALTY JOINT UNDERWRITING ASSOCIATION.--

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  1         (a)1.  The Legislature finds that actual and threatened

  2  catastrophic losses to property in this state from hurricanes

  3  have caused insurers to be unwilling or unable to provide

  4  property insurance coverage to the extent sought and needed.

  5  It is in the public interest and a public purpose to assist in

  6  assuring that property in the state is insured so as to

  7  facilitate the remediation, reconstruction, and replacement of

  8  damaged or destroyed property in order to reduce or avoid the

  9  negative effects otherwise resulting to the public health,

10  safety, and welfare; to the economy of the state; and to the

11  revenues of the state and local governments needed to provide

12  for the public welfare. It is necessary, therefore, to

13  provide, and to facilitate the provision of, property

14  insurance to applicants who are in good faith entitled to

15  procure insurance through the voluntary market but are unable

16  to do so. The Legislature intends by this subsection that such

17  insurance be provided and continued, as long as necessary,

18  through an entity organized to achieve efficiencies and

19  economies, all toward the achievement of the foregoing public

20  purposes.

21         2.  The Residential Property and Casualty Joint

22  Underwriting Association originally created by this statute

23  shall be known, as of October 1, 2001, as the Citizens

24  Property Insurance Corporation. The Corporation shall provide

25  insurance and coinsurance for residential and commercial

26         (a)  There is created a joint underwriting association

27  for equitable apportionment or sharing among insurers of

28  property and casualty insurance covering residential property,

29  for applicants who are in good faith entitled, but are unable,

30  to procure insurance through the voluntary market. The

31  corporation association shall operate pursuant to a plan of

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  1  operation approved by order of the department. The plan is

  2  subject to continuous review by the department. The department

  3  may, by order, withdraw approval of all or part of a plan if

  4  the department determines that conditions have changed since

  5  approval was granted and that the purposes of the plan require

  6  changes in the plan.  For the purposes of this subsection,

  7  residential coverage includes both personal lines residential

  8  coverage, which consists of the type of coverage provided by

  9  homeowner's, mobile home owner's, dwelling, tenant's,

10  condominium unit owner's, and similar policies, and commercial

11  lines residential coverage, which consists of the type of

12  coverage provided by condominium association, apartment

13  building, and similar policies.

14         (b)1.  All insurers authorized to write one or more

15  subject lines of business in this state and insurers writing

16  one or more subject lines of business pursuant to part VIII of

17  chapter 626 are subject to assessment by the corporation, and,

18  for the purposes of this subsection, shall be referred to

19  collectively as "assessable insurers", other than underwriting

20  associations or other entities created under this section,

21  must participate in and be members of the Residential Property

22  and Casualty Joint Underwriting Association. An authorized

23  insurer's assessment liability A member's participation shall

24  begin on the first day of the calendar year following the year

25  in which the insurer member was issued a certificate of

26  authority to transact insurance for subject lines of business

27  in this state and shall terminate 1 year after the end of the

28  first calendar year during which the insurer member no longer

29  holds a certificate of authority to transact insurance for

30  subject lines of business in this state. For insurers

31  transacting insurance for subject lines of business in this

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  1  state pursuant to part VIII of chapter 626, the insurer's

  2  assessment liability shall begin on the first day of the

  3  calendar year following the year in which the insurer began

  4  transacting insurance for subject lines of business in this

  5  state and shall terminate 1 year after the corporation no

  6  longer has any liabilities in this state for the subject lines

  7  of business.

  8         2.a.  All revenues, assets, liabilities, losses, and

  9  expenses of the corporation association shall be divided into

10  three two separate accounts, as follows:

11         (I)  A personal lines account for personal residential

12  policies issued by the corporation or issued by the

13  Residential Property and Casualty Joint Underwriting

14  Association and renewed by the corporation on risks that are

15  not located in areas eligible for coverage in the Florida

16  Windstorm Underwriting Association as those areas were defined

17  on January 1, 2001;

18         (II)  A commercial lines account for commercial

19  residential policies issued by the corporation or issued by

20  the Residential Property and Casualty Joint Underwriting

21  Association and renewed by the corporation on risks that are

22  not located in areas eligible for coverage in the Florida

23  Windstorm Underwriting Association as those areas were defined

24  on January 1, 2001; and

25         (III)  A high-risk account for personal residential

26  policies and commercial residential and commercial

27  nonresidential property policies issued by the corporation or

28  transferred to the corporation on risks that are located in

29  areas eligible for coverage in the Florida Windstorm

30  Underwriting Association as those areas were defined on

31

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  1  January 1, 2001. The high-risk account shall also include

  2  coinsurance of eligible risks under subparagraph (c)2.

  3         b.  The three separate accounts shall be maintained as

  4  long as financing obligations entered into by the Florida

  5  Windstorm Underwriting Association or Residential Property and

  6  Casualty Joint Underwriting Association are outstanding, in

  7  accordance with the terms of the corresponding financing

  8  documents. At such time as such financing obligations are no

  9  longer outstanding, in accordance with the terms of the

10  corresponding financing documents, the corporation may use a

11  single account for all revenues, assets, liabilities, losses,

12  and expenses of the corporation. one of which is for personal

13  lines residential coverages and the other of which is for

14  commercial lines residential coverages.

15         c.  Revenues, assets, liabilities, losses, and expenses

16  not attributable to particular accounts coverages shall be

17  prorated among between the accounts.

18         d.  The Legislature finds that the revenues of the

19  corporation are revenues that are necessary to meet the

20  requirements set forth in documents authorizing the issuance

21  of bonds under this subsection. No part of the income of the

22  corporation may inure to the benefit of any private person.

23         3.  With respect to a deficit in an account:

24         a.  When the deficit incurred in a particular calendar

25  year is not greater than 10 percent of the aggregate statewide

26  direct written premium for the subject lines of business for

27  the prior calendar year for all assessable member insurers,

28  the entire deficit shall be recovered through assessments of

29  assessable member insurers under paragraph (g).

30         b.  When the deficit incurred in a particular calendar

31  year exceeds 10 percent of the aggregate statewide direct

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  1  written premium for the subject lines of business for the

  2  prior calendar year for all assessable member insurers, the

  3  corporation association shall levy an assessment on assessable

  4  member insurers in an amount equal to the greater of 10

  5  percent of the deficit or 10 percent of the aggregate

  6  statewide direct written premium for the subject lines of

  7  business for the prior calendar year for all assessable member

  8  insurers. Any remaining deficit shall be recovered through

  9  emergency assessments under sub-subparagraph d.

10         c.  Each assessable member insurer's share of the total

11  assessment under sub-subparagraph a. or sub-subparagraph b.

12  shall be in the proportion that the assessable member

13  insurer's direct written premium for the subject lines of

14  business for the year preceding the assessment bears to the

15  aggregate statewide direct written premium for the subject

16  lines of business for that year for all assessable member

17  insurers. If the assessable insurer is an authorized insurer,

18  the assessment levied by the corporation  on the insurer

19  pursuant to sub-subparagraphs a. and b. shall be paid as

20  required by the corporation's plan of operation and paragraph

21  (g). If the assessable insurer is an insurer writing one or

22  more subject lines of business pursuant to part VIII of

23  chapter 626, the assessment levied by the corporation on the

24  insurer pursuant to sub-subparagraphs a. and b. shall be

25  collected by the surplus lines agent at the time the surplus

26  lines agent collects the surplus lines tax required by s.

27  626.9320 in accordance with procedures developed by the

28  corporation and the Florida Surplus Lines Office and set forth

29  in their respective plans of operation.

30         d.  Upon a determination by the board of governors that

31  a deficit in an account exceeds the amount that will be

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  1  recovered through regular assessments on assessable member

  2  insurers under sub-subparagraph a. or sub-subparagraph b., the

  3  board shall levy, after verification by the department,

  4  emergency assessments to be collected by assessable member

  5  insurers and the corporation by underwriting associations

  6  created under this section which write subject lines of

  7  business upon issuance or renewal of policies for subject

  8  lines of business, excluding National Flood Insurance

  9  policies, in the year or years following levy of the regular

10  assessments. The amount of the emergency assessment collected

11  in a particular year shall be a uniform percentage of that

12  year's direct written premium for subject lines of business

13  for all assessable member insurers and all accounts of the

14  corporation underwriting associations, excluding National

15  Flood Insurance Program policy premiums, as annually

16  determined by the board and verified by the department. The

17  department shall verify the arithmetic calculations involved

18  in the board's determination within 30 days after receipt of

19  the information on which the determination was based.

20  Notwithstanding any other provision of law, the corporation

21  and each assessable member insurer that and each underwriting

22  association created under this section which writes subject

23  lines of business shall collect emergency assessments from its

24  policyholders without such obligation being affected by any

25  credit, limitation, exemption, or deferment. The emergency

26  assessments so collected shall be transferred directly to the

27  corporation association on a periodic basis as determined by

28  the corporation association. The aggregate amount of emergency

29  assessments levied under this sub-subparagraph in any calendar

30  year may not exceed the greater of 10 percent of the amount

31  needed to cover the original deficit, plus interest, fees,

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  1  commissions, required reserves, and other costs associated

  2  with financing of the original deficit, or 10 percent of the

  3  aggregate statewide direct written premium for subject lines

  4  of business written by assessable member insurers and for all

  5  accounts of the corporation underwriting associations for the

  6  prior year, plus interest, fees, commissions, required

  7  reserves, and other costs associated with financing the

  8  original deficit. For assessable insurers writing one or more

  9  subject lines of business pursuant to part VIII of chapter

10  626, the Florida Surplus Lines Service Office shall verify and

11  collect emergency assessments for policyholders of such

12  insurers and remit as instructed by the corporation. The

13  Florida Surplus Lines Service Office shall also require

14  insurers transacting business in this state pursuant to part

15  VIII of chapter 626 to identify those premiums that are

16  attributable to the subject lines of business.

