Senate Bill sb2184

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    Florida Senate - 2005                                  SB 2184

    By Senator Baker





    20-1083A-05                                        See HB 1451

  1                      A bill to be entitled

  2         An act relating to local government revenue

  3         bonds for hurricane recovery; amending s.

  4         631.54, F.S.; revising a definition; amending

  5         s. 631.57, F.S.; providing requirements and

  6         limitations for the Florida Insurance Guaranty

  7         Association, Inc., relating to emergency

  8         assessments for covered claims payable from

  9         revenue bonds issued by counties or

10         municipalities; authorizing the association to

11         contract with counties and municipalities to

12         issue revenue bonds for certain purposes;

13         requiring the Department of Financial Services

14         to levy emergency assessments on certain

15         insurers for bond repayment purposes; providing

16         requirements for the department in levying and

17         administering such assessments; providing

18         requirements for use of bond proceeds;

19         requiring the association to issue an annual

20         report relating to use of bond proceeds and

21         payment of claims; providing insurer rate

22         filing requirements relating to emergency

23         assessments; providing requirements for terms

24         and liability of assessments; specifying

25         assessments as not premium and not subject to

26         tax, fees, or commissions; providing for

27         insurer liability for emergency assessments;

28         creating s. 631.695, F.S.; providing

29         legislative findings and purposes; providing

30         for issuance of revenue bonds through counties

31         and municipalities to fund assistance programs

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    Florida Senate - 2005                                  SB 2184
    20-1083A-05                                        See HB 1451




 1         for paying covered claims for hurricane damage;

 2         providing procedures, requirements, and

 3         limitations for counties, municipalities, and

 4         the Florida Insurance Guaranty Association,

 5         Inc., relating to issuance and validation of

 6         such bonds; providing for payments on and

 7         retirement of such bonds from certain emergency

 8         assessments; prohibiting pledging the funds,

 9         credit, property, and taxing power of the

10         state, counties, and municipalities for payment

11         of bonds; specifying authorized uses of bond

12         proceeds; limiting the term of bonds;

13         specifying a state covenant to protect

14         bondholders from adverse actions relating to

15         such bonds; specifying exemptions for bonds,

16         notes, and other obligations of counties and

17         municipalities from certain taxes or

18         assessments on property and revenues;

19         authorizing counties and municipalities to

20         create a legal entity to exercise certain

21         powers; prohibiting repeal of certain

22         provisions relating to certain bonds under

23         certain circumstances; providing severability;

24         providing an effective date.

25  

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

27  

28         Section 1.  Subsection (3) of section 631.54, Florida

29  Statutes, is amended to read:

30         631.54  Definitions.--As used in this part:

31  

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    Florida Senate - 2005                                  SB 2184
    20-1083A-05                                        See HB 1451




 1         (3)  "Covered claim" means an unpaid claim, including

 2  one of unearned premiums, which arises out of, and is within

 3  the coverage, and not in excess of, the applicable limits of

 4  an insurance policy to which this part applies, issued by an

 5  insurer, if such insurer becomes an insolvent insurer and the

 6  claimant or insured is a resident of this state at the time of

 7  the insured event or the property from which the claim arises

 8  is permanently located in this state. For entities other than

 9  an individual, the residence of a claimant, insured, or

10  policyholder is the state in which the entity's principal

11  place of business is located at the time of the insured event.

12  "Covered claim" shall not include:

13         (a)  Any amount due any reinsurer, insurer, insurance

14  pool, or underwriting association, sought directly or

15  indirectly through a third party, as subrogation,

16  contribution, indemnification, or otherwise; or

17         (b)  Any claim that would otherwise be a covered claim

18  under this part that has been rejected by any other state

19  guaranty fund on the grounds that an insured's net worth is

20  greater than that allowed under that state's guaranty law.

21  Member insurers shall have no right of subrogation,

22  contribution, indemnification, or otherwise, sought directly

23  or indirectly through a third party, against the insured of

24  any insolvent member.

