| 1 | A bill to be entitled |
| 2 | An act relating to insurer interests in certain motor |
| 3 | vehicle repair shops; amending s. 559.901, F.S.; providing |
| 4 | a popular name; amending s. 559.903, F.S.; providing |
| 5 | definitions; amending s. 559.921, F.S.; providing a civil |
| 6 | penalty; providing for an administrative fine for certain |
| 7 | violations; creating s. 559.9222, F.S.; prohibiting |
| 8 | insurer interests in certain motor vehicle repair shops; |
| 9 | creating s. 559.9223, F.S.; providing for a favored |
| 10 | facility agreement presumption; creating s. 559.9224, |
| 11 | F.S.; providing conditions for contracts between insurers |
| 12 | and certain motor vehicle repairs shops; creating s. |
| 13 | 559.9225, F.S.; providing notice requirements for certain |
| 14 | motor vehicle repair shops; creating s. 559.9226, F.S.; |
| 15 | specifying prohibited acts; creating s. 559.9227, F.S.; |
| 16 | requiring certain agreements to be negotiated and executed |
| 17 | to prevent conflicts of interest; creating s. 559.9228, |
| 18 | F.S.; authorizing insurers to provide certain support |
| 19 | services to certain repair shops under certain |
| 20 | circumstances; creating s. 559.9229, F.S.; providing |
| 21 | certain sections do not confer immunity from certain |
| 22 | antitrust laws; providing an effective date. |
| 23 |
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| 24 | Be It Enacted by the Legislature of the State of Florida: |
| 25 |
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| 26 | Section 1. Section 559.901, Florida Statutes, is amended |
| 27 | to read: |
| 28 | 559.901 Short title.--Sections 559.901-559.9229 559.901- |
| 29 | 559.901-559.9221 shall be known and may be referred to by the |
| 30 | popular name cited as the "Florida Motor Vehicle Repair Act." |
| 31 | Section 2. Section 559.903, Florida Statutes, is amended |
| 32 | to read: |
| 33 | 559.903 Definitions.--As used in this act: |
| 34 | (1) "Arm's length transaction" means the standard of |
| 35 | conduct under which two parties having substantially equal |
| 36 | bargaining power, each acting in its own interest, would |
| 37 | negotiate or carry out a particular transaction. |
| 38 | (2) "Claims center" means a location designated by an |
| 39 | insurer where a claims adjuster, employee, or agent of the |
| 40 | insurer performs an initial damage estimate on a vehicle under |
| 41 | the terms of an insurance policy. |
| 42 | (3)(1) "Customer" means the person who signs the written |
| 43 | repair estimate or any other person whom the person who signs |
| 44 | the written repair estimate designates on the written repair |
| 45 | estimate as a person who may authorize repair work. |
| 46 | (4)(2) "Department" means the Department of Agriculture |
| 47 | and Consumer Services. |
| 48 | (5)(3) "Employee" means an individual who is employed full |
| 49 | time or part time by a motor vehicle repair shop and performs |
| 50 | motor vehicle repair. |
| 51 | (6) "Favored facility agreement" means an agreement |
| 52 | between an insurer and a motor vehicle repair shop under which |
| 53 | the insurer agrees to recommend, directly or indirectly, to its |
| 54 | policyholders or other beneficiaries under the insurer's |
| 55 | policies, that the policyholder or other beneficiary obtain |
| 56 | repairs at that motor vehicle repair shop or in any other way |
| 57 | agrees to influence its policyholders or other beneficiaries |
| 58 | under the insurer's policies to obtain repairs at that motor |
| 59 | vehicle repair shop. |
| 60 | (7)(4) "Final estimate" means the last estimate approved |
| 61 | by the customer either in writing or orally, as evidenced by the |
| 62 | written repair estimate. |
| 63 | (8) "Insurer" means any person authorized under the |
| 64 | Florida Insurance Code to transact insurance in this state. |
| 65 | (9)(5) "Motor vehicle" means any automobile, truck, bus, |
