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; revising |
15 | requirements with respect to the required filing of a |
16 | report and certification by an insurer that has paid a |
17 | claim for a sinkhole loss; providing for the recording of |
18 | a report and certification with the clerk of court rather |
19 | than the property appraiser; limiting the effect of the |
20 | recording of the report and certification; creating s. |
21 | 627.7074, F.S.; prescribing an alternative method for |
22 | resolving disputed sinkhole insurance claims; providing |
23 | definitions; prescribing procedures for invoking the |
24 | alternative method; providing that a recommendation by a |
25 | neutral evaluator is not binding on any party but |
26 | mandatory if requested by either party; providing for |
27 | payments of costs; requiring the insurer to pay attorney's |
28 | fees of the policyholder up to a specified amount under |
29 | certain conditions; providing that an insurer is not |
30 | liable for attorney's fees or for certain damages under |
31 | certain conditions; amending s. 877.02, F.S.; prohibiting |
32 | certain solicitations by contractors and other persons |
33 | providing sinkhole remediation services; providing |
34 | penalties; requiring the Office of Insurance Regulation to |
35 | calculate a certain presumed factor on residential |
36 | property insurance rates; providing requirements and |
37 | procedures for determining such calculation; requiring the |
38 | office to provide notice of such rate factor to insurers; |
39 | requiring insurers to include such rate factor in certain |
40 | rate filings; providing appropriations and authorizing |
41 | additional positions and salary rates; providing effective |
42 | dates. |
43 |
|
44 | Be It Enacted by the Legislature of the State of Florida: |
45 |
|
46 | Section 1. Effective October 1, 2006, subsection (1) and |
47 | paragraph (d) of subsection (2) of section 627.706, Florida |
48 | Statutes, are amended to read: |
49 | 627.706 Sinkhole insurance; definitions.-- |
50 | (1) Every insurer authorized to transact property |
51 | insurance in this state shall make available coverage for |
52 | insurable sinkhole losses on any structure, including contents |
53 | of personal property contained therein, to the extent provided |
54 | in the form to which the sinkhole coverage attaches. A policy |
55 | for residential property insurance may include a deductible |
56 | amount applicable to sinkhole losses equal to 1 percent, 2 |
57 | percent, 5 percent, or 10 percent of the policy dwelling limits, |
58 | with appropriate premium discounts offered with each deductible |
59 | amount. |
60 | (2) As used in ss. 627.706-627.7074, and as used in |
61 | connection with any policy providing coverage for sinkhole |
62 | losses: |
63 | (d) "Professional engineer" means a person, as defined in |
64 | s. 471.005, who has a bachelor's degree or higher in engineering |
65 | with a specialty in the geotechnical engineering field. A |
66 | professional An engineer must have geotechnical experience and |
67 | expertise in the identification of sinkhole activity as well as |
68 | other potential causes of damage to the structure. |
69 | Section 2. Subsections (2), (3), (5), (6), and (9) of |
70 | section 627.707, Florida Statutes, are amended to read: |
71 | 627.707 Standards for investigation of sinkhole claims by |
72 | insurers; nonrenewals.--Upon receipt of a claim for a sinkhole |
73 | loss, an insurer must meet the following standards in |
74 | investigating a claim: |
75 | (2) Following the insurer's initial inspection, the |
76 | insurer shall engage a professional an engineer or a |
77 | professional geologist to conduct testing as provided in s. |
78 | 627.7072 to determine the cause of the loss within a reasonable |
79 | professional probability and issue a report as provided in s. |
80 | 627.7073, if: |
81 | (a) The insurer is unable to identify a valid cause of the |
82 | damage or discovers damage to the structure which is consistent |
83 | with sinkhole loss; or |
84 | (b) The policyholder demands testing in accordance with |
85 | this section or s. 627.7072. |
86 | (3) Following the initial inspection of the insured |
87 | premises, the insurer shall provide written notice to the |
88 | policyholder disclosing the following information: |
89 | (a) What the insurer has determined to be the cause of |
90 | damage, if the insurer has made such a determination. |