17         e.  The board may pledge the proceeds of assessments,

18  projected recoveries from the Florida Hurricane Catastrophe

19  Fund, other insurance and reinsurance recoverables, market

20  equalization surcharges and other surcharges, and other funds

21  available to the corporation association as the source of

22  revenue for and to secure bonds issued under paragraph (g),

23  bonds or other indebtedness issued under subparagraph (c)3.,

24  or lines of credit or other financing mechanisms issued or

25  created under this subsection, or to retire any other debt

26  incurred as a result of deficits or events giving rise to

27  deficits, or in any other way that the board determines will

28  efficiently recover such deficits. The purpose of the lines of

29  credit or other financing mechanisms is to provide additional

30  resources to assist the corporation association in covering

31  claims and expenses attributable to a catastrophe. As used in

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  1  this subsection, the term "assessments" includes regular

  2  assessments under sub-subparagraph a., sub-subparagraph b., or

  3  subparagraph (g)1. and emergency assessments under

  4  sub-subparagraph d. Emergency assessments collected under

  5  sub-subparagraph d. are not part of an insurer's rates, are

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

  7  commissions; however, failure to pay the emergency assessment

  8  shall be treated as failure to pay premium. The emergency

  9  assessments under sub-subparagraph d. shall continue as long

10  as any bonds issued or other indebtedness incurred with

11  respect to a deficit for which the assessment was imposed

12  remain outstanding, unless adequate provision has been made

13  for the payment of such bonds or other indebtedness pursuant

14  to the documents governing such bonds or other indebtedness.

15         f.  As used in this subsection, the term "subject lines

16  of business" means insurance on real or personal property, as

17  defined in s. 624.604, including insurance for fire,

18  industrial fire, allied lines, farm owners multiperil,

19  homeowners multiperil, commercial multiperil, and mobile

20  homes, including liability coverage on all such insurance but

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

22  excluding vehicle insurance as defined in s. 624.605(1) other

23  than insurance on mobile homes used as permanent dwellings.

24         g.  The procedures to be used by the corporation to

25  determine the statewide direct written premium for the subject

26  lines of business shall be included in the plan of operation,

27  with respect to the personal lines account, any personal lines

28  policy defined in s. 627.4025, and means, with respect to the

29  commercial lines account, all commercial property and

30  commercial fire insurance.

31

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  1         (c)  The plan of operation of the corporation

  2  association:

  3         1.  May provide for one or more designated insurers,

  4  able and willing to provide policy and claims service, to act

  5  on behalf of the association to provide such service.  Each

  6  licensed agent shall be entitled to indicate the order of

  7  preference regarding who will service the business placed by

  8  the agent.  The association shall adhere to each agent's

  9  preferences unless after consideration of other factors in

10  assigning agents, including, but not limited to, servicing

11  capacity and fee arrangements, the association has reason to

12  believe it is in the best interest of the association to make

13  a different assignment.

14         1.2.  Must provide for adoption of residential property

15  and casualty insurance policy forms and commercial residential

16  and nonresidential property insurance forms, which forms must

17  be approved by the department prior to use. The corporation

18  association shall adopt the following policy forms:

19         a.  Standard personal lines policy forms including wind

20  coverage, which are multiperil policies providing what is

21  generally considered to be full coverage of a residential

22  property similar to the coverage provided under an HO-2, HO-3,

23  HO-4, or HO-6 policy.

24         b.  Standard personal lines policy forms without wind

25  coverage, which are the same as the policies described in

26  sub-subparagraph a. except that they do not include wind

27  coverage.

28         b.c.  Basic personal lines policy forms including wind

29  coverage, which are policies similar to an HO-8 policy or a

30  dwelling fire policy that provide coverage meeting the

31  requirements of the secondary mortgage market, but which

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  1  coverage is more limited than the coverage under a standard

  2  policy.

  3         d.  Basic personal lines policy forms without wind

  4  coverage, which are the same as the policies described in

  5  sub-subparagraph c. except they do not include wind coverage.

  6         c.e.  Commercial lines residential policy forms

  7  including wind coverage that are generally similar to the

  8  basic perils of full coverage obtainable for commercial

  9  residential structures in the admitted voluntary market.

10         d.  Commercial nonresidential property insurance forms

11  that cover the peril of wind only. Such form is applicable

12  only to commercial nonresidential properties located in areas

13  eligible for coverage in the Florida Windstorm Underwriting

14  Association as those areas were defined on January 1, 2001.

15         f.  Commercial lines residential policy forms without

16  wind coverage, which are the same as the policies described in

17  sub-subparagraph e. except that they do not include wind

18  coverage.

19         2.a.  Must provide that the corporation adopt a

20  coinsurance program whereby the corporation coinsures with

21  authorized insurers hurricane coverage, as defined in s.

22  627.4025(2)(a), for eligible risks, and adopt property

23  insurance forms for eligible risks which cover the peril of

24  wind only. As used in this subsection, the term:

25         (I)  "Coinsurance" means an agreement between the

26  corporation and an authorized insurer wherein each is

27  severally responsible for a specified percentage of the

28  hurricane coverage for an eligible risk.

29         (II)  "Eligible risks" means personal residential and

30  commercial residential risks that meet the underwriting

31  criteria of the corporation and are located in areas that were

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  1  eligible for coverage by the Florida Windstorm Underwriting

  2  Association on January 1, 2001. It is the intent of the

  3  Legislature that the areas in which eligible risks are located

  4  be reduced to the extent practicable. If the corporation

  5  determines after a public hearing that the voluntary market is

  6  stable and competitive in an area in which eligible risks are

  7  located, it may, subject to approval by the department, remove

  8  such areas from the areas in which eligible risks are located;

  9  however, if an area is removed from an area in which eligible

10  risks are located, the corporation shall continue to offer

11  coinsurance agreements in such a removed area.

12         b.  The corporation shall provide coinsurance levels of

13  80 percent and 50 percent.

14         c.  If the corporation determines that additional

15  coinsurance levels are necessary to maximize participation in

16  coinsurance agreements by authorized insurers, the corporation

17  may establish additional coinsurance levels. However, in no

18  event shall the corporation's coinsurance percentage exceed 80

19  percent.

20         d.  Any coinsurance agreement entered into between an

21  authorized insurer and the corporation must provide for a

22  uniform specified percentage of coverage of hurricane losses

23  for all eligible coinsured risks of the authorized insurer.

24         e.  Any coinsurance agreement entered into between an

25  authorized insurer and the corporation shall be subject to

26  review and approval by the department.

27         f.  The authorized insurer and the corporation shall

28  reconcile and separately report their exposures on coinsured

29  eligible risks to the Florida Hurricane Catastrophe Fund on

30  forms and in the manner required by the Florida Hurricane

31  Catastrophe Fund.

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  1         g.  The rates charged by the corporation for coinsuring

  2  eligible personal lines residential risks for the coinsurance

  3  levels in sub-subparagraphs b. and c. shall be calculated by

  4  multiplying the ratio of the latest approved Insurance

  5  Services Office hurricane loss costs to the latest approved

  6  Insurance Services Office total loss costs by the rates

  7  developed in subparagraph (d)2. The corporation's coinsurance

  8  rates for commercial lines residential risks must be based on

  9  approved commercial lines residential hurricane rates

10  developed by the Insurance Services Office for relevant areas

11  of each county. The corporation shall file its coinsurance

12  rates with the department in conjunction with its filings

13  pursuant to paragraph (d). The corporation's coinsurance rates

14  must reflect the coinsurance levels established in

15  sub-subparagraphs b. and c. and Insurance Services Office

16  expense data for average acquisition costs, policy issuance

17  and administration, and adjustment of hurricane losses.

18         h.  The coinsurance agreement between the corporation

19  and an authorized insurer shall set forth the specific terms

20  under which such coinsurance is provided, including, but not

21  limited to, the reporting of information concerning eligible

22  risks, the payment of coinsurance premium to the corporation,

23  and the adjustment and payment of hurricane losses incurred on

24  eligible risks.

25         3.  May provide that the corporation association may

26  employ or otherwise contract with individuals or other

27  entities to provide administrative or professional services

28  that may be appropriate to effectuate the plan. The

29  corporation association shall have the power to borrow funds,

30  by issuing bonds or by incurring other indebtedness, and shall

31  have other powers reasonably necessary to effectuate the

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  1  requirements of this subsection. The corporation is

  2  authorized, but is not required, to seek judicial validation

  3  of its bonds or other indebtedness under chapter 75. The

  4  corporation association may issue bonds or incur other

  5  indebtedness, or have bonds issued on its behalf by a unit of

  6  local government pursuant to subparagraph (g)2., in the

  7  absence of a hurricane or other weather-related event, upon a

  8  determination by the corporation association, subject to

  9  approval by the department, that such action would enable it

10  to efficiently meet the financial obligations of the

11  corporation association and that such financings are

12  reasonably necessary to effectuate the requirements of this

13  subsection. The corporation association is authorized to take

14  all actions needed to facilitate tax-free status for any such

15  bonds or indebtedness, including formation of trusts or other

16  affiliated entities. The corporation association shall have

17  the authority to pledge assessments, projected recoveries from

18  the Florida Hurricane Catastrophe Fund, other reinsurance

19  recoverables, market equalization and other surcharges, and

20  other funds available to the corporation association as

21  security for bonds or other indebtedness. In recognition of s.