25         Section 2.  Paragraph (a) of subsection (1) and

26  paragraph (d) of subsection (2) of section 631.57, Florida

27  Statutes, are amended, and paragraph (e) is added to

28  subsection (3) of that section, to read:

29         631.57  Powers and duties of the association.--

30         (1)  The association shall:

31  

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    Florida Senate - 2005                                  SB 2184
    20-1083A-05                                        See HB 1451




 1         (a)1.  Be obligated to the extent of the covered claims

 2  existing:

 3         a.  Prior to adjudication of insolvency and arising

 4  within 30 days after the determination of insolvency;

 5         b.  Before the policy expiration date if less than 30

 6  days after the determination; or

 7         c.  Before the insured replaces the policy or causes

 8  its cancellation, if she or he does so within 30 days of the

 9  determination.

10         2.a.  The obligation under subparagraph 1. shall

11  include only that amount of each covered claim which is in

12  excess of $100 and is less than $300,000, except with respect

13  to policies covering condominium associations or homeowners'

14  associations, which associations have a responsibility to

15  provide insurance coverage on residential units within the

16  association, the obligation shall include that amount of each

17  covered property insurance claim which is less than $100,000

18  multiplied by the number of condominium units or other

19  residential units; however, as to homeowners' associations,

20  this sub-subparagraph subparagraph applies only to claims for

21  damage or loss to residential units and structures attached to

22  residential units.

23         b.  Notwithstanding sub-subparagraph a., the

24  association has no obligation to pay covered claims that are

25  to be paid from the proceeds of bonds issued under s. 631.695.

26  However, the association shall cause emergency assessments to

27  be made under paragraph (3)(e) for such covered claims, and

28  such emergency assessments shall be assigned and pledged under

29  paragraph (3)(e) to or on behalf of the issuer of such bonds

30  for the benefit of the holders of such bonds. The association

31  shall administer any such covered claims and present valid

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    Florida Senate - 2005                                  SB 2184
    20-1083A-05                                        See HB 1451




 1  covered claims for payment in accordance with the provisions

 2  of the assistance program in connection with which such bonds

 3  have been issued.

 4         3.  In no event shall the association be obligated to a

 5  policyholder or claimant in an amount in excess of the

 6  obligation of the insolvent insurer under the policy from

 7  which the claim arises.

 8         (2)  The association may:

 9         (d)  Negotiate and become a party to such contracts as

10  are necessary to carry out the purpose of this part.

11  Additionally, the association may enter into such contracts

12  with a municipality or county or such legal entity created

13  pursuant to s. 163.01(7)(g) as are necessary in order for the

14  municipality or county or such legal entity to issue bonds

15  under s. 631.695. In connection with the issuance of any such

16  bonds and the entering into of any such necessary contracts,

17  the association may agree to such terms and conditions as the

18  association deems necessary and proper.

19         (3)

20         (e)1.a.  In addition to assessments otherwise

21  authorized in paragraph (a) and to the extent necessary to

22  secure the funds for the account specified in s. 631.55(2)(c),

23  or to retire indebtedness, including, without limitation, the

24  principal, redemption premium, if any, and interest on, and

25  related costs of issuance of, bonds issued under s. 631.695,

26  and the funding of any reserves and other payments required

27  under the bond resolution or trust indenture pursuant to which

28  such bonds have been issued, the department, upon

29  certification of the board of directors, shall levy emergency

30  assessments upon insurers holding a certificate of authority

31  as set forth in this paragraph. The emergency assessments

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    Florida Senate - 2005                                  SB 2184
    20-1083A-05                                        See HB 1451




 1  payable under this paragraph by any insurer shall not exceed

 2  in any single year more than 2 percent of that insurer's

 3  direct written premiums, net of refunds, in this state during

 4  the preceding calendar year for the kinds of insurance within

 5  the account specified in s. 631.55(2)(c).

 6         b.  Any emergency assessments authorized under this

 7  paragraph shall be levied by the department upon insurers

 8  referred to in sub-subparagraph a., upon certification as to

 9  the need for such assessments by the board of directors, in

10  each year that bonds issued under s. 631.695 are outstanding,

11  in such amounts up to such 2-percent limit as required in

12  order to provide for the full and timely payment of the

13  principal, redemption premium, if any, and interest on, and

14  related costs of issuance of bonds issued under s. 631.695.

