Senate Bill sb1418c1

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    Florida Senate - 2002                           CS for SB 1418

    By the Committee on Banking and Insurance; and Senators Garcia
    and Campbell




    311-2075-02

  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

  9         participate in 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 participating

14         insurers; providing a plan of operation;

15         defining the terms "quota share primary

16         insurance" and "eligible risks"; authorizing

17         the corporation to enter into quota share

18         primary insurance agreements; providing for a

19         board of governors appointed by the Treasurer;

20         requiring the corporation to file quarterly

21         statements of financial condition and submit

22         other reports to the Department of Insurance;

23         providing that the corporation is not required

24         to obtain a certificate of authority from the

25         Department of Insurance; providing that the

26         corporation is not required to be a member of

27         the Florida Insurance Guaranty Association;

28         requiring the corporation to pay assessments

29         pledged by the association to secure bonds to

30         pay covered claims arising from insurer

31         insolvencies caused by hurricane losses;

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    Florida Senate - 2002                           CS for SB 1418
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  1         providing for transfer of policies of the

  2         association and the Florida Windstorm

  3         Underwriting Association to the corporation;

  4         providing for a transfer of assets and

  5         liabilities; requiring the associations to take

  6         actions necessary to further the transfers;

  7         providing for the redesignation of certain

  8         coverage as the high-risk account of the

  9         corporation; providing that such account be

10         treated as if it were a separate participating

11         insurer for certain purposes; providing that

12         the personal lines and commercial lines

13         accounts be treated as a single participating

14         insurer for certain purposes; providing that

15         the department may postpone the July 1, 2002,

16         effective date of transfer under the act;

17         providing legislative intent not to interfere

18         with the rights of creditors, to preserve the

19         obligation of the association, and to assure

20         that outstanding financing agreements pass

21         unchanged to the corporation; creating s.

22         627.3517, F.S.; preserving the right of a

23         residual-market policyholder to select and

24         maintain an agent of his or her own choice;

25         amending s. 215.555, F.S.; redefining the term

26         "losses"; providing an effective date.

27

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

29

30

31

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    Florida Senate - 2002                           CS for SB 1418
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  1         Section 1.  Subsection (6) of section 627.351, Florida

  2  Statutes, as amended by section 4 of chapter 2001-372, Laws of

  3  Florida, is amended to read:

  4         627.351  Insurance risk apportionment plans.--

  5         (6)  CITIZENS RESIDENTIAL PROPERTY INSURANCE

  6  CORPORATION AND CASUALTY JOINT UNDERWRITING ASSOCIATION.--

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

  8  catastrophic losses to property in this state from hurricanes

  9  have caused insurers to be unwilling or unable to provide

10  property insurance coverage to the extent sought and needed.

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

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

13  facilitate the remediation, reconstruction, and replacement of

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

15  negative effects otherwise resulting to the public health,

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

17  revenues of the state and local governments needed to provide

18  for the public welfare. It is necessary, therefore, to provide

19  property insurance to applicants who are in good faith

20  entitled to procure insurance through the voluntary market but

21  are unable to do so. The Legislature intends by this

22  subsection that property insurance be provided and that it

23  continues, as long as necessary, through an entity organized

24  to achieve efficiencies and economies, all toward the

25  achievement of the foregoing public purposes. Because it is

26  essential for the corporation to have the maximum financial

27  resources to pay claims following a catastrophic hurricane, it

28  is the intent of the Legislature that the income of the

29  corporation be exempt from federal income taxation and that

30  interest on the debt obligations issued by the corporation be

31  exempt from federal income taxation.

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    Florida Senate - 2002                           CS for SB 1418
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  1         2.  The Residential Property and Casualty Joint

  2  Underwriting Association originally created by this statute

  3  shall be known, as of July 1, 2002, as the Citizens Property

  4  Insurance Corporation. The corporation shall provide insurance

  5  for residential and commercial

  6         (a)  There is created a joint underwriting association

  7  for equitable apportionment or sharing among insurers of

  8  property and casualty insurance covering residential property,

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

10  to procure insurance through the voluntary market. The

11  corporation association shall operate pursuant to a plan of

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

13  subject to continuous review by the department. The department

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

15  the department determines that conditions have changed since

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

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

18  residential coverage includes both personal lines residential

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

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

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

22  lines residential coverage, which consists of the type of

23  coverage provided by condominium association, apartment

24  building, and similar policies.

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

26  subject lines of business in this state are subject to

27  assessment by the corporation and, for the purposes of this

28  subsection, are referred to collectively as "assessable

29  insurers." Insurers writing one or more subject lines of

30  business in this state pursuant to part VIII of chapter 626

31  are not assessable insurers, but insureds who procure one or

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    Florida Senate - 2002                           CS for SB 1418
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  1  more subject lines of business in this state pursuant to part

  2  VIII of chapter 626 are subject to assessment by the

  3  corporation and are referred to collectively as "assessable

  4  insureds." An authorized insurer's assessment liability, other

  5  than underwriting associations or other entities created under

  6  this section, must participate in and be members of the

  7  Residential Property and Casualty Joint Underwriting

  8  Association. A member's participation shall begin on the first

  9  day of the calendar year following the year in which the

10  insurer member was issued a certificate of authority to

11  transact insurance for subject lines of business in this state

12  and shall terminate 1 year after the end of the first calendar

13  year during which the insurer member no longer holds a

14  certificate of authority to transact insurance for subject

15  lines of business in this state.

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

17  expenses of the corporation association shall be divided into

18  three two separate accounts as follows:

19         (I)  A personal lines account for personal residential

20  policies issued by the corporation or issued by the

21  Residential Property and Casualty Joint Underwriting

22  Association and renewed by the corporation on risks that are

23  not located in areas eligible for coverage in the Florida

24  Windstorm Underwriting Association as those areas were defined

25  on January 1, 2002;

26         (II)  A commercial lines account for commercial

27  residential policies issued by the corporation or issued by

28  the Residential Property and Casualty Joint Underwriting

29  Association and renewed by the corporation on risks that are

30  not located in areas eligible for coverage in the Florida

31

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    Florida Senate - 2002                           CS for SB 1418
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  1  Windstorm Underwriting Association as those areas were defined

  2  on January 1, 2002; and

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

  4  policies and commercial residential and commercial

  5  nonresidential property policies issued by the corporation or

  6  transferred to the corporation on risks that are located in

  7  areas eligible for coverage in the Florida Windstorm

  8  Underwriting Association as those areas were defined on

  9  January 1, 2002. The high-risk account must also include quota

10  share primary insurance under subparagraph (c)2.

11         b.  The three separate accounts must be maintained as

12  long as financing obligations entered into by the Florida

13  Windstorm Underwriting Association or Residential Property and

14  Casualty Joint Underwriting Association are outstanding, in

15  accordance with the terms of the corresponding financing

16  documents. When the financing obligations are no longer

17  outstanding, in accordance with the terms of the corresponding

18  financing documents, the corporation may use a single account

19  for all revenues, assets, liabilities, losses, and expenses of

20  the corporation. , one of which is for personal lines

21  residential coverages and the other of which is for commercial

22  lines residential coverages.