| 66 | recreational vehicle, motorcycle, motor scooter, or other motor |
| 67 | powered vehicle, but does not include trailers, mobile homes, |
| 68 | travel trailers, trailer coaches without independent motive |
| 69 | power, watercraft or aircraft, or special mobile equipment as |
| 70 | defined in s. 316.003(48). |
| 71 | (10)(8) "Motor vehicle repair" means all maintenance of |
| 72 | and modifications and repairs to motor vehicles, and diagnostic |
| 73 | work incident thereto, including, but not limited to, the |
| 74 | rebuilding or restoring of rebuilt vehicles, body work, |
| 75 | painting, warranty work, and other work customarily undertaken |
| 76 | by motor vehicle repair shops. |
| 77 | (11)(6) "Motor vehicle repair shop" means any person who, |
| 78 | for compensation, engages or attempts to engage in the repair of |
| 79 | motor vehicles owned by other persons and includes, but is not |
| 80 | limited to: mobile motor vehicle repair shops, motor vehicle and |
| 81 | recreational vehicle dealers; garages; service stations; self- |
| 82 | employed individuals; truck stops; paint and body shops; brake, |
| 83 | muffler, or transmission shops; and shops doing glass work. Any |
| 84 | person who engages solely in the maintenance or repair of the |
| 85 | coach portion of a recreational vehicle is not a motor vehicle |
| 86 | repair shop. |
| 87 | (12)(7) "Place of business" means a physical place where |
| 88 | the business of motor vehicle repair is conducted, including any |
| 89 | vehicle constituting a mobile motor vehicle repair shop from |
| 90 | which the business of motor vehicle repair is conducted. |
| 91 | (13) "Support services" means basic services, provided |
| 92 | nonspecifically, that are provided internally and to each |
| 93 | affiliate or subsidiary by an insurer, its parent company, or a |
| 94 | separate affiliate created to provide basic corporate support. |
| 95 | The term does not include a service related to the operation of |
| 96 | a motor vehicle repair shop if that service would have no value |
| 97 | or minimal value to any other type of business. |
| 98 | (14) "Tied motor vehicle repair shop" means a motor |
| 99 | vehicle repair shop in which an insurer owns an interest. |
| 100 | Section 3. Subsections (4), (5), and (7) of section |
| 101 | 559.921, Florida Statutes, are amended to read: |
| 102 | 559.921 Remedies.-- |
| 103 | (4)(a) The department may enter an order imposing one or |
| 104 | more of the penalties set forth in paragraph (b) if the |
| 105 | department finds that a motor vehicle repair shop: |
| 106 | 1. Violated or is operating in violation of any of the |
| 107 | provisions of this part or of the rules adopted or orders issued |
| 108 | thereunder; |
| 109 | 2. Made a material false statement in any application, |
| 110 | document, or record required to be submitted or retained under |
| 111 | this part; |
| 112 | 3. Refused or failed, or any of its principal officers |
| 113 | have refused or failed, after notice, to produce any document or |
| 114 | record or disclose any information required to be produced or |
| 115 | disclosed under this part or the rules of the department; |
| 116 | 4. Made a material false statement in response to any |
| 117 | request or investigation by the department, the Department of |
| 118 | Legal Affairs, or the state attorney; or |
| 119 | 5. Has intentionally defrauded the public through |
| 120 | dishonest or deceptive means. |
| 121 | (b) Upon a finding as set forth in paragraph (a), the |
| 122 | department may enter an order doing one or more of the |
| 123 | following: |
| 124 | 1. Issuing a notice of noncompliance pursuant to s. |
| 125 | 120.695. |
| 126 | 2. Imposing an administrative fine not to exceed $1,000 |
| 127 | per violation for each act which constitutes a violation of ss. |
| 128 | 559.901-559.9221 this part or a rule or order. |
| 129 | 3. Imposing an administrative fine of not less than $1,000 |
| 130 | nor more than $5,000 for each act which constitutes a violation |
