Senate Bill sb0658c1

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    Florida Senate - 2001                            CS for SB 658

    By the Committee on Banking and Insurance; and Senator
    Holzendorf




    311-1457-01

  1                      A bill to be entitled

  2         An act relating to surplus lines insurance;

  3         amending ss. 626.916, 626.918, 626.921,

  4         626.923, 626.930, 626.931, 626.932, 626.933,

  5         626.935, 626.936, 626.9361, 626.938, F.S.;

  6         revising certain requirements for surplus lines

  7         insurance to provide the Florida Surplus Lines

  8         Service Office with the same authority granted

  9         to the Department of Insurance; revising limits

10         on fees that may be charged with respect to

11         certain policies certified for export; revising

12         certain quarterly reporting requirements;

13         providing for collection of a service fee;

14         providing a penalty for failure to make certain

15         reports and pay service fees; providing for an

16         administrative fine for such failure; providing

17         for disposition of surplus lines taxes and

18         service fees; providing an effective date.

19

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

21

22         Section 1.  Subsection (4) of section 626.916, Florida

23  Statutes, is amended to read:

24         626.916  Eligibility for export.--

25         (4)  A reasonable per-policy fee, not to exceed $35

26  $25, may be charged by the filing surplus lines agent for each

27  policy certified for export.

28         Section 2.  Subsection (2) of section 626.918, Florida

29  Statutes, is amended to read:

30         626.918  Eligible surplus lines insurers.--

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    Florida Senate - 2001                            CS for SB 658
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  1         (2)  No unauthorized insurer shall be or become an

  2  eligible surplus lines insurer unless made eligible by the

  3  department in accordance with the following conditions:

  4         (a)  Eligibility of the insurer must be requested in

  5  writing by the Florida Surplus Lines Service Office a

  6  Florida-licensed surplus lines agent;

  7         (b)  The insurer must be currently an authorized

  8  insurer in the state or country of its domicile as to the kind

  9  or kinds of insurance proposed to be so placed and must have

10  been such an insurer for not less than the 3 years next

11  preceding or must be the wholly owned subsidiary of such

12  authorized insurer or must be the wholly owned subsidiary of

13  an already eligible surplus lines insurer as to the kind or

14  kinds of insurance proposed for a period of not less than the

15  3 years next preceding. However, the department may waive the

16  3-year requirement if the insurer provides a product or

17  service not readily available to the consumers of this state

18  or has operated successfully for a period of at least 1 year

19  next preceding and has capital and surplus of not less than

20  $25 million;

21         (c)  Before granting eligibility, the requesting

22  surplus lines agent or the insurer shall furnish the

23  department with a duly authenticated copy of its current

24  annual financial statement in the English language and with

25  all monetary values therein expressed in United States

26  dollars, at an exchange rate (in the case of statements

27  originally made in the currencies of other countries)

28  then-current and shown in the statement, and with such

29  additional information relative to the insurer as the

30  department may request;

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    Florida Senate - 2001                            CS for SB 658
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  1         (d)1.  The insurer must have and maintain surplus as to

  2  policyholders of not less than $15 million; in addition, an

  3  alien insurer must also have and maintain in the United States

  4  a trust fund for the protection of all its policyholders in

  5  the United States under terms deemed by the department to be

  6  reasonably adequate, in an amount not less than $5.4 million.

  7  Any such surplus as to policyholders or trust fund shall be

  8  represented by investments consisting of eligible investments

  9  for like funds of like domestic insurers under part II of

10  chapter 625 provided, however, that in the case of an alien

11  insurance company, any such surplus as to policyholders may be

12  represented by investments permitted by the domestic regulator

13  of such alien insurance company if such investments are

14  substantially similar in terms of quality, liquidity, and

15  security to eligible investments for like funds of like

16  domestic insurers under part II of chapter 625;

17         2.  For those surplus lines insurers that were eligible

18  on January 1, 1994, and that maintained their eligibility

19  thereafter, the required surplus as to policyholders shall be:

20         a.  On December 31, 1994, and until December 30, 1995,

21  $2.5 million.