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

24  not attributable to particular accounts coverages shall be

25  prorated among between the accounts.

26         d.  The Legislature finds that the revenues of the

27  corporation are revenues that are necessary to meet the

28  requirements set forth in documents authorizing the issuance

29  of bonds under this subsection.

30         e.  No part of the income of the corporation may inure

31  to the benefit of any private person.

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    Florida Senate - 2002                           CS for SB 1418
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  1         3.  With respect to a deficit in an account:

  2         a.  When the deficit incurred in a particular calendar

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

  4  direct written premium for the subject lines of business for

  5  the prior calendar year for all member insurers, the entire

  6  deficit shall be recovered through regular assessments of

  7  assessable member insurers under paragraph (g) and assessable

  8  insureds.

  9         b.  When the deficit incurred in a particular calendar

10  year exceeds 10 percent of the aggregate statewide direct

11  written premium for the subject lines of business for the

12  prior calendar year for all member insurers, the corporation

13  association shall levy regular assessments an assessment on

14  assessable member insurers under paragraph (g) and on

15  assessable insureds in an amount equal to the greater of 10

16  percent of the deficit or 10 percent of the aggregate

17  statewide direct written premium for the subject lines of

18  business for the prior calendar year for all member insurers.

19  Any remaining deficit shall be recovered through emergency

20  assessments under sub-subparagraph d.

21         c.  Each assessable member insurer's share of the

22  amount being assessed total assessment under sub-subparagraph

23  a. or sub-subparagraph b. shall be in the proportion that the

24  assessable member insurer's direct written premium for the

25  subject lines of business for the year preceding the

26  assessment bears to the aggregate statewide direct written

27  premium for the subject lines of business for that year for

28  all member insurers. The assessment percentage applicable to

29  each assessable insured is the ratio of the amount being

30  assessed under sub-subparagraph a. or sub-subparagraph b. to

31  the aggregate statewide direct written premium for the subject

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  1  lines of business for the prior year. Assessments levied by

  2  the corporation on assessable insurers under sub-subparagraphs

  3  a. and b. shall be paid as required by the corporation's plan

  4  of operation and paragraph (g). Assessments levied by the

  5  corporation on assessable insureds under sub-subparagraphs a.

  6  and b. shall be collected by the surplus lines agent at the

  7  time the surplus lines agent collects the surplus lines tax

  8  required by s. 626.932 and shall be paid to the Florida

  9  Surplus Lines Service Office at the time the surplus lines

10  agent pays the surplus lines tax to the Florida Surplus Lines

11  Service Office. Upon receipt of regular assessments from

12  surplus lines agents, the Florida surplus Lines Service Office

13  shall transfer the assessments directly to the corporation as

14  determined by the corporation.

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

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

17  recovered through regular assessments on member insurers under

18  sub-subparagraph a. or sub-subparagraph b., the board shall

19  levy, after verification by the department, emergency

20  assessments to be collected by assessable member insurers and

21  the corporation and collected from assessable insureds by

22  underwriting associations created under this section which

23  write subject lines of business upon issuance or renewal of

24  policies for subject lines of business, excluding National

25  Flood Insurance policies, in the year or years following levy

26  of the regular assessments.  The amount of the emergency

27  assessment collected in a particular year shall be a uniform

28  percentage of that year's direct written premium for subject

29  lines of business and all accounts of the corporation for all

30  member insurers and underwriting associations, excluding

31  National Flood Insurance Program policy premiums, as annually

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    Florida Senate - 2002                           CS for SB 1418
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  1  determined by the board and verified by the department. The

  2  department shall verify the arithmetic calculations involved

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

  4  the information on which the determination was based.

  5  Notwithstanding any other provision of law, the corporation

  6  and each assessable member insurer that and each underwriting

  7  association created under this section which writes subject

  8  lines of business shall collect emergency assessments from its

  9  policyholders without such obligation being affected by any

10  credit, limitation, exemption, or deferment. Emergency

11  assessments levied by the corporation on assessable insureds

12  shall be collected by the surplus lines agent at the time the

13  surplus lines agent collects the surplus lines tax required by

14  s. 626.932 and shall be paid to the Florida Surplus Lines

15  Service Office at the time the surplus lines agent pays the

16  surplus lines tax to the Florida Surplus Lines Service Office.

17  The emergency assessments so collected shall be transferred

18  directly to the corporation association on a periodic basis as

19  determined by the corporation association.  The aggregate

20  amount of emergency assessments levied under this

21  sub-subparagraph in any calendar year may not exceed the

22  greater of 10 percent of the amount needed to cover the

23  original deficit, plus interest, fees, commissions, required

24  reserves, and other costs associated with financing of the

25  original deficit, or 10 percent of the aggregate statewide

26  direct written premium for subject lines of business and for

27  all accounts of the corporation written by member insurers and

28  underwriting associations for the prior year, plus interest,

29  fees, commissions, required reserves, and other costs

30  associated with financing the original deficit.

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

  2  projected recoveries from the Florida Hurricane Catastrophe

  3  Fund, other insurance and reinsurance recoverables, market

  4  equalization surcharges and other surcharges, and other funds

  5  available to the corporation association as the source of

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

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

  8  or lines of credit or other financing mechanisms issued or

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

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

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

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

13  credit or other financing mechanisms is to provide additional

14  resources to assist the corporation association in covering

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

16  this subsection, the term "assessments" includes regular

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

18  subparagraph (g)1. and emergency assessments under

19  sub-subparagraph d. Emergency assessments collected under

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

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

22  commissions; however, failure to pay the emergency assessment

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

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

25  as any bonds issued or other indebtedness incurred with

26  respect to a deficit for which the assessment was imposed

27  remain outstanding, unless adequate provision has been made

28  for the payment of such bonds or other indebtedness pursuant

29  to the documents governing such bonds or other indebtedness.

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

31  of business" means insurance written by assessable insurers or

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  1  procured by assessable insureds on real or personal property,

  2  as defined in s. 624.604, including insurance for fire,

  3  industrial fire, allied lines, farmowners multiperil,

  4  homeowners multiperil, commercial multiperil, and mobile

  5  homes, and including liability coverage on all such insurance,

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

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

  8  than insurance on mobile homes used as permanent dwellings.

  9         g.  The Florida Surplus Lines Service Office shall

10  determine annually the aggregate statewide written premium in

11  subject lines of business procured by assessable insureds and

12  shall report that information to the corporation in a form and

13  at a time the corporation specifies to ensure that the

14  corporation can meet the requirements of this subsection and

15  the corporation's financing obligations.

16         h.  The Florida Surplus Lines Service Office shall

17  verify the proper application by surplus lines agents of

18  assessment percentages for regular assessments and emergency

19  assessments levied under this subparagraph on assessable

20  insureds and shall assist the corporation in ensuring the

21  accurate, timely collection and payment of assessments by

22  surplus lines agents as required by the corporation., with

23  respect to the personal lines account, any personal lines

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

25  commercial lines account, all commercial property and

26  commercial fire insurance.