15  The emergency assessments provided for in this paragraph are

16  assigned and pledged to the municipality, county, or legal

17  entity issuing bonds under s. 631.695 for the benefit of the

18  holders of such bonds in order to enable such municipality,

19  county, or legal entity to provide for the payment of the

20  principal, redemption premium, if any, and interest on such

21  bonds, the cost of issuance of such bonds, and the funding of

22  any reserves and other payments required under the bond

23  resolution or trust indenture pursuant to which such bonds

24  have been issued, without the necessity of any further action

25  by the association, the department, or any other party. To the

26  extent bonds are issued under s. 631.695, the proceeds of

27  emergency assessments levied under this paragraph shall be

28  remitted directly to and administered by the trustee or

29  custodian appointed for such bonds.

30         c.  Emergency assessments under this paragraph may be

31  payable in a single payment or, at the option of the

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    Florida Senate - 2005                                  SB 2184
    20-1083A-05                                        See HB 1451




 1  association, payable in 12 monthly installments with the first

 2  installment due and payable at the end of the month after an

 3  emergency assessment is levied and subsequent installments

 4  being due not later than the end of each succeeding month.

 5         d.  The association shall issue an annual report on the

 6  status of the use of the bond proceeds as related to

 7  insolvencies caused by hurricanes. The report must contain the

 8  number and amount of claims paid. The association shall also

 9  include an analysis of the revenue generated from the

10  additional assessment levied under this paragraph. The

11  association shall submit a copy of the report to the President

12  of the Senate, the Speaker of the House of Representatives,

13  and the Chief Financial Officer within 90 days after the end

14  of each calendar year in which bonds were outstanding.

15         2.  In order to ensure that insurers paying emergency

16  assessments levied under this paragraph continue to charge

17  rates that are not inadequate or excessive, within 90 days

18  after being notified of such assessments, each insurer that is

19  to be assessed pursuant to this paragraph shall make a rate

20  filing for coverage included within the account specified in

21  s. 631.55(2)(c) and for which rates are required to be filed

22  under s. 627.062. If the filing reflects a rate change that,

23  as a percentage, is equal to the difference between the rate

24  of such assessment and the rate of the previous year's

25  assessment under this paragraph, the filing shall consist of a

26  certification so stating and shall be deemed approved when

27  made. Any rate change of a different percentage shall be

28  subject to the standards and procedures of s. 627.062.

29         3.  An annual assessment under this paragraph shall

30  continue until the bonds issued with respect to which the

31  assessment was imposed are outstanding, including any bonds

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    Florida Senate - 2005                                  SB 2184
    20-1083A-05                                        See HB 1451




 1  the proceeds of which were used to refund bonds issued

 2  pursuant to s. 631.695, unless adequate provision has been

 3  made for the payment of the bonds under the documents

 4  authorizing the issuance of such bonds.

 5         4.  Emergency assessments under this paragraph are not

 6  premium and are not subject to the premium tax, any fees, or

 7  any commissions. An insurer is liable for all emergency

 8  assessments that the insurer collects and must treat the

 9  failure of an insured to pay an emergency assessment as a

10  failure to pay the premium. An insurer is not liable for

11  uncollectible emergency assessments.

12         Section 3.  Section 631.695, Florida Statutes, is

13  created to read:

14         631.695  Revenue bond issuance through counties or

15  municipalities.--

16         (1)  The Legislature finds:

17         (a)  The potential for widespread and massive damage to

18  persons and property caused by hurricanes making landfall in

19  this state can generate insurance claims of such a number as

20  to render numerous insurers operating within this state

21  insolvent and therefore unable to satisfy covered claims.

22         (b)  The inability of insureds within this state to

23  receive payment of covered claims or to receive such payment

24  timely creates financial and other hardships for such insureds

25  and places undue burdens on the state, the affected units of

26  local government, and the community at large.

