Senate Bill sb7098pb

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    Florida Senate - 2006   (PROPOSED COMMITTEE BILL)     SPB 7098

    FOR CONSIDERATION By the Committee on Banking and Insurance





    597-1320A-06

  1                      A bill to be entitled

  2         An act relating to the Florida Workers'

  3         Compensation Joint Underwriting Association;

  4         amending s. 627.311, F.S.; providing

  5         requirements for the joint underwriting plan of

  6         insurers that operates as the association;

  7         increasing the membership of the board of

  8         governors that oversees operation of the joint

  9         underwriting plan; authorizing the Financial

10         Services Commission to remove a board member

11         for cause; requiring that the market-assistance

12         plan be periodically reviewed and updated;

13         authorizing the use of surplus funds of former

14         plan C; extending the deadline to access

15         contingency reserves; authorizing the board of

16         the association to request a transfer of funds

17         from the Workers' Compensation Administration

18         Trust Fund under certain circumstances;

19         requiring that the Office of Insurance

20         Regulation review filings of the joint

21         underwriting plan of workers' compensation

22         insurers; requiring that the office annually

23         approve rates; deleting certain provisions

24         limiting the disapproval of rates by the

25         office; requiring that excess funds received by

26         the plan be returned to the state; amending s.

27         2 of ch. 2004-266, Laws of Florida; extending

28         the period for maintaining the contingency

29         reserve and the period for projecting current

30         cash needs; providing an effective date.

31  

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    Florida Senate - 2006   (PROPOSED COMMITTEE BILL)     SPB 7098
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 1  Be It Enacted by the Legislature of the State of Florida:

 2  

 3         Section 1.  Subsections (5), (6), and (7) of section

 4  627.311, Florida Statutes, are amended to read:

 5         627.311  Joint underwriters and joint reinsurers;

 6  public records and public meetings exemptions.--

 7         (5)(a)  The office shall, after consultation with

 8  insurers, approve a joint underwriting plan of insurers which

 9  shall operate as the Florida Workers' Compensation Joint

10  Underwriting Association, a nonprofit entity. For the purposes

11  of this subsection, the term "insurer" includes group

12  self-insurance funds authorized by s. 624.4621, commercial

13  self-insurance funds authorized by s. 624.462, assessable

14  mutual insurers authorized under s. 628.6011, and insurers

15  licensed to write workers' compensation and employer's

16  liability insurance in this state. The purpose of the plan is

17  to provide workers' compensation and employer's liability

18  insurance to applicants who are required by law to maintain

19  workers' compensation and employer's liability insurance and

20  who are in good faith entitled to but who are unable to

21  procure such insurance through the voluntary market. Except as

22  provided herein, the plan must have actuarially sound rates

23  that ensure that the plan is self-supporting.

24         (b)  The operation of the plan is subject to the

25  supervision of an 11-member a 9-member board of governors. The

26  board of governors shall be comprised of:

27         1.  Five Three members appointed by the Financial

28  Services Commission. Each member appointed by the commission

29  shall serve at the pleasure of the commission;

30         2.  Two representatives of the 20 domestic insurers, as

31  defined in s. 624.06(1), having the largest voluntary direct

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    Florida Senate - 2006   (PROPOSED COMMITTEE BILL)     SPB 7098
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 1  premiums written in this state for workers' compensation and

 2  employer's liability insurance, which shall be elected by

 3  those 20 domestic insurers;

 4         3.  Two representatives of the 20 foreign insurers as

 5  defined in s. 624.06(2) having the largest voluntary direct

 6  premiums written in this state for workers' compensation and

 7  employer's liability insurance, which shall be elected by

 8  those 20 foreign insurers;

 9         4.  One person appointed by the largest property and

10  casualty insurance agents' association in this state; and

11         5.  The consumer advocate appointed under s. 627.0613

12  or the consumer advocate's designee.

13  

14  Each board member shall be appointed to serve a 4-year term

15  and may be appointed to serve consecutive terms. A vacancy on

16  the board shall be filled in the same manner as the original

17  appointment for the unexpired portion of the term. The

18  Financial Services Commission shall designate a member of the

19  board to serve as chair. The Financial Services Commission may

20  remove any member for cause. No board member shall be an

21  insurer which provides services to the plan or which has an

22  affiliate which provides services to the plan or which is

23  serviced by a service company or third-party administrator

24  which provides services to the plan or which has an affiliate

25  which provides services to the plan. The meeting minutes,

26  audits, and procedures of the board of governors are subject

27  to chapters chapter 119 and 286, unless otherwise provided.