91 | (b) A statement of the circumstances under which the |
92 | insurer is required to engage a professional an engineer or a |
93 | professional geologist to verify or eliminate sinkhole loss and |
94 | to engage a professional an engineer to make recommendations |
95 | regarding land and building stabilization and foundation repair. |
96 | (c) A statement regarding the right of the policyholder to |
97 | request testing by a professional an engineer or a professional |
98 | geologist and the circumstances under which the policyholder may |
99 | demand certain testing. |
100 | (5)(a) Subject to paragraph (b), if a sinkhole loss is |
101 | verified, the insurer shall pay to stabilize the land and |
102 | building and repair the foundation in accordance with the |
103 | recommendations of the professional engineer as provided under |
104 | s. 627.7073, and in consultation with the policyholder, subject |
105 | to the coverage and terms of the policy. The insurer shall pay |
106 | for other repairs to the structure and contents in accordance |
107 | with the terms of the policy. |
108 | (b) The insurer may limit its payment to the actual cash |
109 | value of the sinkhole loss, not including underpinning or |
110 | grouting or any other repair technique performed below the |
111 | existing foundation of the building, until the policyholder |
112 | enters into a contract for the performance of building |
113 | stabilization or foundation repairs. After the policyholder |
114 | enters into the contract, the insurer shall pay the amounts |
115 | necessary to begin and perform such repairs as the work is |
116 | performed and the expenses are incurred. The insurer may not |
117 | require the policyholder to advance payment for such repairs. If |
118 | repair covered by a personal lines residential property |
119 | insurance policy has begun and the professional engineer |
120 | selected or approved by the insurer determines that the repair |
121 | cannot be completed within the policy limits, the insurer must |
122 | either complete the professional engineer's recommended repair |
123 | or tender the policy limits to the policyholder without a |
124 | reduction for the repair expenses incurred. |
125 | (c) Upon the insurer's obtaining the written approval of |
126 | the policyholder and any lienholder, the insurer may make |
127 | payment directly to the persons selected by the policyholder to |
128 | perform the land and building stabilization and foundation |
129 | repairs. The decision by the insurer to make payment to such |
130 | persons does not hold the insurer liable for the work performed. |
131 | (6) Except as provided in subsection (7), the fees and |
132 | costs of the professional engineer or the professional geologist |
133 | shall be paid by the insurer. |
134 | (9) The insurer may engage a professional structural |
135 | engineer to make recommendations as to the repair of the |
136 | structure. |
137 | Section 3. Section 627.7072, Florida Statutes, is amended |
138 | to read: |
139 | 627.7072 Testing standards for sinkholes.-- |
140 | (1) The professional engineer or and professional |
141 | geologist shall perform such tests as sufficient, in their |
142 | professional opinion, to determine the presence or absence of |
143 | sinkhole loss or other cause of damage within reasonable |
144 | professional probability and for the professional engineer to |
145 | make recommendations regarding necessary building stabilization |
146 | and foundation repair. |
147 | (2) Testing by a professional geologist shall be conducted |
148 | in compliance with the Florida Geological Survey Special |
149 | Publication No. 57 (2005). |
150 | Section 4. Subsections (1) and (2) of section 627.7073, |
151 | Florida Statutes, are amended to read: |
152 | 627.7073 Sinkhole reports.-- |
153 | (1) Upon completion of testing as provided in s. 627.7072, |
154 | the professional engineer or and professional geologist shall |
155 | issue a report and certification to the insurer and the |
156 | policyholder as provided in this section. |
157 | (a) Sinkhole loss is verified if, based upon tests |
158 | performed in accordance with s. 627.7072, a professional an |
159 | engineer or and a professional geologist issue a written report |
160 | and certification stating: |
161 | 1. That the cause of the actual physical and structural |
162 | damage is sinkhole activity within a reasonable professional |
163 | probability. |