| 131 | of ss. 559.9222-559.9229. Each day during which a violation of |
| 132 | ss. 559.9222-559.9229 occurs constitutes a separate violation. |
| 133 | The amount of the administrative fine shall be based on the |
| 134 | seriousness of the violation and must reflect the following |
| 135 | factors: |
| 136 | a. The nature, circumstances, extent, and gravity of the |
| 137 | act or omission that constitutes the violation. |
| 138 | b. The economic harm caused by the violation. |
| 139 | c. The history of previous violations. |
| 140 | d. The need to deter future violations by the person |
| 141 | charged with a violation. |
| 142 | e. Efforts, if any, made to correct the violation. |
| 143 | f. Any other factors the court considers appropriate to |
| 144 | implement the remedial intent of this chapter. |
| 145 | 4.3. Directing that the motor vehicle repair shop cease |
| 146 | and desist specified activities. |
| 147 | 5.4. Refusing to register or revoking or suspending a |
| 148 | registration. |
| 149 | 6.5. Placing the registrant on probation for a period of |
| 150 | time, subject to such conditions as the department may specify. |
| 151 | (c) The administrative proceedings which could result in |
| 152 | the entry of an order imposing any of the penalties specified in |
| 153 | paragraph (b) shall be conducted in accordance with chapter 120. |
| 154 | (5)(a) The department or the state attorney, if a |
| 155 | violation of this part occurs in his or her judicial circuit, |
| 156 | shall be the enforcing authority for purposes of this part and |
| 157 | may bring a civil action in circuit court for temporary or |
| 158 | permanent injunctive relief and may seek other appropriate civil |
| 159 | relief, including a civil penalty not to exceed $1,000 for each |
| 160 | violation of ss. 559.904-559.921 and a civil penalty of not less |
| 161 | than $1,000 and not more than $5,000 for a violation of ss. |
| 162 | 559.9222-559.9229, restitution and damages for injured |
| 163 | customers, court costs, and reasonable attorney's fees. |
| 164 | (b) The enforcing authority may terminate any |
| 165 | investigation or action upon agreement by the offender to pay a |
| 166 | stipulated civil penalty, to make restitution or pay damages to |
| 167 | customers, or to satisfy any other relief authorized herein and |
| 168 | requested by the department. |
| 169 | (7) If, in any proceeding brought pursuant to ss. 559.904- |
| 170 | 559.921 this part, it is determined that the repairs and costs |
| 171 | thereof were in fact authorized, orally or in writing, the |
| 172 | repairs were completed in a proper manner, and the consumer |
| 173 | benefited therefrom, then the enforcing authority may consider |
| 174 | such factors in assessing penalties or damages and may award the |
| 175 | reasonable value of such repairs. |
| 176 | Section 4. Section 559.9222, Florida Statutes, is created |
| 177 | to read: |
| 178 | 559.9222 Insurer interests; exclusivity.-- |
| 179 | (1) Except as provided by this section, an insurer may not |
| 180 | own or acquire an interest in a motor vehicle repair shop. |
| 181 | (2) An insurer that owns an interest in a tied motor |
| 182 | vehicle repair shop that was open for business, or on which |
| 183 | construction had commenced, on January 1, 2004, may maintain |
| 184 | that ownership interest and may operate that facility. |
| 185 | (3) An insurer may relocate a tied motor vehicle repair |
| 186 | shop described by subsection (2) but may not obtain an ownership |
| 187 | interest in any additional facility not described by that |
| 188 | subsection. |
| 189 | (4) Subsections (2) and (3) apply to an insurer only if |
| 190 | the insurer and its tied motor vehicle repair shop are in |
| 191 | compliance with ss. 559.9222-559.9229. |
| 192 | (5) Unless otherwise specifically provided, this part |
| 193 | provides the exclusive authority and rules applicable to the |
