Senate Bill sb2588

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    Florida Senate - 2004                                  SB 2588

    By Senator Diaz de la Portilla





    36-1173-04

  1                      A bill to be entitled

  2         An act relating to insurance; amending s.

  3         624.425, F.S.; deleting a resident agent

  4         requirement for certain property, casualty, and

  5         surety insurers; amending s. 624.426, F.S.;

  6         conforming provisions; amending s. 626.025,

  7         F.S.; requiring surplus lines agents to comply

  8         with consumer protection laws; deleting

  9         provisions prohibiting certain actions by

10         nonresident agents, to conform; amending s.

11         626.741, F.S.; deleting a prohibition against

12         nonresident general lines agents having offices

13         in this state; conforming provisions; amending

14         s. 626.752, F.S.; conforming provisions;

15         amending s. 626.753, F.S.; conforming

16         provisions; repealing s. 626.792(3), F.S.;

17         deleting a prohibition against nonresident life

18         insurance agents having offices in this state;

19         repealing s. 626.835(3), F.S.; deleting a

20         prohibition against nonresident health

21         insurance agents having offices in this state;

22         creating s. 626.9272, F.S.; providing

23         requirements for the licensure of nonresident

24         surplus lines agents; amending s. 626.929,

25         F.S.; conforming provisions; amending s.

26         626.930, F.S.; conforming provisions; amending

27         s. 626.935, F.S.; providing additional grounds

28         for discipline of licensees; providing an

29         effective date.

30  

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

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 1         Section 1.  Section 624.425, F.S., is amended to read:

 2         624.425  Resident Agent and countersignature required,

 3  property, casualty, surety insurance.--

 4         (1)  Except as stated in s. 624.426, no authorized

 5  property, casualty, or surety insurer shall assume direct

 6  liability as to a subject of insurance resident, located, or

 7  to be performed in this state unless the policy or contract of

 8  insurance is issued by or through, and is countersigned by, an

 9  a local producing agent who is a resident of this state,

10  regularly commissioned and licensed currently as an agent and

11  appointed as an agent for the insurer under this code. If two

12  or more authorized insurers issue a single policy of insurance

13  against legal liability for loss or damage to person or

14  property caused by the nuclear energy hazard, or a single

15  policy insuring against loss or damage to property by

16  radioactive contamination, whether or not also insuring

17  against one or more other perils proper to insure against in

18  this state, such policy if otherwise lawful may be

19  countersigned on behalf of all of the insurers by a licensed

20  and appointed resident agent of any insurer appearing thereon.

21  The producing Such agent shall receive on each policy or

22  contract the full and usual commission allowed and paid by the

23  insurer to its agents on business written or transacted by

24  them for the insurer.

25         (2)  If any subject of insurance referred to in

26  subsection (1) is insured under a policy, or contract, or

27  certificate of renewal or continuation thereof, issued in

28  another state and covering also property and risks outside

29  this state, a certificate evidencing such insurance as to

30  subjects located, resident, or to be performed in this state,

31  shall be issued by or through and shall be countersigned by

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 1  the insurer's commissioned and appointed local producing agent

 2  resident in this state in the same manner and subject to the

 3  same conditions as is provided in subsection (1) as to

 4  policies and contracts; except that the compensation to be

 5  paid to the agent may relate only to the Florida portion of

 6  the insurance risks represented by such policy or contract.

 7         (3)  An agent shall not sign or countersign in blank

 8  any policy to be issued outside her or his office, or

 9  countersign in blank any countersignature endorsement

10  therefor, or certificate issued thereunder.  An agent may give

11  a written power of attorney to the issuing insurance company

12  to countersign such documents by imprinting her or his name,

13  or the name of the agency or other entity with which the agent

14  may be sharing commission pursuant to s. 626.753(1)(a) and

15  (2), thereon in lieu of manually countersigning such

16  documents; but an agent shall not give a power of attorney to

17  any other person to countersign any such document in her or

18  his name unless the person so authorized is directly employed

19  by the agent and by no other person, and is so employed in the

20  office of the agent.

21         (4)  This section shall not be deemed to prohibit

22  insurers from using salaried licensed and appointed agents for

23  the production and servicing of business in this state and the

24  issuance and countersignature by such agents of insurance

25  policies or contracts, when required under subsection (1), and

26  without payment of commission therefor.

