Senate Bill sb2866

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    Florida Senate - 2004                                  SB 2866

    By Senators Geller and Campbell





    31-1192A-04

  1                      A bill to be entitled

  2         An act relating to insurance; amending s.

  3         501.212, F.S.; deleting an exclusion from

  4         application of deceptive and unfair trade

  5         practices provisions pertaining to the

  6         Department of Financial Services or the Office

  7         of Insurance Regulation; creating s. 624.156,

  8         F.S.; providing that certain consumer

  9         protection laws apply to the business of

10         insurance; amending s. 627.041, F.S.; revising

11         definitions; amending s. 627.314, F.S.;

12         revising certain authorized actions multiple

13         insurers may engage in together; prohibiting

14         certain conduct on the part of insurers;

15         creating s. 627.0662, F.S.; providing a

16         definition; requiring each residential property

17         insurer to report certain information to the

18         office; providing for determination of whether

19         excessive profit has been realized; requiring

20         return of excessive amounts; creating s.

21         627.41491, F.S.; requiring the office to

22         provide policy holders with a full disclosure

23         of certain rate comparison information each

24         year; creating s. 627.41494, F.S.; providing

25         for consumer participation in review of

26         insurance rate changes; providing for public

27         inspection; providing for adoption of rules by

28         the office; creating s. 627.747, F.S.;

29         requiring motor vehicle insurers to offer good

30         driver discount plans for a discounted premium;

31         amending s. 627.062, F.S.; providing for the

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 1         director of the office to establish rates

 2         before they take effect; providing procedures

 3         for such filings; deleting a provision

 4         excepting motor vehicle insurance from the

 5         provisions of s. 627.062, F.S.; deleting an

 6         arbitration provision; requiring certain

 7         underwriting rules to be filed; amending s.

 8         627.0628, F.S.; limiting authority of insurers

 9         to use findings of the Florida Commission on

10         Hurricane Loss Projection Methodology in a rate

11         filing under s. 627.062, F.S.; providing that

12         such findings are not admissible and relevant

13         in consideration of a rate filing unless the

14         office has access to all factors and

15         assumptions used in developing the standards or

16         models found by the commission to be reliable

17         or accurate; providing an effective date.

18  

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

20  

21         Section 1.  Subsection (4) of section 501.212, Florida

22  Statutes, is amended to read:

23         501.212  Application.--This part does not apply to:

24         (4)  Any person or activity regulated under laws

25  administered by the Department of Financial Services or the

26  Office of Insurance Regulation of the Financial Services

27  Commission or Banks and savings and loan associations

28  regulated by the Office of Financial Regulation of the

29  Financial Services Commission or banks or savings and loan

30  associations regulated by federal agencies.

31  

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 1         Section 2.  Section 624.156, Florida Statutes, is

 2  created to read:

 3         624.156  Applicability of consumer protection laws to

 4  the business of insurance.--

 5         (1)  Notwithstanding any provision of law to the

 6  contrary, the business of insurance shall be subject to the

 7  laws of this state applicable to any other business,

 8  including, but not limited to, the Florida Civil Rights Act of

 9  1992 set forth in part I of chapter 760, the Florida Antitrust

10  Act of 1980 set forth in chapter 542, the Florida Deceptive

11  and Unfair Trade Practices Act set forth in part II of chapter

12  501, and the consumer protection provisions contained in

13  chapter 540.  The protections afforded consumers by chapters

14  501, 540, 542, and 760 shall apply to insurance consumers.

15         (2)  This section does not prohibit:

16         (a)  Any agreement to collect, compile, and disseminate

17  historical data on paid claims or reserves for reported

18  claims, provided such data are contemporaneously transmitted

19  to the Office of Insurance Regulation and made available for

20  public inspection.

21         (b)  Participation in any joint arrangement established

22  by law or the Office of Insurance Regulation to assure

23  availability of insurance.

24         (c)  Any agent or broker, representing one or more

25  insurers, from obtaining from any insurer such agent or broker

26  represents information relative to the premium for any policy

27  or risk to be underwritten by that insurer.

28         (d)  Any agent or broker from disclosing to an insurer

29  the agent or broker represents any quoted rate or charge

30  offered by another insurer represented by that agent or broker

31  

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 1  for the purpose of negotiating a lower rate, charge, or term

 2  from the insurer to whom the disclosure is made.

 3         (e)  Any agents, brokers, or insurers from using, or

 4  participating with multiple insurers or reinsurers for

 5  underwriting, a single risk or group of risks.

 6         Section 3.  Subsections (3) and (4) of section 627.041,

 7  Florida Statutes, are amended to read:

 8         627.041  Definitions.--As used in this part:

 9         (3)  "Rating organization" means every person, other

10  than an authorized insurer, whether located within or outside

11  this state, who has as his or her object or purpose the

12  collecting, compiling, and disseminating historical data on

13  paid claims or reserves for reported claims making of rates,

14  rating plans, or rating systems. Two or more authorized

15  insurers that act in concert for the purpose of collecting,

16  compiling, and disseminating historical data on paid claims or

17  reserves for reported claims making rates, rating plans, or

18  rating systems, and that do not operate within the specific

19  authorizations contained in ss. 627.311, 627.314(2), (4), and

20  627.351, shall be deemed to be a rating organization. No

21  single insurer shall be deemed to be a rating organization.

22         (4)  "Advisory organization" means every group,

23  association, or other organization of insurers, whether

24  located within or outside this state, which prepares policy

25  forms or makes underwriting rules incident to but not

26  including the making of rates, rating plans, or rating systems

27  or which collects and furnishes to authorized insurers or

28  rating organizations loss or expense statistics or other

29  statistical information and data and acts in an advisory, as

30  distinguished from a ratemaking, capacity.