22         b.  On December 31, 1995, and until December 30, 1996,

23  $3.5 million.

24         c.  On December 31, 1996, and until December 30, 1997,

25  $4.5 million.

26         d.  On December 31, 1997, and until December 30, 1998,

27  $5.5 million.

28         e.  On December 31, 1998, and until December 30, 1999,

29  $6.5 million.

30         f.  On December 31, 1999, and until December 30, 2000,

31  $8 million.

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    Florida Senate - 2001                            CS for SB 658
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  1         g.  On December 31, 2000, and until December 30, 2001,

  2  $9.5 million.

  3         h.  On December 31, 2001, and until December 30, 2002,

  4  $11 million.

  5         i.  On December 31, 2002, and until December 30, 2003,

  6  $13 million.

  7         j.  On December 31, 2003, and thereafter, $15 million.

  8         3.  The capital and surplus requirements as set forth

  9  in subparagraph 2. do not apply in the case of an insurance

10  exchange created by the laws of individual states, where the

11  exchange maintains capital and surplus pursuant to the

12  requirements of that state, or maintains capital and surplus

13  in an amount not less than $50 million in the aggregate. For

14  an insurance exchange which maintains funds in the amount of

15  at least $12 million for the protection of all insurance

16  exchange policyholders, each individual syndicate shall

17  maintain minimum capital and surplus in an amount not less

18  than $3 million. If the insurance exchange does not maintain

19  funds in the amount of at least $12 million for the protection

20  of all insurance exchange policyholders, each individual

21  syndicate shall meet the minimum capital and surplus

22  requirements set forth in subparagraph 2.;

23         4.  A surplus lines insurer which is a member of an

24  insurance holding company that includes a member which is a

25  Florida domestic insurer as set forth in its holding company

26  registration statement, as set forth in s. 628.801 and rules

27  adopted thereunder, may elect to maintain surplus as to

28  policyholders in an amount equal to the requirements of s.

29  624.408, subject to the requirement that the surplus lines

30  insurer shall at all times be in compliance with the

31  requirements of chapter 625.

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    Florida Senate - 2001                            CS for SB 658
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  1

  2  The election shall be submitted to the department and shall be

  3  effective upon the department's being satisfied that the

  4  requirements of subparagraph 4. have been met. The initial

  5  date of election shall be the date of department approval. The

  6  election approval application shall be on a form adopted by

  7  department rule. The department may approve an election form

  8  submitted pursuant to subparagraph 4. only if it was on file

  9  with the department before February 28, 1998;

10         (e)  The insurer must be of good reputation as to the

11  providing of service to its policyholders and the payment of

12  losses and claims;

13         (f)  The insurer must be eligible, as for authority to

14  transact insurance in this state, under s. 624.404(3); and

15         (g)  This subsection does not apply as to unauthorized

16  insurers made eligible under s. 626.917 as to wet marine and

17  aviation risks.

18         Section 3.  Subsection (2) of section 626.921, Florida

19  Statutes, is amended to read:

20         626.921  Florida Surplus Lines Service Office.--

21         (2)  All surplus lines agents shall, as a condition of

22  holding a license as a surplus lines agent in this state, be

23  deemed to be members of this association and shall report to

24  and file with the service office a copy of or information on

25  each surplus lines insurance policy or document as provided in

26  the plan of operation adopted under subsection (5).  Upon

27  receipt of any claim notice reported under a surplus lines

28  policy which is subject to the filing requirements of this

29  section, the insurer, or an adjuster representing the insurer,

30  must advise the service office of such claim, identifying the

31  policy under which coverage is claimed, and the service office

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    Florida Senate - 2001                            CS for SB 658
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  1  shall determine whether the policy has been filed as required

  2  by this section. The service office shall immediately report

  3  the particulars of any unfiled policy to the department for

  4  enforcement of compliance with the Florida Surplus Lines Law.