| 194 | regulation of the relations between an insurer and a tied motor |
| 195 | vehicle repair shop. |
| 196 | Section 5. Section 559.9223, Florida Statutes, is created |
| 197 | to read: |
| 198 | 559.9223 Favored facility agreement presumed.--An insurer |
| 199 | is presumed to have a favored facility agreement with a motor |
| 200 | vehicle repair shop in which it owns an interest. |
| 201 | Section 6. Section 559.9224, Florida Statutes, is created |
| 202 | to read: |
| 203 | 559.9224 Contractual conditions.-- |
| 204 | (1) An insurer that owns an interest in a motor vehicle |
| 205 | repair shop may be a party to only one favored facility |
| 206 | agreement. |
| 207 | (2) The terms under which the insurer enters into a |
| 208 | favored facility agreement must be identical for all motor |
| 209 | vehicle repair shops, including tied motor vehicle repair shops. |
| 210 | However, an insurer may, as necessary, vary the terms to |
| 211 | implement technical differences required by geographical factors |
| 212 | or other legitimate business factors. |
| 213 | (3) Except as provided by subsection (4), an insurer may |
| 214 | not cancel a favored facility agreement until the expiration of |
| 215 | the 30th day after the date on which the insurer provides notice |
| 216 | to the motor vehicle repair shop of the insurer's intent to |
| 217 | cancel the agreement. The insurer shall include with the notice |
| 218 | a statement explaining the reason for the cancellation of the |
| 219 | agreement. |
| 220 | (4) An insurer may summarily cancel a favored facility |
| 221 | agreement with a motor vehicle repair shop if the insurer, a |
| 222 | policyholder of the insurer, or another beneficiary under the |
| 223 | insurer's policy establishes reasonable grounds to believe that |
| 224 | the motor vehicle repair shop is fraudulent in its dealings with |
| 225 | the insurer or the policyholder or other beneficiaries under the |
| 226 | insurer's policy. |
| 227 | Section 7. Section 559.9225, Florida Statutes, is created |
| 228 | to read: |
| 229 | 559.9225 Notice.-- |
| 230 | (1) An insurer that owns an interest in a motor vehicle |
| 231 | repair shop shall post the following notice in each of its tied |
| 232 | motor vehicle repair shops: |
| 233 |
|
| 234 | "THIS MOTOR VEHICLE REPAIR SHOP IS OWNED IN WHOLE OR IN PART BY |
| 235 | (insert name of insurer here). YOU ARE HEREBY NOTIFIED THAT YOU |
| 236 | ARE ENTITLED TO SEEK REPAIRS AT ANY MOTOR VEHICLE REPAIR SHOP OF |
| 237 | YOUR CHOICE." |
| 238 |
|
| 239 | (2) The notice required by subsection (1) must be posted |
| 240 | prominently in a location in which it is likely to be seen and |
| 241 | read by a customer of the motor vehicle repair shop. |
| 242 | Section 8. Section 559.9226, Florida Statutes, is created |
| 243 | to read: |
| 244 | 559.9226 Prohibited acts.--An insurer may not: |
| 245 | (1) Condition the provision of a product, service, |
| 246 | insurance policy renewal, pricing, or other benefit on the |
| 247 | purchase of any good or service from its tied motor vehicle |
| 248 | repair shops. |
| 249 | (2) Share information with its tied motor vehicle repair |
| 250 | shops that is not made available on identical terms and |
| 251 | conditions to other motor vehicle repair shops with which the |
| 252 | insurer has entered into a favored facility agreement; |
| 253 | (3) Engage in a joint marketing program with its tied |
| 254 | motor vehicle repair shops. |
| 255 | (4) Provide its tied motor vehicle repair shops with a |
| 256 | recommendation, referral, description, advantage, or access to |
| 257 | its policyholders or other beneficiaries under its insurance |
| 258 | policies that is not provided on identical terms to other motor |
| 259 | vehicle repair shops with which the insurer has entered into a |
| 260 | favored facility agreement. |
| 261 | (5) Provide a tied motor vehicle repair shop access to the |
| 262 | insurer's products or services on terms and conditions different |