22  10, Art. I of the State Constitution, prohibiting the

23  impairment of obligations of contracts, it is the intent of

24  the Legislature that no action be taken whose purpose is to

25  impair any bond indenture or financing agreement or any

26  revenue source committed by contract to such bond or other

27  indebtedness.

28         4.a.  Must require that the corporation association

29  operate subject to the supervision and approval of a board of

30  governors consisting of 7 13 individuals appointed by the

31  Insurance Commissioner. The Insurance Commissioner shall

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  1  designate one of the appointees, including 1 who is elected as

  2  chair. The board shall consist of:

  3         a.  The insurance consumer advocate appointed under s.

  4  627.0613.

  5         b.  To assure the effective and efficient

  6  implementation of this act, the Insurance Commissioner shall

  7  appoint the board of governors no later than July 1, 2001.

  8  Upon appointment of its members, the board of governors shall

  9  work in conjunction with the Residential Property Insurance

10  Market Coordinating Council to address appropriate

11  organizational, operational, and financial matters relating to

12  the formation of the corporation. In addition, after

13  consultation with the Residential Property Insurance Market

14  Coordinating Council, the board of governors may postpone the

15  October 1, 2001, effective dates set forth in paragraph (l)

16  and any other provision of the act related to the operation of

17  the corporation if it determines that phasing in these

18  provisions is necessary to assure the effective and efficient

19  implementation of the corporation's operations or financing

20  arrangements. However, the board of governors may not affect

21  any provision in paragraph (b) or any other provision of this

22  act related to financing arrangements entered into by the

23  Florida Windstorm Underwriting Association or the Florida

24  Residential Property and Casualty Joint Underwriting

25  Association and the ability of those entities or the

26  corporation to service its debts and maintain the capacity to

27  repay funds secured under these arrangements. 

28         b.  Five members designated by the insurance industry.

29         c.  Five consumer representatives appointed by the

30  Insurance Commissioner. Two of the consumer representatives

31  must, at the time of appointment, be holders of policies

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  1  issued by the association, who are selected with consideration

  2  given to reflecting the geographic balance of association

  3  policyholders. Two of the consumer members must be individuals

  4  who are minority persons as defined in s. 288.703(3). One of

  5  the consumer members shall have expertise in the field of

  6  mortgage lending.

  7         d.  Two representatives of the insurance industry

  8  appointed by the Insurance Commissioner. Of the two insurance

  9  industry representatives appointed by the Insurance

10  Commissioner, at least one must be an individual who is a

11  minority person as defined in s. 288.703(3).

12

13  Any board member may be disapproved or removed and replaced by

14  the commissioner at any time for cause. All board members,

15  including the chair, must be appointed to serve for 3-year

16  terms beginning annually on a date designated by the plan. Any

17  board vacancy must be filled for the unexpired term of such

18  board member by appointment by the Insurance Commissioner.

19         5.  Must provide a procedure for determining the

20  eligibility of a risk for coverage, as follows:

21         a.  With respect to personal lines residential risks,

22  if the risk is offered full coverage from an authorized

23  insurer at the insurer's approved rate under either a standard

24  policy including wind coverage or, if consistent with the

25  insurer's underwriting rules as filed with the department, a

26  basic policy including wind coverage, the risk is not eligible

27  for any policy issued by the corporation association. If the

28  risk accepts an offer of coverage through the market

29  assistance plan or an offer of coverage through a mechanism

30  established by the corporation association before a policy is

31  issued to the risk by the corporation association or during

                                  17

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  1  the first 30 days of coverage by the corporation association,

  2  and the producing agent who submitted the application to the

  3  plan or to the corporation association is not currently

  4  appointed by the insurer, the insurer shall either:

  5         (I)  Pay to the producing agent of record of the

  6  policy, for the first year, an amount that is the greater of

  7  the insurer's usual and customary commission for the type of

  8  policy written or a policy fee equal to the usual and

  9  customary commission of the corporation; or

10         (II)  Offer to allow the producing agent of record of

11  the policy to continue servicing the policy for a period of

12  not less than 1 year and offer to pay the agent the greater of

13  the insurer's or the corporation's usual and customary

14  commission for the type of policy written. appoint the agent

15  to service the risk or, if the insurer places the coverage

16  through a new agent, require the new agent who then writes the

17  policy to pay not less than 50 percent of the first year's

18  commission to the producing agent who submitted the

19  application to the plan or the association, except that if the

20  new agent is an employee or exclusive agent of the insurer,

21  the new agent shall pay a policy fee of $50 to the producing

22  agent in lieu of splitting the commission.

23

24  If the new or producing agent is unwilling or unable to accept

25  appointment by the new insurer, the new insurer shall pay the

26  agent in accordance with sub-subparagraph (I). If the risk is

27  not able to obtain any such offer, the risk is eligible for

28  either a standard policy including wind coverage or a basic

29  policy including wind coverage issued by the corporation

30  association; however, if the risk could not be insured under a

31  standard policy including wind coverage regardless of market

                                  18

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  1  conditions, the risk shall be eligible for a basic policy

  2  including wind coverage unless rejected under subparagraph 7.

  3  8. The corporation association shall determine the type of

  4  policy to be provided on the basis of objective standards

  5  specified in the underwriting manual and based on generally

  6  accepted underwriting practices.

  7         b.  With respect to commercial lines residential risks,

  8  if the risk is offered coverage under a policy including wind

  9  coverage from an authorized insurer at its approved rate, the

10  risk is not eligible for any policy issued by the corporation

11  association. If the risk accepts an offer of coverage through

12  the market assistance plan or an offer of coverage through a

13  mechanism established by the corporation association before a

14  policy is issued to the risk by the corporation association,

15  and the producing agent who submitted the application to the

16  plan or the corporation association is not currently appointed

17  by the insurer, the insurer shall either:

18         (I)  Pay to the producing agent of record of the

19  policy, for the first year, an amount that is the greater of

20  the insurer's usual and customary commission for the type of

21  policy written or a policy fee equal to the usual and

22  customary commission of the corporation; or

23         (II)  Offer to allow the producing agent of record of

24  the policy to continue servicing the policy for a period of

25  not less than one year and offer to pay the agent the greater

26  of the insurer's or the corporation's usual and customary

27  commission for the type of policy written. appoint the agent

28  to service the risk or, if the insurer places the coverage

29  through a new agent, require the new agent who then writes the

30  policy to pay not less than 50 percent of the first year's

31  commission to the producing agent who submitted the

                                  19

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  1  application to the plan, except that if the new agent is an

  2  employee or exclusive agent of the insurer, the new agent

  3  shall pay a policy fee of $50 to the producing agent in lieu

  4  of splitting the commission.

  5

  6  If the new or producing agent is unwilling or unable to accept

  7  appointment by the new insurer, the new insurer shall pay the

  8  agent in accordance with sub-subparagraph (I). If the risk is

  9  not able to obtain any such offer, the risk is eligible for a

10  policy including wind coverage issued by the corporation

11  association.

12         c.  This subparagraph does not require the association

13  to provide wind coverage or hurricane coverage in any area in

14  which such coverage is available through the Florida Windstorm

15  Underwriting Association.

16         6.  Must include rules for classifications of risks and

17  rates therefor.

18         7.  Must provide that if premium and investment income

19  for an account attributable to a particular calendar plan year

20  are in excess of projected losses and expenses for the account

21  of the plan attributable to that year, such excess shall be

22  held in surplus in the account. Such surplus shall be

23  available to defray deficits as to future years and shall be

24  used for that purpose prior to assessing assessable member

25  insurers as to any calendar plan year.

26         8.  Must provide objective criteria and procedures to

27  be uniformly applied for all applicants in determining whether

28  an individual risk is so hazardous as to be uninsurable. In

29  making this determination and in establishing the criteria and

30  procedures, the following shall be considered:

31

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  1         a.  Whether the likelihood of a loss for the individual

  2  risk is substantially higher than for other risks of the same

  3  class; and

  4         b.  Whether the uncertainty associated with the

  5  individual risk is such that an appropriate premium cannot be

  6  determined.

  7

  8  The acceptance or rejection of a risk by the corporation

  9  association shall be construed as the private placement of

10  insurance, and the provisions of chapter 120 shall not apply.

11         9.  Must provide that the corporation association shall

12  make its best efforts to procure catastrophe reinsurance at

13  reasonable rates, as determined by the board of governors.

14         10.  Must provide that in the event of regular deficit

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

16  (b)3.b., in the personal lines account, the commercial lines

17  residential account, or the high-risk account or by the

18  Florida Windstorm Underwriting Association under

19  sub-sub-subparagraph (2)(b)2.d.(I) or sub-sub-subparagraph

20  (2)(b)2.d.(II), the corporation association shall levy upon

21  corporation association policyholders in such account in its

22  next rate filing, or by a separate rate filing solely for this

23  purpose, a market equalization surcharge in a percentage equal

24  to the total amount of such regular assessments divided by the

25  aggregate statewide direct written premium for subject lines

26  of business for assessable member insurers for the prior

27  calendar year. Market equalization surcharges under this

28  subparagraph are not considered premium and are not subject to

29  commissions, fees, or premium taxes; however, failure to pay a

30  market equalization surcharge shall be treated as failure to

31  pay premium.

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  1         11.  The policies issued by the corporation association

  2  must provide that, if the corporation association or the

  3  market assistance plan obtains an offer from an authorized

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

  5  standard policy including wind coverage or a basic policy

  6  including wind coverage, the risk is no longer eligible for

  7  renewal coverage through the corporation association. However,

  8  if the risk is located in an area in which Florida Windstorm

  9  Underwriting Association coverage is available, such an offer

10  of a standard or basic policy terminates eligibility

11  regardless of whether or not the offer includes wind coverage.