  5         Section 4.  Section 626.923, Florida Statutes, is

  6  amended to read:

  7         626.923  Filing copy of policy or certificate.--A

  8  surplus lines agent shall, within 30 days after the date of a

  9  request by the department or the Florida Surplus Lines Service

10  Office, furnish the department an exact copy of any and all

11  requested policies, including applications, certificates,

12  cover notes, or other forms of confirmation of insurance

13  coverage or any substitutions thereof or endorsements thereto.

14  The department or the Florida Surplus Lines Service Office may

15  also request and the agent shall furnish, within 30 days after

16  the date of the request, the agent's memorandum as to the

17  substance of any change represented by a substitute

18  certificate, cover note, other form of confirmation of

19  insurance coverage, or endorsement as compared with the

20  coverage as originally placed or issued.

21         Section 5.  Subsection (2) of section 626.930, Florida

22  Statutes, is amended to read:

23         626.930  Records of surplus lines agent.--

24         (2)  The record shall at all times be open to

25  examination by the department or the Florida Surplus Lines

26  Service Office without notice and shall be so kept available

27  and open to the department for 5 years next following

28  expiration or cancellation of the contract.

29         Section 6.  Section 626.931, Florida Statutes, is

30  amended to read:

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    Florida Senate - 2001                            CS for SB 658
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  1         626.931  Agent affidavit and insurer reporting

  2  requirements Quarterly report.--

  3         (1)  Each surplus lines agent shall on or before the

  4  end of the month next following each calendar quarter file

  5  with the Florida Surplus Lines Service Office an affidavit, on

  6  forms as prescribed and furnished by the Florida Surplus Lines

  7  Service Office, stating that a verified report of all surplus

  8  lines insurance transacted by him or her during such calendar

  9  quarter has been submitted to the Florida Surplus Lines

10  Service Office as required.

11         (2)  The reports and supporting information shall be in

12  a computer-readable format as determined by the department or

13  shall be submitted on forms prescribed by the department and

14  shall show:

15         (a)  Aggregate gross premiums charged;

16         (b)  Aggregate of returned premiums and taxes paid to

17  insureds;

18         (c)  Aggregate of net premiums;

19         (d)  A listing of all policies, certificates, cover

20  notes, or other forms of confirmation of insurance coverage or

21  any substitutions thereof or endorsements thereto; and

22         (e)  Additional information as required by the

23  department.

24         (2)(3)  The report shall include The affidavit of the

25  surplus lines agent shall include, on forms as prescribed and

26  furnished by the department, as to efforts made to place

27  coverages with authorized insurers and the results thereof.

28         (3)(4)  Each foreign insurer accepting premiums which

29  are subject to taxes and which are described in this section

30  shall, on or before the end of the month following each

31  calendar quarter, file with the Florida Surplus Lines Service

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    Florida Senate - 2001                            CS for SB 658
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  1  Office a verified report of all surplus lines insurance

  2  transacted by such insurer for insurance risks located in this

  3  state during such calendar quarter.

  4         (4)(5)  Each alien insurer accepting premiums which are

  5  subject to taxes and which are described in this section

  6  shall, on or before June 30 of each year, file with the

  7  Florida Surplus Lines Service Office a verified report of all

  8  surplus lines insurance transacted by such insurer for

  9  insurance risks located in this state during the preceding

10  calendar year, provided the first such report shall be with

11  respect to calendar year 1994.

12         (5)(6)  The Insurance Commissioner shall have the

13  authority to waive the filing requirements described in

14  subsections (3) (4) and (4) (5).