27         (5)  This section shall not be deemed to prohibit an

28  insurer from authorizing an agent who is not regularly

29  commissioned and appointed currently as an agent of the

30  insurer from countersigning a policy or contract of insurance

31  issued pursuant to the provisions of ss. 627.311 and 627.351.

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 1  This section does not apply to reissuance of insurance

 2  policies or endorsements thereto which are part of a mass

 3  reissuance of such policies or endorsements and do not involve

 4  a change of premium or payment of agent's commissions.

 5         Section 2.  Section 624.426, Florida Statutes, is

 6  amended to read:

 7         624.426  Exceptions to resident agent and

 8  countersignature law.--Section 624.425 does not apply to:

 9         (1)  Contracts of reinsurance.

10         (2)  Policies of insurance on the rolling stock of

11  railroad companies doing a general freight and passenger

12  business.

13         (3)  United States Customs surety bonds that are issued

14  by a corporate surety approved by the United States Department

15  of Treasury and that name the United States as the

16  beneficiary.

17         (4)  Policies of insurance issued by insurers whose

18  agents represent only one company or group of companies under

19  common ownership if a company within one group is transferring

20  policies to another company within the same group and the

21  agent of record remains the same.

22         (5)  Policies of insurance issued by insurers whose

23  agents represent, as to property, casualty, and surety

24  insurance, only one company or group of companies under common

25  ownership and for which a Florida resident agent is the agent

26  of record and the application has been lawfully submitted to

27  the insurer.

28         Section 3.  Subsections (8) and (9) of section 626.025,

29  Florida Statutes, are amended and present subsections (10)

30  through (16) of that section are redesignated as subsections

31  (9) through (15), respectively, to read:

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 1         626.025  Consumer protections.--To transact insurance,

 2  agents shall comply with consumer protection laws, including

 3  the following, as applicable:

 4         (8)  Requirements for licensure of resident and

 5  nonresident agents in s. 626.112, s. 626.321, s. 626.731, s.

 6  626.741, s. 626.785, s. 626.792, s. 626.831, or s. 626.835, or

 7  s. 626.927.

 8         (9)  The prohibition against nonresident agents having

 9  a place of business in the state, a pecuniary interest in an

10  insurance business in the state, or a financial interest in an

11  insurance agency in the state, under s. 626.741, s. 626.792,

12  or s. 626.835.

13         Section 4.  Section 626.741, Florida Statutes, is

14  amended to read:

15         626.741  Nonresident agents; licensing and

16  restrictions.--

17         (1)  The department may, upon written application and

18  the payment of the fees as specified in s. 624.501, issue a

19  license as:

20         (a)  A nonresident general lines agent to an individual

21  licensed in his or her home state as a resident agent for the

22  same line of authority as a Florida resident general lines

23  agent and otherwise qualified therefor under the laws of this

24  state, but who is not a resident of this state, if by the laws

25  of the individual's home state, residents of this state may be

26  licensed in a similar manner as a nonresident agent of his or

27  her home state.

28         (b)  A customer representative to an individual

29  otherwise qualified therefor, who is not a resident of this

30  state, but is a resident of a state sharing a common boundary

31  with this state.

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 1         (2)  The department may enter into reciprocal

 2  agreements with the appropriate official of any other state

 3  waiving the written examination of any applicant resident in

 4  that other state if:

 5         (a)  In the applicant's home state, a resident of this

 6  state is privileged to procure a general lines agent's license

 7  upon compliance with the conditions specified in subsection

 8  (1) and without discrimination as to fees or otherwise in

 9  favor of the residents of the individual's home state.

10         (b)  The appropriate official of the individual's home

11  state certifies that the applicant holds a currently valid

12  license as a resident agent in his or her home state for the

13  same line of authority as a general lines agent in this state.

14         (c)  The applicant satisfies the examination

15  requirement under s. 626.221, or qualifies for an exemption

16  thereunder.

