Senate Bill sb1766

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2003                                  SB 1766

    By Senator Alexander





    17-1104-03                                          See HB 693

  1                      A bill to be entitled

  2         An act relating to the Florida Workers'

  3         Compensation Insurance Guaranty Association,

  4         Incorporated; amending s. 631.904, F.S.;

  5         revising definitions; amending s. 631.913,

  6         F.S.; limiting the corporation's obligation for

  7         a covered claim for return of unearned premium;

  8         amending s. 631.923, F.S.; authorizing the

  9         corporation to recover the amount of certain

10         covered claims; amending s. 631.924, F.S.;

11         including insolvent insurers under provisions

12         for a stay of proceedings; creating s. 631.933,

13         F.S.; providing severability; providing an

14         effective date.

15

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

17

18         Section 1.  Section 631.904, Florida Statutes, is

19  amended to read:

20         631.904  Definitions.--As used in this part, the term:

21         (1)  "Affiliate" means a person who directly, or

22  indirectly through one or more intermediaries, controls, is

23  controlled by, or is under common control with a specified

24  person on December 31 of the year prior to the year in which

25  the insurer becomes an insolvent insurer.

26         (2)  "Control" means the possession, direct or

27  indirect, of the power to direct or cause the direction of the

28  management and policies of a person, whether through the

29  ownership of voting securities, the holding of proxies by

30  contract other than a commercial contract for goods or

31  nonmanagement services, or otherwise, unless the power is

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    Florida Senate - 2003                                  SB 1766
    17-1104-03                                          See HB 693




  1  solely the result of an official position with or corporate

  2  office held by the person. Control shall be presumed to exist

  3  if a person, directly or indirectly, owns, controls, holds

  4  with the power to vote, or holds proxies representing 10

  5  percent or more of the voting securities or voting power of

  6  any other person. This presumption may be rebutted by a

  7  showing that control does not exist in fact.

  8         (3)(1)  "Corporation" means the Florida Workers'

  9  Compensation Insurance Guaranty Association, Incorporated.

10         (4)(2)  "Covered claim" means an unpaid claim,

11  including a claim for return of unearned premiums, which

12  arises out of, is within the coverage of, and is not in excess

13  of the applicable limits of, an insurance policy to which this

14  part applies, which policy was issued by an insurer and which

15  claim is made on behalf of a claimant or insured who was a

16  resident of this state at the time of the injury. The term

17  "covered claim" does not include:

18         (a)  Any amount sought as a return of premium under any

19  retrospective rating plan;

20         (b)  Any amount due any reinsurer, insurer, insurance

21  pool, or underwriting association, as subrogation recoveries

22  or otherwise; or

23         (c)  Any return of premium resulting from a policy that

24  was not in force on the date of the final order of

25  liquidation; or

26         (d)  Any claim by or against an insured whose net worth

27  exceeds $25 million on December 31 of the year prior to the

28  year in which the insurer becomes an insolvent insurer,

29  provided an insured's net worth on that date shall be deemed

30  to include the aggregate net worth of the insured and all of

31  its subsidiaries and affiliates as calculated on a

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    Florida Senate - 2003                                  SB 1766
    17-1104-03                                          See HB 693




  1  consolidated basis. However, the exclusion under this

  2  paragraph shall not apply to claims against an insured that is

  3  a governmental entity or an insured if:

  4         1.  The insured has:

  5         a.  Applied for or consented to the appointment of a

  6  receiver, trustee, or liquidator for all or a substantial part

  7  of its assets;

  8         b.  Filed a voluntary petition in bankruptcy; or

  9         c.  Filed a petition or an answer seeking

10  reorganization or arrangement with creditors or to take

11  advantage of any insolvency law; or

12         2.  An order, judgment, or decree is entered by a court

13  of competent jurisdiction, on the application of a creditor,

14  adjudicating the insured bankrupt or insolvent or approving a

15  petition seeking reorganization of the insured or all or a

16  substantial part of its assets.

17

18  Member insurers have no right of subrogation against the

19  insured of any insolvent insurer. This provision shall be

20  applied retroactively to cover claims of an insolvent

21  self-insurance fund resulting from accidents or losses

22  incurred prior to January 1, 1994, regardless of the date the

23  Department of Insurance filed a petition in circuit court

24  alleging insolvency and the date the court entered an order

25  appointing a receiver.

26         (5)(3)  "Department" means the Department of Insurance.

27         (6)  "Governmental entity" means any state, county,

28  municipality, or special district or any subdivision or agency

29  of a state, county, or municipality.

