1 | A bill to be entitled |
2 | An act relating to insurers; amending s. 626.854, F.S.; |
3 | limiting the scope of a public adjuster?s authority; |
4 | requiring public adjusters to provide certain information |
5 | and make certain disclosures; prohibiting a public |
6 | adjuster from restricting access to certain entities and |
7 | communications with certain entities; requiring public |
8 | adjusters to submit certain recorded statements and sworn |
9 | examinations under certain circumstances; amending s. |
10 | 631.021, F.S.; authorizing certain domiciliary courts to |
11 | exercise exclusive jurisdiction over certain persons under |
12 | certain circumstances; specifying the Circuit Court of |
13 | Leon County as having exclusive jurisdiction over certain |
14 | proceedings and claims; amending s. 631.041, F.S.; |
15 | entitling the estates of certain injured insurers to |
16 | actual damages; authorizing a receivership court to impose |
17 | additional sanctions; amending s. 631.0515, F.S.; |
18 | subjecting certain managing general agents or holding |
19 | companies to court jurisdiction under certain |
20 | circumstances; amending s. 631.141, F.S.; specifying |
21 | certain expenses as administrative and recoverable by a |
22 | receiver in certain proceedings; amending s. 631.205, |
23 | F.S.; specifying that entry of certain orders does not |
24 | constitute anticipatory breach of certain contracts or |
25 | serve as grounds for certain adverse contract actions by a |
26 | reinsurer; creating s. 631.206, F.S.; voiding certain |
27 | contractual arbitration provisions by insurers in |
28 | receivership; specifying a replacement arbitration |
29 | provision; amending s. 631.261, F.S.; voiding certain |
30 | transfers or liens made by certain persons prior to |
31 | certain delinquency proceedings; specifying a criterion |
32 | for making certain transfers; amending ss. 631.262 and |
33 | 631.263, F.S.; specifying a criterion for making certain |
34 | transfers; creating s. 631.400, F.S.; requiring a receiver |
35 | to deposit certain estate funds of a liquidated insurance |
36 | company into a separate closed estate account under |
37 | certain circumstances; specifying use of such funds by the |
38 | Division of Rehabilitation and Liquidation of the |
39 | Department of Financial Services for certain purposes; |
40 | specifying nonreversion of certain funds to the state but |
41 | retention for certain uses; providing an effective date. |
42 |
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43 | Be It Enacted by the Legislature of the State of Florida: |
44 |
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45 | Section 1. Section 626.854, Florida Statutes, is amended |
46 | to read: |
47 | 626.854 "Public adjuster" defined; prohibitions; |
48 | disclosure requirements.--The Legislature finds that it is |
49 | necessary for the protection of the public to regulate public |
50 | insurance adjusters and to prevent the unauthorized practice of |
51 | law. |
52 | (1) A "public adjuster" is any person, except a duly |
53 | licensed attorney at law as hereinafter in s. 626.860 provided, |
54 | who, for money, commission, or any other thing of value, |
55 | prepares, completes, or files an insurance claim form for an |
56 | insured or third-party claimant or who, for money, commission, |
57 | or any other thing of value, acts or aids in any manner on |
58 | behalf of an insured or third-party claimant in negotiating for |
59 | or effecting the settlement of a claim or claims for loss or |
60 | damage covered by an insurance contract or who advertises for |
61 | employment as an adjuster of such claims, and also includes any |
62 | person who, for money, commission, or any other thing of value, |
63 | solicits, investigates, or adjusts such claims on behalf of any |
64 | such public adjuster. |
65 | (2) This definition does not apply to: |
66 | (a) A licensed health care provider or employee thereof |
67 | who prepares or files a health insurance claim form on behalf of |
68 | a patient. |
69 | (b) A person who files a health claim on behalf of another |
70 | and does so without compensation. |
71 | (3)(a) A public adjuster may not give legal advice. A |
72 | public adjuster may not act on behalf of or aid any person in |
73 | negotiating or settling a claim relating to bodily injury, |
74 | death, or noneconomic damages, or issues relating to extra- |
