HB 1041 2003
   
1 A bill to be entitled
2          An act relating to a public records and public meetings
3    exemption for the Florida Automobile Joint Underwriting
4    Association; amending s. 627.311, F.S.; narrowing the
5    exemption for specified records and meetings of the
6    association; removing the exemption for matters reasonably
7    encompassed in privileged attorney-client communications;
8    making editorial changes; adding conforming language;
9    removing the October 2, 2003, repeal thereof scheduled
10    pursuant to the Open Government Sunset Review Act of 1995;
11    amending ss. 440.51 and 631.912, F.S.; correcting cross
12    references, to conform; providing an effective date.
13         
14          Be It Enacted by the Legislature of the State of Florida:
15         
16          Section 1. Notwithstanding the October 2, 2003, repeal of
17    paragraph (l) of subsection (3) of section 627.311, Florida
18    Statutes, scheduled pursuant to the Open Government Sunset
19    Review Act of 1995, subsection (3) of section 627.311, Florida
20    Statutes, is amended, and present subsections (4) and (5) of
21    said section are renumbered as subsections (5) and (6),
22    respectively, to read:
23          627.311 Joint underwriters and joint reinsurers; public
24    records and public meetings exemptions.--
25          (3) The officedepartmentmay, after consultation with
26    insurers licensed to write automobile insurance in this state,
27    approve a joint underwriting plan for purposes of equitable
28    apportionment or sharing among insurers of automobile liability
29    insurance and other motor vehicle insurance, as an alternate to the
30    plan required in s. 627.351(1). All insurers authorized to write
31    automobile insurance in this state shall subscribe to the plan and
32    participate therein. The plan shall be subject to continuous review
33    by the officedepartmentwhich may at any time disapprove the
34    entire plan or any part thereof if it determines that conditions
35    have changed since prior approval and that in view of the purposes
36    of the plan changes are warranted. Any disapproval by the office
37    department shall be subject to the provisions of chapter 120. The
38    Florida Automobile Joint Underwriting Association is created under
39    the plan.If adopted, The plan and the association created under
40    the plan:
41          (a) Must be subject to all provisions of s. 627.351(1),
42    except apportionment of applicants.
43          (b) May provide for one or more designated insurers, able
44    and willing to provide policy and claims service, to act on
45    behalf of all other insurers to provide insurance for applicants
46    who are in good faith entitled to, but unable to, procure
47    insurance through the voluntary insurance market at standard
48    rates.
49          (c) Must provide that designated insurers will issue
50    policies of insurance and provide policyholder and claims
51    service on behalf of all insurers for the joint underwriting
52    association.
53          (d) Must provide for the equitable apportionment among
54    insurers of losses and expenses incurred.
55          (e) Must provide that the joint underwriting association
56    will operate subject to the supervision and approval of a board
57    of governors consisting of 11 individuals, including 1 who will
58    be elected as chair. Five members of the board must be appointed
59    by the Chief Financial OfficerInsurance Commissioner. Two of
60    the officer’scommissioner'sappointees must be chosen from the
61    insurance industry. Any board member appointed by the Chief
62    Financial OfficerInsurance Commissionermay be removed and
63    replaced by her or him at any time without cause. Six members of
64    the board must be appointed by the participating insurers, two
65    of whom must be from the insurance agents' associations. All
66    board members, including the chair, must be appointed to serve
67    for 2-year terms beginning annually on a date designated by the
68    plan.
69          (f) Must provide that an agent appointed to a servicing
70    carrier must be a licensed general lines agent of an insurer
71    which is authorized to write automobile liability and physical
72    damage insurance in the state and which is actively writing such
73    coverage in the county in which the agent is located, or the
74    immediately adjoining counties, or an agent who places a volume
75    of other property and casualty insurance in an amount equal to
76    the premium volume placed with the Florida Joint Underwriting
77    Association. The officedepartmentmay, however, determine that
78    an agent may be appointed to a servicing carrier if, after
79    public hearing, the officedepartmentfinds that consumers in
80    the agent's operating area would not have adequate and
81    reasonable access to the purchase of automobile insurance if the
82    agent were not appointed to a servicing carrier.