27         (c)  In addition, the failure of insurers to pay

28  covered claims or to pay such claims timely due to the

29  insolvency of such insurers can undermine the public's

30  confidence in insurers operating within this state, thereby

31  

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    Florida Senate - 2005                                  SB 2184
    20-1083A-05                                        See HB 1451




 1  adversely affecting the stability of the insurance industry in

 2  this state.

 3         (d)  The state has previously taken action to address

 4  these problems by adopting the Florida Insurance Guaranty

 5  Association Act, which, among other things, provides a

 6  mechanism for the payment of covered claims under certain

 7  insurance policies to avoid excessive delay in payment and to

 8  avoid financial loss to claimants or policyholders because of

 9  the insolvency of an insurer.

10         (e)  In the wake of the unprecedented destruction

11  caused by various hurricanes that have made landfall in this

12  state, the resultant covered claims, and the number of

13  insurers rendered insolvent thereby, it is evident that

14  alternative programs must be developed to allow the Florida

15  Insurance Guaranty Association, Inc., to more expeditiously

16  and effectively provide for the payment of covered claims.

17         (f)  It is therefore determined to be in the best

18  interests of, and necessary for, the protection of the public

19  health, safety, and general welfare of the residents of this

20  state, and for the protection and preservation of the economic

21  stability of insurers operating in this state, and it is

22  declared to be an essential public purpose, to permit certain

23  municipalities and counties to take such actions as will

24  provide relief to claimants and policyholders having covered

25  claims against insolvent insurers operating in this state by

26  expediting the handling and payment of covered claims.

27         (g)  To achieve the foregoing purposes, it is proper to

28  authorize municipalities and counties of this state

29  substantially affected by the landfall of a category 1 or

30  greater hurricane to issue bonds to assist the Florida

31  

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    Florida Senate - 2005                                  SB 2184
    20-1083A-05                                        See HB 1451




 1  Insurance Guaranty Association, Inc., in expediting the

 2  handling and payment of covered claims of insolvent insurers.

 3         (h)  In order to avoid the needless and indiscriminate

 4  proliferation, duplication, and fragmentation of such

 5  assistance programs, it is in the best interests of the

 6  residents of this state to authorize municipalities and

 7  counties severely affected by a category 1 or greater

 8  hurricane to provide for the payment of covered claims beyond

 9  their territorial limits in the implementation of such

10  programs.

11         (i)  It is a paramount public purpose for

12  municipalities and counties substantially affected by the

13  landfall of a category 1 or greater hurricane to be able to

14  issue bonds for the purposes described in this section. Such

15  issuance shall provide assistance to residents of those

16  municipalities and counties, as well as to other residents of

17  this state.

18         (2)  The governing body of any municipality or county

19  the residents of which have been substantially affected by a

20  category 1 or greater hurricane may issue bonds to fund an

21  assistance program in conjunction with, and with the consent

22  of, the Florida Insurance Guaranty Association, Inc., for the

23  purpose of paying claimants' or policyholders' covered claims

24  as defined in s. 631.54 arising through the insolvency of an

25  insurer, which insolvency is determined by the Florida

26  Insurance Guaranty Association, Inc., to have been a result of

27  a category 1 or greater hurricane, regardless of whether such

28  claimants or policyholders are residents of such municipality

29  or county or the property to which such claim relates is

30  located within or outside the territorial jurisdiction of such

31  municipality or county. The power of a municipality or county

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    Florida Senate - 2005                                  SB 2184
    20-1083A-05                                        See HB 1451




 1  to issue bonds as described in this section is in addition to

 2  any powers granted by law and may not be abrogated or

 3  restricted by any provisions in such municipality's or

 4  county's charter. A municipality or county issuing bonds for

 5  this purpose shall enter into such contracts with the Florida

 6  Insurance Guaranty Association, Inc., or any entity acting on

 7  behalf of the Florida Insurance Guaranty Association, Inc., as

 8  are necessary to implement the assistance program. Any bonds

 9  issued by a municipality or county or combination thereof

10  under this subsection shall be payable from and secured by

11  moneys received by or on behalf of the municipality or county

12  from emergency assessments levied under s. 631.57(3)(e) and

13  assigned and pledged to or on behalf of the municipality or

14  county for the benefit of the holders of such bonds in

15  connection with such assistance program. The funds, credit,

16  property, and taxing power of the state or any municipality or

17  county shall not be pledged for the payment of such bonds.