27         (c)  The plan of operation of the corporation

28  association:

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

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

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

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  1  licensed agent shall be entitled to indicate the order of

  2  preference regarding who will service the business placed by

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

  4  preferences unless after consideration of other factors in

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

  6  capacity and fee arrangements, the association has reason to

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

  8  a different assignment.

  9         1.2.  Must provide for adoption of residential property

10  and casualty insurance policy forms and commercial residential

11  and nonresidential property insurance forms, which forms must

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

13  association shall adopt the following policy forms:

14         a.  Standard personal lines policy forms that including

15  wind coverage, which are comprehensive multiperil policies

16  providing what is generally considered to be full coverage of

17  a residential property equivalent similar to the coverage

18  provided in the private insurance market under an an HO-2,

19  HO-3, HO-4, or HO-6 policy.

20         b.  Standard personal lines policy forms without wind

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

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

23  coverage.

24         b.c.  Basic personal lines policy forms that including

25  wind coverage, which are policies similar to an HO-8 policy or

26  a dwelling fire policy that provide coverage meeting the

27  requirements of the secondary mortgage market, but which

28  coverage is more limited than the coverage under a standard

29  policy.

30         d.  Basic personal lines policy forms without wind

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

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  1  sub-subparagraph c. except that they do not include wind

  2  coverage.

  3         c.e.  Commercial lines residential policy forms

  4  including wind coverage that are generally similar to the

  5  basic perils of full coverage obtainable for commercial

  6  residential structures in the admitted voluntary market.

  7         d.  Commercial lines nonresidential property insurance

  8  forms that cover the peril of wind only. The form is

  9  applicable only to commercial lines nonresidential properties

10  located in areas eligible for coverage in the Florida

11  Windstorm Underwriting Association as those areas were defined

12  on January 1, 2002.

13         2.a.  Must provide that the corporation adopt a program

14  in which the corporation and authorized insurers enter into

15  quota share primary insurance agreements for hurricane

16  coverage, as defined in s. 627.4025(2)(a), for eligible risks,

17  and adopt property insurance forms for eligible risks which

18  cover the peril of wind only. As used in this subsection, the

19  term:

20         (I)  "Quota share primary insurance" means an

21  arrangement in which the primary hurricane coverage of an

22  eligible risk is provided in specified percentages by the

23  corporation and an authorized insurer. The corporation and

24  authorized insurer are each solely responsible for a specified

25  percentage of hurricane coverage of an eligible risk as set

26  forth in a quota share primary insurance agreement between the

27  corporation and an authorized insurer. The responsibility of

28  the corporation or authorized insurer to pay its specified

29  percentage of hurricane losses of an eligible risk, as set

30  forth in the quota share primary insurance agreement, may not

31  be altered by the inability of the other party to the

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  1  agreement to pay its specified percentage of hurricane losses.

  2  Eligible risks that are provided hurricane coverage through a

  3  quota share primary insurance arrangement must be provided

  4  policy forms that set forth the obligations of the corporation

  5  and authorized insurer under the arrangement, and that clearly

  6  specify the percentages of quota share primary insurance

  7  provided by the corporation and authorized insurer.

  8         (II)  "Eligible risks" means personal lines residential

  9  and commercial lines residential risks that meet the

10  underwriting criteria of the corporation and are located in

11  areas that were eligible for coverage by the Florida Windstorm

12  Underwriting Association on January 1, 2002.

13         b.  The corporation may enter into quota share primary

14  insurance agreements with authorized insurers at corporation

15  coverage levels of 90 percent and 50 percent.

16         c.  If the corporation determines that additional

17  coverage levels are necessary to maximize participation in

18  quota share primary insurance agreements by authorized

19  insurers, the corporation may establish additional coverage

20  levels. However, the corporation's quota share primary

21  insurance coverage level may not exceed 90 percent.

22         d.  Any quota share primary insurance agreement entered

23  into between an authorized insurer and the corporation must

24  provide for a uniform, specified percentage of coverage of

25  hurricane losses, by county or territory as set forth by the

26  corporation board, for all eligible risks of the authorized

27  insurer covered under the quota share primary insurance

28  agreement.

29         e.  Any quota share primary insurance agreement entered

30  into between an authorized insurer and the corporation is

31  subject to review and approval by the department.

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  1         f.  For all eligible risks covered under quota share

  2  primary insurance agreements, the exposure and coverage levels

  3  for both the corporation and authorized insurers shall be

  4  reported by the corporation to the Florida Hurricane

  5  Catastrophe Fund. For all policies of eligible risks covered

  6  under quota share primary insurance agreements, the

  7  corporation and the authorized insurer shall maintain complete

  8  and accurate records for the purpose of exposure and loss

  9  reimbursement audits as required by Florida Hurricane

10  Catastrophe Fund rules. The corporation and the authorized

11  insurer shall each maintain duplicate copies of policy

12  declaration pages and supporting claims documents.

13         g.  The rates charged by the corporation for covering

14  eligible personal lines residential risks under quota share

15  primary insurance agreements for the coverage levels in

16  sub-subparagraphs b. and c. must be derived from the

17  corporation's wind-only rates.

18         h.  The quota share primary insurance agreement between

19  the corporation and an authorized insurer must set forth the

20  specific terms under which coverage is provided, including,

21  but not limited to, the sale and servicing of policies issued

22  under the agreement by the insurance agent of the authorized

23  insurer producing the business, the reporting of information

24  concerning eligible risks, the payment of premium to the

25  corporation, and arrangements for the adjustment and payment

26  of hurricane claims incurred on eligible risks by the claims

27  adjuster and personnel of the authorized insurer. Entering

28  into a quota sharing insurance agreement between the

29  corporation and an authorized insurer shall be voluntary and

30  at the discretion of the authorized insurer.

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  1         f.  Commercial lines residential policy forms without

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

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

  4  coverage.

  5         3.  May provide that the corporation association may

  6  employ or otherwise contract with individuals or other

  7  entities to provide administrative or professional services

  8  that may be appropriate to effectuate the plan. The

  9  corporation association shall have the power to borrow funds,

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

11  have other powers reasonably necessary to effectuate the

12  requirements of this subsection. The corporation may, but is

13  not required to, seek judicial validation of its bonds or

14  other indebtedness under chapter 75. The corporation

15  association may issue bonds or incur other indebtedness, or

16  have bonds issued on its behalf by a unit of local government

17  pursuant to subparagraph (g)2., in the absence of a hurricane

18  or other weather-related event, upon a determination by the

19  corporation association, subject to approval by the

20  department, that such action would enable it to efficiently

21  meet the financial obligations of the corporation association

22  and that such financings are reasonably necessary to

23  effectuate the requirements of this subsection. The

24  corporation association is authorized to take all actions

25  needed to facilitate tax-free status for any such bonds or

26  indebtedness, including formation of trusts or other

27  affiliated entities. The corporation association shall have

28  the authority to pledge assessments, projected recoveries from

29  the Florida Hurricane Catastrophe Fund, other reinsurance

30  recoverables, market equalization and other surcharges, and

31  other funds available to the corporation association as

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

  2  10, Art. I of the State Constitution, prohibiting the

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

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

  5  impair any bond indenture or financing agreement or any

  6  revenue source committed by contract to such bond or other

  7  indebtedness.

