1 | A bill to be entitled |
2 | An act relating to sinkhole insurance; amending s. |
3 | 627.706, F.S.; allowing a deductible amount applicable to |
4 | sinkhole losses in a policy for residential property |
5 | insurance; defining the term "professional engineer"; |
6 | amending s. 627.707, F.S.; revising references to certain |
7 | engineers; authorizing insurers to make direct payment for |
8 | certain repairs; excluding insurers from liability for |
9 | repairs under certain circumstances; amending s. 627.7072, |
10 | F.S.; revising references to certain engineers; |
11 | eliminating the requirement for certain testing |
12 | compliance; amending s. 627.7073, F.S.; revising |
13 | requirements for sinkhole reports by professional |
14 | engineers and professional geologists; providing for the |
15 | recording of sinkhole reports by the clerk of court rather |
16 | than the property appraiser; creating s. 627.7074, F.S.; |
17 | prescribing an alternative method for resolving disputed |
18 | sinkhole insurance claims; providing definitions; |
19 | prescribing procedures for invoking the alternative |
20 | method; providing that a recommendation by a neutral |
21 | evaluator is not binding on any party; providing for |
22 | payments of costs; requiring the insurer to pay attorney's |
23 | fees of the policyholder up to a specified amount under |
24 | certain conditions; providing that an insurer is not |
25 | liable for attorney's fees or for certain damages under |
26 | certain conditions; amending s. 877.02, F.S.; prohibiting |
27 | certain solicitations by contractors and other persons |
28 | providing sinkhole remediation services; providing |
29 | penalties; requiring the Office of Insurance Regulation to |
30 | calculate a certain presumed factor on residential |
31 | property insurance rates; providing requirements and |
32 | procedures for determining such calculation; requiring the |
33 | office to provide notice of such rate factor to insurers; |
34 | requiring insurers to include such rate factor in certain |
35 | rate filings; providing appropriations and authorizing |
36 | additional positions and salary rates; providing effective |
37 | dates. |
38 |
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39 | Be It Enacted by the Legislature of the State of Florida: |
40 |
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41 | Section 1. Subsection (1) and paragraph (d) of subsection |
42 | (2) of section 627.706, Florida Statutes, are amended to read: |
43 | 627.706 Sinkhole insurance; definitions.-- |
44 | (1) Every insurer authorized to transact property |
45 | insurance in this state shall make available coverage for |
46 | insurable sinkhole losses on any structure, including contents |
47 | of personal property contained therein, to the extent provided |
48 | in the form to which the sinkhole coverage attaches. A policy |
49 | for residential property insurance may include a deductible |
50 | amount applicable to sinkhole losses equal to 1 percent, 2 |
51 | percent, 5 percent, or 10 percent of the policy dwelling limits, |
52 | with appropriate premium discounts offered with each deductible |
53 | amount. |
54 | (2) As used in ss. 627.706-627.7074, and as used in |
55 | connection with any policy providing coverage for sinkhole |
56 | losses: |
57 | (d) "Professional engineer" means a person, as defined in |
58 | s. 471.005, who has a bachelor's degree or higher in engineering |
59 | with a specialty in the geotechnical engineering field. A |
60 | professional An engineer must have geotechnical experience and |
61 | expertise in the identification of sinkhole activity as well as |
62 | other potential causes of damage to the structure. |
63 | Section 2. Subsections (2), (3), (5), (6), and (9) of |
64 | section 627.707, Florida Statutes, are amended to read: |
65 | 627.707 Standards for investigation of sinkhole claims by |
66 | insurers; nonrenewals.--Upon receipt of a claim for a sinkhole |
67 | loss, an insurer must meet the following standards in |
68 | investigating a claim: |
69 | (2) Following the insurer's initial inspection, the |
70 | insurer shall engage a professional an engineer or a |
71 | professional geologist to conduct testing as provided in s. |
72 | 627.7072 to determine the cause of the loss within a reasonable |
73 | professional probability and issue a report as provided in s. |
74 | 627.7073, if: |
75 | (a) The insurer is unable to identify a valid cause of the |
76 | damage or discovers damage to the structure which is consistent |
77 | with sinkhole loss; or |
78 | (b) The policyholder demands testing in accordance with |
79 | this section or s. 627.7072. |
80 | (3) Following the initial inspection of the insured |
81 | premises, the insurer shall provide written notice to the |
82 | policyholder disclosing the following information: |
83 | (a) What the insurer has determined to be the cause of |
84 | damage, if the insurer has made such a determination. |
85 | (b) A statement of the circumstances under which the |
86 | insurer is required to engage a professional an engineer or a |
87 | professional geologist to verify or eliminate sinkhole loss and |
88 | to engage a professional an engineer to make recommendations |
89 | regarding land and building stabilization and foundation repair. |
