| 1 | The Insurance Committee recommends the following: |
| 2 |
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| 3 | Council/Committee Substitute |
| 4 | Remove the entire bill and insert: |
| 5 | A bill to be entitled |
| 6 | An act relating to unauthorized insurers; amending s. |
| 7 | 626.901, F.S.; clarifying nonapplication of prohibitions |
| 8 | against representing or aiding unauthorized insurers to |
| 9 | certain independently procured coverage; authorizing the |
| 10 | Office of Insurance Regulation or the Department of |
| 11 | Financial Services to issue certain cease and desist |
| 12 | orders under certain circumstances; providing a |
| 13 | legislative finding; authorizing the office to investigate |
| 14 | accounts, records, documents, and transactions pertaining |
| 15 | to unauthorized insurers and certain persons; amending s. |
| 16 | 626.902, F.S.; specifying nonapplication of provisions |
| 17 | relating to penalties for persons cooperating with the |
| 18 | office in administering the Unauthorized Insurers Process |
| 19 | Law; amending s. 626.908, F.S.; applying requirements |
| 20 | imposed on unauthorized insurers in certain actions to |
| 21 | certain additional actions; providing a time period for |
| 22 | unauthorized insurers or certain persons to file certain |
| 23 | motions; providing an effective date. |
| 24 |
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| 25 | Be It Enacted by the Legislature of the State of Florida: |
| 26 |
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| 27 | Section 1. Paragraph (d) of subsection (4) of section |
| 28 | 626.901, Florida Statutes, is amended, and subsections (5) and |
| 29 | (6) are added to said section, to read: |
| 30 | 626.901 Representing or aiding unauthorized insurer |
| 31 | prohibited.-- |
| 32 | (4) This section does not apply to: |
| 33 | (d) Independently procured coverage written pursuant to s. |
| 34 | 626.938 that is not solicited, marketed, negotiated, or sold in |
| 35 | this state. |
| 36 | (5) In its discretion and without advance notice or |
| 37 | hearing, the office or department may issue, pursuant to s. |
| 38 | 120.569, an immediate final order to cease and desist to any |
| 39 | person or entity that violates this section. The Legislature |
| 40 | finds that a violation of this section constitutes an imminent |
| 41 | and immediate threat to the public health, safety, and welfare |
| 42 | of the residents of this state. |
| 43 | (6) The office is authorized to investigate the accounts, |
| 44 | records, documents, and transactions pertaining to the |
| 45 | activities of any unauthorized insurer or person, as defined in |
| 46 | s. 624.04, who is or may be aiding or representing an |
| 47 | unauthorized insurer. |
| 48 | Section 2. Subsection (3) is added to section 626.902, |
| 49 | Florida Statutes, to read: |
| 50 | 626.902 Penalty for representing unauthorized insurer.-- |
| 51 | (3) This section does not apply to actions of a person who |
| 52 | assists the office at the office's direction in administering |
| 53 | the office's responsibilities under ss. 626.904-626.912, the |
| 54 | Unauthorized Insurers Process Law. |
| 55 | Section 3. Subsections (1) and (3) of section 626.908, |
| 56 | Florida Statutes, are amended to read: |
| 57 | 626.908 Defense of action by unauthorized insurer or |
| 58 | person representing or aiding such insurer; damages and attorney |
| 59 | fee.-- |
| 60 | (1) Before an unauthorized insurer or person representing |
| 61 | or aiding such insurer files or causes to be filed any pleading |
| 62 | in any action or proceeding instituted against it under s. ss. |
| 63 | 626.906, s. and 626.907, or s. 626.909 or in a suit instituted |
| 64 | by the office or the department enforcing agency action against |
| 65 | unauthorized insurers pursuant to s. 120.69, an unauthorized |
| 66 | insurer or person representing or aiding such insurer shall: |
| 67 | (a) Procure a certificate of authority to transact |
| 68 | insurance in this state, or |
| 69 | (b) Deposit with the clerk of the court in which such |
| 70 | action or proceeding is pending cash or securities or file with |
| 71 | such clerk a bond with good and sufficient sureties, to be |
| 72 | approved by the court, in an amount to be fixed by the court |
| 73 | sufficient to secure the payment of any final judgment which may |
| 74 | be rendered in such action. The court may in its discretion make |
| 75 | an order dispensing with such deposit or bond where the insurer |
| 76 | makes a showing satisfactory to the court that it maintains in a |
| 77 | state of the United States funds or securities, in trust or |
| 78 | otherwise, sufficient and available to satisfy any final |
| 79 | judgment which may be entered in such action or proceeding, and |
| 80 | that the insurer or person representing or aiding such insurer |
| 81 | will pay any final judgment entered therein without requiring |
| 82 | suit to be brought on such judgment in the state where such |
| 83 | funds or securities are located, and that if, nevertheless, such |
| 84 | suit is brought on such final judgment the insurer or person |
| 85 | representing or aiding such insurer shall waive all defenses |
| 86 | thereto. |
| 87 | (c) Any proof, evidence, or testimony in support of such |
| 88 | motion shall be taken in the jurisdiction of the court in which |
| 89 | the action or proceeding is pending. |
| 90 | (d) If the unauthorized insurer or person representing or |
| 91 | aiding such insurer seeks to take discovery or de bene esse |
| 92 | depositions of witnesses beyond the jurisdiction of the court in |
| 93 | which the action is pending, upon seasonable application by the |
| 94 | plaintiff, the court by appropriate order shall require the |
| 95 | unauthorized insurer or person representing or aiding such |
| 96 | insurer, before such depositions are taken, to make similar |
| 97 | deposit as described in paragraph (b), in sufficient amount to |
| 98 | pay the reasonable expenses of the plaintiff and his or her |
| 99 | attorney in attending the taking of such depositions, including |
| 100 | reasonable attorney's fees to be fixed by the court. |
| 101 | (3) Nothing in subsection (1) is to be construed to |
| 102 | prevent an unauthorized insurer or person representing or aiding |
| 103 | such insurer from filing, within 30 days after service, a motion |
| 104 | to quash or to set aside the service of any process made in the |
| 105 | manner provided in s. 626.907 hereof on the ground either: |
| 106 | (a) That such unauthorized insurer or person representing |
| 107 | or aiding such insurer has not done any of the acts enumerated |
| 108 | in s. 626.906; or |
| 109 | (b) That the person on whom service was made pursuant to |
| 110 | s. 626.907(2) was not doing any of the acts therein enumerated. |
| 111 | Section 4. This act shall take effect July 1, 2005. |