17         (3)  The department shall not, however, issue any

18  license and appointment to any nonresident who has an office

19  or place of business in this state, or who has any direct or

20  indirect pecuniary interest in any insurance agent or

21  insurance agency licensed as a resident of this state; nor to

22  any individual who does not, at the time of issuance and

23  throughout the existence of the Florida license, hold a

24  license as agent or broker issued by his or her home state;

25  nor to any individual who is employed by any insurer as a

26  service representative or who is a managing general agent in

27  any state, whether or not also licensed in another state as an

28  agent or broker.  The foregoing requirement to hold a similar

29  license in the applicant's home state does not apply to

30  customer representatives unless the home state licenses

31  residents of that state in a similar manner. The prohibition

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 1  against having an office or place of business in this state

 2  does not apply to customer representatives who are required to

 3  conduct business solely within the confines of the office of a

 4  licensed and appointed Florida resident general lines agent in

 5  this state. The authority of such nonresident license is

 6  limited to the specific lines of authority granted in the

 7  license issued by the agent's home state and further limited

 8  to the specific lines authorized under the nonresident license

 9  issued by this state. The department shall have discretion to

10  refuse to issue any license or appointment to a nonresident

11  when it has reason to believe that the applicant by ruse or

12  subterfuge is attempting to avoid the intent and prohibitions

13  contained in this subsection or to believe that any of the

14  grounds exist as for suspension, denial, or revocation of

15  license as set forth in ss. 626.611 and 626.621.

16         (4)  Such a nonresident shall not directly or

17  indirectly solicit, negotiate, or effect insurance contracts

18  in this state unless accompanied by a countersigning agent,

19  resident in this state, on such risk.

20         (5)(a)  All insurance policies as defined in s.

21  627.402, written under the nonresident agent's license,

22  including those written or issued pursuant to the Surplus

23  Lines Law, part VIII, on risks or property located in this

24  state must be countersigned by a local agent resident of this

25  state; and it shall be the duty and responsibility of the

26  nonresident agent, and, if called upon to do so by the

27  countersigning agent, of the insurer likewise, to assure that

28  such resident local agent receives the same commission as

29  allowed by the home state of the nonresident agent, but in no

30  event shall the resident local agent receive, accept, or

31  retain less than 50 percent of the usual Florida local agent's

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 1  commission or 50 percent of the nonresident agent's

 2  commission, whichever is less, on policies of insurance

 3  covering property as defined in s. 624.604 and insurance

 4  covering in whole or in part real property and tangible

 5  personal property, including property floater policies.  On

 6  all other policies of insurance, including insurance covering

 7  motor vehicles, plate glass, burglary, robbery, theft,

 8  larceny, boiler and machinery, workers' compensation, fidelity

 9  and surety, bodily injury liability, and property damage

10  liability, in no event shall he or she receive, accept, or

11  retain less than 25 percent of the usual Florida local agent's

12  commission or 25 percent of the nonresident agent's

13  commission, whichever is less.

14         (b)  The provisions of this subsection, with respect to

15  resident agent countersignature commission, shall not be

16  applicable to any contracts of insurance purchased by a person

17  whose premiums for insurance in the preceding year of such

18  purchase exceeded $250,000 in the aggregate.  Nothing herein

19  is intended to preclude the negotiation and payment of a

20  commission to the countersigning agent to compensate him or

21  her for services performed or to be performed.

22         (4)(6)  Any individual who holds a Florida nonresident

23  agent's license, upon becoming a resident of this state may,

24  for a period not to exceed 90 days, continue to transact

25  insurance in this state under the nonresident license and

26  appointment.  Such individual must make application for

27  resident licensure and must become licensed as a resident

28  agent within 90 days of becoming a resident of this state.

29         (5)(7)  Upon becoming a resident of this state, an

30  individual who holds a Florida nonresident agent's license is

31  no longer eligible for licensure as a nonresident agent if

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 1  such individual fails to make application for a resident

 2  license and become licensed as a resident agent within 90

 3  days. His or her license and any appointments shall be

 4  canceled immediately.  He or she may apply for a resident

 5  license pursuant to s. 626.731.

 6         (6)(8)  Except as provided in this section and ss.

 7  626.742 and 626.743, nonresident agents shall be subject to

 8  the same requirements as apply to agents resident in this

 9  state. However, nonresident agents are not required to

10  maintain an insurance agency in this state. If a nonresident

11  agent does maintain or have a financial interest in an

12  insurance agency in this state, the agency is subject to the

13  same requirements that apply to agencies of resident agents in

14  this state.