164 | 2. That the analyses conducted were of sufficient scope to |
165 | identify sinkhole activity as the cause of damage within a |
166 | reasonable professional probability. |
167 | 3. A description of the tests performed. |
168 | 4. A recommendation by the professional engineer of |
169 | methods for stabilizing the land and building and for making |
170 | repairs to the foundation. |
171 | (b) If sinkhole activity is eliminated as the cause of |
172 | damage to the structure, the professional engineer or and |
173 | professional geologist shall issue a written report and |
174 | certification to the policyholder and the insurer stating: |
175 | 1. That the cause of the damage is not sinkhole activity |
176 | within a reasonable professional probability. |
177 | 2. That the analyses and tests conducted were of |
178 | sufficient scope to eliminate sinkhole activity as the cause of |
179 | damage within a reasonable professional probability. |
180 | 3. A statement of the cause of the damage within a |
181 | reasonable professional probability. |
182 | 4. A description of the tests performed. |
183 | (c) The respective findings, opinions, and recommendations |
184 | of the professional engineer or and professional geologist as to |
185 | the cause of distress to the property verification or |
186 | elimination of a sinkhole loss and the findings, opinions, and |
187 | recommendations of the professional engineer as to land and |
188 | building stabilization and foundation repair shall be presumed |
189 | correct. |
190 | (2) Any insurer that has paid a claim for a sinkhole loss |
191 | shall file a copy of the report and certification, prepared |
192 | pursuant to subsection (1) and including the legal description |
193 | of the real property and the name of the property owner, with |
194 | the county clerk of court property appraiser, who shall record |
195 | the report and certification with the parcel number. The insurer |
196 | shall bear the cost of filing and recording the report and |
197 | certification. There shall be no cause of action or liability |
198 | against an insurer for compliance with this section. The |
199 | recording of the report and certification shall not constitute a |
200 | lien or encumbrance or restriction on the title to the real |
201 | property, nor constitute a defect in the title to the real |
202 | property, create any cause of action or liability against any |
203 | grantor of the real property for breach of any warranty of good |
204 | title or warranty against encumbrances, nor create any cause of |
205 | action or liability against any title insurer that insures the |
206 | title to the real property. The seller of real property upon |
207 | which a sinkhole claim has been made by the seller and paid by |
208 | the insurer shall disclose to the buyer of such property that a |
209 | claim has been paid and whether or not the full amount of the |
210 | proceeds were used to repair the sinkhole damage. |
211 | Section 5. Effective October 1, 2006, section 627.7074, |
212 | Florida Statutes, is created to read: |
213 | 627.7074 Alternative procedure for resolution of disputed |
214 | sinkhole insurance claims.-- |
215 | (1) As used in this section, the term: |
216 | (a) "Neutral evaluation" means the alternative dispute |
217 | resolution provided for in this section. |
218 | (b) "Neutral evaluator" means a professional engineer or a |
219 | professional geologist who has completed a course of study in |
220 | alternative dispute resolution designed or approved by the |
221 | department for use in the neutral evaluation process, who is |
222 | determined to be fair and impartial. |
223 | (2)(a) The department shall certify and maintain a list of |
224 | persons who are neutral evaluators. |
225 | (b) The department shall prepare a consumer information |
226 | pamphlet for distribution by insurers to policyholders which |
227 | clearly describes the neutral evaluation process and includes |
228 | information and forms necessary for the policyholder to request |
229 | a neutral evaluation. |
230 | (3) Following the receipt of the report provided under s. |
231 | 627.7073 or the denial of a claim for a sinkhole loss, the |
232 | insurer shall notify the policyholder of his or her right to |
233 | participate in the neutral evaluation program under this |
234 | section. Neutral evaluation supersedes the alternative dispute |
235 | resolution process under s. 627.7015. The insurer shall provide |