31  

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 1         Section 4.  Section 627.314, Florida Statutes, is

 2  amended to read:

 3         627.314  Concerted action by two or more insurers.--

 4         (1)  Subject to and in compliance with the provisions

 5  of this part authorizing insurers to be members or subscribers

 6  of rating or advisory organizations or to engage in joint

 7  underwriting or joint reinsurance, two or more insurers may

 8  act in concert with each other and with others with respect to

 9  any matters pertaining to:

10         (a)  Collecting, compiling, and disseminating

11  historical data on paid claims or reserve for reported claims

12  The making of rates or rating systems except for private

13  passenger automobile insurance rates;

14         (b)  The preparation or making of insurance policy or

15  bond forms, underwriting rules, surveys, inspections, and

16  investigations; or

17         (c)  The furnishing of loss or expense statistics or

18  other information and data; or

19         (c)(d)  The carrying on of research.

20         (2)  With respect to any matters pertaining to the

21  making of rates or rating systems; the preparation or making

22  of insurance policy or bond forms, underwriting rules,

23  surveys, inspections, and investigations; the furnishing of

24  loss or expense statistics or other information and data; or

25  the carrying on of research, two or more authorized insurers

26  having a common ownership or operating in the state under

27  common management or control are hereby authorized to act in

28  concert between or among themselves the same as if they

29  constituted a single insurer.  To the extent that such matters

30  relate to cosurety bonds, two or more authorized insurers

31  executing such bonds are hereby authorized to act in concert

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 1  between or among themselves the same as if they constituted a

 2  single insurer.

 3         (3)(a)  Members and subscribers of rating or advisory

 4  organizations may use the rates, rating systems, underwriting

 5  rules, or policy or bond forms of such organizations, either

 6  consistently or intermittently; but, except as provided in

 7  subsection (2) and ss. 627.311 and 627.351, they shall not

 8  agree with each other or rating organizations or others to

 9  adhere thereto.

10         (b)  The fact that two or more authorized insurers,

11  whether or not members or subscribers of a rating or advisory

12  organization, use, either consistently or intermittently, the

13  rates or rating systems made or adopted by a rating

14  organization or the underwriting rules or policy or bond forms

15  prepared by a rating or advisory organization shall not be

16  sufficient in itself to support a finding that an agreement to

17  so adhere exists, and may be used only for the purpose of

18  supplementing or explaining direct evidence of the existence

19  of any such agreement.

20         (b)(c)  This subsection does not apply as to workers'

21  compensation and employer's liability insurances.

22         (4)  Licensed rating organizations and authorized

23  insurers are authorized to exchange information and experience

24  data with rating organizations and insurers in this and other

25  states and may consult with them with respect to ratemaking

26  and the application of rating systems.

27         (4)(5)  Upon compliance with the provisions of this

28  part applicable thereto, any rating organization or advisory

29  organization, and any group, association, or other

30  organization of authorized insurers which engages in joint

31  underwriting or joint reinsurance through such organization or

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 1  by standing agreement among the members thereof, may conduct

 2  operations in this state. As respects insurance risks or

 3  operations in this state, no insurer shall be a member or

 4  subscriber of any such organization, group, or association

 5  that has not complied with the provisions of this part

 6  applicable to it.

 7         (5)(6)  Notwithstanding any other provisions of this

 8  part, insurers shall not participate directly or indirectly in

 9  the deliberations or decisions of rating organizations on

10  private passenger automobile insurance.  However, such rating

11  organizations shall, upon request of individual insurers, be

12  required to furnish at reasonable cost the rate indications

13  resulting from the loss and expense statistics gathered by

14  them. Individual insurers may modify the indications to

15  reflect their individual experience in determining their own

16  rates.  Such rates shall be filed with the office for public

17  inspection whenever requested and shall be available for

18  public announcement only by the press, office, or insurer.

19         Section 5.  Section 627.0662, Florida Statutes, is

20  created to read:

21         627.0662  Excessive profits for residential property

22  insurance prohibited.--

23         (1)  Personal lines or commercial residential property

24  insurance policy means a policy including, but not limited to,

25  any homeowner's, mobile homeowner's, farm owner's, condominium

26  association, condominium unit owner's apartment building, or

27  other policy covering a residential structure or its contents.

28         (2)  Each residential property insurer shall file with

29  the Office of Insurance Regulation, prior to July 1 of each

30  year on forms adopted by the Financial Services Commission,

31  the following data for residential property insurance business

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 1  in this state. The data must include both voluntary and joint

 2  underwriting association business, as follows:

 3         (a)  Calendar-year earned premium.

 4         (b)  Accident-year incurred losses and loss adjustment

 5  expenses.

 6         (c)  The administrative and selling expenses incurred

 7  in this state or allocated to this state for the calendar

 8  year.

 9         (d)  Policyholder dividends incurred during the

10  applicable calendar year.

11         (3)(a)  Excessive profit has been realized if there has

12  been an underwriting gain for the 3 most recent

13  calendar-accident years combined which is greater than the

14  anticipated underwriting profit plus 5 percent of earned

15  premiums for those calendar-accident years.

16         (b)  As used in this subsection with respect to any

17  3-year period, the term "anticipated underwriting profit"

18  means the sum of the dollar amounts obtained by multiplying,

19  for each rate filing of the insurer group in effect during

20  such period, the earned premiums applicable to such rate

21  filing during such period by the percentage factor included in

22  such rate filing for profit and contingencies, such percentage

23  factor having been determined with due recognition to

24  investment income from funds generated by business in this

25  state. Separate calculations need not be made for consecutive

26  rate filings containing the same percentage factor for profits

27  and contingencies.