75 | contractual damages, violations of part IX, tort claims, |
76 | statutory interest, or costs and attorney?s fees. |
77 | (b) A public adjuster must provide to the insurer and its |
78 | representatives, together with the notice of representation, a |
79 | complete copy of any contract between the public adjuster and |
80 | the insured or claimant. The public adjuster must also provide |
81 | the insurer and its representatives with a copy of any amended, |
82 | revised, or supplemental contract entered into at any point |
83 | during the claims handling process immediately upon entering |
84 | into such amended, revised, or supplemental contract. |
85 | Disclosures under this paragraph shall be in a form specified by |
86 | rule of the Financial Services Commission. |
87 | (c) A public adjuster must disclose to his or her client |
88 | and to the insurer any direct or indirect interest the public |
89 | adjuster may have, and any compensation, referral fee, or other |
90 | consideration the public adjuster may receive from any person |
91 | performing services in connection with the adjustment of a claim |
92 | or the repair or replacement of insured property. |
93 | (d) A public adjuster may not at any time restrict access |
94 | to an insured, a claimant, or insured property by an insurer, |
95 | company adjuster, independent adjuster, attorney, or other |
96 | person acting on behalf of the insurer. |
97 | (e) A public adjuster may not, in connection with any |
98 | claim, refuse to speak with an insurer, company adjuster, |
99 | independent adjuster, attorney, or other person acting on behalf |
100 | of the insurer. A public adjuster shall provide a recorded |
101 | statement and an examination under oath upon request of an |
102 | insurer, company adjuster, independent adjuster, attorney, or |
103 | other person acting on behalf of the insurer. |
104 | (4) For purposes of this section, the term "insured" |
105 | includes only the policyholder and any beneficiaries named or |
106 | similarly identified in the policy. |
107 | Section 2. Subsection (6) is added to section 631.021, |
108 | Florida Statutes, to read: |
109 | 631.021 Jurisdiction of delinquency proceeding; venue; |
110 | change of venue; exclusiveness of remedy; appeal.-- |
111 | (6) The domiciliary court acquiring jurisdiction over |
112 | persons subject to this section may exercise exclusive |
113 | jurisdiction to the exclusion of all other courts, except as |
114 | limited by the provisions of this section. Upon the issuance of |
115 | an order of conservation, rehabilitation, or liquidation, the |
116 | Circuit Court of Leon County shall have exclusive jurisdiction |
117 | with respect to assets or property of any insurer subject to |
118 | such proceedings and claims against said insurer's assets or |
119 | property. |
120 | Section 3. Subsection (6) is added to section 631.041, |
121 | Florida Statutes, to read: |
122 | 631.041 Automatic stay; relief from stay; injunctions.-- |
123 | (6) The estate of an insurer in rehabilitation or |
124 | liquidation which is injured by any willful violation of an |
125 | applicable stay or injunction shall be entitled to actual |
126 | damages, including costs and attorney's fees, and, in |
127 | appropriate circumstances, the receivership court may impose |
128 | additional sanctions. |
129 | Section 4. Section 631.0515, Florida Statutes, is amended |
130 | to read: |
131 | 631.0515 Appointment of receiver; insurance holding |
132 | company.--A delinquency proceeding pursuant to this chapter |
133 | constitutes the sole and exclusive method of dissolving, |
134 | liquidating, rehabilitating, reorganizing, conserving, or |
135 | appointing a receiver of a Florida corporation which is not |
136 | insolvent as defined by s. 607.01401(16); which through its |
137 | shareholders, board of directors, or governing body is |
138 | deadlocked in the management of its affairs; and which directly |
139 | or indirectly owns all of the stock of a Florida domestic |
140 | insurer. The department may petition for an order directing it |
141 | to rehabilitate such corporation if the interests of |
142 | policyholders or the public will be harmed as a result of the |
143 | deadlock. The department shall use due diligence to resolve the |
144 | deadlock. Whether or not the department petitions for an order, |
145 | the circuit court shall not have jurisdiction pursuant to s. |