  8         4.a.  Must require that the corporation association

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

10  governors consisting of 7 13 individuals from diverse

11  geographical areas of the state, appointed by the Treasurer.

12  The Treasurer shall designate one of the appointees as chair.

13  All board members serve at the pleasure of the Treasurer.,

14  including 1 who is elected as chair. The board shall consist

15  of:

16         a.  The insurance consumer advocate appointed under s.

17  627.0613.

18         b.  Five members designated by the insurance industry.

19         c.  Five consumer representatives appointed by the

20  Insurance Commissioner. Two of the consumer representatives

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

22  issued by the association, who are selected with consideration

23  given to reflecting the geographic balance of association

24  policyholders. Two of the consumer members must be individuals

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

26  the consumer members shall have expertise in the field of

27  mortgage lending.

28         d.  Two representatives of the insurance industry

29  appointed by the Insurance Commissioner. Of the two insurance

30  industry representatives appointed by the Insurance

31

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

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

  3

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

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

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

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

  8  board vacancy shall be filled for the unexpired term by the

  9  Treasurer. The Treasurer shall appoint a technical advisory

10  group to provide information and advice to the board of

11  governors in connection with the board's duties under this

12  subsection. The executive director and senior managers of the

13  corporation shall be engaged by the Treasurer and serve at the

14  pleasure of the Treasurer. The executive director is

15  responsible for employing other staff as the corporation may

16  require, subject to review and concurrence by the Office of

17  the Treasurer.

18         b.  To ensure the effective and efficient

19  implementation of this section, the Treasurer shall appoint

20  the board of governors by July 1, 2002. The board of governors

21  shall work in conjunction with the Residential Property

22  Insurance Market Coordinating Council to address appropriate

23  organizational, operational, and financial matters relating to

24  the corporation. In addition, after consultation with the

25  Residential Property Insurance Market Coordinating Council,

26  the Treasurer may postpone the implementation of the

27  provisions of paragraph (l) and any other provision of this

28  section related to the operation of the corporation for a

29  period not to exceed 180 days if the Treasurer determines that

30  phasing-in these provisions is necessary to ensure the

31  effective and efficient implementation of the corporation's

                                  18

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  1  operations or financing arrangements. However, the Treasurer

  2  may not affect any provision in paragraph (b) or any other

  3  provision of this section related to financing arrangements

  4  entered into by the Florida Windstorm Underwriting Association

  5  or the Florida Residential Property and Casualty Joint

  6  Underwriting Association and the ability of those entities or

  7  the corporation to service its debts and maintain the capacity

  8  to repay funds secured under those arrangements.

  9         5.  Must provide a procedure for determining the

10  eligibility of a risk for coverage, as follows:

11         a.  Subject to the provisions of s. 627.3517, with

12  respect to personal lines residential risks, if the risk is

13  offered full coverage from an authorized insurer at the

14  insurer's approved rate under either a standard policy

15  including wind coverage or, if consistent with the insurer's

16  underwriting rules as filed with the department, a basic

17  policy including wind coverage, the risk is not eligible for

18  any policy issued by the corporation association. If the risk

19  accepts an offer of coverage through the market assistance

20  plan or an offer of coverage through a mechanism established

21  by the corporation association before a policy is issued to

22  the risk by the corporation association or during the first 30

23  days of coverage by the corporation association, and the

24  producing agent who submitted the application to the plan or

25  to the corporation association is not currently appointed by

26  the insurer, the insurer shall either:

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

28  policy, for the first year, an amount which is the greater of

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

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

31  customary commission of the corporation; or

                                  19

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

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

  3  not less than 1 year and offer to pay the agent the insurer's

  4  usual and customary commission for the type of policy written.

  5  If the producing agent is unwilling or unable to accept

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

  7  agent in accordance with sub-sub-subparagraph (I). appoint the

  8  agent to service the risk or, if the insurer places the

  9  coverage through a new agent, require the new agent who then

10  writes the policy to pay not less than 50 percent of the first

11  year's commission to the producing agent who submitted the

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

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

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

15  agent in lieu of splitting the commission.

16

17  If the risk is not able to obtain any such offer, the risk is

18  eligible for either a standard policy including wind coverage

19  or a basic policy including wind coverage issued by the

20  corporation association; however, if the risk could not be

21  insured under a standard policy including wind coverage

22  regardless of market conditions, the risk shall be eligible

23  for a basic policy including wind coverage unless rejected

24  under subparagraph 8. The corporation association shall

25  determine the type of policy to be provided on the basis of

26  objective standards specified in the underwriting manual and

27  based on generally accepted underwriting practices.

28         b.  With respect to commercial lines residential risks,

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

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

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

                                  20

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

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

  3  mechanism established by the corporation association before a

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

  5  and the producing agent who submitted the application to the

  6  plan or the corporation association is not currently appointed

  7  by the insurer, the insurer shall either:

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

  9  policy, for the first year, an amount which is the greater of

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

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

12  customary commission of the corporation; or

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

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

15  not less than 1 year and offer to pay the agent the insurer's

16  usual and customary commission for the type of policy written.

17  If the producing agent is unwilling or unable to accept

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

19  agent in accordance with sub-sub-subparagraph (I). appoint the

20  agent to service the risk or, if the insurer places the

21  coverage through a new agent, require the new agent who then

22  writes the policy to pay not less than 50 percent of the first

23  year's commission to the producing agent who submitted the

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

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

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

27  of splitting the commission.

28

29  If the risk is not able to obtain any such offer, the risk is

30  eligible for a policy including wind coverage issued by the

31  corporation association.

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  1         c.  This subparagraph does not require the association

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

  3  which such coverage is available through the Florida Windstorm

  4  Underwriting Association.

  5         6.  Must include rules for classifications of risks and

  6  rates therefor.

  7         7.  Must provide that if premium and investment income

  8  for an account attributable to a particular calendar plan year

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

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

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

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

13  used for that purpose prior to assessing assessable member

14  insurers and assessable insureds as to any calendar plan year.

15         8.  Must provide objective criteria and procedures to

16  be uniformly applied for all applicants in determining whether

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

18  making this determination and in establishing the criteria and

19  procedures, the following shall be considered:

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

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

22  class; and

23         b.  Whether the uncertainty associated with the

24  individual risk is such that an appropriate premium cannot be

25  determined.