28         (c)  The operation of the plan shall be governed by a

29  plan of operation that is prepared at the direction of the

30  board of governors. The plan of operation may be changed at

31  any time by the board of governors or upon request of the

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    Florida Senate - 2006   (PROPOSED COMMITTEE BILL)     SPB 7098
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 1  office. The plan of operation and all changes thereto are

 2  subject to the approval of the office. The plan of operation

 3  shall:

 4         1.  Authorize the board to engage in the activities

 5  necessary to implement this subsection, including, but not

 6  limited to, borrowing money.

 7         2.  Develop criteria for eligibility for coverage by

 8  the plan, including, but not limited to, documented rejection

 9  by at least two insurers which reasonably assures that

10  insureds covered under the plan are unable to acquire coverage

11  in the voluntary market.

12         3.  Require notice from the agent to the insured at the

13  time of the application for coverage that the application is

14  for coverage with the plan and that coverage may be available

15  through an insurer, group self-insurers' fund, commercial

16  self-insurance fund, or assessable mutual insurer through

17  another agent at a lower cost.

18         4.  Establish programs to encourage insurers to provide

19  coverage to applicants of the plan in the voluntary market and

20  to insureds of the plan, including, but not limited to:

21         a.  Establishing procedures for an insurer to use in

22  notifying the plan of the insurer's desire to provide coverage

23  to applicants to the plan or existing insureds of the plan and

24  in describing the types of risks in which the insurer is

25  interested. The description of the desired risks must be on a

26  form developed by the plan.

27         b.  Developing forms and procedures that provide an

28  insurer with the information necessary to determine whether

29  the insurer wants to write particular applicants to the plan

30  or insureds of the plan.

31  

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    Florida Senate - 2006   (PROPOSED COMMITTEE BILL)     SPB 7098
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 1         c.  Developing procedures for notice to the plan and

 2  the applicant to the plan or insured of the plan that an

 3  insurer will insure the applicant or the insured of the plan,

 4  and notice of the cost of the coverage offered; and developing

 5  procedures for the selection of an insuring entity by the

 6  applicant or insured of the plan.

 7         d.  Provide for a market-assistance plan to assist in

 8  the placement of employers. All applications for coverage in

 9  the plan received 45 days before the effective date for

10  coverage shall be processed through the market-assistance

11  plan. A market-assistance plan specifically designed to serve

12  the needs of small, good policyholders as defined by the board

13  must be reviewed and updated periodically finalized by January

14  1, 1994.

15         5.  Provide for policy and claims services to the

16  insureds of the plan of the nature and quality provided for

17  insureds in the voluntary market.

18         6.  Provide for the review of applications for coverage

19  with the plan for reasonableness and accuracy, using any

20  available historic information regarding the insured.

21         7.  Provide for procedures for auditing insureds of the

22  plan which are based on reasonable business judgment and are

23  designed to maximize the likelihood that the plan will collect

24  the appropriate premiums.

25         8.  Authorize the plan to terminate the coverage of and

26  refuse future coverage for any insured that submits a

27  fraudulent application to the plan or provides fraudulent or

28  grossly erroneous records to the plan or to any service

29  provider of the plan in conjunction with the activities of the

30  plan.

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    Florida Senate - 2006   (PROPOSED COMMITTEE BILL)     SPB 7098
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 1         9.  Establish service standards for agents who submit

 2  business to the plan.

 3         10.  Establish criteria and procedures to prohibit any

 4  agent who does not adhere to the established service standards

 5  from placing business with the plan or receiving, directly or

 6  indirectly, any commissions for business placed with the plan.

 7         11.  Provide for the establishment of reasonable safety

 8  programs for all insureds in the plan. All insureds of the

 9  plan must participate in the safety program.

10         12.  Authorize the plan to terminate the coverage of

11  and refuse future coverage to any insured who fails to pay

12  premiums or surcharges when due; who, at the time of

13  application, is delinquent in payments of workers'

14  compensation or employer's liability insurance premiums or

15  surcharges owed to an insurer, group self-insurers' fund,

16  commercial self-insurance fund, or assessable mutual insurer

17  licensed to write such coverage in this state; or who refuses

18  to substantially comply with any safety programs recommended

19  by the plan.