146 | 607.271, s. 607.274, or s. 607.277 to dissolve, liquidate, or |
147 | appoint receivers with respect to, a Florida corporation which |
148 | directly or indirectly owns all of the stock of a Florida |
149 | domestic insurer and which is not insolvent as defined by s. |
150 | 607.01401(16). However, a managing general agent or holding |
151 | company with a controlling interest in a domestic insurer in |
152 | this state is subject to jurisdiction of the court under the |
153 | provisions of s. 631.025. |
154 | Section 5. Paragraph (a) of subsection (7) of section |
155 | 631.141, Florida Statutes, is amended to read: |
156 | 631.141 Conduct of delinquency proceeding; domestic and |
157 | alien insurers.-- |
158 | (7)(a) In connection with a delinquency proceeding, the |
159 | department may appoint one or more special agents to act for it, |
160 | and it may employ such counsel, clerks, and assistants as it |
161 | deems necessary. The compensation of the special agents, |
162 | counsel, clerks, or assistants and all expenses of taking |
163 | possession of the insurer and of conducting the proceeding shall |
164 | be fixed by the receiver, subject to the approval of the court, |
165 | and shall be paid out of the funds or assets of the insurer. |
166 | Such expenses are administrative expenses and are recoverable by |
167 | the receiver in any actions in which the receiver is authorized |
168 | or entitled to recover its administrative expenses. Within the |
169 | limits of duties imposed upon them, special agents shall possess |
170 | all the powers given to and, in the exercise of those powers, |
171 | shall be subject to all duties imposed upon the receiver with |
172 | respect to such proceeding. |
173 | Section 6. Section 631.205, Florida Statutes, is amended |
174 | to read: |
175 | 631.205 Reinsurance proceeds.--All reinsurance proceeds |
176 | payable under a contract of reinsurance to which the insolvent |
177 | insurer is a party are to be paid directly to the domiciliary |
178 | receiver as general assets of the receivership estate unless the |
179 | reinsurance contract contains a clause which specifically names |
180 | the insolvent insurer's insured as a direct beneficiary of the |
181 | reinsurance contract. The entry of an order of conservation, |
182 | rehabilitation, or liquidation shall not be deemed an |
183 | anticipatory breach of any reinsurance contract, nor shall it be |
184 | grounds for retroactive revocation or retroactive cancellation |
185 | of any reinsurance contracts by the reinsurer. |
186 | Section 7. Section 631.206, Florida Statutes, is created |
187 | to read: |
188 | 631.206 Arbitration.--If an insurer in receivership has |
189 | entered into an agreement containing an arbitration provision |
190 | for resolution of disputes, that provision is void and shall be |
191 | replaced by operation of law with the following provision: |
192 |
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193 | Any controversy or claim arising out of or relating to |
194 | this contract, or the breach thereof, shall be settled |
195 | by arbitration pursuant to the American Arbitration |
196 | Association Commercial Arbitration Rules and chapter |
197 | 682, Florida Statutes, and judgment on the award |
198 | rendered by the arbitrators shall be entered by the |
199 | receivership court. Venue shall be in Leon County, |
200 | Florida. Disputes shall be submitted to a panel of |
201 | three arbitrators, one to be chosen by each party and |
202 | the third by the two so chosen. Arbitrators shall be |
203 | selected from a list of potential qualified |
204 | arbitrators with 10 years' experience involving the |
205 | insurance industry. If the parties do not agree upon |
206 | the qualifications of a mediator, each party shall |
207 | select its mediator from a list of potential mediators |
208 | approved by the receivership court. |
209 |
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210 | Section 8. Subsection (1) of section 631.261, Florida |
211 | Statutes, is amended, and subsection (4) is added to said |
212 | section, to read: |
213 | 631.261 Voidable transfers.-- |
214 | (1)(a) Any transfer of, or lien upon, the property of an |
215 | insurer or affiliate which is made or created within 4 months |
216 | prior to the commencement of any delinquency proceeding under |
217 | this chapter which gives with the intent of giving to any |