30         (7)(4)  "Insolvency" means that condition in which all

31  of the assets of the insurer, if made immediately available,

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    Florida Senate - 2003                                  SB 1766
    17-1104-03                                          See HB 693




  1  would not be sufficient to discharge all of its liabilities or

  2  that condition in which the insurer is unable to pay its debts

  3  as they become due in the usual course of business. When the

  4  context of any provision of this part so indicates, insolvency

  5  also includes impairment of surplus or impairment of capital.

  6         (8)(5)  "Insolvent insurer" means an insurer that was

  7  authorized to transact insurance in this state, either at the

  8  time the policy was issued or when the insured event occurred,

  9  and against which an order of liquidation with a finding of

10  insolvency has been entered by a court of competent

11  jurisdiction if such order has become final by the exhaustion

12  of appellate review.

13         (9)(6)  "Insurer" means an insurance carrier or

14  self-insurance fund authorized to insure under chapter 440.

15  For purposes of this act, "insurer" does not include a

16  qualified local government self-insurance fund, as defined in

17  s. 624.4622, or an individual self-insurer as defined in s.

18  440.385.

19         (10)(7)  "Self-insurance fund" means a group

20  self-insurance fund authorized under s. 624.4621, a commercial

21  self-insurance fund writing workers' compensation insurance

22  authorized under s. 624.462, or an assessable mutual insurer

23  authorized under s. 628.6011. For purposes of this act,

24  "self-insurance fund" does not include a qualified local

25  government self-insurance fund, as defined in s. 624.4622, or

26  an individual self-insurer as defined in s. 440.385.

27         Section 2.  Subsection (1) of section 631.913, Florida

28  Statutes, is amended to read:

29         631.913  Powers and duties of the corporation.--

30         (1)  The corporation is obligated to the extent of the

31  full amount of the covered claims:

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    Florida Senate - 2003                                  SB 1766
    17-1104-03                                          See HB 693




  1         (a)  Existing before the adjudication of insolvency and

  2  arising within 30 days after the determination of insolvency;

  3         (b)  Existing before the policy expiration date if less

  4  than 30 days after the determination of insolvency; or

  5         (c)  Existing before the insured replaces the policy or

  6  causes its cancellation, if the insured does so within 30 days

  7  after the determination of insolvency.

  8

  9  Notwithstanding such criteria, the corporation's obligation

10  for a covered claim for the return of unearned premium shall

11  not exceed $50,000 per policy. In addition, the corporation is

12  not obligated to a policyholder or claimant in an amount in

13  excess of the obligation of the insolvent insurer under the

14  policy from which the claim arises.

15         Section 3.  Subsection (5) is added to section 631.923,

16  Florida Statutes, to read:

17         631.923  Effect of paid claims.--

18         (5)  The corporation shall have the right to recover

19  the amount of any covered claim paid on behalf of:

20         (a)  An insured whose net worth exceeds $25 million on

21  December 31 of the year prior to the year in which the insurer

22  becomes an insolvent insurer, provided an insured's net worth

23  on that date shall be deemed to include the aggregate net

24  worth of the insured and all of its subsidiaries and

25  affiliates, as calculated on a consolidated basis; or

26         (b)  Any person who is an affiliate of the insolvent

27  insurer,

28

29  and whose liability obligations to other persons are satisfied

30  in whole or in part by payments made pursuant to this part.

31

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    Florida Senate - 2003                                  SB 1766
    17-1104-03                                          See HB 693




  1         Section 4.  Section 631.924, Florida Statutes, is

  2  amended to read:

  3         631.924  Stay of proceedings; reopening of default

  4  judgments.--All proceedings in which the insolvent insurer or

  5  self-insurance fund is a party or is obligated to defend a

  6  party in any court or before any quasi-judicial body or

  7  administrative board in this state must be stayed for 6

  8  months, or such additional period from the date the insolvency

  9  is adjudicated, by a court of competent jurisdiction to allow

10  proper defense by the association of all pending causes of

11  action as to any covered claims. The stay may be extended for

12  a period of time greater than 6 months upon proper application

13  to a court of competent jurisdiction. The association, either

14  on its own behalf or on behalf of the insured, may apply to

15  have any judgment, order, decision, verdict, or finding based

16  on the default of the insolvent insurer or self-insurance fund

17  or its failure to defend an insured set aside by the same

18  court or administrator that made the judgment, order,

19  decision, verdict, or finding and may defend against the claim

20  on the merits. If the association so requests, the stay of

21  proceedings may be shortened or waived.

22         Section 5.  Section 631.933, Florida Statutes, is

23  created to read:

24         631.933  Severability.--If any provision of this part

25  or the application thereof to any person or circumstance is

26  held invalid, such invalidity does not affect other provisions

27  or applications of this part which can be given effect without

28  the invalid application or provision, and to this end the

29  provisions of this part are declared severable.

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

31  law.

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