83          (g) Must make available noncancelable coverage as provided
84    in s. 627.7275(2).
85          (h) Must provide for the furnishing of a list of insureds
86    and their mailing addresses upon the request of a member of the
87    association or an insurance agent licensed to place business
88    with an association member. The list must indicate whether the
89    insured is currently receiving a good driver discount from the
90    association. The plan may charge a reasonable fee to cover the
91    cost incurred in providing the list.
92          (i) Must not provide a renewal credit or discount or any
93    other inducement designed to retain a risk.
94          (j) Must not provide any other good driver credit or
95    discount that is not actuarially sound. In addition to other
96    criteria that the plan may specify, to be eligible for a good
97    driver credit, an insured must not have any criminal traffic
98    violations within the most recent 36-month period preceding the
99    date the discount is received.
100          (k) Shall have no liability, and no cause of action of any
101    nature shall arise against,any member insurer or its agents or
102    employees, agents or employees of the association, members of
103    the board of governors of the association, or the office
104    department or its representatives,for any action taken by them
105    in the performance of their duties or responsibilities under
106    this subsection. Such immunity does not apply to actions for or
107    arising out of breach of any contract or agreement pertaining to
108    insurance, or any willful tort.
109          (4) The Florida Automobile Joint Underwriting Association:
110          (a)(l)1. Shall keepbe subject to the public records
111    requirements of chapter 119 and the public meeting requirements
112    of s. 286.011. However, the following records of the Florida
113    Automobile Joint Underwriting Association areconfidential and
114    exempt from s. 119.07(1) and s. 24(a), Art. I of the State
115    Constitution:
116          1.a.Underwriting files, except that a policyholder or an
117    applicant shall have access to his or her own underwriting
118    files.
119          2.b.Claims files, until termination of all litigation and
120    settlement of all claims arising out of the same incident,
121    although portions of the claims files may remain exempt, as
122    otherwise provided by law. Confidential and exempt claims files
123    file records may be released to other governmental agencies in
124    the furtherance of their duties and responsibilities. The
125    receiving agency must maintain the confidential and exempt
126    status of the claims fileupon written request and demonstration
127    of need; such records held by the receiving agency remain
128    confidential and exempt as provided by this paragraph.
129          3.c.Records obtained or generated by an internal auditor
130    pursuant to a routine audit, until the audit is completed or, if
131    the audit is conducted as part of an investigation, until the
132    investigation is closed or ceases to be active. An investigation
133    is considered "active" while the investigation is being
134    conducted with a reasonable, good faith belief that it could
135    lead to the filing of administrative, civil, or criminal
136    proceedings.
137          d. Matters reasonably encompassed in privileged attorney-
138    client communications.
139          4.e.Proprietary information licensed to the association
140    under contract when the contract provides for the
141    confidentiality of such proprietaryinformation.
142          5.f.All information relating to the medical condition or
143    medical status of an association employee which is not relevant
144    to thattheemployee's capacity to perform his or her duties,
145    except as otherwise provided in this paragraph. Information
146    which is confidential andexempt shall include, but is not
147    limited to, information relating to workers' compensation,
148    insurance benefits, and retirement or disability benefits.
149          6.g. All records relatingrelativeto an employee's
150    participation in an employee assistance program designed to
151    assist any employee who has a behavioral or medical disorder,
152    substance abuse problem, or emotional difficulty which affects
153    the employee's job performance, except as otherwise provided in
154    s. 112.0455(11).
155          7.h.Information relating to negotiations for financing,
156    reinsurance, depopulation, or contractual services, until the
157    conclusion of the negotiations.
158          8.i. Minutes of closed meetings regarding confidential and
159    exempt underwriting files or confidential and exempt, and
160    minutes of closed meetings regarding an open claims filesfile
161    until termination of all litigation and settlement of all claims
162    with regard to that claim, except that information otherwise
163    madeconfidential or exempt by law must be redacted.