236 | to the policyholder the consumer information pamphlet prepared |
237 | by the department pursuant to paragraph (2)(b). |
238 | (4) Neutral evaluation is nonbinding but mandatory if |
239 | requested by either party. A request for neutral evaluation may |
240 | be filed with the department by the policyholder or the insurer |
241 | on a form approved by the department. The request for neutral |
242 | evaluation must state the reason for the request and must |
243 | include an explanation of all the issues in dispute at the time |
244 | of the request. Filing a request for neutral evaluation tolls |
245 | the applicable time requirements for filing suit for a period of |
246 | 60 days following the conclusion of the neutral evaluation |
247 | process or the time prescribed in s. 95.11, whichever is later. |
248 | (5) Neutral evaluation shall be conducted as an informal |
249 | process in which formal rules of evidence and procedure need not |
250 | be observed. A party to neutral evaluation is not required to |
251 | attend neutral evaluation if a representative of the party |
252 | attends and has the authority to make a binding decision on |
253 | behalf of the party. All parties shall participate in the |
254 | evaluation in good faith. |
255 | (6) The insurer shall pay the costs associated with the |
256 | neutral evaluation. |
257 | (7) Upon receipt of a request for neutral evaluation, the |
258 | department shall provide the parties a list of certified neutral |
259 | evaluators. The parties shall mutually select a neutral |
260 | evaluator from the list and promptly inform the department. If |
261 | the parties cannot agree to a neutral evaluator within 10 |
262 | business days, the department shall appoint a neutral evaluator |
263 | from the department list. Upon selection or appointment, the |
264 | department shall promptly refer the request to the neutral |
265 | evaluator. Within 5 business days of the referral, the neutral |
266 | evaluator shall notify the policyholder and the insurer of the |
267 | date, time, and place of the neutral evaluation conference. The |
268 | conference may be held by telephone, if feasible and desirable. |
269 | The neutral evaluation conference shall be held within 45 days |
270 | after the receipt of the request by the department. |
271 | (8) The department shall adopt rules of procedure for the |
272 | neutral evaluation process. |
273 | (9) For policyholders not represented by an attorney, a |
274 | consumer affairs specialist of the department or an employee |
275 | designated as the primary contact for consumers on issues |
276 | relating to sinkholes under s. 20.121 shall be available for |
277 | consultation to the extent that he or she may lawfully do so. |
278 | (10) Evidence of an offer to settle a claim during the |
279 | neutral evaluation process, as well as any relevant conduct or |
280 | statements made in negotiations concerning the offer to settle a |
281 | claim, is inadmissible to prove liability or absence of |
282 | liability for the claim or its value, except as provided in |
283 | subsection (13). |
284 | (11) Any court proceeding related to the subject matter of |
285 | the neutral evaluation shall be stayed pending completion of the |
286 | neutral evaluation. |
287 | (12) For matters that are not resolved by the parties at |
288 | the conclusion of the neutral evaluation, the neutral evaluator |
289 | shall prepare a report stating that in his or her opinion the |
290 | sinkhole loss has been verified or eliminated and, if verified, |
291 | the need for and estimated costs of stabilizing the land and any |
292 | covered structures or buildings and other appropriate |
293 | remediation or structural repairs. The evaluator's report shall |
294 | be sent to all parties in attendance at the neutral evaluation |
295 | and to the department. |
296 | (13) The recommendation of the neutral evaluator is not |
297 | binding on any party, and the parties retain access to court. |
298 | The neutral evaluator's written recommendation is admissible in |
299 | any subsequent action or proceeding relating to the claim or to |
300 | the cause of action giving rise to the claim. |
301 | (14) If the neutral evaluator first verifies the existence |
302 | of a sinkhole and, second, recommends the need for and estimates |
303 | costs of stabilizing the land and any covered structures or |
304 | buildings and other appropriate remediation or structural |