90 | (c) A statement regarding the right of the policyholder to |
91 | request testing by a professional an engineer or a professional |
92 | geologist and the circumstances under which the policyholder may |
93 | demand certain testing. |
94 | (5)(a) Subject to paragraph (b), if a sinkhole loss is |
95 | verified, the insurer shall pay to stabilize the land and |
96 | building and repair the foundation in accordance with the |
97 | recommendations of the professional engineer as provided under |
98 | s. 627.7073, and in consultation with the policyholder, subject |
99 | to the coverage and terms of the policy. The insurer shall pay |
100 | for other repairs to the structure and contents in accordance |
101 | with the terms of the policy. |
102 | (b) The insurer may limit its payment to the actual cash |
103 | value of the sinkhole loss, not including underpinning or |
104 | grouting or any other repair technique performed below the |
105 | existing foundation of the building, until the policyholder |
106 | enters into a contract for the performance of building |
107 | stabilization or foundation repairs. After the policyholder |
108 | enters into the contract, the insurer shall pay the amounts |
109 | necessary to begin and perform such repairs as the work is |
110 | performed and the expenses are incurred. The insurer may not |
111 | require the policyholder to advance payment for such repairs. If |
112 | repair covered by a personal lines residential property |
113 | insurance policy has begun and the professional engineer |
114 | selected or approved by the insurer determines that the repair |
115 | cannot be completed within the policy limits, the insurer must |
116 | either complete the professional engineer's recommended repair |
117 | or tender the policy limits to the policyholder without a |
118 | reduction for the repair expenses incurred. |
119 | (c) Upon the insurer's obtaining the written approval of |
120 | the policyholder and any lienholder, the insurer may make |
121 | payment directly to the persons selected by the policyholder to |
122 | perform the land and building stabilization and foundation |
123 | repairs. The decision by the insurer to make payment to such |
124 | persons does not hold the insurer liable for the work performed. |
125 | (6) Except as provided in subsection (7), the fees and |
126 | costs of the professional engineer or the professional geologist |
127 | shall be paid by the insurer. |
128 | (9) The insurer may engage a professional structural |
129 | engineer to make recommendations as to the repair of the |
130 | structure. |
131 | Section 3. Section 627.7072, Florida Statutes, is amended |
132 | to read: |
133 | 627.7072 Testing standards for sinkholes.-- |
134 | (1) The professional engineer or and professional |
135 | geologist shall perform such tests as sufficient, in their |
136 | professional opinion, to determine the presence or absence of |
137 | sinkhole loss or other cause of damage within reasonable |
138 | professional probability and for the professional engineer to |
139 | make recommendations regarding necessary building stabilization |
140 | and foundation repair. |
141 | (2) Testing by a professional geologist shall be conducted |
142 | in compliance with the Florida Geological Survey Special |
143 | Publication No. 57 (2005). |
144 | Section 4. Subsections (1) and (2) of section 627.7073, |
145 | Florida Statutes, are amended to read: |
146 | 627.7073 Sinkhole reports.-- |
147 | (1) Upon completion of testing as provided in s. 627.7072, |
148 | the professional engineer or and professional geologist shall |
149 | issue a report and certification to the insurer and the |
150 | policyholder as provided in this section. |
151 | (a) Sinkhole loss is verified if, based upon tests |
152 | performed in accordance with s. 627.7072, a professional an |
153 | engineer or and a professional geologist issue a written report |
154 | and certification stating: |
155 | 1. That the cause of the actual physical and structural |
156 | damage is sinkhole activity within a reasonable professional |
157 | probability. |
158 | 2. That the analyses conducted were of sufficient scope to |
159 | identify sinkhole activity as the cause of damage within a |
160 | reasonable professional probability. |
161 | 3. A description of the tests performed. |
162 | 4. A recommendation by the professional engineer of |
163 | methods for stabilizing the land and building and for making |
164 | repairs to the foundation. |
165 | (b) If sinkhole activity is eliminated as the cause of |
166 | damage to the structure, the professional engineer or and |
167 | professional geologist shall issue a written report and |
168 | certification to the policyholder and the insurer stating: |
169 | 1. That the cause of the damage is not sinkhole activity |
170 | within a reasonable professional probability. |
171 | 2. That the analyses and tests conducted were of |
172 | sufficient scope to eliminate sinkhole activity as the cause of |
173 | damage within a reasonable professional probability. |
174 | 3. A statement of the cause of the damage within a |
175 | reasonable professional probability. |
176 | 4. A description of the tests performed. |
177 | (c) The respective findings, opinions, and recommendations |
178 | of the professional engineer or and professional geologist as to |