15         (7)(9)  If available, the department shall verify the

16  nonresident applicant's licensing status through the Producer

17  Database maintained by the National Association of Insurance

18  Commissioners, its affiliates, or subsidiaries.

19         Section 5.  Paragraph (a) of subsection (3) of section

20  626.752, Florida Statutes, is amended to read:

21         626.752  Exchange of business.--

22         (3)(a)  An insurer may furnish to resident Florida

23  general lines agents who are not appointed by the insurer its

24  forms, coverage documents, binders, applications, and other

25  incidental supplies only for the purposes set forth in this

26  section and only to the extent necessary to facilitate the

27  writing of exchange of business pursuant to this section.  The

28  insurer shall assign a unique brokering agent's register

29  number to each agent not appointed with the insurer but

30  furnished with the insurer's forms, coverage documents,

31  binders, applications, and other incidental supplies.

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 1         Section 6.  Subsections (1) and (3) of section 626.753,

 2  Florida Statutes, are amended to read:

 3         626.753  Sharing commissions; penalty.--

 4         (1)(a)  An agent may divide or share in commissions

 5  only with other agents appointed and licensed to write the

 6  same kind or kinds of insurance.

 7         (b)  A resident agent and a nonresident agent, subject

 8  to the provisions of s. 626.741, may divide among themselves

 9  commissions as to kinds of insurance for which both are

10  appointed and licensed.

11         (b)(c)  This section shall not be construed to prevent

12  the payment or receipt of renewal commissions or other

13  deferred commissions or pensions to or by any person solely

14  because such person has ceased to hold a license to act as an

15  insurance agent, and shall not prevent the payment of renewal

16  commissions or other deferred commissions to any incorporated

17  insurance agency solely because any of its stockholders has

18  ceased to hold a license to act as an insurance agent.

19         (3)  A resident general lines agent may share

20  commissions derived from the sale of crop hail or

21  multiple-peril crop insurance with a production credit

22  association organized under 12 U.S.C.A. ss. 2071-2077 or a

23  federal land bank association organized under U.S.C.A. ss.

24  2091-2098 if the association has specifically approved the

25  insurance activity by its employees. The amount of commission

26  to be shared shall be determined by the general lines agent

27  and the company paying the commission.

28         Section 7.  Subsection (3) of section 626.792, Florida

29  Statutes, is repealed.

30         Section 8.  Subsection (3) of section 626.835, Florida

31  Statutes, is repealed.

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 1         Section 9.  Section 626.9272, Florida Statutes, is

 2  created to read:

 3         626.9272  Licensing of nonresident surplus lines

 4  agents.--

 5         (1)  The department may, upon written application and

 6  the payment of the fees specified in s. 624.501, issue a

 7  nonresident surplus lines agent license to a nonresident

 8  individual licensed in his or her home state as a resident

 9  general lines and a resident surplus lines agent and otherwise

10  qualified under the laws of this state if, under the laws of

11  the individual's home state, residents of this state may be

12  licensed in a similar manner as a nonresident surplus lines

13  agent in that state.

14         (2)  The department may not issue a license unless the

15  applicant satisfies the examination requirement under s.

16  626.927 or qualifies for a waiver pursuant to subsection (3).

17  The department may refuse to issue such license or appointment

18  when it has reason to believe that any of the grounds exist

19  for denial, suspension, or revocation of a license as set

20  forth in ss. 626.611 and 626.621.

21         (3)  The department may enter into reciprocal

22  agreements with other states waiving the written examination

23  of an applicant resident in those states if:

24         (a)  In the applicant's home state, a resident of this

25  state may obtain a surplus lines agent's license upon

26  compliance with the conditions specified in subsection (1)

27  without discrimination as to fees or other requirements in

28  favor of the residents of the individual's home state;

29         (b)  The appropriate official in the individual's home

30  state certifies that the applicant holds a valid license as a

31  resident general lines and resident surplus lines agent in

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 1  that state for the same line of authority as a general lines

 2  agent in this state; and

 3         (c)  The applicant has successfully passed a written

 4  examination in that state or another state in which the

 5  applicant holds a nonresident surplus lines agent license.

 6         (4)  The authority of a nonresident license is limited

 7  to the specific lines of authority granted in the license

 8  issued by the agent's home state and the lines authorized

 9  under the nonresident license by this state.