15         (6)(7)  Each insurer's report and supporting

16  information shall be in a computer-readable format as

17  determined by the Florida Surplus Lines Service Office

18  department or shall be submitted on forms prescribed by the

19  Florida Surplus Lines Service Office department and shall show

20  for each applicable agent:

21         (a)  The aggregate gross Florida premiums charged;

22         (b)  The aggregate of returned Florida premiums;

23         (c)  The aggregate of net Florida premiums;

24         (a)(d)  A listing of all policies, certificates, cover

25  notes, or other forms of confirmation of insurance coverage or

26  any substitutions thereof or endorsements thereto and the

27  identifying number; and

28         (b)(e)  Any additional information required by the

29  department or Florida Surplus Lines Service Office.

30         Section 7.  Paragraph (a) of subsection (2) of section

31  626.932, Florida Statutes, is amended to read:

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    Florida Senate - 2001                            CS for SB 658
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  1         626.932  Surplus lines tax.--

  2         (2)(a)  The surplus lines agent shall make payable pay

  3  to the Department of Insurance Florida Surplus Lines Service

  4  Office the tax related to each calendar quarter's business as

  5  reported to the Florida Surplus Lines Service Office, and

  6  remit the tax to the Florida Surplus Lines Service Office at

  7  the same time as provided for the filing of the quarterly

  8  affidavit report, under s. 626.931. The Florida Surplus Lines

  9  Service Office shall forward to the department the taxes and

10  any interest collected pursuant to paragraph (b), within 10

11  days of receipt, along with a copy of the quarterly reports

12  received.

13         Section 8.  Section 626.933, Florida Statutes, is

14  amended to read:

15         626.933  Collection of tax and service fee.--If the tax

16  or service fee payable by a surplus lines agent under this

17  Surplus Lines Law is not so paid within the time prescribed,

18  the same shall be recoverable in a suit brought by the

19  department against the surplus lines agent and the surety or

20  sureties on the bond filed by the surplus lines agent under s.

21  626.928.

22         Section 9.  Paragraphs (d) and (e) of subsection (1) of

23  section 626.935, Florida Statutes, are amended to read:

24         626.935  Suspension, revocation, or refusal of surplus

25  lines agent's license.--

26         (1)  The department shall deny an application for,

27  suspend, revoke, or refuse to renew the appointment of a

28  surplus lines agent and all other licenses and appointments

29  held by the licensee under this code, upon any of the

30  following grounds:

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  1         (d)  Failure to make and file his or her affidavit or

  2  quarterly reports when due as required by s. 626.931.

  3         (e)  Failure to pay the tax or service fee on surplus

  4  lines premiums, as provided for in this Surplus Lines Law.

  5         Section 10.  Section 626.936, Florida Statutes, is

  6  amended to read:

  7         626.936  Failure to file reports report or pay tax or

  8  service fee; administrative penalty.--

  9         (1)  Any licensed surplus lines agent who neglects to

10  file a quarterly report or an affidavit in the form and within

11  the time required or provided for in the Surplus Lines Law may

12  be fined up to $50 per day for each day the neglect continues,

13  beginning the day after the quarterly report or affidavit was

14  due until the date the report or affidavit is received by the

15  department.  The department shall deposit All sums collected

16  by it under this section shall be deposited into the Insurance

17  Commissioner's Regulatory Trust Fund.

18         (2)  Any licensed surplus lines agent who neglects to

19  pay the taxes or service fees as required under the Surplus

20  Lines Law and within the time required may be fined up to $500

21  per day for each day the failure to pay continues, beginning

22  the day after the tax or service fees were was due. The agent

23  shall pay interest on the amount of any delinquent tax due, at

24  the rate of 9 percent per year, compounded annually, beginning

25  the day the amount becomes delinquent.  The department shall

26  deposit all sums collected by it under this section into the

27  Insurance Commissioner's Regulatory Trust Fund.

28         Section 11.  Section 626.9361, Florida Statutes, is

29  amended to read:

30         626.9361  Failure to file report; administrative

31  penalty.--Any eligible surplus lines insurer who fails to file

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  1  a quarterly report in the form and within the time required or