28         (4)  Each property insurer shall also file a schedule

29  of residential property insurance loss in this state and loss

30  adjustment experience for each of the 3 most recent accident

31  years. The incurred losses and loss adjustment expenses shall

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 1  be valued as of March 31 of the year following the close of

 2  the accident year, developed to an ultimate basis, and at nine

 3  12-month intervals thereafter, each developed to an ultimate

 4  basis, to the extent that a total of three evaluations is

 5  provided for each accident year. The first year to be so

 6  reported shall be accident year 2005, such that the reporting

 7  of 3 accident years will not take place until accident years

 8  2006 and 2007 have become available.

 9         (5)  Each insurer group's underwriting gain or loss for

10  each calendar-accident year shall be computed as follows: the

11  sum of the accident-year incurred losses and loss adjustment

12  expenses as of March 31 of the following year, developed to an

13  ultimate basis, plus the administrative and selling expenses

14  incurred in the calendar year, plus policyholder dividends

15  applicable to the calendar year, shall be subtracted from the

16  calendar-year earned premium to determine the underwriting

17  gain or loss.

18         (6)  For the 3 most recent calendar-accident years, the

19  underwriting gain or loss shall be compared to the anticipated

20  underwriting profit.

21         (7)  If the residential property insurer has realized

22  an excessive profit, the office shall order a return of the

23  excessive amounts to policyholders after affording the insurer

24  an opportunity for hearing and otherwise complying with the

25  requirements of chapter 120. Such excessive amounts shall be

26  refunded to policyholders in all instances unless the insurer

27  affirmatively demonstrates to the office that the refund of

28  the excessive amounts will render the insurer or a member of

29  the insurer group financially impaired or will render it

30  insolvent.

31  

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 1         (8)  The excessive amount shall be refunded to

 2  policyholders on a pro rata basis in relation to the final

 3  compilation year earned premiums to the voluntary residential

 4  property insurance policyholders of record of the insurer

 5  group on December 31 of the final compilation year.

 6         (9)  Any return of excessive profits to policyholders

 7  under this section shall be provided in the form of a cash

 8  refund or a credit towards the future purchase of insurance.

 9         (10)(a)  Cash refunds to policyholders may be rounded

10  to the nearest dollar.

11         (b)  Data in required reports to the office may be

12  rounded to the nearest dollar.

13         (c)  Rounding, if elected by the insurer group, shall

14  be applied consistently.

15         (11)(a)  Refunds to policyholders shall be completed as

16  follows:

17         1.  If the insurer elects to make a cash refund, the

18  refund shall be completed within 60 days after entry of a

19  final order determining that excessive profits have been

20  realized; or

21         2.  If the insurer elects to make refunds in the form

22  of a credit to renewal policies, such credits shall be applied

23  to policy renewal premium notices which are forwarded to

24  insureds more than 60 calendar days after entry of a final

25  order determining that excessive profits have been realized.

26  If an insurer has made this election but an insured thereafter

27  cancels his or her policy or otherwise allows the policy to

28  terminate, the insurer group shall make a cash refund not

29  later than 60 days after termination of such coverage.

30  

31  

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 1         (b)  Upon completion of the renewal credits or refund

 2  payments, the insurer shall immediately certify to the office

 3  that the refunds have been made.

 4         (12)  Any refund or renewal credit made pursuant to

 5  this section shall be treated as a policyholder dividend

 6  applicable to the year in which it is incurred, for purposes

 7  of reporting under this section for subsequent years.

 8         Section 6.  Section 627.41491, Florida Statutes, is

 9  created to read:

10         627.41491  Full disclosure of insurance

11  information.--The Office of Insurance Regulation shall provide

12  motor vehicle policyholders with a comparison on the rate in

13  effect for each motor vehicle insurer in this state. The

14  office shall also provide residential property policyholders

15  with a comparison on the rate in effect for each residential

16  property insurer in this state. Such rate comparison charts

17  shall be made available to the public through the Internet and

18  other commonly used means of distribution no later than July 1

19  of each year.

20         Section 7.  Section 627.41494, Florida Statutes, is

21  created to read:

22         627.41494  Consumer participation in rate review.--

23         (1)  Upon the filing of a proposed rate change by an

24  insurer under s. 627.062 or s. 627.0651, which filing would

25  result in an average statewide increase of 10 percent or more,

26  pursuant to standards determined by the office, the insurer

27  shall mail notice of such filing to each of its policyholders

28  or members.

29         (2)  The rate filing shall be available for public

30  inspection. If the rate filing results in a statewide average

31  increase of 10 percent or more and any policyholder or member

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 1  requests the director of the Office of Insurance Regulation to

 2  hold a hearing within 30 days after the mailing of such

 3  notification pursuant to subsection (1), the director shall

 4  hold a hearing within 30 days after such request. Any consumer

 5  advocacy group or the Public Counsel under chapter 350 may

 6  participate in such hearing, and the office shall adopt rules

 7  governing such participation.

 8         (3)  For purposes of this section, the term "consumer

 9  advocacy group" means an organization with a membership of at

10  least 1,000 individuals, the purpose of which is to represent

11  the best interests of the public in matters relating, but not

12  limited, to insurance rate filings before the Office of

13  Insurance Regulation. The consumer advocacy group may:

14         (a)  Appear in any proceeding or action before the

15  department or office or appear in any proceeding before the

16  Division of Administrative Hearings relating to rate filings

17  under the jurisdiction of the office.

18         (b)  Have access to and use of all files, records, and

19  data of the office relating to rate filings.

20         (c)  Examine rate and form filings submitted to the

21  office.