26

27  The acceptance or rejection of a risk by the corporation

28  association shall be construed as the private placement of

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

30

31

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  1         9.  Must provide that the corporation association shall

  2  make its best efforts to procure catastrophe reinsurance at

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

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

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

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

  7  account, or the high-risk account or by the Florida Windstorm

  8  Underwriting Association under sub-sub-subparagraph

  9  (2)(b)2.d.(I) or sub-sub-subparagraph (2)(b)2.d.(II), the

10  corporation association shall levy upon corporation

11  association policyholders in such account in its next rate

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

13  a market equalization surcharge in a percentage equal to the

14  total amount of such regular assessments divided by the

15  aggregate statewide direct written premium for subject lines

16  of business for member insurers for the prior calendar year.

17  Market equalization surcharges under this subparagraph are not

18  considered premium and are not subject to commissions, fees,

19  or premium taxes; however, failure to pay a market

20  equalization surcharge shall be treated as failure to pay

21  premium.

22         11.  The policies issued by the corporation association

23  must provide that, if the corporation association or the

24  market assistance plan obtains an offer from an authorized

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

26  standard policy including wind coverage or a basic policy

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

28  renewal coverage through the corporation association. However,

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

30  Underwriting Association coverage is available, such an offer

31  of a standard or basic policy terminates eligibility

                                  23

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

  2  Upon termination of eligibility, the association shall provide

  3  written notice to the policyholder and agent of record stating

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

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

  6  from an authorized insurer. Other provisions of the insurance

  7  code relating to cancellation and notice of cancellation do

  8  not apply to actions under this subparagraph.

  9         12.  Corporation Association policies and applications

10  must include a notice that the corporation association policy

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

12  policy issued by an authorized admitted insurer that does not

13  provide coverage identical to the coverage provided by the

14  corporation association. The notice shall also specify that

15  acceptance of corporation association coverage creates a

16  conclusive presumption that the applicant or policyholder is

17  aware of this potential.

18         13.  May establish, subject to approval by the

19  department, different eligibility requirements and operational

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

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

22  the eligibility requirements and operational procedures are

23  justified due to the voluntary market being sufficiently

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

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

26  to obtain insurance through the voluntary market through

27  ordinary methods would continue to have access to coverage

28  from the corporation association. When coverage is sought in

29  connection with a real property transfer, such requirements

30  and procedures shall not provide for an effective date of

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

                                  24

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

  2  applicable, the lender.

  3         14.  Must provide that, with respect to the high-risk

  4  account, any assessable insurer with a surplus as to

  5  policyholders of $25 million or less writing 25 percent or

  6  more of its total countrywide property insurance premiums in

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

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

  9  apportionment company. In no event shall a limited

10  apportionment company be required to participate in the

11  portion of any assessment, within the high-risk account,

12  pursuant to sub-subparagraph (b)3.a. or sub-subparagraph

13  (b)3.b. in the aggregate which exceeds $50 million after

14  payment of available high-risk account funds in any calendar

15  year. However, a limited apportionment company shall collect

16  from its policyholders any emergency assessment imposed under

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

18  department determines that any regular assessment will result

19  in an impairment of the surplus of a limited apportionment

20  company, the department may direct that all or part of such

21  assessment be deferred. However, there shall be no limitation

22  or deferment of an emergency assessment to be collected from

23  policyholders under sub-subparagraph (b)3.d.

24         15.  Must provide that the corporation appoint as its

25  licensed agents only those agents who also hold an appointment

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

27  the agent's initial appointment by the corporation is

28  authorized to write and is actually writing personal lines

29  residential property coverage, commercial residential property

30  coverage, or commercial nonresidential property coverage

31  within the state.

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

  2  rates for coverage provided by the corporation association be

  3  actuarially sound and not competitive with approved rates

  4  charged in the admitted voluntary market, so that the

  5  corporation association functions as a residual market

  6  mechanism to provide insurance only when the insurance cannot

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

  8  appropriate catastrophe loading factor that reflects the

  9  actual catastrophic exposure of the corporation association

10  and recognizes that the association has little or no capital

11  or surplus; and the association shall carefully review each

12  rate filing to assure that provider compensation is not

13  excessive.

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

15  corporation association for each line of business for personal

16  lines residential policies excluding rates for wind-only

17  policies shall be no lower than the average rates charged by

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

19  among the 20 insurers with the greatest total direct written

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

21  preceding year, except that with respect to mobile home

22  coverages, the average rates of the corporation association

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

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

25  the 5 insurers with the greatest total written premium for

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

27  year.

28         3.  Rates for personal lines residential wind-only

29  policies must be actuarially sound and not competitive with

30  approved rates charged by authorized insurers.

31

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  1         4.3.  Rates for commercial lines residential coverage

  2  shall not be subject to the requirements of subparagraph 2.,

  3  but shall be subject to all other requirements of this

  4  paragraph and s. 627.062.

  5         5.4.  Nothing in this paragraph shall require or allow

  6  the corporation association to adopt a rate that is inadequate

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

  8         6.5.  The association may require arbitration of a

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

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

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

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

13  no more often than quarterly.

14         7.  In addition to the rates otherwise determined

15  pursuant to this paragraph, the corporation shall impose and

16  collect an amount equal to the premium tax provided for in s.

17  624.509 to augment the financial resources of the corporation.

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

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

20  shall remain activated until coverage is deactivated pursuant

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

22  association shall be reactivated by order of the department

23  only under one of the following circumstances:

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

25  100 applications for coverage within a 3-month period, or 200

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

27  residential coverage, unless the market assistance plan

28  provides a quotation from admitted carriers at their filed

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

30  assistance plan application that is rejected because an

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

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

  2  in the minimum percentage calculation provided herein. In the

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

  4  determination by the department that the conditions of this

  5  subparagraph have been met for eligibility for coverage in the

  6  corporation association, any eligible risk may obtain coverage

  7  during the pendency of such challenge.

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

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

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

11  department that the emergency significantly affects the

12  availability of residential property insurance.

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

14  quarterly statements of financial condition, an annual

15  statement of financial condition, and audited financial

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

17  corporation shall report to the department monthly on the

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

19  policies in force, and shall submit other reports as the

20  department requires to carry out its oversight of the

21  corporation.

22         2.  The activities of the corporation association shall

23  be reviewed at least annually by the department to determine

24  whether board and, upon recommendation by the board or

25  petition of any interested party, coverage shall be

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

27  that the conditions giving rise to its activation no longer

28  exist.

29         (g)1.  The corporation board shall certify to the

30  department its needs for annual assessments as to a particular

31  calendar year, and for any startup or interim assessments that

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  1  it deems to be necessary to sustain operations as to a

  2  particular year pending the receipt of annual assessments.

  3  Upon verification, the department shall approve such

  4  certification, and the corporation board shall levy such

  5  annual, startup, or interim assessments. Such assessments

  6  shall be prorated as provided in paragraph (b). The

  7  corporation board shall take all reasonable and prudent steps

  8  necessary to collect the amount of assessment due from each

  9  assessable participating member insurer, including, if

10  prudent, filing suit to collect such assessment. If the

11  corporation board is unable to collect an assessment from any

12  assessable member insurer, the uncollected assessments shall

13  be levied as an additional assessment against the assessable

14  participating member insurers and any assessable participating

15  member insurer required to pay an additional assessment as a

16  result of such failure to pay shall have a cause of action

17  against such nonpaying assessable member insurer. Assessments

18  shall be included as an appropriate factor in the making of

19  rates. The failure of a surplus lines agent to collect and

20  remit any regular or emergency assessment levied by the

21  corporation is considered to be a violation of s. 626.936 and

22  subjects the surplus lines agent to the penalties provided in

23  that section.