20         13.  Authorize the board of governors to provide the

21  services required by the plan through staff employed by the

22  plan, through reasonably compensated service providers who

23  contract with the plan to provide services as specified by the

24  board of governors, or through a combination of employees and

25  service providers.

26         14.  Provide for service standards for service

27  providers, methods of determining adherence to those service

28  standards, incentives and disincentives for service, and

29  procedures for terminating contracts for service providers

30  that fail to adhere to service standards.

31  

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    Florida Senate - 2006   (PROPOSED COMMITTEE BILL)     SPB 7098
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 1         15.  Provide procedures for selecting service providers

 2  and standards for qualification as a service provider that

 3  reasonably assure that any service provider selected will

 4  continue to operate as an ongoing concern and is capable of

 5  providing the specified services in the manner required.

 6         16.  Provide for reasonable accounting and

 7  data-reporting practices.

 8         17.  Provide for annual review of costs associated with

 9  the administration and servicing of the policies issued by the

10  plan to determine alternatives by which costs can be reduced.

11         18.  Authorize the acquisition of such excess insurance

12  or reinsurance as is consistent with the purposes of the plan.

13         19.  Provide for an annual report to the office on a

14  date specified by the office and containing such information

15  as the office reasonably requires.

16         20.  Establish multiple rating plans for various

17  classifications of risk which reflect risk of loss, hazard

18  grade, actual losses, size of premium, and compliance with

19  loss control. At least one of such plans must be a

20  preferred-rating plan to accommodate small-premium

21  policyholders with good experience as defined in

22  sub-subparagraph 22.a.

23         21.  Establish agent commission schedules.

24         22.  For employers otherwise eligible for coverage

25  under the plan, establish three tiers of employers meeting the

26  criteria and subject to the rate limitations specified in this

27  subparagraph.

28         a.  Tier One.--

29         (I)  Criteria; rated employers.--An employer that has

30  an experience modification rating shall be included in Tier

31  One if the employer meets all of the following:

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    Florida Senate - 2006   (PROPOSED COMMITTEE BILL)     SPB 7098
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 1         (A)  The experience modification is below 1.00.

 2         (B)  The employer had no lost-time claims subsequent to

 3  the applicable experience modification rating period.

 4         (C)  The total of the employer's medical-only claims

 5  subsequent to the applicable experience modification rating

 6  period did not exceed 20 percent of premium.

 7         (II)  Criteria; non-rated employers.--An employer that

 8  does not have an experience modification rating shall be

 9  included in Tier One if the employer meets all of the

10  following:

11         (A)  The employer had no lost-time claims for the

12  3-year period immediately preceding the inception date or

13  renewal date of the employer's coverage under the plan.

14         (B)  The total of the employer's medical-only claims

15  for the 3-year period immediately preceding the inception date

16  or renewal date of the employer's coverage under the plan did

17  not exceed 20 percent of premium.

18         (C)  The employer has secured workers' compensation

19  coverage for the entire 3-year period immediately preceding

20  the inception date or renewal date of the employer's coverage

21  under the plan.

22         (D)  The employer is able to provide the plan with a

23  loss history generated by the employer's prior workers'

24  compensation insurer, except if the employer is not able to

25  produce a loss history due to the insolvency of an insurer,

26  the receiver shall provide to the plan, upon the request of

27  the employer or the employer's agent, a copy of the employer's

28  loss history from the records of the insolvent insurer if the

29  loss history is contained in records of the insurer which are

30  in the possession of the receiver. If the receiver is unable

31  to produce the loss history, the employer may, in lieu of the

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    Florida Senate - 2006   (PROPOSED COMMITTEE BILL)     SPB 7098
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 1  loss history, submit an affidavit from the employer and the

 2  employer's insurance agent setting forth the loss history.

 3         (E)  The employer is not a new business.

 4         (III)  Premiums.--The premiums for Tier One insureds

 5  shall be set at a premium level 25 percent above the

 6  comparable voluntary market premiums until the plan has

 7  sufficient experience as determined by the board to establish

 8  an actuarially sound rate for Tier One, at which point the

 9  board shall, subject to paragraph (e), adjust the rates, if

10  necessary, to produce actuarially sound rates, provided such

11  rate adjustment shall not take effect prior to January 1,

12  2007.