18         (3)  Bonds may be validated by such municipality or

19  county pursuant to chapter 75. The proceeds of such bonds may

20  be used to pay covered claims of insolvent insurers; to

21  refinance or replace previously existing borrowings or

22  financial arrangements; to pay interest on bonds; to fund

23  reserves for the bonds; to pay expenses incident to the

24  issuance or sale of any bond issued under this section,

25  including costs of validating, printing, and delivering the

26  bonds, costs of printing the official statement, costs of

27  publishing notices of sale of the bonds, costs of obtaining

28  credit enhancement or liquidity support, and related

29  administrative expenses; or for such other purposes related to

30  the financial obligations of the fund as the association may

31  determine. The term of the bonds may not exceed 30 years.

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    Florida Senate - 2005                                  SB 2184
    20-1083A-05                                        See HB 1451




 1         (4)  The state covenants with holders of bonds of the

 2  assistance program that the state will not take any action

 3  which will have a material adverse affect on such holders and

 4  will not repeal or abrogate the power of the board of

 5  directors of the association to direct the Office of Insurance

 6  Regulation to levy the assessments and to collect the proceeds

 7  of the revenues pledged to the payment of such bonds as long

 8  as any such bonds remain outstanding unless adequate provision

 9  has been made for the payment of such bonds pursuant to the

10  documents authorizing the issuance of such bonds.

11         (5)  The accomplishment of the authorized purposes of

12  such municipality or county under this section is in all

13  respects for the benefit of the people of the state, for the

14  increase of their commerce and prosperity, and for the

15  improvement of their health and living conditions. Such

16  municipality or county, in performing essential governmental

17  functions in accomplishing its purposes, is not required to

18  pay any taxes or assessments of any kind whatsoever upon any

19  property acquired or used by the county or municipality for

20  such purposes or upon any revenues at any time received by the

21  county or municipality. The bonds, notes, and other

22  obligations of such municipality or county, and the transfer

23  of and income from such bonds, notes, and other obligations,

24  including any profits made on the sale of such bonds, notes,

25  and other obligations, are exempt from taxation of any kind by

26  the state or by any political subdivision or other agency or

27  instrumentality of the state. The exemption granted in this

28  subsection is not applicable to any tax imposed by chapter 220

29  on interest, income, or profits on debt obligations owned by

30  corporations.

31  

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    Florida Senate - 2005                                  SB 2184
    20-1083A-05                                        See HB 1451




 1         (6)  Two or more municipalities or counties the

 2  residents of which have been substantially affected by a

 3  category 1 or greater hurricane may create a legal entity

 4  pursuant to s. 163.01(7)(g) to exercise the powers described

 5  in this section as well as those powers granted in s.

 6  163.01(7)(g). Reference in this section to a municipality or

 7  county includes such legal entity.

 8         Section 4.  No provision of section 631.57 or section

 9  166.111, Florida Statutes, shall be repealed until such time

10  as the principal, redemption premium, if any, and interest on

11  all bonds issued under section 166.111, Florida Statutes,

12  payable and secured from assessments levied under section

13  631.57(3)(e), Florida Statutes, have been paid in full or

14  adequate provision for such payment has been made in

15  accordance with the bond resolution or trust indenture

16  pursuant to which such bonds were issued.

17         Section 5.  If any provision of this act or the

18  application thereof to any person or circumstance is held

19  invalid, the invalidity shall not affect other provisions or

20  applications of the act which can be given effect without the

21  invalid provision or application, and to this end the

22  provisions of this act are declared severable.

23         Section 6.  This act shall take effect upon becoming a

24  law.

25  

26  

27  

28  

29  

30  

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