179 | the cause of distress to the property verification or |
180 | elimination of a sinkhole loss and the findings, opinions, and |
181 | recommendations of the professional engineer as to land and |
182 | building stabilization and foundation repair shall be presumed |
183 | correct. |
184 | (2) Any insurer that has paid a claim for a sinkhole loss |
185 | shall file a copy of the report and certification, prepared |
186 | pursuant to subsection (1), with the county clerk of court |
187 | property appraiser, who shall record the report and |
188 | certification with the parcel number. The insurer shall bear the |
189 | cost of filing and recording the report and certification. There |
190 | shall be no cause of action or liability against an insurer for |
191 | compliance with this section. The seller of real property upon |
192 | which a sinkhole claim has been made shall disclose to the buyer |
193 | of such property that a claim has been paid and whether or not |
194 | the full amount of the proceeds were used to repair the sinkhole |
195 | damage. |
196 | Section 5. Effective October 1, 2006, section 627.7074, |
197 | Florida Statutes, is created to read: |
198 | 627.7074 Alternative procedure for resolution of disputed |
199 | sinkhole insurance claims.-- |
200 | (1) As used in this section, the term: |
201 | (a) "Neutral evaluation" means the alternative dispute |
202 | resolution provided for in this section. |
203 | (b) "Neutral evaluator" means a professional engineer or a |
204 | professional geologist who has completed a course of study in |
205 | alternative dispute resolution designed or approved by the |
206 | department for use in the neutral evaluation process, who is |
207 | determined to be fair and impartial. |
208 | (2)(a) The department shall certify and maintain a list of |
209 | persons who are neutral evaluators. |
210 | (b) The department shall prepare a consumer information |
211 | pamphlet for distribution by insurers to policyholders which |
212 | clearly describes the neutral evaluation process and includes |
213 | information and forms necessary for the policyholder to request |
214 | a neutral evaluation. |
215 | (3) Following the receipt of the report provided under s. |
216 | 627.7073 or the denial of a claim for a sinkhole loss, the |
217 | insurer shall notify the policyholder of his or her right to |
218 | participate in the neutral evaluation program under this |
219 | section. Neutral evaluation supersedes the alternative dispute |
220 | resolution process under s. 627.7015. The insurer shall provide |
221 | to the policyholder the consumer information pamphlet prepared |
222 | by the department pursuant to paragraph (2)(b). |
223 | (4) Neutral evaluation is optional and nonbinding. Either |
224 | the policyholder or the insurer may decline to participate. A |
225 | request for neutral evaluation may be filed with the department |
226 | by the policyholder or the insurer on a form approved by the |
227 | department. The request for neutral evaluation must state the |
228 | reason for the request and must include an explanation of all |
229 | the issues in dispute at the time of the request. Filing a |
230 | request for neutral evaluation tolls the applicable time |
231 | requirements for filing suit for a period of 60 days following |
232 | the conclusion of the neutral evaluation process or the time |
233 | prescribed in s. 95.11, whichever is later. |
234 | (5) Neutral evaluation shall be conducted as an informal |
235 | process in which formal rules of evidence and procedure need not |
236 | be observed. A party to neutral evaluation is not required to |
237 | attend neutral evaluation if a representative of the party |
238 | attends and has the authority to make a binding decision on |
239 | behalf of the party. All parties shall participate in the |
240 | evaluation in good faith. |
241 | (6) The insurer shall pay the costs associated with the |
242 | neutral evaluation. |
243 | (7) Upon receipt of a request for neutral evaluation, the |
244 | department shall refer the request to a neutral evaluator. The |
245 | neutral evaluator shall notify the policyholder and the insurer |
246 | of the date, time, and place of the neutral evaluation |
247 | conference. The conference may be held by telephone, if feasible |
248 | and desirable. The neutral evaluation conference shall be held |
249 | within 45 days after receipt of the request by the department. |
250 | (8) The department shall adopt rules of procedure for the |
251 | neutral evaluation process. |
252 | (9) For policyholders not represented by an attorney, a |
253 | consumer affairs specialist of the department or an employee |
254 | designated as the primary contact for consumers on issues |
255 | relating to sinkholes under s. 20.121 shall be available for |
256 | consultation to the extent that he or she may lawfully do so. |
257 | (10) Evidence of an offer to settle a claim during the |
258 | neutral evaluation process, as well as any relevant conduct or |
259 | statements made in negotiations concerning the offer to settle a |
260 | claim, is inadmissible to prove liability or absence of |
261 | liability for the claim or its value, except as provided in |
262 | subsection (13). |