12  Upon termination of eligibility, the association shall provide

13  written notice to the policyholder and agent of record stating

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

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

16  from an authorized insurer. Other provisions of the insurance

17  code relating to cancellation and notice of cancellation do

18  not apply to actions under this subparagraph.

19         12.  Corporation Association policies and applications

20  must include a notice that the corporation association policy

21  could, under this section or s. 627.3511, be replaced with a

22  policy issued by an authorized admitted insurer that does not

23  provide coverage identical to the coverage provided by the

24  corporation association. The notice shall also specify that

25  acceptance of corporation association coverage creates a

26  conclusive presumption that the applicant or policyholder is

27  aware of this potential.

28         13.  May establish, subject to approval by the

29  department, different eligibility requirements and operational

30  procedures for any line or type of coverage for any specified

31  county or area if the board determines that such changes to

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  1  the eligibility requirements and operational procedures are

  2  justified due to the voluntary market being sufficiently

  3  stable and competitive in such area or for such line or type

  4  of coverage and that consumers who, in good faith, are unable

  5  to obtain insurance through the voluntary market through

  6  ordinary methods would continue to have access to coverage

  7  from the corporation association. When coverage is sought in

  8  connection with a real property transfer, such requirements

  9  and procedures shall not provide for an effective date of

10  coverage later than the date of the closing of the transfer as

11  established by the transferor, the transferee, and, if

12  applicable, the lender.

13         14.  Shall provide that, with respect to the high-risk

14  account, any assessable insurer with a surplus as to

15  policyholders of $20 million or less writing 25 percent or

16  more of its total countrywide property insurance premiums in

17  this state may petition the department, within the first 90

18  days of each calendar year, to qualify as a limited

19  apportionment corporation. In no event shall a limited

20  apportionment corporation be required to participate in any

21  assessment, within the high-risk account, pursuant to

22  sub-subparagraph (b)3.a. or sub-subparagraph (b)3.b. in the

23  aggregate which exceeds $50 million after payment of available

24  high-risk account funds in any calendar year. However, a

25  limited apportionment corporation shall collect from its

26  policyholders any emergency assessment imposed under

27  sub-subparagraph (b)3.d. The plan shall provide that, if the

28  department determines that any regular assessment will result

29  in an impairment of the surplus of a limited apportionment

30  corporation, the department may direct that all or part of

31  such assessment be deferred. However, there shall be no

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  1  limitation or deferment of an emergency assessment to be

  2  collected from policyholders under sub-subparagraph (b)3.d.

  3         15.  Must provide that the corporation appoint as its

  4  licensed agents only those agents who also hold an appointment

  5  as defined in s. 626.104 with an insurer who at the time of

  6  the agent's initial appointment by the corporation is

  7  authorized to write and is actually writing personal

  8  residential property coverage, commercial residential property

  9  coverage, or commercial nonresidential property coverage

10  within the state.

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

12  rates for coverage provided by the corporation association be

13  actuarially sound and not competitive with approved rates

14  charged in the admitted voluntary market, so that the

15  corporation association functions as a residual market

16  mechanism to provide insurance only when the insurance cannot

17  be procured in the voluntary market. Rates shall include an

18  appropriate catastrophe loading factor that reflects the

19  actual catastrophic exposure of the corporation association

20  and recognizes that the association has little or no capital

21  or surplus; and the association shall carefully review each

22  rate filing to assure that provider compensation is not

23  excessive.

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

25  corporation association for each line of business for personal

26  lines residential policies, excluding rates for wind-only

27  policies, shall be no lower than the average rates charged by

28  the insurer that had the highest average rate in that county

29  among the 20 insurers with the greatest total direct written

30  premium in the state for that line of business in the

31  preceding year, except that with respect to mobile home

                                  24

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  1  coverages, the average rates of the corporation association

  2  shall be no lower than the average rates charged by the

  3  insurer that had the highest average rate in that county among

  4  the 5 insurers with the greatest total written premium for

  5  mobile home owner's policies in the state in the preceding

  6  year.

  7         3.  Rates for personal lines residential wind-only

  8  policies shall be calculated by multiplying the ratio of the

  9  latest approved Insurance Services Office wind-only loss costs

10  to the latest approved Insurance Services Office total loss

11  costs by the rates developed in subparagraph (d)2.

12         4.3.  Rates for commercial residential coverage shall

13  not be subject to the requirements of subparagraph 2., but

14  shall be subject to all other requirements of this paragraph

15  and s. 627.062.

16         5.4.  Nothing in this paragraph shall require or allow

17  the corporation association to adopt a rate that is inadequate

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

19         6.  Notwithstanding the exemption from the premium tax

20  in paragraph (6)(j), the corporation, in addition to the rates

21  otherwise determined pursuant to this paragraph, shall impose

22  and collect an amount equal to the premium tax provided for in

23  s. 624.509 to augment the financial resources of the

24  corporation available to carry out its public purposes.

25         7.5.  The association may require arbitration of a

26  filing pursuant to s. 627.062(6). Rate filings of the

27  association under this paragraph shall be made on a use and

28  file basis under s. 627.062(2)(a)2. The corporation

29  association shall make a rate filing at least once a year, but

30  no more often than quarterly.

31

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  1         (e)  If coverage in an account through the association

  2  is hereby activated effective upon approval of the plan, and

  3  shall remain activated until coverage is deactivated pursuant

  4  to paragraph (f). Thereafter, coverage through the corporation

  5  association shall be reactivated by order of the department

  6  only under one of the following circumstances:

  7         1.  If the market assistance plan receives a minimum of

  8  100 applications for coverage within a 3-month period, or 200

  9  applications for coverage within a 1-year period or less for

10  residential coverage, unless the market assistance plan

11  provides a quotation from admitted carriers at their filed

12  rates for at least 90 percent of such applicants. Any market

13  assistance plan application that is rejected because an

14  individual risk is so hazardous as to be uninsurable using the

15  criteria specified in subparagraph (c)8. shall not be included

16  in the minimum percentage calculation provided herein. In the

17  event that there is a legal or administrative challenge to a

18  determination by the department that the conditions of this

19  subparagraph have been met for eligibility for coverage in the

20  corporation association, any eligible risk may obtain coverage

21  during the pendency of such challenge.

22         2.  In response to a state of emergency declared by the

23  Governor under s. 252.36, the department may activate coverage

24  by order for the period of the emergency upon a finding by the

25  department that the emergency significantly affects the

26  availability of residential property insurance.

27         (f)1.  The corporation shall file with the department

28  quarterly statements of financial condition, an annual

29  statement of financial condition, and audited financial

30  statements in the manner prescribed by law. In addition, the

31  corporation shall report to the department monthly on the

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  1  types, premium, exposure, and distribution by county of its

  2  policies in force, and shall submit such other reports as the

  3  department requires to carry out its oversight of the

  4  corporation.

  5         2.  The activities of the corporation association shall

  6  be reviewed at least annually by the department to determine

  7  whether board and, upon recommendation by the board or

  8  petition of any interested party, coverage shall be

  9  deactivated in an account on the basis if the department finds

10  that the conditions giving rise to its activation no longer

11  exist.

12         (g)1.  The board shall certify to the department its

13  needs for annual assessments as to a particular calendar year,

14  and for any startup or interim assessments that it deems to be

15  necessary to sustain operations as to a particular year

16  pending the receipt of annual assessments. Upon verification,

17  the department shall approve such certification, and the board

18  shall levy such annual, startup, or interim assessments. Such

19  assessments shall be prorated as provided in paragraph (b).

20  The board shall take all reasonable and prudent steps

21  necessary to collect the amount of assessment due from each

22  assessable participating member insurer, including, if

23  prudent, filing suit to collect such assessment. If the board

24  is unable to collect an assessment from any assessable member

25  insurer, the uncollected assessments shall be levied as an

26  additional assessment against the assessable participating

27  member insurers and any assessable member insurer required to

28  pay an additional assessment as a result of such failure to

29  pay shall have a cause of action against such nonpaying

30  assessable member insurer. Assessments shall be included as an

31  appropriate factor in the making of rates.

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  1         2.  The governing body of any unit of local government,

  2  any residents of which are insured by the corporation

  3  association, may issue bonds as defined in s. 125.013 or s.

  4  166.101 from time to time to fund an assistance program, in

  5  conjunction with the corporation association, for the purpose

  6  of defraying deficits of the corporation association. In order

  7  to avoid needless and indiscriminate proliferation,

  8  duplication, and fragmentation of such assistance programs,

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

10  insured by the corporation association, may provide for the

11  payment of losses, regardless of whether or not the losses

12  occurred within or outside of the territorial jurisdiction of

13  the local government. Revenue bonds may not be issued until

14  validated pursuant to chapter 75, unless a state of emergency

15  is declared by executive order or proclamation of the Governor

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

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

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

19  welfare of residents of this state and the protection and

20  preservation of the economic stability of insurers operating

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

22  permit certain municipalities or counties to issue such bonds

23  as will permit relief to claimants and policyholders of the

24  corporation joint underwriting association and insurers

25  responsible for apportionment of association losses. Any such

26  unit of local government may enter into such contracts with

27  the corporation association and with any other entity created

28  pursuant to this subsection as are necessary to carry out this

29  paragraph. Any bonds issued under this subparagraph shall be

30  payable from and secured by moneys received by the corporation

31  association from emergency assessments under sub-subparagraph

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  1  (b)3.d., and assigned and pledged to or on behalf of the unit

  2  of local government for the benefit of the holders of such

  3  bonds.  The funds, credit, property, and taxing power of the

  4  state or of the unit of local government shall not be pledged

  5  for the payment of such bonds. If any of the bonds remain

  6  unsold 60 days after issuance, the department shall require

  7  all insurers subject to assessment to purchase the bonds,

  8  which shall be treated as admitted assets; each insurer shall

  9  be required to purchase that percentage of the unsold portion

10  of the bond issue that equals the insurer's relative share of

11  assessment liability under this subsection. An insurer shall

12  not be required to purchase the bonds to the extent that the

13  department determines that the purchase would endanger or

14  impair the solvency of the insurer.