10         (5)  Any individual who holds a nonresident agent's

11  license, upon becoming a resident of this state may, for a

12  period not to exceed 90 days, operate under the nonresident

13  license and appointment, but must become licensed as a

14  resident agent within that time to continue transacting

15  business in this state after the 90-day period.

16         (6)  Except as provided in this section, nonresident

17  surplus lines agents are subject to the requirements that

18  apply to resident surplus lines agents in this state,

19  including s. 626.928.

20         (7)  If available, the department shall verify a

21  nonresident applicant's licensing status through the producer

22  database maintained by the National Association of Insurance

23  Commissioners, its affiliates, or subsidiaries.

24         Section 10.  Subsection (1) of section 626.929, Florida

25  Statutes, is amended to read:

26         626.929  Origination, acceptance, placement of surplus

27  lines business.--

28         (1)  A resident general lines agent while licensed and

29  appointed as a surplus lines agent under this part may

30  originate surplus lines business and may accept surplus lines

31  business from any other originating Florida-licensed general

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 1  lines agent appointed and licensed as to the kinds of

 2  insurance involved and may compensate such agent therefor.

 3         Section 11.  Subsection (1) of section 626.930, Florida

 4  Statutes, is amended to read:

 5         626.930  Records of surplus lines agent.--

 6         (1)  Each surplus lines agent shall keep in his or her

 7  office in this state, or in the agent's state of residence for

 8  a nonresident who does not have an office in this state, a

 9  full and true record for a period of 5 years of each surplus

10  lines contract, including applications and all certificates,

11  cover notes, and other forms of confirmation of insurance

12  coverage and any substitutions thereof or endorsements thereto

13  relative to said contract procured by the agent and showing

14  such of the following items as may be applicable:

15         (a)  Amount of the insurance and perils insured

16  against;

17         (b)  Brief general description of property insured and

18  where located;

19         (c)  Gross premium charged;

20         (d)  Return premium paid, if any;

21         (e)  Rate of premium charged upon the several items of

22  property;

23         (f)  Effective date of the contract, and the terms

24  thereof;

25         (g)  Name and post office address of the insured;

26         (h)  Name and home-office address of the insurer;

27         (i)  Amount collected from the insured; and

28         (j)  Other information as may be required by the

29  department.

30         Section 12.  Subsection (1) of section 626.935, Florida

31  Statutes, is amended to read:

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 1         626.935  Suspension, revocation, or refusal of surplus

 2  lines agent's license.--

 3         (1)  The department shall deny an application for,

 4  suspend, revoke, or refuse to renew the appointment of a

 5  surplus lines agent and all other licenses and appointments

 6  held by the licensee under this code, upon any of the

 7  following grounds:

 8         (a)  Removal of the licensee's office from the

 9  licensee's state of residence.

10         (b)  Removal of the accounts and records of his or her

11  surplus lines business from this state or the licensee's state

12  of residence during the period when such accounts and records

13  are required to be maintained under s. 626.930.

14         (c)  Closure of the licensee's office for a period of

15  more than 30 consecutive days.

16         (d)  Failure to make and file his or her affidavit or

17  reports when due as required by s. 626.931.

18         (e)  Failure to pay the tax or service fee on surplus

19  lines premiums, as provided for in this Surplus Lines Law.

20         (f)  Failure to maintain the bond as required by s.

21  626.928.

22         (g)  Suspension, revocation, or refusal to renew or

23  continue the license or appointment as a general lines agent,

24  service representative, or managing general agent.

25         (h)  Lack of qualifications as for an original surplus

26  lines agent's license.

27         (i)  Violation of this Surplus Lines Law.

28         (j)  For any other applicable cause for which the

29  license of a general lines agent could be suspended, revoked,

30  or refused under s. 626.611 or s. 616.621.

31         Section 13.  This act shall take effect July 1, 2004.

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 1            *****************************************

 2                          SENATE SUMMARY

 3    Revises provisions relating to property and casualty
      insurers. Deletes a requirement that certain property,
 4    casualty and surety insurers have a resident agent in
      this state. Requires surplus lines agents to comply with
 5    consumer protection laws. Deletes provisions that
      prohibit nonresident general lines agents, nonresident
 6    life insurance agents, or nonresident health insurance
      agents from maintaining offices in this state.
 7    Establishes licensing provisions for nonresident surplus
      lines agents and provides additional grounds for the
 8    discipline of certain licensed agents. (See bill for
      details.)
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