  2  provided for in the Surplus Lines Law may be fined up to $500

  3  per day for each day such failure continues, beginning the day

  4  after the report was due, until the date the report is

  5  received by the department.  Failure to file a quarterly

  6  report may also result in withdrawal of eligibility as a

  7  surplus lines insurer in this state. All sums collected by the

  8  department under this section shall be deposited into the

  9  Insurance Commissioner's Regulatory Trust Fund.

10         Section 12.  Subsections (1), (3), (4), and (10) of

11  section 626.938, Florida Statutes, are amended to read:

12         626.938  Report and tax of independently procured

13  coverages.--

14         (1)  Every insured who in this state procures or causes

15  to be procured or continues or renews insurance with an

16  unauthorized foreign or alien insurer, or any self-insurer who

17  in this state so procures or continues excess loss,

18  catastrophe, or other insurance, upon a subject of insurance

19  resident, located, or to be performed within this state, other

20  than insurance procured through a surplus lines agent pursuant

21  to the Surplus Lines Law of this state or exempted from tax

22  under s. 626.932(4), shall, within 30 days after the date such

23  insurance was so procured, continued, or renewed, file a

24  report of the same with the Florida Surplus Lines Service

25  Office department in writing and upon forms designated by the

26  Florida Surplus Lines Service Office department and furnished

27  to such an insured upon request, or in a computer readable

28  format as determined by the Florida Surplus Lines Service

29  Office. The report shall show the name and address of the

30  insured or insureds, the name and address of the insurer, the

31  subject of the insurance, a general description of the

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  1  coverage, the amount of premium currently charged therefor,

  2  and such additional pertinent information as is reasonably

  3  requested by the Florida Surplus Lines Service Office

  4  department.

  5         (3)  For the general support of the government of this

  6  state, there is levied upon the obligation, chose in action,

  7  or right represented by the premium charged for such insurance

  8  a tax at the rate of 5 percent of the gross amount of such

  9  premium and a 0.3 percent service fee pursuant to s. 626.9325.

10  The insured shall withhold the amount of the tax and service

11  fee from the amount of premium charged by and otherwise

12  payable to the insurer for such insurance.; and, Within 30

13  days after the insurance is was so procured, continued, or

14  renewed, and simultaneously coincidentally with the filing of

15  the report provided for in subsection (1) with the Florida

16  Surplus Lines Service Office department of the report provided

17  for in subsection (1), the insured shall make payable to the

18  Department of Insurance pay the amount of the tax and make

19  payable to the Florida Surplus Lines Service Office the amount

20  of the service fee. The insured shall remit the tax and the

21  service fee to the Florida Surplus Lines Service Office

22  department. The Florida Surplus Lines Service Office shall

23  forward to the department the taxes, and any interest

24  collected pursuant to subsection (5), within 10 days after

25  receipt.

26         (4)  If the insured fails to withhold from the premium

27  the amount of tax and the service fee herein levied, the

28  insured shall be liable for the amount thereof and shall pay

29  that amount the same to the Florida Surplus Lines Service

30  Office department within the time stated in subsection (3).

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  1         (10)  Each report and supporting information shall be

  2  in a computer-readable format as determined by the Florida

  3  Surplus Lines Service Office department or shall be submitted

  4  on forms prescribed by the Florida Surplus Lines Service

  5  Office department.

  6         Section 13.  This act shall take effect upon becoming a

  7  law.

  8

  9          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
10                              SB 658

11

12  Amends s. 626.916, F.S., to allow surplus lines agents to
    charge up to a $35 per-policy fee, rather than the "reasonable
13  fee" allowed by the bill and the $25 fee allowed under current
    law.
14
    Amends s. 626.918, F.S., to provide that the Florida Surplus
15  Lines Service Office, rather than a surplus lines agent, must
    request eligibility of a surplus lines insurer, as a condition
16  of Department of Insurance approval of an eligible surplus
    lines insurer.
17
    Amends s. 626.921, F.S., to delete the requirement that
18  insurers and adjusters notify the Florida Surplus Lines
    Service of each claim that is filed.
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