15         3.a.  In addition to any credits, bonuses, or

16  exemptions provided under s. 627.3511, The board shall adopt a

17  program subject to approval by the department for the

18  reduction of both new and renewal writings in the corporation

19  association. The board may consider any prudent and not

20  unfairly discriminatory approach to reducing corporation

21  association writings, and may but must adopt at least a credit

22  against assessment liability or other liability that provides

23  an incentive for insurers to take risks out of the corporation

24  association and to keep risks out of the corporation

25  association by maintaining or increasing voluntary writings in

26  counties or areas in which corporation association risks are

27  highly concentrated and a program to provide a formula under

28  which an insurer voluntarily taking risks out of the

29  corporation association by maintaining or increasing voluntary

30  writings will be relieved wholly or partially from assessments

31  under sub-subparagraphs (b)3.a. and b. When the corporation

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  1  enters into a contractual agreement for a take-out plan, the

  2  producing agent of record of the corporation policy is

  3  entitled to retain any unearned commission on such policy, and

  4  the insurer shall either:

  5         (I)  Pay to the producing agent of record of the

  6  policy, for the first year, an amount that is the greater of

  7  the insurer's usual and customary commission for the type of

  8  policy written or a policy fee equal to the usual and

  9  customary commission of the corporation; or

10         (II)  Offer to allow the producing agent of record of

11  the policy to continue servicing the policy for a period of

12  not less than one year and offer to pay the agent the greater

13  of the insurer's or the corporation's usual and customary

14  commission for the type of policy written.

15

16  If the new or producing agent is unwilling or unable to accept

17  appointment by the new insurer, the new insurer shall pay the

18  agent in accordance with sub-subparagraph (I).

19         b.  Notwithstanding s. 627.351(2)(b)5.e., to facilitate

20  the implementation of this act, the Florida Windstorm

21  Underwriting Association may not enter into an agreement with

22  an insurer on or after July 1, 2001, to remove policies from

23  the Florida Windstorm Underwriting Association. The

24  corporation may not enter into an agreement with an insurer

25  during the period from October 1, 2001, to December 31, 2001,

26  to remove any policy transferred to the corporation from the

27  Florida Windstorm Underwriting Association. The corporation

28  may extend such period if it determines that an extension is

29  necessary and appropriate.

30         c.b.  Any credit or exemption from regular assessments

31  adopted under this subparagraph shall last no longer than the

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  1  3 years following the cancellation or expiration of the policy

  2  by the corporation association. With the approval of the

  3  department, the board may extend such credits for an

  4  additional year if the insurer guarantees an additional year

  5  of renewability for all policies removed from the corporation

  6  association, or for 2 additional years if the insurer

  7  guarantees 2 additional years of renewability for all policies

  8  so removed.

  9         d.c.  There shall be no credit, limitation, exemption,

10  or deferment from emergency assessments to be collected from

11  policyholders pursuant to sub-subparagraph (b)3.d.

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

13  or in part, of the assessment of an assessable a member

14  insurer, other than an emergency assessment collected from

15  policyholders pursuant to sub-subparagraph (b)3.d., if the

16  department finds that payment of the assessment would endanger

17  or impair the solvency of the insurer. In the event an

18  assessment against an assessable a member insurer is deferred

19  in whole or in part, the amount by which such assessment is

20  deferred may be assessed against the other assessable member

21  insurers in a manner consistent with the basis for assessments

22  set forth in paragraph (b).

23         (h)  Nothing in this subsection shall be construed to

24  preclude the issuance of residential property insurance

25  coverage pursuant to part VIII of chapter 626.

26         (i)  There shall be no liability on the part of, and no

27  cause of action of any nature shall arise against, any

28  assessable member insurer or its agents or employees, the

29  corporation association or its agents or employees, members of

30  the board of governors or their respective designees at a

31  board meeting, corporation association committee members, or

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  1  the department or its representatives, for any action taken by

  2  them in the performance of their duties or responsibilities

  3  under this subsection. Such immunity does not apply to:

  4         1.  Any of the foregoing persons or entities for any

  5  willful tort;

  6         2.  The corporation association or its servicing or

  7  producing agents for breach of any contract or agreement

  8  pertaining to insurance coverage;

  9         3.  The corporation association with respect to

10  issuance or payment of debt; or

11         4.  Any assessable member insurer with respect to any

12  action to enforce an assessable a member insurer's obligations

13  to the corporation association under this subsection.

14         (j)1.  The corporation Residential Property and

15  Casualty Joint Underwriting Association is not a state agency,

16  board, or commission, but is a legislatively created

17  corporation serving a public purpose. However, For the

18  purposes of s. 199.183(1), the corporation Residential

19  Property and Casualty Joint Underwriting Association shall be

20  considered a political subdivision of the state and shall be

21  exempt  from the corporate income tax and the state premium

22  tax.

23         2.  The corporation is not required to obtain or to

24  hold a certificate of authority issued by the department, nor

25  is it a member insurer of the Florida Insurance Guaranty

26  Association. However, the corporation shall pay assessments

27  pledged by the Florida Insurance Guaranty Association to

28  secure bonds issued or other indebtedness incurred to pay

29  covered claims arising from insurer insolvencies caused by, or

30  proximately related to, hurricane losses.

31

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  1         3.  It is the intent of the Legislature that the tax

  2  exemptions provided in this paragraph shall augment the

  3  financial resources of the corporation to better enable the

  4  corporation to fulfill its public purposes. Any bonds issued

  5  by the corporation, their transfer, and the income therefrom,

  6  including any profit made on the sale thereof, shall at all

  7  times be free from taxation of every kind by the state and any

  8  political subdivision or local unit or other instrumentality

  9  thereof; however, this exemption does not apply to any tax

10  imposed by chapter 220 on interest, income, or profits on debt

11  obligations owned by corporations other than the corporation.

12         (k)  Upon a determination by the department board of

13  governors that the conditions giving rise to the establishment

14  and activation of the corporation association no longer exist,

15  and upon the consent thereto by order of the department, the

16  corporation association is dissolved. Upon dissolution, the

17  assets of the association shall be applied first to pay all

18  debts, liabilities, and obligations of the corporation

19  association, including the establishment of reasonable

20  reserves for any contingent liabilities or obligations, and

21  all remaining assets of the corporation association shall

22  become property of the state and deposited in the Florida

23  Hurricane Catastrophe Fund.

24         (l)1.  Effective October 1, 2001, policies of the

25  Residential Property and Casualty Joint Underwriting

26  Association shall become policies of the corporation. All

27  obligations, rights, assets, and liabilities of the

28  Residential Property and Casualty Joint Underwriting

29  Association, including bonds, note and debt obligations, and

30  the financing documents pertaining to them, become those of

31  the corporation as of October 1, 2001, without the need for

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  1  any further action. The corporation is not required to issue

  2  endorsements or certificates of assumption to insureds during

  3  the remaining term of such in-force policies.

  4         2.  Effective October 1, 2001, policies of the Florida

  5  Windstorm Underwriting Association are transferred to the

  6  corporation and shall become policies of the corporation. All

  7  obligations, rights, assets and liabilities of the Florida

  8  Windstorm Underwriting Association, including bonds, notes,

  9  and debt obligations, and the financing documents pertaining

10  to them, are transferred to and assumed by the corporation on

11  October 1, 2001, without the need for any further action. The

12  corporation is not required to issue endorsement or

13  certificates of assumption to insureds during the remaining

14  term of in-force transferred policies.

15         3.  For policies transferred to the corporation from

16  the Florida Windstorm Underwriting Association with an

17  expiration date on or after January 1, 2002, notices of

18  nonrenewal shall be timely issued by the corporation in

19  accordance with s. 627.4133(2)(b). When the policyholder's

20  wind-only policy is nonrenewed, the corporation shall offer

21  coverage under an appropriate policy, covering the perils

22  described in paragraph (c), if the policyholder is otherwise

23  eligible for coverage from the corporation.

24         4.  The Florida Windstorm Underwriting Association and

25  the Residential Property and Casualty Joint Underwriting

26  Association shall take all actions as may be proper to further

27  evidence such transfers and shall provide such documents and

28  instruments of further assurance as may reasonably be

29  requested by the corporation for such purpose. The corporation

30  shall execute such assumptions and instruments as the trustees

31  or other parties to the financing documents of the Florida

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  1  Windstorm Underwriting Association or the Residential Property

  2  and Casualty Joint Underwriting Association may reasonably

  3  request to further evidence such transfers and assumptions,

  4  which transfers and assumptions, however, shall be effective

  5  as of the date provided under this paragraph whether or not,

  6  and regardless of the date on which, such assumptions or

  7  instruments are executed by the corporation. Subject to the

  8  relevant financing documents pertaining to their outstanding

  9  bonds, notes, indebtedness, or other financing obligations,

10  the moneys, investments, receivables, choses in action, and

11  other intangibles of the Florida Windstorm Underwriting

12  Association shall be credited to the high-risk account of the

13  corporation, and the personal lines residential coverage

14  account and the commercial lines residential coverage account

15  of the Residential Property and Casualty Joint Underwriting

16  Association shall be credited to the personal lines account

17  and the commercial lines account, respectively, of the

18  corporation.

19         5.  Effective October 1, 2001, a new applicant for

20  property insurance coverage who would otherwise have been

21  eligible for coverage in the Florida Windstorm Underwriting

22  Association shall be eligible for coverage from the

23  corporation as provided in this paragraph.