| 263 | from those under which the insurer provides access to the same |
| 264 | products or services to another motor vehicle repair shop with |
| 265 | which the insurer has entered into a favored facility agreement. |
| 266 | (6) Allow a tied motor vehicle repair shop to use the |
| 267 | insurer's name, trademark, trade name, brand, or logo in a |
| 268 | manner different than that allowed for any other favored |
| 269 | facility. |
| 270 | (7) Subsidize the business activities or operating |
| 271 | expenses of a tied motor vehicle repair shop. |
| 272 | (8) Directly or indirectly require a policyholder of the |
| 273 | insurer or other beneficiary under the insurer's policy to |
| 274 | obtain a damage estimate on a vehicle covered by the insurance |
| 275 | policy at a tied motor vehicle repair shop. |
| 276 | (9) Authorize or allow a person representing the insurer, |
| 277 | whether an employee or an independent contractor, to recommend |
| 278 | to a policyholder or other beneficiary under the insurance |
| 279 | policy that the policyholder or other beneficiary obtain motor |
| 280 | vehicle repair at a tied motor vehicle repair shop, except to |
| 281 | the same extent that the person recommends other motor vehicle |
| 282 | repair shops with whom the insurer has entered into a favored |
| 283 | facility agreement. |
| 284 | (10) Require a policyholder or beneficiary to use a claims |
| 285 | center located on the premises of a tied motor vehicle repair |
| 286 | shop. |
| 287 | (11) Enter into a favored facility agreement exclusively |
| 288 | with its tied motor vehicle repair shops. |
| 289 | (12) Retaliate or discriminate against a person who files |
| 290 | an action as provided by this part. |
| 291 | (13) Retaliate or discriminate against a person who |
| 292 | assists or participates in any manner in an investigation, |
| 293 | judicial proceeding, or other action brought or maintained as |
| 294 | provided by this part. |
| 295 | (14) Include earnings or losses of a tied motor vehicle |
| 296 | repair shop in a rate filing made under chapter 627. |
| 297 | Section 9. Section 559.9227, Florida Statutes, is created |
| 298 | to read: |
| 299 | 559.9227 Conflict of interest prohibited.--Except as |
| 300 | otherwise provided by this part, an agreement between an insurer |
| 301 | and its tied motor vehicle repair shop must be negotiated and |
| 302 | executed as an arm's length transaction. |
| 303 | Section 10. Section 559.9228, Florida Statutes, is created |
| 304 | to read: |
| 305 | 559.9228 Support services.-- |
| 306 | (1) Notwithstanding this part, and except as provided by |
| 307 | subsection (2), an insurer may provide support services to its |
| 308 | tied motor vehicle repair shops if those services: |
| 309 | (a) Are priced at a level that is fair and reasonable to |
| 310 | both the insurer and the tied motor vehicle repair shop. |
| 311 | (b) Do not directly or indirectly confer a competitive |
| 312 | advantage to the tied motor vehicle repair shop. |
| 313 | (2) Notwithstanding subsection (1), an agreement by an |
| 314 | insurer to provide support services to its tied motor vehicle |
| 315 | repair shop may not create the potential for confusion among the |
| 316 | policyholders of the insurer, other beneficiaries of an |
| 317 | insurance policy issued by the insurer, or other parties. |
| 318 | Section 11. Section 559.9229, Florida Statutes, is created |
| 319 | to read: |
| 320 | 559.9229 Antitrust enforcement.--Sections 559.9222- |
| 321 | 559.9222-559.9229 do not confer immunity from an antitrust law |
| 322 | of this state or the United States. A sanction or penalty |
| 323 | imposed in an action brought under this part is in addition to |
| 324 | other relief granted on the basis of the violation of an |
| 325 | antitrust law of this state or the United States. |
| 326 | Section 12. This act shall take effect upon becoming a |
| 327 | law. |