22         (d)  Recommend to the office any position deemed by the

23  group to be in the best interest of the public in matters

24  relating to rate filings.

25         Section 8.  Section 627.747, Florida Statutes, is

26  created to read:

27         627.747  Good driver discount plan.--

28         (1)  Any rate, rating schedule, or rating manual for

29  the liability, personal injury protection, and collision

30  coverages of a motor vehicle insurance policy filed with the

31  office must provide for an appropriate reduction in premium

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 1  charges as to such coverages based on the following factors in

 2  decreasing order of importance:

 3         (a)  The insured's driving safety record.

 4         (b)  The number of miles he or she drives annually.

 5         (c)  The number of years of driving experience the

 6  insured has had.

 7         (d)  Other factors that the office adopts by rule and

 8  that have a substantial relationship to the risk of loss. The

 9  rules shall set forth the respective weight to be given each

10  factor in determining automobile rates and premiums.

11  Notwithstanding any other law, the use of any criterion

12  without approval constitutes unfair discrimination.

13         (2)  Each person who meets the criteria in subsection

14  (1) shall be qualified to purchase a good driver discount

15  policy from the insurer of his or her choice. An insurer may

16  not refuse to offer and sell a good driver discount policy to

17  any person who meets the standards of this section.

18         (3)  Any discount of 10 percent or less used by an

19  insurer is presumed appropriate unless credible data

20  demonstrate otherwise.

21         Section 9.  Section 627.062, Florida Statutes, is

22  amended to read:

23         627.062  Rate standards; prior rate approval.--

24         (1)  The rates for all classes of insurance to which

25  the provisions of this part are applicable shall be set by the

26  director of the Office of Insurance Regulation and may not be

27  excessive, inadequate, or unfairly discriminatory.

28         (2)  As to all such classes of insurance:

29         (a)  Insurers or rating organizations shall apply for

30  establish and use rates, rating schedules, or rating manuals

31  to allow the insurer a reasonable rate of return on such

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 1  classes of insurance written in this state.  A copy of rates,

 2  rating schedules, rating manuals, premium credits or discount

 3  schedules, and surcharge schedules, and changes thereto, must

 4  shall be filed with the Office of Insurance Regulation under

 5  one of the following procedures:

 6         1.  If the filing is made at least 90 days before the

 7  proposed effective date. and The filing may is not be

 8  implemented during the office's review of the filing and any

 9  proceeding and judicial review., then such filing shall be

10  considered a "file and use" filing.  In such case, the office

11  shall finalize its review by issuance of a notice of intent to

12  approve or a notice of intent to disapprove within 90 days

13  after receipt of the filing. The notice of intent to approve

14  and the notice of intent to disapprove constitute agency

15  action for purposes of the Administrative Procedure Act.

16  Requests for supporting information, requests for mathematical

17  or mechanical corrections, or notification to the insurer by

18  the office of its preliminary findings shall not toll the

19  90-day period during any such proceedings and subsequent

20  judicial review. The rate shall be deemed approved if the

21  office does not issue a notice of intent to approve or a

22  notice of intent to disapprove within 90 days after receipt of

23  the filing.

24         2.  If the filing is not made in accordance with the

25  provisions of subparagraph 1., such filing shall be made as

26  soon as practicable, but no later than 30 days after the

27  effective date, and shall be considered a "use and file"

28  filing.  An insurer making a "use and file" filing is

29  potentially subject to an order by the office to return to

30  policyholders portions of rates found to be excessive, as

31  provided in paragraph (h).

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 1         (b)  Within a reasonable time after Upon receiving a

 2  rate filing, the Office of Insurance Regulation shall review

 3  the rate filing and establish a rate or rate schedule that to

 4  determine if a rate is not excessive, inadequate, or unfairly

 5  discriminatory.  In making that determination, the office

 6  shall, in accordance with generally accepted and reasonable

 7  actuarial techniques, consider the following factors:

 8         1.  Past and prospective loss experience within and

 9  without this state.

10         2.  Past and prospective expenses.

11         3.  The degree of competition among insurers for the

12  risk insured.

13         4.  Investment income reasonably expected by the

14  insurer, consistent with the insurer's investment practices,

15  from investable premiums anticipated in the filing, plus any

16  other expected income from currently invested assets

17  representing the amount expected on unearned premium reserves

18  and loss reserves.  The office commission may adopt rules

19  utilizing reasonable techniques of actuarial science and

20  economics to specify the manner in which insurers shall

21  calculate investment income attributable to such classes of

22  insurance written in this state and the manner in which such

23  investment income shall be used in the calculation of

24  insurance rates.  Such manner shall contemplate allowances for

25  an underwriting profit factor and full consideration of

26  investment income which produce a reasonable rate of return;

27  however, investment income from invested surplus shall not be

28  considered.

29         5.  The reasonableness of the judgment reflected in the

30  filing.

31  

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 1         6.  Dividends, savings, or unabsorbed premium deposits

 2  allowed or returned to Florida policyholders, members, or

 3  subscribers.

 4         7.  The adequacy of loss reserves.

 5         8.  The cost of reinsurance.

 6         9.  Trend factors, including trends in actual losses

 7  per insured unit for the insurer making the filing.

 8         10.  Conflagration and catastrophe hazards, if

 9  applicable.

10         11.  A reasonable margin for underwriting profit and

11  contingencies.

12         12.  The cost of medical services, if applicable.

13         13.  Other relevant factors which impact upon the

14  frequency or severity of claims or upon expenses.

15         (c)  In the case of fire insurance rates, consideration

16  shall be given to the availability of water supplies and the

17  experience of the fire insurance business during a period of

18  not less than the most recent 5-year period for which such

19  experience is available.