24         6.  The transfer of all policies, obligations, rights,

25  assets, and liabilities from the Florida Windstorm

26  Underwriting Association to the corporation and the renaming

27  of the Residential Property and Casualty Joint Underwriting

28  Association as the corporation shall in no way affect the

29  coverage with respect to covered policies as defined in s.

30  215.555(2)(c) provided to these entities by the Florida

31  Hurricane Catastrophe Fund. The coverage provided by the

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  1  Florida Hurricane Catastrophe Fund to the Florida Windstorm

  2  Underwriting Association based on its exposures as of June 30,

  3  2001, and each June 30 thereafter shall be redesignated as

  4  coverage for the high-risk account of the corporation. The

  5  coverage provided by the Florida Hurricane Catastrophe Fund to

  6  the Residential Property and Casualty Joint Underwriting

  7  Association based on its exposures as of June 30, 2001, and

  8  each June 30 thereafter shall be transferred to the personal

  9  lines account and the commercial lines account of the

10  corporation. The high-risk account shall be treated, for all

11  Florida Hurricane Catastrophe Fund purposes, as if it were a

12  separate insurer with its own exposures, reimbursement

13  premium, and loss reimbursement. Likewise, the personal lines

14  and commercial lines accounts shall be treated, for all

15  Florida Hurricane Catastrophe Fund purposes, as if the two

16  accounts were a single insurer with its own exposures,

17  reimbursement premium, and loss reimbursement.  All

18  obligations, rights, assets, and liabilities of the Florida

19  Property and Casualty Joint Underwriting Association created

20  by subsection (5), which obligations, rights, assets, or

21  liabilities relate to the provision of commercial lines

22  residential property insurance coverage as described in this

23  section are hereby transferred to the Residential Property and

24  Casualty Joint Underwriting Association. The Residential

25  Property and Casualty Joint Underwriting Association is not

26  required to issue endorsements or certificates of assumption

27  to insureds during the remaining term of in-force transferred

28  policies.

29         (m)  Notwithstanding any other provision of law:

30         1.  The pledge or sale of, the lien upon, and the

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

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  1  the corporation association created or purported to be created

  2  pursuant to any financing documents to secure any bonds or

  3  other indebtedness of the corporation association shall be and

  4  remain valid and enforceable, notwithstanding the commencement

  5  of and during the continuation of, and after, any

  6  rehabilitation, insolvency, liquidation, bankruptcy,

  7  receivership, conservatorship, reorganization, or similar

  8  proceeding against the corporation association under the laws

  9  of this state.

10         2.  No such proceeding shall relieve the corporation

11  association of its obligation, or otherwise affect its ability

12  to perform its obligation, to continue to collect, or levy and

13  collect, assessments, market equalization or other surcharges

14  under subparagraph (c)9. (c)10., or any other rights,

15  revenues, or other assets of the corporation association

16  pledged pursuant to any financing documents.

17         3.  Each such pledge or sale of, lien upon, and

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

19  lien, or security interest, any such assessments, market

20  equalization or other surcharges, or other rights, revenues,

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

22  after the commencement of and during the pendency of, or

23  after, any such proceeding shall continue unaffected by such

24  proceeding.  As used in this subsection, the term "financing

25  documents" means any agreement or agreements, instrument or

26  instruments, or other document or documents now existing or

27  hereafter created evidencing any bonds or other indebtedness

28  of the corporation association or pursuant to which any such

29  bonds or other indebtedness has been or may be issued and

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

31  corporation association are pledged or sold to secure the

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  1  repayment of such bonds or indebtedness, together with the

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

  3  payment of any other obligation or financial product, as

  4  defined in the plan of operation of the corporation

  5  association related to such bonds or indebtedness.

  6         4.  Any such pledge or sale of assessments, revenues,

  7  contract rights, or other rights or assets of the corporation

  8  association shall constitute a lien and security interest, or

  9  sale, as the case may be, that is immediately effective and

10  attaches to such assessments, revenues, or contract rights or

11  other rights or assets, whether or not imposed or collected at

12  the time the pledge or sale is made.  Any such pledge or sale

13  is effective, valid, binding, and enforceable against the

14  corporation association or other entity making such pledge or

15  sale, and valid and binding against and superior to any

16  competing claims or obligations owed to any other person or

17  entity, including policyholders in this state, asserting

18  rights in any such assessments, revenues, or contract rights

19  or other rights or assets to the extent set forth in and in

20  accordance with the terms of the pledge or sale contained in

21  the applicable financing documents, whether or not any such

22  person or entity has notice of such pledge or sale and without

23  the need for any physical delivery, recordation, filing, or

24  other action.

25         (n)1.  The following records of the corporation

26  Residential Property and Casualty Joint Underwriting

27  Association are confidential and exempt from the provisions of

28  s. 119.07(1) and s. 24(a), Art. I of the State Constitution:

29         a.  Underwriting files, except that a policyholder or

30  an applicant shall have access to his or her own underwriting

31  files.

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  1         b.  Claims files, until termination of all litigation

  2  and settlement of all claims arising out of the same incident,

  3  although portions of the claims files may remain exempt, as

  4  otherwise provided by law. Confidential and exempt claims file

  5  records may be released to other governmental agencies upon

  6  written request and demonstration of need; such records held

  7  by the receiving agency remain confidential and exempt as

  8  provided for herein.

  9         c.  Records obtained or generated by an internal

10  auditor pursuant to a routine audit, until the audit is

11  completed, or if the audit is conducted as part of an

12  investigation, until the investigation is closed or ceases to

13  be active.  An investigation is considered "active" while the

14  investigation is being conducted with a reasonable, good faith

15  belief that it could lead to the filing of administrative,

16  civil, or criminal proceedings.

17         d.  Matters reasonably encompassed in privileged

18  attorney-client communications.

19         e.  Proprietary information licensed to the corporation

20  association under contract and the contract provides for the

21  confidentiality of such proprietary information.

22         f.  All information relating to the medical condition

23  or medical status of a corporation an association employee

24  which is not relevant to the employee's capacity to perform

25  his or her duties, except as otherwise provided in this

26  paragraph. Information which is exempt shall include, but is

27  not limited to, information relating to workers' compensation,

28  insurance benefits, and retirement or disability benefits.

29         g.  Upon an employee's entrance into the employee

30  assistance program, a program to assist any employee who has a

31  behavioral or medical disorder, substance abuse problem, or

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  1  emotional difficulty which affects the employee's job

  2  performance, all records relative to that participation shall

  3  be confidential and exempt from the provisions of s. 119.07(1)

  4  and s. 24(a), Art. I of the State Constitution, except as

  5  otherwise provided in s. 112.0455(11).

  6         h.  Information relating to negotiations for financing,

  7  reinsurance, depopulation, or contractual services, until the

  8  conclusion of the negotiations.

  9         i.  Minutes of closed meetings regarding underwriting

10  files, and minutes of closed meetings regarding an open claims

11  file until termination of all litigation and settlement of all

12  claims with regard to that claim, except that information

13  otherwise confidential or exempt by law will be redacted.

14

15  When an authorized insurer is considering underwriting a risk

16  insured by the corporation association, relevant underwriting

17  files and confidential claims files may be released to the

18  insurer provided the insurer agrees in writing, notarized and

19  under oath, to maintain the confidentiality of such files.

20  When a file is transferred to an insurer that file is no

21  longer a public record because it is not held by an agency

22  subject to the provisions of the public records law.

23  Underwriting files and confidential claims files may also be

24  released to staff of and the board of governors of the market

25  assistance plan established pursuant to s. 627.3515, who must

26  retain the confidentiality of such files, except such files

27  may be released to authorized insurers that are considering

28  assuming the risks to which the files apply, provided the

29  insurer agrees in writing, notarized and under oath, to

30  maintain the confidentiality of such files.  Finally, the

31  corporation association or the board or staff of the market

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  1  assistance plan may make the following information obtained

  2  from underwriting files and confidential claims files

  3  available to licensed general lines insurance agents: name,

  4  address, and telephone number of the residential property

  5  owner or insured; location of the risk; rating information;

  6  loss history; and policy type.  The receiving licensed general

  7  lines insurance agent must retain the confidentiality of the

  8  information received.

  9         2.  Portions of meetings of the corporation Residential

10  Property and Casualty Joint Underwriting Association are

11  exempt from the provisions of s. 286.011 and s. 24(b), Art. I

12  of the State Constitution wherein confidential underwriting

13  files or confidential open claims files are discussed.  All

14  portions of corporation association meetings which are closed

15  to the public shall be recorded by a court reporter.  The

16  court reporter shall record the times of commencement and

17  termination of the meeting, all discussion and proceedings,

18  the names of all persons present at any time, and the names of

19  all persons speaking.  No portion of any closed meeting shall

20  be off the record.  Subject to the provisions hereof and s.

21  119.07(2)(a), the court reporter's notes of any closed meeting

22  shall be retained by the corporation association for a minimum

23  of 5 years. A copy of the transcript, less any exempt matters,

24  of any closed meeting wherein claims are discussed shall

25  become public as to individual claims after settlement of the

26  claim.

27         (o)  In enacting the provisions of this act, the

28  Legislature recognizes that both the Florida Windstorm

29  Underwriting Association and the Residential Property and

30  Casualty Joint Underwriting Association have entered into

31  financing arrangements that obligate each entity to service

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  1  its debts and maintain the capacity to repay funds secured

  2  under these financing arrangements. It is the intent of the

  3  Legislature that nothing herein be construed to compromise,

  4  diminish, or interfere with the rights of creditors under such

  5  financing arrangements. It is further the intent of the

  6  Legislature to preserve the obligations of the Florida

  7  Windstorm Underwriting Association and the Residential

  8  Property and Casualty Joint Underwriting Association with

  9  regard to outstanding financing arrangements, with such

10  obligations passing entirely and unchanged to the corporation.