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

25  any residents of which are insured by the corporation

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

27  166.101 from time to time to fund an assistance program, in

28  conjunction with the corporation association, for the purpose

29  of defraying deficits of the corporation association. In order

30  to avoid needless and indiscriminate proliferation,

31  duplication, and fragmentation of such assistance programs,

                                  29

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

  2  insured by the corporation association, may provide for the

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

  4  occurred within or outside of the territorial jurisdiction of

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

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

  7  is declared by executive order or proclamation of the Governor

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

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

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

11  welfare of residents of this state and the protection and

12  preservation of the economic stability of insurers operating

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

14  permit certain municipalities or counties to issue such bonds

15  as will permit relief to claimants and policyholders of the

16  corporation joint underwriting association and insurers

17  responsible for apportionment of association losses. Any such

18  unit of local government may enter into such contracts with

19  the corporation association and with any other entity created

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

21  paragraph. Any bonds issued under this subparagraph shall be

22  payable from and secured by moneys received by the corporation

23  association from emergency assessments under sub-subparagraph

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

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

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

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

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

29  unsold 60 days after issuance, the department shall require

30  all insurers subject to assessment to purchase the bonds,

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

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  1  be required to purchase that percentage of the unsold portion

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

  3  assessment liability under this subsection. An insurer shall

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

  5  department determines that the purchase would endanger or

  6  impair the solvency of the insurer.

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

  8  exemptions provided under s. 627.3511, The corporation board

  9  shall adopt one or more programs a program subject to approval

10  by the department for the reduction of both new and renewal

11  writings in the corporation association. The corporation board

12  may consider any prudent and not unfairly discriminatory

13  approach to reducing corporation association writings, and may

14  but must adopt at least a credit against assessment liability

15  or other liability that provides an incentive for insurers to

16  take risks out of the corporation association and to keep

17  risks out of the corporation association by maintaining or

18  increasing voluntary writings in counties or areas in which

19  corporation association risks are highly concentrated and a

20  program to provide a formula under which an insurer

21  voluntarily taking risks out of the corporation association by

22  maintaining or increasing voluntary writings will be relieved

23  wholly or partially from assessments under sub-subparagraphs

24  (b)3.a. and b. When the corporation enters into a contractual

25  agreement for a take-out plan, the producing agent of record

26  of the corporation policy is entitled to retain any unearned

27  commission on such policy, and the insurer shall either:

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

29  policy, for the first year, an amount which is the greater of

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

31

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

  2  customary commission of the corporation; or

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

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

  5  not less than 1 year and offer to pay the agent the insurer's

  6  usual and customary commission for the type of policy written.

  7  If the producing agent is unwilling or unable to accept

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

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

10         b.  Any credit or exemption from regular assessments

11  adopted under this subparagraph shall last no longer than the

12  3 years following the cancellation or expiration of the policy

13  by the corporation association. With the approval of the

14  department, the board may extend such credits for an

15  additional year if the insurer guarantees an additional year

16  of renewability for all policies removed from the corporation

17  association, or for 2 additional years if the insurer

18  guarantees 2 additional years of renewability for all policies

19  so removed.

20         c.  There shall be no credit, limitation, exemption, or

21  deferment from emergency assessments to be collected from

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

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

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

25  insurer, other than an emergency assessment collected from

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

27  department finds that payment of the assessment would endanger

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

29  assessment against an assessable a member insurer is deferred

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

31  deferred may be assessed against the other assessable member

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  1  insurers in a manner consistent with the basis for assessments

  2  set forth in paragraph (b).

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

  4  preclude the issuance of residential property insurance

  5  coverage pursuant to part VIII of chapter 626.

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

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

  8  assessable member insurer or its agents or employees, the

  9  corporation association or its agents or employees, members of

10  the board of governors or their respective designees at a

11  board meeting, corporation association committee members, or

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

13  them in the performance of their duties or responsibilities

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

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

16  willful tort;

17         2.  The corporation association or its servicing or

18  producing agents for breach of any contract or agreement

19  pertaining to insurance coverage;

20         3.  The corporation association with respect to

21  issuance or payment of debt; or

22         4.  Any assessable member insurer with respect to any

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

24  to the corporation association under this subsection.

25         (j)  The Residential Property and Casualty Joint

26  Underwriting Association is not a state agency, board, or

27  commission. However, For the purposes of s. 199.183(1), the

28  corporation Residential Property and Casualty Joint

29  Underwriting Association shall be considered a political

30  subdivision of the state and shall be exempt from the

31  corporate income tax. The premiums, assessments, investment

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  1  income, and other revenue of the corporation are funds

  2  received for providing property insurance coverage as required

  3  by this subsection, paying claims for Florida citizens insured

  4  by the corporation, securing and repaying debt obligations

  5  issued by the corporation, and conducting all other activities

  6  of the corporation, and shall not be considered taxes, fees,

  7  licenses, or charges for services imposed by the Legislature

  8  on individuals, businesses, or agencies outside state

  9  government. Bonds and other debt obligations issued by or on

10  behalf of the corporation are not to be considered "State

11  bonds" within the meaning of s. 215.58(10). The corporation is

12  not subject to the procurement provisions of chapter 287, and

13  policies and decisions of the corporation relating to

14  incurring debt, levying of assessments and the sale, issuance,

15  continuation, terms and claims under corporation policies, and

16  all services relating thereto, are not subject to the

17  provisions of chapter 120. The corporation is not required to

18  obtain or to hold a certificate of authority issued by the

19  department, nor is it required to participate as a member

20  insurer of the Florida Insurance Guaranty Association.

21  However, the corporation is required to pay, in the same

22  manner as an authorized insurer, assessments pledged by the

23  Florida Insurance Guaranty Association to secure bonds issued

24  or other indebtedness incurred to pay covered claims arising

25  from insurer insolvencies caused by, or proximately related

26  to, hurricane losses. It is the intent of the Legislature that

27  the tax exemptions provided in this paragraph will augment the

28  financial resources of the corporation to better enable the

29  corporation to fulfill its public purposes. Any bonds issued

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

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

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

  2  political subdivision or local unit or other instrumentality

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

  4  imposed by chapter 200 on interest, income, or profits on debt

  5  obligations owned by corporations other than the corporation.