20         (d)  If conflagration or catastrophe hazards are given

21  consideration by an insurer in its rates or rating plan,

22  including surcharges and discounts, the insurer shall

23  establish a reserve for that portion of the premium allocated

24  to such hazard and shall maintain the premium in a catastrophe

25  reserve.  Any removal of such premiums from the reserve for

26  purposes other than paying claims associated with a

27  catastrophe or purchasing reinsurance for catastrophes shall

28  be subject to approval of the office.  Any ceding commission

29  received by an insurer purchasing reinsurance for catastrophes

30  shall be placed in the catastrophe reserve.

31  

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 1         (e)  After consideration of the rate factors provided

 2  in paragraphs (b), (c), and (d), the Office of Insurance

 3  Regulation shall set an appropriate rate that is not a rate

 4  may be found by the office to be excessive, inadequate, or

 5  unfairly discriminatory based upon the following standards:

 6         1.  Rates shall be deemed excessive if they are likely

 7  to produce a profit from Florida business that is unreasonably

 8  high in relation to the risk involved in the class of business

 9  or if expenses are unreasonably high in relation to services

10  rendered.

11         2.  Rates shall be deemed excessive if, among other

12  things, the rate structure established by a stock insurance

13  company provides for replenishment of surpluses from premiums,

14  when the replenishment is attributable to investment losses.

15         3.  Rates shall be deemed inadequate if they are

16  clearly insufficient, together with the investment income

17  attributable to them, to sustain projected losses and expenses

18  in the class of business to which they apply.

19         4.  A rating plan, including discounts, credits, or

20  surcharges, shall be deemed unfairly discriminatory if it

21  fails to clearly and equitably reflect consideration of the

22  policyholder's participation in a risk management program

23  adopted pursuant to s. 627.0625.

24         5.  A rate shall be deemed inadequate as to the premium

25  charged to a risk or group of risks if discounts or credits

26  are allowed which exceed a reasonable reflection of expense

27  savings and reasonably expected loss experience from the risk

28  or group of risks.

29         6.  A rate shall be deemed unfairly discriminatory as

30  to a risk or group of risks if the application of premium

31  discounts, credits, or surcharges among such risks does not

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 1  bear a reasonable relationship to the expected loss and

 2  expense experience among the various risks.

 3         (f)  In reviewing a rate filing, the office may require

 4  the insurer to provide at the insurer's expense all

 5  information necessary to evaluate the condition of the company

 6  and the reasonableness of the filing according to the criteria

 7  enumerated in this section.

 8         (g)  The office may at any time review a rate, rating

 9  schedule, rating manual, or rate change; the pertinent records

10  of the insurer; and market conditions.  If the office finds on

11  a preliminary basis that a rate may be excessive, inadequate,

12  or unfairly discriminatory, the office shall initiate

13  proceedings to establish a new disapprove the rate and shall

14  so notify the insurer. However, the office may not disapprove

15  as excessive any rate that it has established for which it has

16  given final approval or which has been deemed approved for a

17  period of 1 year after the effective date of the filing unless

18  the office finds that a material misrepresentation or material

19  error was made by the insurer or was contained in the filing.

20  Upon being so notified, the insurer or rating organization

21  shall, within 60 days, file with the office all information

22  which, in the belief of the insurer or organization, proves

23  the reasonableness, adequacy, and fairness of the rate or rate

24  change.  The office shall establish an appropriate rate within

25  a reasonable time after receiving an issue a notice of intent

26  to approve or a notice of intent to disapprove pursuant to the

27  procedures of paragraph (a) within 90 days after receipt of

28  the insurer's initial response.  In such instances and in any

29  administrative proceeding relating to the legality of any the

30  rate, the insurer or rating organization shall carry the

31  burden of proof by a preponderance of the evidence to show

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 1  that the rate is not excessive, inadequate, or unfairly

 2  discriminatory.  After the office notifies an insurer that a

 3  rate may be excessive, inadequate, or unfairly discriminatory,

 4  unless the office withdraws the notification, the insurer

 5  shall not alter the rate except to conform with the office's

 6  notice until the earlier of 120 days after the date the

 7  notification was provided or 180 days after the date of the

 8  implementation of the rate.  The office may, subject to

 9  chapter 120, disapprove without the 60-day notification any

10  rate increase filed by an insurer within the prohibited time

11  period or during the time that the legality of the increased

12  rate is being contested.

13         (h)  After setting a new rate or rate schedule In the

14  event the office finds that a rate or rate change is

15  excessive, inadequate, or unfairly discriminatory, the office

16  shall issue an order of disapproval specifying the that a new

17  rate or rate schedule and which responds to the findings of

18  the office be filed by the insurer. The order constitutes

19  final agency action for purposes of chapter 120. The office

20  shall further order, for any "use and file" filing made in

21  accordance with subparagraph (a)2., that premiums charged each

22  policyholder constituting the portion of the rate above that

23  which was actuarially justified be returned to such

24  policyholder in the form of a credit or refund. If the office

25  finds that an insurer's rate or rate change is inadequate, the

26  new rate or rate schedule filed with the office in response to

27  such a finding shall be applicable only to new or renewal

28  business of the insurer written on or after the effective date

29  of the responsive filing.

30         (i)  Except as otherwise specifically provided in this

31  chapter, the office may shall not prohibit any insurer,

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 1  including any residual market plan or joint underwriting

 2  association, from paying acquisition costs based on the full

 3  amount of premium, as defined in s. 627.403, applicable to any

 4  policy, or prohibit any such insurer from including the full

 5  amount of acquisition costs in a rate filing.

 6  

 7  The provisions of This subsection does shall not apply to

 8  workers' compensation and employer's liability insurance and

 9  to motor vehicle insurance.