11  So long as any bonds, notes, indebtedness, or other financing

12  obligations of the Florida Windstorm Underwriting Association

13  or the Residential Property and Casualty Joint Underwriting

14  Association are outstanding, under the terms of the financing

15  documents pertaining to them, the governing board of the

16  corporation shall have and shall exercise the authority to

17  levy, charge, collect, and receive all premiums, assessments,

18  surcharges, charges, revenues, and receipts that such

19  associations had authority to levy, charge, collect, or

20  receive under the provisions of subsection (2) and subsection

21  (6), respectively, as they existed on January 1, 2001, to the

22  extent necessary to provide moneys, together with other

23  available moneys of the corporation without exercise of the

24  authority provided by this paragraph, in at least the amounts,

25  and by the times, as would be provided under those former

26  provisions of subsection (2) or subsection (6), respectively,

27  so that the value, amount, and collectability of any assets,

28  revenues, or revenue source pledged or committed to, or any

29  lien thereon securing such outstanding bonds, notes,

30  indebtedness, or other financing obligations will not be

31  diminished, impaired, or adversely affected by the amendments

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  1  made by this act and to permit compliance with all provisions

  2  of financing documents pertaining to such bonds, notes,

  3  indebtedness, or other financing obligations, or the security

  4  or credit enhancement for them, and any reference in this

  5  subsection to bonds, notes, indebtedness, financing

  6  obligations, or similar obligations of the corporation shall

  7  include like instruments or contracts of the Florida Windstorm

  8  Underwriting Association and the Residential Property and

  9  Casualty Joint Underwriting Association to the extent not

10  inconsistent with the provisions of the financing documents

11  pertaining to them.

12         Section 2.  Subsection (2) of section 631.55, Florida

13  Statutes, is amended to read:

14         631.55  Creation of the association.--

15         (2)  For the purposes of administration and assessment,

16  the association shall be divided into four three separate

17  accounts:

18         (a)  The auto liability account;

19         (b)  The auto physical damage account;

20         (c)  The medical malpractice account; and

21         (d)(c)  The account for all other insurance to which

22  this part applies.

23         Section 3.  Effective upon this act becoming a law and

24  applicable to all policies in effect on or after the effective

25  date of this section, paragraph (b) of subsection (2) of

26  section 627.351, Florida Statutes, is amended to read:

27         627.351  Insurance risk apportionment plans.--

28         (2)  WINDSTORM INSURANCE RISK APPORTIONMENT.--

29         (b)  The department shall require all insurers holding

30  a certificate of authority to transact property insurance on a

31  direct basis in this state, other than joint underwriting

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  1  associations and other entities formed pursuant to this

  2  section, to provide windstorm coverage to applicants from

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

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

  5  coverage through ordinary means; or it shall adopt a

  6  reasonable plan or plans for the equitable apportionment or

  7  sharing among such insurers of windstorm coverage, which may

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

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

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

11  624.604, including insurance for fire, industrial fire, allied

12  lines, farmowners multiperil, homeowners' multiperil,

13  commercial multiperil, and mobile homes, and including

14  liability coverages on all such insurance, but excluding

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

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

17  insurance on mobile homes used as permanent dwellings. The

18  department shall adopt rules that provide a formula for the

19  recovery and repayment of any deferred assessments.

20         1.  For the purpose of this section, properties

21  eligible for such windstorm coverage are defined as dwellings,

22  buildings, and other structures, including mobile homes which

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

24  with mobile home tie-down requirements prescribed by the

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

26  320.8325, and the contents of all such properties. An

27  applicant or policyholder is eligible for coverage only if an

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

29  or policyholder from an admitted insurer at approved rates.

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

31  association shall participate in its writings, expenses, and

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

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

  3  insurers. Such participation by member insurers shall be in

  4  the proportion that the net direct premiums of each member

  5  insurer written for property insurance in this state during

  6  the preceding calendar year bear to the aggregate net direct

  7  premiums for property insurance of all member insurers, as

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

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

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

11  written premiums for property insurance, reduced by premium

12  for liability coverage and for the following if included in

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

14  association direct premiums booked; National Flood Insurance

15  Program direct premiums; and similar deductions specifically

16  authorized by the plan of operation and approved by the

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

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

19  issued a certificate of authority to transact property

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

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

22  certificate of authority to transact property insurance in the

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

24  other reports, and any other statistics that the commissioner

25  deems necessary, shall certify to the association the

26  aggregate direct premiums written for property insurance in

27  this state by all member insurers.

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

29  of directors consisting of the Insurance Consumer Advocate

30  appointed under s. 627.0613, 1 consumer representative

31  appointed by the Insurance Commissioner, 1 consumer

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  1  representative appointed by the Governor, and 12 additional

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

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

  4  companies of this state on the basis of cumulative weighted

  5  voting based on the net direct premiums of domestic companies

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

  7  paragraph terminates the existing board or the terms of any

  8  members of the board.

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

10  whereby a company voluntarily providing windstorm coverage in

11  affected areas will be relieved wholly or partially from

12  apportionment of a regular assessment pursuant to

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

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

15  companies under common management may elect to have its

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

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

18  group.

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

20  apportionment to a company for emergency assessments collected

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

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

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

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

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

26  policies out of the Residential Property and Casualty Joint

27  Underwriting Association.  In order to qualify for the

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

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

30  from the Residential Property and Casualty Joint Underwriting

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

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

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

  3  Counties and an additional 50 percent of the policies so

  4  removed cover risks located in other coastal counties, and

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

  6  so removed may exclude windstorm coverage.  With the approval

  7  of the department, the association may waive these geographic

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

  9  of 100,000 Residential Property and Casualty Joint

10  Underwriting Association policies or 15 percent of the total

11  number of Residential Property and Casualty Joint Underwriting

12  Association policies, provided the governing board of the

13  Residential Property and Casualty Joint Underwriting

14  Association certifies that the take-out plan will materially

15  reduce the Residential Property and Casualty Joint

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

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

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

19  guarantees an additional year of renewability for all policies

20  removed from the Residential Property and Casualty Joint

21  Underwriting Association, or for 2 additional years if the

22  insurer guarantees 2 additional years of renewability for all

23  policies removed from the Residential Property and Casualty

24  Joint Underwriting Association.

25         b.  Assessments to pay deficits in the association

26  under this subparagraph shall be included as an appropriate

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

28         c.  The Legislature finds that the potential for

29  unlimited deficit assessments under this subparagraph may

30  induce insurers to attempt to reduce their writings in the

31  voluntary market, and that such actions would worsen the

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  1  availability problems that the association was created to

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

  3  remain fully responsible for paying regular assessments and

  4  collecting emergency assessments for any deficits of the

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

  6  to provide a means by which assessment liabilities may be

  7  amortized over a period of years.

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

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

10  direct written premium for property insurance for the prior

11  calendar year for all member insurers, the association shall

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

13  the deficit.

14         (II)  When the deficit incurred in a particular

15  calendar year exceeds 10 percent of the aggregate statewide

16  direct written premium for property insurance for the prior

17  calendar year for all member insurers, the association shall

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

19  the greater of 10 percent of the deficit or 10 percent of the

20  aggregate statewide direct written premium for property

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

22  remaining deficit shall be recovered through emergency

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

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

25  that a deficit exceeds the amount that will be recovered

26  through regular assessments on member insurers, pursuant to

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

28  board shall levy, after verification by the department,

29  emergency assessments to be collected by member insurers and

30  by underwriting associations created pursuant to this section

31  which write property insurance, upon issuance or renewal of

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  1  property insurance policies other than National Flood

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

  3  regular assessments. The amount of the emergency assessment

  4  collected in a particular year shall be a uniform percentage

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

  6  for all member insurers and underwriting associations,

  7  excluding National Flood Insurance policy premiums, as

  8  annually determined by the board and verified by the

  9  department. The department shall verify the arithmetic

10  calculations involved in the board's determination within 30

11  days after receipt of the information on which the

12  determination was based. Notwithstanding any other provision

13  of law, each member insurer and each underwriting association

14  created pursuant to this section shall collect emergency

15  assessments from its policyholders without such obligation

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

17  deferment.  The emergency assessments so collected shall be

18  transferred directly to the association on a periodic basis as

19  determined by the association. The aggregate amount of

20  emergency assessments levied under this sub-sub-subparagraph

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

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

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

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

25  percent of the aggregate statewide direct written premium for

26  property insurance written by member insurers and underwriting

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

28  commissions, required reserves, and other costs associated

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

30  proceeds of the emergency assessments under this

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

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

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

  3  the board determines will efficiently recover the deficit. The

  4  emergency assessments under this sub-sub-subparagraph shall

  5  continue as long as any bonds issued or other indebtedness

  6  incurred with respect to a deficit for which the assessment

  7  was imposed remain outstanding, unless adequate provision has

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

  9  pursuant to the document governing such bonds or other

10  indebtedness. Emergency assessments collected under this

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

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

13  commissions; however, failure to pay the emergency assessment

14  shall be treated as failure to pay premium.

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

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

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

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

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

20  aggregate statewide net direct premium for property insurance

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

22  voluntary writings for that year.

23         (V)  If regular deficit assessments are made under

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

25  the Residential Property and Casualty Joint Underwriting

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

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

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

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

30  a market equalization surcharge in a percentage equal to the

31  total amount of such regular assessments divided by the

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  1  aggregate statewide direct written premium for property

  2  insurance for member insurers for the prior calendar year.