218 | creditor of the insurer a preference or enables of enabling the |
219 | creditor to obtain a greater percentage of her or his debt than |
220 | any other creditor of the same class, and which is accepted by |
221 | such creditor having reasonable cause to believe that such |
222 | preference will occur, shall be voidable. |
223 | (b) Any transfer of, or lien upon, the property of an |
224 | insurer or affiliate which is made or created between 4 months |
225 | and 1 year prior to the commencement of any delinquency |
226 | proceeding under this chapter is void if such transfer or lien |
227 | inured to the benefit of a director, officer, employee, |
228 | stockholder, member, subscriber, affiliate, managing general |
229 | agent, or insider or any relative of any director, officer, |
230 | employee, stockholder, member, subscriber, affiliate, managing |
231 | general agent, or insider. |
232 | (4) For purposes of this section, a transfer is not made |
233 | or created until the insurer or affiliate has acquired rights in |
234 | the property transferred. |
235 | Section 9. Paragraph (e) of subsection (2) of section |
236 | 631.262, Florida Statutes, is redesignated as paragraph (f) and |
237 | amended, and new paragraph (e) is added to said subsection, to |
238 | read: |
239 | 631.262 Transfers prior to petition.-- |
240 | (2) Transfers shall be deemed to have been made or |
241 | suffered, or obligations incurred, when perfected according to |
242 | the following criteria: |
243 | (a) A transfer of property other than real property shall |
244 | be deemed to be made or suffered when it becomes so far |
245 | perfected that no subsequent lien obtainable by legal or |
246 | equitable proceedings on a simple contract could become superior |
247 | to the rights of the transferee.; |
248 | (b) A transfer of real property shall be deemed to be made |
249 | or suffered when it becomes so far perfected that no subsequent |
250 | bona fide purchaser from the insurer could obtain rights |
251 | superior to the rights of the transferee.; |
252 | (c) A transfer which creates an equitable lien shall not |
253 | be deemed to be perfected if there are available means by which |
254 | a legal lien could be created.; |
255 | (d) Any transfer not perfected prior to the filing of a |
256 | petition in a delinquency proceeding shall be deemed to be made |
257 | immediately before the filing of a successful petition.; |
258 | (e) For the purposes of this section, a transfer is not |
259 | made until the insurer or affiliate has acquired rights in the |
260 | property transferred. |
261 | (f)(e) Paragraphs (a)-(e)(d) apply whether or not there |
262 | are or were creditors who might have obtained any liens or |
263 | persons who might have become bona fide purchasers. |
264 | Section 10. Subsection (6) is added to section 631.263, |
265 | Florida Statutes, to read: |
266 | 631.263 Transfers after petition.-- |
267 | (6) For the purposes of this section, a transfer is not |
268 | made until the insurer or affiliate has acquired rights in the |
269 | property transferred. |
270 | Section 11. Section 631.400, Florida Statutes, is created |
271 | to read: |
272 | 631.400 Closed estate account.-- |
273 | (1) If unclaimed funds remain in the estate of a liquidated |
274 | insurance company after the estate is closed or a receiver |
275 | recovers funds in an estate of a liquidated insurance company |
276 | after the estate is closed, the receiver shall deposit those |
277 | funds when received into a separate closed estate account. |
278 | (2) Funds received and deposited in the account pursuant to |
279 | subsection (1) shall be used by the Division of Rehabilitation |
280 | and Liquidation of the Department of Financial Services to defray |
281 | the division?s expenses in the discharge of its duties as |
282 | prescribed by law, including the initiation of delinquency |
283 | proceedings and all other legitimate expenses relating to the |
284 | discharge of the duties imposed in and charged to the division. |
285 | (3) If, at the end of any fiscal year, a balance of funds |
286 | remains in a closed estate account, such balance shall not |
287 | revert to the general fund of the state but shall be retained in |
288 | the closed estate account to be used for the purposes set forth |
289 | in subsection (2). |
290 | Section 12. This act shall take effect upon becoming a |
291 | law. |