10         (3)(a)  For individual risks that are not rated in

11  accordance with the insurer's rates, rating schedules, rating

12  manuals, and underwriting rules filed with the office and

13  which have been submitted to the insurer for individual

14  rating, the insurer must maintain documentation on each risk

15  subject to individual risk rating.  The documentation must

16  identify the named insured and specify the characteristics and

17  classification of the risk supporting the reason for the risk

18  being individually risk rated, including any modifications to

19  existing approved forms to be used on the risk.  The insurer

20  must maintain these records for a period of at least 5 years

21  after the effective date of the policy.

22         (b)  Individual risk rates and modifications to

23  existing approved forms are not subject to this part or part

24  II, except for paragraph (a) and ss. 627.402, 627.403,

25  627.4035, 627.404, 627.405, 627.406, 627.407, 627.4085,

26  627.409, 627.4132, 627.4133, 627.415, 627.416, 627.417,

27  627.419, 627.425, 627.426, 627.4265, 627.427, and 627.428, but

28  are subject to all other applicable provisions of this code

29  and rules adopted thereunder.

30         (c)  This subsection does not apply to private

31  passenger motor vehicle insurance.

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 1         (4)  The establishment of any rate, rating

 2  classification, rating plan or schedule, or variation thereof

 3  in violation of part IX of chapter 626 is also in violation of

 4  this section.

 5         (5)  With respect to a rate filing involving coverage

 6  of the type for which the insurer is required to pay a

 7  reimbursement premium to the Florida Hurricane Catastrophe

 8  Fund, the insurer may fully recoup in its property insurance

 9  premiums any reimbursement premiums paid to the Florida

10  Hurricane Catastrophe Fund, together with reasonable costs of

11  other reinsurance, but may not recoup reinsurance costs that

12  duplicate coverage provided by the Florida Hurricane

13  Catastrophe Fund.

14         (6)(a)  Underwriting rules not contained in rating

15  manuals shall be filed for private passenger automobile

16  insurance and homeowners' insurance.

17         (b)  The submission of rates, rating schedules, or

18  rating manuals to the Office of Insurance Regulation by a

19  licensed rating organization of which an insurer is a member

20  or subscriber is sufficient compliance with this subsection

21  for such insurer to the extent that the insurer uses these

22  rates, rating schedules, and rating manuals. All such filed

23  information shall be available for public inspection at the

24  office during usual business hours.

25         (6)(a)  After any action with respect to a rate filing

26  that constitutes agency action for purposes of the

27  Administrative Procedure Act, except for a rate filing for

28  medical malpractice, an insurer may, in lieu of demanding a

29  hearing under s. 120.57, require arbitration of the rate

30  filing. Arbitration shall be conducted by a board of

31  arbitrators consisting of an arbitrator selected by the

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 1  office, an arbitrator selected by the insurer, and an

 2  arbitrator selected jointly by the other two arbitrators. Each

 3  arbitrator must be certified by the American Arbitration

 4  Association. A decision is valid only upon the affirmative

 5  vote of at least two of the arbitrators. No arbitrator may be

 6  an employee of any insurance regulator or regulatory body or

 7  of any insurer, regardless of whether or not the employing

 8  insurer does business in this state. The office and the

 9  insurer must treat the decision of the arbitrators as the

10  final approval of a rate filing. Costs of arbitration shall be

11  paid by the insurer.

12         (b)  Arbitration under this subsection shall be

13  conducted pursuant to the procedures specified in ss.

14  682.06-682.10. Either party may apply to the circuit court to

15  vacate or modify the decision pursuant to s. 682.13 or s.

16  682.14. The commission shall adopt rules for arbitration under

17  this subsection, which rules may not be inconsistent with the

18  arbitration rules of the American Arbitration Association as

19  of January 1, 1996.

20         (c)  Upon initiation of the arbitration process, the

21  insurer waives all rights to challenge the action of the

22  office under the Administrative Procedure Act or any other

23  provision of law; however, such rights are restored to the

24  insurer if the arbitrators fail to render a decision within 90

25  days after initiation of the arbitration process.

26         (7)(a)  The provisions of this subsection apply only

27  with respect to rates for medical malpractice insurance and

28  shall control to the extent of any conflict with other

29  provisions of this section.

30         (b)  Any portion of a judgment entered or settlement

31  paid as a result of a statutory or common-law bad faith action

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 1  and any portion of a judgment entered which awards punitive

 2  damages against an insurer may not be included in the

 3  insurer's rate base, and shall not be used to justify a rate

 4  or rate change. Any common-law bad faith action identified as

 5  such, any portion of a settlement entered as a result of a

 6  statutory or common-law action, or any portion of a settlement

 7  wherein an insurer agrees to pay specific punitive damages may

 8  not be used to justify a rate or rate change. The portion of

 9  the taxable costs and attorney's fees which is identified as

10  being related to the bad faith and punitive damages in these

11  judgments and settlements may not be included in the insurer's

12  rate base and may not be utilized to justify a rate or rate

13  change.

14         (c)  Upon reviewing a rate filing and determining

15  whether the rate is excessive, inadequate, or unfairly

16  discriminatory, the office shall consider, in accordance with

17  generally accepted and reasonable actuarial techniques, past

18  and present prospective loss experience, either using loss

19  experience solely for this state or giving greater credibility

20  to this state's loss data after applying actuarially sound

21  methods of assigning credibility to such data.

22         (d)  Rates shall be deemed excessive if, among other

23  standards established by this section, the rate structure

24  provides for replenishment of reserves or surpluses from

25  premiums when the replenishment is attributable to investment

26  losses.

