ENROLLED HB 1041 2003 Legislature
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.