263 | (11) Any court proceeding related to the subject matter of |
264 | the neutral evaluation shall be stayed pending completion of the |
265 | neutral evaluation. |
266 | (12) For matters that are not resolved by the parties at |
267 | the conclusion of the neutral evaluation, the neutral evaluator |
268 | shall prepare a report stating that in his or her opinion the |
269 | sinkhole loss has been verified or eliminated and, if verified, |
270 | the need for and estimated costs of stabilizing the land and any |
271 | covered structures or buildings and other appropriate |
272 | remediation or structural repairs. The evaluator's report shall |
273 | be sent to all parties in attendance at the neutral evaluation |
274 | and to the department. |
275 | (13) The recommendation of the neutral evaluator is not |
276 | binding on any party, and the parties retain access to courts. |
277 | The neutral evaluator's written recommendation is admissible in |
278 | any subsequent action or proceeding relating to the claim or to |
279 | the cause of action giving rise to the claim only for purposes |
280 | of determining the award of attorney's fees. |
281 | (14) If the neutral evaluator first verifies the existence |
282 | of a sinkhole and, second, recommends the need for and estimates |
283 | costs of stabilizing the land and any covered structures or |
284 | buildings and other appropriate remediation or structural |
285 | repairs, which costs exceed the amount that the insurer has |
286 | offered to pay the policyholder, the insurer is liable to the |
287 | policyholder for up to $2,500 in attorney's fees for the |
288 | attorney's participation in the neutral evaluation process. For |
289 | purposes of this subsection, the term "offer to pay" means a |
290 | written offer signed by the insurer or its legal representative |
291 | and delivered to the policyholder within 10 days after the |
292 | insurer receives notice that a request for neutral evaluation |
293 | has been made under this section. |
294 | (15) If the policyholder declines to participate in |
295 | neutral evaluation requested by the insurer or declines to |
296 | resolve the matter in accordance with the recommendation of the |
297 | neutral evaluator pursuant to this section, the insurer is not |
298 | liable for attorney's fees under s. 627.428 or other provisions |
299 | of the insurance code or for extra-contractual damages related |
300 | to a claim for a sinkhole loss. |
301 | Section 6. Subsection (2) of section 877.02, Florida |
302 | Statutes, is amended to read: |
303 | 877.02 Solicitation of legal services or retainers |
304 | therefor; penalty.-- |
305 | (2) It shall be unlawful for any person in the employ of |
306 | or in any capacity attached to any hospital, sanitarium, police |
307 | department, wrecker service or garage, prison or court, or for a |
308 | person authorized to furnish bail bonds, investigators, |
309 | photographers, insurance or public adjusters, or for a general |
310 | or other contractor as defined in s. 489.105 or other business |
311 | providing sinkhole remediation services, to communicate directly |
312 | or indirectly with any attorney or person acting on said |
313 | attorney's behalf for the purpose of aiding, assisting or |
314 | abetting such attorney in the solicitation of legal business or |
315 | the procurement through solicitation of a retainer, written or |
316 | oral, or any agreement authorizing the attorney to perform or |
317 | render legal services. |
318 | Section 7. (1) By February 1, 2007, the Office of |
319 | Insurance Regulation shall calculate a presumed factor to |
320 | reflect the impact of the changes made in this act to rates |
321 | filed by residential property insurers providing sinkhole loss |
322 | coverage. The office shall issue a notice informing all insurers |
323 | writing residential property insurance coverage of the presumed |
324 | factor. |
325 | (2) In determining the presumed factor, the office shall |
326 | use generally accepted actuarial techniques and standards in |
327 | determining the expected impact on losses, expenses, and |
328 | investment income of the insurer. |
329 | (3) The office may contract with an appropriate vendor to |
330 | determine the presumed factor. |
331 | (4) Each residential property insurer shall, at its next |
332 | annual rate filing after May 1, 2007, reflect an overall rate |
333 | reduction at least as great as the presumed factor determined |
334 | under subsection (1). |
335 | (5) The sum of $250,000 in nonrecurring funds is |
336 | appropriated from the Insurance Regulatory Trust Fund in the |
337 | Department of Financial Services to the Office of Insurance |
338 | Regulation for the 2006-2007 fiscal year for the purposes of |
339 | funding the provisions of this section. |
340 | Section 8. The sums of $115,322 in recurring funds and |
341 | $10,486 in nonrecurring funds are appropriated from the |
342 | Insurance Regulatory Trust Fund in the Department of Financial |
343 | Services for the 2006-2007 fiscal year for the purposes of |
344 | funding the provisions of this act, and two full-time equivalent |
345 | positions with 59,435 in associated salary rate are authorized. |
346 | Section 9. Except as otherwise expressly provided in this |
347 | act, this act shall take effect July 1, 2006. |