27         (e)  The insurer must apply a discount or surcharge

28  based on the health care provider's loss experience or shall

29  establish an alternative method giving due consideration to

30  the provider's loss experience. The insurer must include in

31  the filing a copy of the surcharge or discount schedule or a

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 1  description of the alternative method used, and must provide a

 2  copy of such schedule or description, as approved by the

 3  office, to policyholders at the time of renewal and to

 4  prospective policyholders at the time of application for

 5  coverage.

 6         (f)  Each medical malpractice insurer must make a rate

 7  filing under this section, sworn to by at least two executive

 8  officers of the insurer, at least once each calendar year.

 9         (8)(a)1.  No later than 60 days after the effective

10  date of medical malpractice legislation enacted during the

11  2003 Special Session D of the Florida Legislature, the office

12  shall calculate a presumed factor that reflects the impact

13  that the changes contained in such legislation will have on

14  rates for medical malpractice insurance and shall issue a

15  notice informing all insurers writing medical malpractice

16  coverage of such presumed factor. In determining the presumed

17  factor, the office shall use generally accepted actuarial

18  techniques and standards provided in this section in

19  determining the expected impact on losses, expenses, and

20  investment income of the insurer. To the extent that the

21  operation of a provision of medical malpractice legislation

22  enacted during the 2003 Special Session D of the Florida

23  Legislature is stayed pending a constitutional challenge, the

24  impact of that provision shall not be included in the

25  calculation of a presumed factor under this subparagraph.

26         2.  No later than 60 days after the office issues its

27  notice of the presumed rate change factor under subparagraph

28  1., each insurer writing medical malpractice coverage in this

29  state shall submit to the office a rate filing for medical

30  malpractice insurance, which will take effect no later than

31  January 1, 2004, and apply retroactively to policies issued or

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 1  renewed on or after the effective date of medical malpractice

 2  legislation enacted during the 2003 Special Session D of the

 3  Florida Legislature. Except as authorized under paragraph (b),

 4  the filing shall reflect an overall rate reduction at least as

 5  great as the presumed factor determined under subparagraph 1.

 6  With respect to policies issued on or after the effective date

 7  of such legislation and prior to the effective date of the

 8  rate filing required by this subsection, the office shall

 9  order the insurer to make a refund of the amount that was

10  charged in excess of the rate that is approved.

11         (b)  Any insurer or rating organization that contends

12  that the rate provided for in paragraph (a) is excessive,

13  inadequate, or unfairly discriminatory shall separately state

14  in its filing the rate it contends is appropriate and shall

15  state with specificity the factors or data that it contends

16  should be considered in order to produce such appropriate

17  rate. The insurer or rating organization shall be permitted to

18  use all of the generally accepted actuarial techniques

19  provided in this section in making any filing pursuant to this

20  subsection. The office shall review each such exception and

21  approve or disapprove it prior to use. It shall be the

22  insurer's burden to actuarially justify any deviations from

23  the rates required to be filed under paragraph (a). The

24  insurer making a filing under this paragraph shall include in

25  the filing the expected impact of medical malpractice

26  legislation enacted during the 2003 Special Session D of the

27  Florida Legislature on losses, expenses, and rates.

28         (c)  If any provision of medical malpractice

29  legislation enacted during the 2003 Special Session D of the

30  Florida Legislature is held invalid by a court of competent

31  jurisdiction, the office shall permit an adjustment of all

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 1  medical malpractice rates filed under this section to reflect

 2  the impact of such holding on such rates so as to ensure that

 3  the rates are not excessive, inadequate, or unfairly

 4  discriminatory.

 5         (d)  Rates approved on or before July 1, 2003, for

 6  medical malpractice insurance shall remain in effect until the

 7  effective date of a new rate filing approved under this

 8  subsection.

 9         (e)  The calculation and notice by the office of the

10  presumed factor pursuant to paragraph (a) is not an order or

11  rule that is subject to chapter 120. If the office enters into

12  a contract with an independent consultant to assist the office

13  in calculating the presumed factor, such contract shall not be

14  subject to the competitive solicitation requirements of s.

15  287.057.

16         Section 10.  Section 627.0628, Florida Statutes, is

17  amended to read:

18         627.0628  Florida Commission on Hurricane Loss

19  Projection Methodology.--

20         (1)  LEGISLATIVE FINDINGS AND INTENT.--

21         (a)  Reliable projections of hurricane losses are

22  necessary in order to assure that rates for residential

23  property insurance meet the statutory requirement that rates

24  be neither excessive nor inadequate.  The ability to

25  accurately project hurricane losses has been enhanced greatly

26  in recent years through the use of computer modeling.  It is

27  the public policy of this state to encourage the use of the

28  most sophisticated actuarial methods to assure that consumers

29  are charged lawful rates for residential property insurance

30  coverage.

31  

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 1         (b)  The Legislature recognizes the need for expert

 2  evaluation of computer models and other recently developed or

 3  improved actuarial methodologies for projecting hurricane

 4  losses, in order to resolve conflicts among actuarial

 5  professionals, and in order to provide both immediate and

 6  continuing improvement in the sophistication of actuarial

 7  methods used to set rates charged to consumers.

 8         (c)  It is the intent of the Legislature to create the

 9  Florida Commission on Hurricane Loss Projection Methodology as

10  a panel of experts to provide the most actuarially

11  sophisticated guidelines and standards for projection of

12  hurricane losses possible, given the current state of

13  actuarial science.  It is the further intent of the

14  Legislature that such standards and guidelines must be used by

15  the State Board of Administration in developing reimbursement

16  premium rates for the Florida Hurricane Catastrophe Fund, and,

17  subject to paragraph (3)(c), may be used by insurers in rate

18  filings under s. 627.062 unless the way in which such

19  standards and guidelines were applied by the insurer was

20  erroneous, as shown by a preponderance of the evidence.