  3  Market equalization surcharges under this sub-sub-subparagraph

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

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

  6  equalization surcharge shall be treated as failure to pay

  7  premium.

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

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

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

11  assistance program, in conjunction with the association, for

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

13  to avoid needless and indiscriminate proliferation,

14  duplication, and fragmentation of such assistance programs,

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

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

17  losses, regardless of whether or not the losses occurred

18  within or outside of the territorial jurisdiction of the local

19  government. Revenue bonds may not be issued until validated

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

21  declared by executive order or proclamation of the Governor

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

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

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

25  welfare of residents of this state and the protection and

26  preservation of the economic stability of insurers operating

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

28  permit certain municipalities or counties to issue bonds as

29  will provide relief to claimants and policyholders of the

30  association and insurers responsible for apportionment of plan

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

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  1  contracts with the association and with any other entity

  2  created pursuant to this subsection as are necessary to carry

  3  out this paragraph. Any bonds issued under this

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

  5  received by the association from assessments under this

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

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

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

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

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

11  remain unsold 60 days after issuance, the department shall

12  require all insurers subject to assessment to purchase the

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

14  shall be required to purchase that percentage of the unsold

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

16  share of assessment liability under this subsection. An

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

18  extent that the department determines that the purchase would

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

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

21  authority granted by subparagraph 6.

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

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

24  percent or more of its total countrywide property insurance

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

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

27  apportionment company. The apportionment of such a member

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

29  not exceed its gross participation, which shall not be

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

31  shall a limited apportionment company be required to

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  1  participate in any apportionment of losses pursuant to

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

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

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

  5  apportionment company shall collect from its policyholders any

  6  emergency assessment imposed under sub-sub-subparagraph

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

  8  determines that any regular assessment will result in an

  9  impairment of the surplus of a limited apportionment company,

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

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

12  deferment of an emergency assessment to be collected from

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

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

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

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

17  but not for an emergency assessment collected from

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

19  opinion of the commissioner, payment of such regular

20  assessment would endanger or impair the solvency of the member

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

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

23  such assessment is deferred may be assessed against the other

24  member insurers in a manner consistent with the basis for

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

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

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

28  rules for classification of risks and rate modifications

29  consistent with the objective of providing and maintaining

30  funds sufficient to pay catastrophe losses.

31

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  1         b.  The association may require arbitration of a rate

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

  3  Legislature that the rates for coverage provided by the

  4  association be actuarially sound and not competitive with

  5  approved rates charged in the admitted voluntary market such

  6  that the association functions as a residual market mechanism

  7  to provide insurance only when the insurance cannot be

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

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

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

11  line of business are reflective of approved rates in the

12  voluntary market for hurricane coverage for each line of

13  business in the various areas eligible for association

14  coverage.

15         c.  The association shall provide for windstorm

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

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

18  for personal lines residential risks. If coverage with the

19  association is sought for a residential risk valued in excess

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

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

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

23  located in the authorized market. The association must accept

24  a commercial lines residential risk with limits above $10

25  million or a personal lines residential risk with limits above

26  $1 million if coverage is not available in the authorized

27  market.  The association may write coverage above the limits

28  specified in this subparagraph with or without facultative or

29  other reinsurance coverage, as the association determines

30  appropriate.

31

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  1         d.  The plan of operation must provide objective

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

  3  uniformly applied for all applicants in determining whether an

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

  5  making this determination and in establishing the criteria and

  6  procedures, the following shall be considered:

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

  8  individual risk is substantially higher than for other risks

  9  of the same class; and

10         (II)  Whether the uncertainty associated with the

11  individual risk is such that an appropriate premium cannot be

12  determined.

13

14  The acceptance or rejection of a risk by the association

15  pursuant to such criteria and procedures must be construed as

16  the private placement of insurance, and the provisions of

17  chapter 120 do not apply.

18         e.  The policies issued by the association must provide

19  that if the association obtains an offer from an authorized

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

21  standard policy including wind coverage or, if consistent with

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

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

24  eligible for coverage through the association. Upon

25  termination of eligibility, the association shall provide

26  written notice to the policyholder and agent of record stating

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

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

29  from an authorized insurer. Other provisions of the insurance

30  code relating to cancellation and notice of cancellation do

31  not apply to actions under this sub-subparagraph.

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  1         f.  Association policies and applications must include

  2  a notice that the association policy could, under this

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

  4  insurer that does not provide coverage identical to the

  5  coverage provided by the association. The notice shall also

  6  specify that acceptance of association coverage creates a

  7  conclusive presumption that the applicant or policyholder is

  8  aware of this potential.

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

10  of a private nonprofit corporation, a private nonprofit

11  unincorporated association, a partnership, a trust, a limited

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

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

14  bonds or by incurring other indebtedness and to accumulate

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

16  catastrophe losses. The plan may authorize all actions

17  necessary to facilitate the issuance of bonds, including the

18  pledging of assessments or other revenues.

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

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

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

22  instruments; pledge or sell assessments, market equalization

23  surcharges and other surcharges, rights, premiums, contractual

24  rights, projected recoveries from the Florida Hurricane

25  Catastrophe Fund, other reinsurance recoverables, and other

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

27  enter into any contracts or agreements necessary or proper to

28  accomplish such borrowings; and take other actions necessary

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

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

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

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

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

  3  subject to approval by the department that such action would

  4  enable it to efficiently meet the financial obligations of the

  5  association and that such financings are reasonably necessary

  6  to effectuate the requirements of this subsection. Any such

  7  entity may accumulate reserves and retain surpluses as of the

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

  9  losses incurred by the association during that year or any

10  future year. The association shall incorporate and continue

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

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

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

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

15  of directors and officers currently serving shall continue to

16  serve until their successors are duly qualified as provided

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

18  effect immediately prior to the effective date of chapter

19  76-96 shall be construed to be the assets and obligations of

20  the successor plan created herein.

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

22  Constitution, prohibiting the impairment of obligations of

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

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

25  financing agreement or any revenue source committed by

26  contract to such bond or other indebtedness issued or incurred

27  by the association or any other entity created under this

28  subsection.

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

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

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

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

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

  3  company.

  4         8.  Subject to approval by the department, the

  5  association may establish different eligibility requirements

  6  and operational procedures for any line or type of coverage

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

  8  if the board determines that such changes to the eligibility

  9  requirements and operational procedures are justified due to

10  the voluntary market being sufficiently stable and competitive

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

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

13  through the voluntary market through ordinary methods would

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

15  coverage is sought in connection with a real property

16  transfer, such requirements and procedures shall not provide

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

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

19  transferee, and, if applicable, the lender.

20         9.  Notwithstanding any other provision of law:

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

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

23  the association created or purported to be created pursuant to

24  any financing documents to secure any bonds or other

25  indebtedness of the association shall be and remain valid and

26  enforceable, notwithstanding the commencement of and during

27  the continuation of, and after, any rehabilitation,

28  insolvency, liquidation, bankruptcy, receivership,

29  conservatorship, reorganization, or similar proceeding against

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

31  applicable laws.

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  1         b.  No such proceeding shall relieve the association of

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

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

  4  assessments, market equalization or other surcharges,

  5  projected recoveries from the Florida Hurricane Catastrophe

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

  7  or other assets of the association pledged.

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

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

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

11  assessments, market equalization or renewal surcharges,

12  projected recoveries from the Florida Hurricane Catastrophe

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

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

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

16  any such proceeding shall continue unaffected by such

17  proceeding.

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

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

20  now existing or hereafter created evidencing any bonds or

21  other indebtedness of the association or pursuant to which any

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

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

24  association are pledged or sold to secure the repayment of

25  such bonds or indebtedness, together with the payment of

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

27  any other obligation of the association related to such bonds

28  or indebtedness.

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

30  contract rights or other rights or assets of the association

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

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

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

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

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

  5  valid, binding, and enforceable against the association or

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

  7  against and superior to any competing claims or obligations

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

  9  this state, asserting rights in any such assessments,

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

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

12  sale contained in the applicable financing documents, whether

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

14  sale and without the need for any physical delivery,

15  recordation, filing, or other action.

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

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

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

19  association, members of the board of directors of the

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

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

22  responsibilities under this subsection. Such immunity does not

23  apply to actions for breach of any contract or agreement

24  pertaining to insurance, or any willful tort.

25         Section 4.  Except as otherwise provided in this act,

26  this act shall take effect October 1, 2001, except that this

27  section and section 627.351(6)(c)4.b. and (g)3.b., Florida

28  Statutes, as created by this act, shall take effect June 1,

29  2001.

30

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                             SB 2234

  3

  4  Provides that the "Citizens Property Insurance Corporation"
    (CITIZENS)will offer a coinsurance program with authorized
  5  insurers for hurricane coverage within the current Florida
    Windstorm Underwriting Association (FWUA) areas.
  6
    Provides that CITIZENS will impose and collect an amount equal
  7  to the premium tax to augment the financial resources of the
    corporation available to carry out its public purpose.
  8
    Insurance rates for CITIZENS will be calculated by utilizing
  9  specified loss costs approved by the Insurance Service Office.

10  Provides that the Florida Surplus Lines Service Office will
    verify and collect emergency assessments for policyholders and
11  remit to CITIZENS.

12  Establishes a new assessment account within the Florida
    Insurance Guaranty Association for medical malpractice
13  insurance.

14  Repeals the provision that a policyholder is no longer
    eligible for coverage in the FWUA if an offer of coverage is
15  made by an authorized insurer.

16  Removes the provision which allowed the Department of
    Insurance to postpone the effective date should the department
17  find specified emergency conditions.

18

19

20

21

22

23

24

25

26

27

28

29

30

31

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