305 | repairs, which costs exceed the amount that the insurer has |
306 | offered to pay the policyholder, the insurer is liable to the |
307 | policyholder for up to $2,500 in attorney's fees for the |
308 | attorney's participation in the neutral evaluation process. For |
309 | purposes of this subsection, the term "offer to pay" means a |
310 | written offer signed by the insurer or its legal representative |
311 | and delivered to the policyholder within 10 days after the |
312 | insurer receives notice that a request for neutral evaluation |
313 | has been made under this section. |
314 | (15) If the insurer timely agrees in writing to comply and |
315 | timely complies with the recommendation of the neutral |
316 | evaluator, but the policyholder declines to resolve the matter |
317 | in accordance with the recommendation of the neutral evaluator |
318 | pursuant to this section: |
319 | (a) The insurer is not liable for extra-contractual |
320 | damages related to a claim for a sinkhole loss but only as |
321 | related to the issues determined by the neutral-evaluation |
322 | process. Nothing in this section shall effect or impair claims |
323 | for extra-contractual damages unrelated to the issues determined |
324 | by the neutral-evaluation process contained in this section. |
325 | (b) The insurer is not liable for attorney's fees under s. |
326 | 627.428 or other provisions of the insurance code unless the |
327 | policyholder obtains a judgment that is more favorable than the |
328 | recommendation of the neutral evaluator. |
329 | Section 6. Subsection (2) of section 877.02, Florida |
330 | Statutes, is amended to read: |
331 | 877.02 Solicitation of legal services or retainers |
332 | therefor; penalty.-- |
333 | (2) It shall be unlawful for any person in the employ of |
334 | or in any capacity attached to any hospital, sanitarium, police |
335 | department, wrecker service or garage, prison or court, or for a |
336 | person authorized to furnish bail bonds, investigators, |
337 | photographers, insurance or public adjusters, or for a general |
338 | or other contractor as defined in s. 489.105 or other business |
339 | providing sinkhole remediation services, to communicate directly |
340 | or indirectly with any attorney or person acting on said |
341 | attorney's behalf for the purpose of aiding, assisting or |
342 | abetting such attorney in the solicitation of legal business or |
343 | the procurement through solicitation of a retainer, written or |
344 | oral, or any agreement authorizing the attorney to perform or |
345 | render legal services. |
346 | Section 7. (1) By September 1, 2006, the Office of |
347 | Insurance Regulation shall calculate a presumed factor to |
348 | reflect the impact of the changes made in this act and sections |
349 | 17, 18, 19, 20, and 21 of chapter 2005-111, Laws of Florida, to |
350 | rates filed by residential property insurers providing sinkhole |
351 | loss coverage. The office shall issue a notice informing all |
352 | insurers writing residential property insurance coverage of the |
353 | presumed factor. |
354 | (2) In determining the presumed factor, the office shall |
355 | use generally accepted actuarial techniques and standards in |
356 | determining the expected impact on losses, expenses, and |
357 | investment income of the insurer. |
358 | (3) The office may contract with an appropriate vendor to |
359 | determine the presumed factor. |
360 | (4) Each residential property insurer shall, at its next |
361 | rate filing after October 1, 2006, reflect a rate change that |
362 | takes into account the presumed factor determined under |
363 | subsection (1). |
364 | (5) The sum of $250,000 in nonrecurring funds is |
365 | appropriated from the Insurance Regulatory Trust Fund in the |
366 | Department of Financial Services to the Office of Insurance |
367 | Regulation for the 2006-2007 fiscal year for the purposes of |
368 | funding the provisions of this section. |
369 | Section 8. The sums of $115,322 in recurring funds and |
370 | $10,486 in nonrecurring funds are appropriated from the |
371 | Insurance Regulatory Trust Fund in the Department of Financial |
372 | Services for the 2006-2007 fiscal year for the purposes of |
373 | funding the provisions of this act, and two full-time equivalent |
374 | positions with 59,435 in associated salary rate are authorized. |
375 | Section 9. Except as otherwise expressly provided in this |
376 | act, this act shall take effect July 1, 2006. |