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

  7  governors that the conditions giving rise to the establishment

  8  and activation of the corporation association no longer exist,

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

10  corporation association is dissolved. Upon dissolution, the

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

12  debts, liabilities, and obligations of the corporation

13  association, including the establishment of reasonable

14  reserves for any contingent liabilities or obligations, and

15  all remaining assets of the corporation association shall

16  become property of the state and deposited in the Florida

17  Hurricane Catastrophe Fund.

18         (l)1.  Effective July 1, 2002, policies of the

19  Residential Property and Casualty Joint Underwriting

20  Association shall become policies of the corporation. All

21  obligations, rights, assets and liabilities of the Residential

22  Property and Casualty Joint Underwriting Association,

23  including bonds, note and debt obligations, and the financing

24  documents pertaining to them become those of the corporation

25  as of July 1, 2002. The corporation is not required to issue

26  endorsements or certificates of assumption to insureds during

27  the remaining term of in-force transferred policies.

28         2.  Effective July 1, 2002, policies of the Florida

29  Windstorm Underwriting Association are transferred to the

30  corporation and shall become policies of the corporation. All

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

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  1  Windstorm Underwriting Association, including bonds, note, and

  2  debt obligations, and the financing documents pertaining to

  3  them are transferred to and assumed by the corporation on July

  4  1, 2002. The corporation is not required to issue endorsement

  5  or certificates of assumption to insureds during the remaining

  6  term of in-force transferred policies.

  7         3.  The Florida Windstorm Underwriting Association and

  8  the Residential Property and Casualty Joint Underwriting

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

10  evidence the transfers and shall provide the documents and

11  instruments of further assurance as may reasonably be

12  requested by the corporation for that purpose. The corporation

13  shall execute assumptions and instruments as the trustees or

14  other parties to the financing documents of the Florida

15  Windstorm Underwriting Association or the Residential Property

16  and Casualty Joint Underwriting Association may reasonably

17  request to further evidence the transfers and assumptions,

18  which transfers and assumptions, however, are effective on the

19  date provided under this paragraph whether or not, and

20  regardless of the date on which, the assumptions or

21  instruments are executed by the corporation. Subject to the

22  relevant financing documents pertaining to their outstanding

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

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

25  other intangibles of the Florida Windstorm Underwriting

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

27  corporation, and those of the personal lines residential

28  coverage account and the commercial lines residential coverage

29  account of the Residential Property and Casualty Joint

30  Underwriting Association shall be credited to the personal

31

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  1  lines account and the commercial lines account, respectively,

  2  of the corporation.

  3         4.  Effective July 1, 2002, a new applicant for

  4  property insurance coverage who would otherwise have been

  5  eligible for coverage in the Florida Windstorm Underwriting

  6  Association is eligible for coverage from the corporation as

  7  provided in this subsection.

  8         5.  The transfer of all policies, obligations, rights,

  9  assets, and liabilities from the Florida Windstorm

10  Underwriting Association to the corporation and the renaming

11  of the Residential Property and Casualty Joint Underwriting

12  Association as the corporation shall in no way affect the

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

14  215.555(2)(c) provided to these entities by the Florida

15  Hurricane Catastrophe Fund. The coverage provided by the

16  Florida Hurricane Catastrophe Fund to the Florida Windstorm

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

18  2002, and each June 30 thereafter shall be redesignated as

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

20  coverage provided by the Florida Hurricane Catastrophe Fund to

21  the Residential Property and Casualty Joint Underwriting

22  Association based on its exposures as of June 30, 2002, and

23  each June 30 thereafter shall be transferred to the personal

24  lines account and the commercial lines account of the

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

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

27  separate participating insurer with its own exposures,

28  reimbursement premium, and loss reimbursement. Likewise, the

29  personal lines and commercial lines accounts shall be viewed

30  together, for all Florida Hurricane Catastrophe Fund purposes,

31  as if the two accounts were one and represent a single,

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  1  separate participating insurer with its own exposures,

  2  reimbursement premium, and loss reimbursement. The coverage

  3  provided by the Florida Hurricane Catastrophe Fund to the

  4  corporation shall constitute and operate as a full transfer of

  5  coverage from the Florida Windstorm Underwriting Association

  6  and Residential Property and Casualty Joint Underwriting to

  7  the corporation.

  8         6.  The department may, by order, postpone the July 1,

  9  2002, effective dates set forth in this paragraph if the

10  department finds that effectuation of these dates cannot be

11  accomplished due to emergency conditions. All obligations,

12  rights, assets, and liabilities of the Florida Property and

13  Casualty Joint Underwriting Association created by subsection

14  (5), which obligations, rights, assets, or liabilities relate

15  to the provision of commercial lines residential property

16  insurance coverage as described in this section are hereby

17  transferred to the Residential Property and Casualty Joint

18  Underwriting Association. The Residential Property and

19  Casualty Joint Underwriting Association is not required to

20  issue endorsements or certificates of assumption to insureds

21  during the remaining term of in-force transferred policies.

22         (m)  Notwithstanding any other provision of law:

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

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

25  the corporation association created or purported to be created

26  pursuant to any financing documents to secure any bonds or

27  other indebtedness of the corporation association shall be and

28  remain valid and enforceable, notwithstanding the commencement

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

30  rehabilitation, insolvency, liquidation, bankruptcy,

31  receivership, conservatorship, reorganization, or similar

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  1  proceeding against the corporation association under the laws

  2  of this state.

  3         2.  No such proceeding shall relieve the corporation

  4  association of its obligation, or otherwise affect its ability

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

  6  collect, assessments, market equalization or other surcharges

  7  under subparagraph (c)10., or any other rights, revenues, or

  8  other assets of the corporation association pledged pursuant

  9  to any financing documents.

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

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

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

13  equalization or other surcharges, or other rights, revenues,

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

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

16  after, any such proceeding shall continue unaffected by such

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

18  documents" means any agreement or agreements, instrument or

19  instruments, or other document or documents now existing or

20  hereafter created evidencing any bonds or other indebtedness

21  of the corporation association or pursuant to which any such

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

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

24  corporation association are pledged or sold to secure the

25  repayment of such bonds or indebtedness, together with the

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

27  payment of any other obligation or financial product, as

28  defined in the plan of operation of the corporation

29  association related to such bonds or indebtedness.

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

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

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  1  association shall constitute a lien and security interest, or

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

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

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

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

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

  7  corporation association or other entity making such pledge or

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

  9  competing claims or obligations owed to any other person or

10  entity, including policyholders in this state, asserting

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

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

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

14  the applicable financing documents, whether or not any such

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

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

17  other action.

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

19  Residential Property and Casualty Joint Underwriting

20  Association are confidential and exempt from the provisions of

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

22         a.  Underwriting files, except that a policyholder or

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

24  files.

25         b.  Claims files, until termination of all litigation

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

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

28  otherwise provided by law. Confidential and exempt claims file

29  records may be released to other governmental agencies upon

30  written request and demonstration of need; such records held

31

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  1  by the receiving agency remain confidential and exempt as

  2  provided for herein.

  3         c.  Records obtained or generated by an internal

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

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

  6  investigation, until the investigation is closed or ceases to

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

  8  investigation is being conducted with a reasonable, good faith

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

10  civil, or criminal proceedings.

11         d.  Matters reasonably encompassed in privileged

12  attorney-client communications.

13         e.  Proprietary information licensed to the corporation

14  association under contract and the contract provides for the

15  confidentiality of such proprietary information.