21         (d)  It is the intent of the Legislature that such

22  standards and guidelines be employed as soon as possible, and

23  that they be subject to continuing review thereafter.

24         (2)  COMMISSION CREATED.--

25         (a)  There is created the Florida Commission on

26  Hurricane Loss Projection Methodology, which is assigned to

27  the State Board of Administration.  For the purposes of this

28  section, the term "commission" means the Florida Commission on

29  Hurricane Loss Projection Methodology. The commission shall be

30  administratively housed within the State Board of

31  

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 1  Administration, but it shall independently exercise the powers

 2  and duties specified in this section.

 3         (b)  The commission shall consist of the following 11

 4  members:

 5         1.  The insurance consumer advocate.

 6         2.  The senior employee of the State Board of

 7  Administration responsible for operations of the Florida

 8  Hurricane Catastrophe Fund.

 9         3.  The Executive Director of the Citizens Property

10  Insurance Corporation.

11         4.  The Director of the Division of Emergency

12  Management of the Department of Community Affairs.

13         5.  The actuary member of the Florida Hurricane

14  Catastrophe Fund Advisory Council.

15         6.  Six members appointed by the Chief Financial

16  Officer, as follows:

17         a.  An employee of the office who is an actuary

18  responsible for property insurance rate filings.

19         b.  An actuary who is employed full time by a property

20  and casualty insurer which was responsible for at least 1

21  percent of the aggregate statewide direct written premium for

22  homeowner's insurance in the calendar year preceding the

23  member's appointment to the commission.

24         c.  An expert in insurance finance who is a full time

25  member of the faculty of the State University System and who

26  has a background in actuarial science.

27         d.  An expert in statistics who is a full time member

28  of the faculty of the State University System and who has a

29  background in insurance.

30         e.  An expert in computer system design who is a full

31  time member of the faculty of the State University System.

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 1         f.  An expert in meteorology who is a full time member

 2  of the faculty of the State University System and who

 3  specializes in hurricanes.

 4         (c)  Members designated under subparagraphs (b)1.-5.

 5  shall serve on the commission as long as they maintain the

 6  respective offices designated in subparagraphs (b)1.-5.

 7  Members appointed by the Chief Financial Officer under

 8  subparagraph (b)6. shall serve on the commission until the end

 9  of the term of office of the Chief Financial Officer who

10  appointed them, unless earlier removed by the Chief Financial

11  Officer for cause.  Vacancies on the commission shall be

12  filled in the same manner as the original appointment.

13         (d)  The State Board of Administration shall annually

14  appoint one of the members of the commission to serve as

15  chair.

16         (e)  Members of the commission shall serve without

17  compensation, but shall be reimbursed for per diem and travel

18  expenses pursuant to s. 112.061.

19         (f)  The State Board of Administration shall, as a cost

20  of administration of the Florida Hurricane Catastrophe Fund,

21  provide for travel, expenses, and staff support for the

22  commission.

23         (g)  There shall be no liability on the part of, and no

24  cause of action of any nature shall arise against, any member

25  of the commission, any member of the State Board of

26  Administration, or any employee of the State Board of

27  Administration for any action taken in the performance of

28  their duties under this section. In addition, the commission

29  may, in writing, waive any potential cause of action for

30  negligence of a consultant, contractor, or contract employee

31  engaged to assist the commission.

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 1         (3)  ADOPTION AND EFFECT OF STANDARDS AND GUIDELINES.--

 2         (a)  The commission shall consider any actuarial

 3  methods, principles, standards, models, or output ranges that

 4  have the potential for improving the accuracy of or

 5  reliability of the hurricane loss projections used in

 6  residential property insurance rate filings.  The commission

 7  shall, from time to time, adopt findings as to the accuracy or

 8  reliability of particular methods, principles, standards,

 9  models, or output ranges.

10         (b)  In establishing reimbursement premiums for the

11  Florida Hurricane Catastrophe Fund, the State Board of

12  Administration must, to the extent feasible, employ actuarial

13  methods, principles, standards, models, or output ranges found

14  by the commission to be accurate or reliable.

15         (c)  With respect to a rate filing under s. 627.062, an

16  insurer may employ actuarial methods, principles, standards,

17  models, or output ranges found by the commission to be

18  accurate or reliable to determine hurricane loss factors for

19  use in a rate filing under s. 627.062, which findings and

20  factors are admissible and relevant in consideration of a rate

21  filing by the office or in any arbitration or administrative

22  or judicial review. However, such findings and factors are not

23  admissible and relevant in consideration of a rate filing

24  unless the office has access to all factors and assumptions

25  that were used in developing the actuarial methods,

26  principles, standards, models, or output ranges found by the

27  commission to be accurate or reliable, and the office is not

28  precluded from disclosing such information in a rate

29  proceeding.

30  

31  

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 1         (d)  The commission shall adopt revisions to previously

 2  adopted actuarial methods, principles, standards, models, or

 3  output ranges at least annually.

 4         Section 11.  This act shall take effect October 1,

 5  2004.

 6  

 7            *****************************************

 8                          SENATE SUMMARY

 9    Revises and creates a variety of provisions relating to
      insurance, including provisions relating to applicability
10    of laws regarding deceptive and unfair trade practices
      and consumer protection, excessive profit on residential
11    property insurance, rate rollbacks for residential
      property insurance and motor vehicle insurance, consumer
12    participation in rate review, good driver discounts, and
      rate proceedings with respect to hurricane losses. (See
13    bill for details.)

14  

15  

16  

17  

18  

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

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