164         
165          When an authorized insurer is considering underwriting a risk
166    insured by the association, relevant confidential and exempt
167    underwriting files and confidential and exemptclaims files may
168    be released to the insurer,provided the insurer agrees in
169    writing, notarized and under oath, to maintain the confidential
170    and exempt statusconfidentialityof such files. When a file is
171    transferred to an insurer, that file is no longer a public
172    record because it is not held by an agency subject to the
173    provisions of the public records law. The association may make
174    the following information obtained from confidential and exempt
175    underwriting files and confidential and exemptclaims files
176    available to licensed general lines insurance agents: name,
177    address, and telephone number of the automobile owner or
178    insured; location of the risk; rating information; loss history;
179    and policy type. The receiving licensed general lines insurance
180    agent must maintainretain the confidential and exempt status
181    confidentialityof the information received.
182          (b)2.Shall keep portionsPortions of association meetings
183    of the Florida Automobile Joint Underwriting Associationduring
184    which confidential and exempt underwriting files or confidential
185    and exemptopen claims files are discussed areexempt from the
186    provisions of s. 286.011 and s. 24(b), Art. I of the State
187    Constitution. All closed portions of association meetings which
188    are closed to the publicshall be recorded by a court reporter.
189    The court reporter shall record the times of commencement and
190    termination of the meeting, all discussion and proceedings, the
191    names of all persons present at any time, and the names of all
192    persons speaking. No portion of any closed meeting shall be off
193    the record. Subject to the provisions of this paragraph and s.
194    119.07(2)(a), the court reporter's notes of any closed meeting
195    shall be retained by the association for a minimum of 5 years. A
196    copy of the transcript, less any confidential and exempt
197    informationmatters, of any closed meeting during which
198    confidential and exempt claims filesare discussed shall become
199    public as to individual claims files after settlement of that
200    theclaim.
201         
202          This paragraph is subject to the Open Government Sunset Review
203    Act of 1995 in accordance with s. 119.15, and shall stand
204    repealed on October 2, 2003, unless reviewed and saved from
205    repeal through reenactment by the Legislature.
206          Section 2. Paragraph (a) of subsection (13) of section
207    440.51, Florida Statutes, is amended to read:
208          440.51 Expenses of administration.--
209          (13) As used in s. 440.50 and this section, the term:
210          (a) "Plan" means the workers' compensation joint
211    underwriting plan provided for in s. 627.311(5)627.311(4).
212          Section 3. Subsection (3) of section 631.912, Florida
213    Statutes, is amended to read:
214          631.912 Board of directors.--
215          (3) Effective upon this act becoming a law, the persons on
216    the board of governorsdirectors created pursuant to s.
217    627.311(5)(b)627.311(4)(a)who evidence a willingness to serve
218    in writing, shall serve as an interim board of directors of the
219    corporation until the initial board of directors has been
220    appointed for the corporation in accordance with the provisions
221    of subsection (1). The interim board of directors shall serve
222    for a period not to exceed 6 months. The initial meeting shall
223    be called by the commissioner within 30 days after this act
224    becomes a law. The interim board of directors shall establish a
225    process for the selection of persons to serve on the board of
226    the Florida Workers' Compensation Insurance Guaranty Association
227    in accordance with the terms of subsection (1). The board of
228    directors shall adopt an interim plan of operation to effect the
229    merger in s. 631.911 and avoid any interruption of benefit
230    payments to injured workers. When necessary and upon approval of
231    the chairs of their respective board of directors, the Florida
232    Self-Insurance Fund Guaranty Association and the Florida
233    Insurance Guaranty Association shall provide staff support to
234    the interim board of directors. The board shall submit the
235    interim plan to the commissioner, who shall approve or
236    disapprove the plan within 30 days after receipt.
237          Section 4. This act shall take effect October 1, 2003.