16         f.  All information relating to the medical condition

17  or medical status of a corporation an association employee

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

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

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

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

22  insurance benefits, and retirement or disability benefits.

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

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

25  behavioral or medical disorder, substance abuse problem, or

26  emotional difficulty which affects the employee's job

27  performance, all records relative to that participation shall

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

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

30  otherwise provided in s. 112.0455(11).

31

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  1         h.  Information relating to negotiations for financing,

  2  reinsurance, depopulation, or contractual services, until the

  3  conclusion of the negotiations.

  4         i.  Minutes of closed meetings regarding underwriting

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

  6  file until termination of all litigation and settlement of all

  7  claims with regard to that claim, except that information

  8  otherwise confidential or exempt by law will be redacted.

  9

10  When an authorized insurer is considering underwriting a risk

11  insured by the corporation association, relevant underwriting

12  files and confidential claims files may be released to the

13  insurer provided the insurer agrees in writing, notarized and

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

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

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

17  subject to the provisions of the public records law.

18  Underwriting files and confidential claims files may also be

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

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

21  retain the confidentiality of such files, except such files

22  may be released to authorized insurers that are considering

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

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

25  maintain the confidentiality of such files.  Finally, the

26  corporation association or the board or staff of the market

27  assistance plan may make the following information obtained

28  from underwriting files and confidential claims files

29  available to licensed general lines insurance agents: name,

30  address, and telephone number of the residential property

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

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

  2  lines insurance agent must retain the confidentiality of the

  3  information received.

  4         2.  Portions of meetings of the corporation Residential

  5  Property and Casualty Joint Underwriting Association are

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

  7  of the State Constitution wherein confidential underwriting

  8  files or confidential open claims files are discussed.  All

  9  portions of corporation association meetings which are closed

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

11  court reporter shall record the times of commencement and

12  termination of the meeting, all discussion and proceedings,

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

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

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

16  119.07(2)(a), the court reporter's notes of any closed meeting

17  shall be retained by the corporation association for a minimum

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

19  of any closed meeting wherein claims are discussed shall

20  become public as to individual claims after settlement of the

21  claim.

22         (o)  In enacting the provisions of this section, the

23  Legislature recognizes that both the Florida Windstorm

24  Underwriting Association and the Residential Property and

25  Casualty Joint Underwriting Association have entered into

26  financing arrangements that obligate each entity to service

27  its debts and maintain the capacity to repay funds secured

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

29  Legislature that nothing in this section be construed to

30  compromise, diminish, or interfere with the rights of

31  creditors under such financing arrangements. It is further the

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  1  intent of the Legislature to preserve the obligations of the

  2  Florida Windstorm Underwriting Association and Residential

  3  Property and Casualty Joint Underwriting Association with

  4  regard to outstanding financing arrangements, with such

  5  obligations passing entirely and unchanged to the corporation.

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

  7  obligations of the Florida Windstorm Underwriting Association

  8  or the Residential Property and Casualty Joint Underwriting

  9  Association are outstanding, under the terms of the financing

10  documents pertaining to them, the governing board of the

11  corporation shall have and shall exercise the authority to

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

13  surcharges, charges, revenues and receipts that the

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

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

16  (6), respectively, as they existed on January 1, 2002, to the

17  extent necessary to provide moneys, together with other

18  available moneys of the corporation without exercise of the

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

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

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

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

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

24  lien thereon securing such outstanding bonds, notes,

25  indebtedness, or other financing obligations will not be

26  diminished, impaired, or adversely affected by the amendments

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

28  of financing documents pertaining to such bonds, notes,

29  indebtedness, or other financing obligations, or the security

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

31  subsection to bonds, notes, indebtedness, financing

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  1  obligations, or similar obligations, of the corporation shall

  2  include like instruments or contracts of the Florida Windstorm

  3  Underwriting Association and the Residential Property and

  4  Casualty Joint Underwriting Association to the extent not

  5  inconsistent with the provisions of the financing documents

  6  pertaining to them.

  7         Section 2.  Section 627.3517, Florida Statutes, is

  8  created to read:

  9         627.3517  Consumer choice.--No provision of s. 627.351,

10  s. 627.3511, or s. 627.3515 shall be construed to impair the

11  right of any insurance risk apportionment plan policyholder,

12  upon receipt of any keepout or takeout offer, to retain his or

13  her current agent, so long as that agent is duly licensed and

14  appointed by the insurance risk apportionment plan or

15  otherwise authorized to place business with the insurance risk

16  apportionment plan. This right shall not be cancelled,

17  suspended, impeded, abridged, or otherwise compromised by any

18  rule, plan of operation, or depopulation plan, whether through

19  keepout, takeout, midterm assumption, or any other means, of

20  any insurance risk apportionment plan or depopulation plan,

21  including, but not limited to, those described in s. 627.351,

22  s. 627.3511, or s. 627.3515. The department shall adopt any

23  rules necessary to cause any insurance risk apportionment plan

24  or market assistance plan under such sections to demonstrate

25  that the operations of the plan do not interfere with,

26  promote, or allow interference with the rights created under

27  this section. If the policyholder's current agent is unable or

28  unwilling to be appointed with the insurer making the takeout

29  or keepout offer, the policyholder shall not be disqualified

30  from participation in the appropriate insurance risk

31  apportionment plan because of an offer of coverage in the

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  1  voluntary market. Any rule, plan of operation, or plan of

  2  depopulation, through keepout, takeout, midterm assumption, or

  3  any other means, of any property insurance risk apportionment

  4  plan under s. 627.351(2) or s. 627.351(6) is subject to ss.

  5  627.351(2)(b), 627.351(6)(c), and 627.3511(4).

  6         Section 3.  Paragraph (d) of subsection (2) of section

  7  215.555, Florida Statutes, is amended to read:

  8         215.555  Florida Hurricane Catastrophe Fund.--

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

10         (d)  "Losses" means direct incurred losses under

11  covered policies, including up to 20 percent of the value of

12  the residential structure or up to 40 percent of the value of

13  the residental contents for excluding losses attributable to

14  additional living expense coverages on mobile homes and

15  personal residential exposures, but excluding fair rental

16  value losses associated with personal and commercial

17  residential exposures and business interruption losses

18  associated with commercial residential exposures, and also

19  excluding loss adjustment expenses.

20         Section 4.  This act shall take effect July 1, 2002.

21

22          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
23                         Senate Bill 1418

24

25  Provides that entering into a quota share primary insurance
    agreement is voluntary and at the discretion of an authorized
26  insurer.

27  Clarifies that the "consumer choice" protections of the bill
    apply to insurance risk apportionment plan policyholders;
28  limits such protections to current agents who are licensed and
    appointed by insurance risk apportionment plans; and,
29  specifies that the insurance agent commissions apply to the
    Citizens Property Insurance Corporation and other specified
30  risk apportionment plans.

31  Requires the Florida Hurricane Catastrophe Fund to cover
    losses attributable to additional living expense coverages.
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