13         b.  Tier Two.--

14         (I)  Criteria; rated employers.--An employer that has

15  an experience modification rating shall be included in Tier

16  Two if the employer meets all of the following:

17         (A)  The experience modification is equal to or greater

18  than 1.00 but not greater than 1.10.

19         (B)  The employer had no lost-time claims subsequent to

20  the applicable experience modification rating period.

21         (C)  The total of the employer's medical-only claims

22  subsequent to the applicable experience modification rating

23  period did not exceed 20 percent of premium.

24         (II)  Criteria; non-rated employers.--An employer that

25  does not have any experience modification rating shall be

26  included in Tier Two if the employer is a new business. An

27  employer shall be included in Tier Two if the employer has

28  less than 3 years of loss experience in the 3-year period

29  immediately preceding the inception date or renewal date of

30  the employer's coverage under the plan and the employer meets

31  all of the following:

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    Florida Senate - 2006   (PROPOSED COMMITTEE BILL)     SPB 7098
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 1         (A)  The employer had no lost-time claims for the

 2  3-year period immediately preceding the inception date or

 3  renewal date of the employer's coverage under the plan.

 4         (B)  The total of the employer's medical-only claims

 5  for the 3-year period immediately preceding the inception date

 6  or renewal date of the employer's coverage under the plan did

 7  not exceed 20 percent of premium.

 8         (C)  The employer is able to provide the plan with a

 9  loss history generated by the workers' compensation insurer

10  that provided coverage for the portion or portions of such

11  period during which the employer had secured workers'

12  compensation coverage, except if the employer is not able to

13  produce a loss history due to the insolvency of an insurer,

14  the receiver shall provide to the plan, upon the request of

15  the employer or the employer's agent, a copy of the employer's

16  loss history from the records of the insolvent insurer if the

17  loss history is contained in records of the insurer which are

18  in the possession of the receiver. If the receiver is unable

19  to produce the loss history, the employer may, in lieu of the

20  loss history, submit an affidavit from the employer and the

21  employer's insurance agent setting forth the loss history.

22         (III)  Premiums.--The premiums for Tier Two insureds

23  shall be set at a rate level 50 percent above the comparable

24  voluntary market premiums until the plan has sufficient

25  experience as determined by the board to establish an

26  actuarially sound rate for Tier Two, at which point the board

27  shall, subject to paragraph (e), adjust the rates, if

28  necessary, to produce actuarially sound rates, provided such

29  rate adjustment shall not take effect prior to January 1,

30  2007.

31         c.  Tier Three.--

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    Florida Senate - 2006   (PROPOSED COMMITTEE BILL)     SPB 7098
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 1         (I)  Eligibility.--An employer shall be included in

 2  Tier Three if the employer does not meet the criteria for Tier

 3  One or Tier Two.

 4         (II)  Rates.--The board shall establish, subject to

 5  paragraph (e), and the plan shall charge, actuarially sound

 6  rates for Tier Three insureds.

 7         23.  For Tier One or Tier Two employers which employ no

 8  nonexempt employees or which report payroll which is less than

 9  the minimum wage hourly rate for one full-time employee for 1

10  year at 40 hours per week, the plan shall establish

11  actuarially sound premiums, provided, however, that the

12  premiums may not exceed $2,500. These premiums shall be in

13  addition to the fee specified in subparagraph 26. When the

14  plan establishes actuarially sound rates for all employers in

15  Tier One and Tier Two, the premiums for employers referred to

16  in this paragraph are no longer subject to the $2,500 cap.

17         24.  Provide for a depopulation program to reduce the

18  number of insureds in the plan. If an employer insured through

19  the plan is offered coverage from a voluntary market carrier:

20         a.  During the first 30 days of coverage under the

21  plan;

22         b.  Before a policy is issued under the plan;

23         c.  By issuance of a policy upon expiration or

24  cancellation of the policy under the plan; or

25         d.  By assumption of the plan's obligation with respect

26  to an in-force policy,

27  

28  that employer is no longer eligible for coverage through the

29  plan. The premium for risks assumed by the voluntary market

30  carrier must be no greater than the premium the insured would

31  have paid under the plan, and shall be adjusted upon renewal

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    Florida Senate - 2006   (PROPOSED COMMITTEE BILL)     SPB 7098
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 1  to reflect changes in the plan rates and the tier for which

 2  the insured would qualify as of the time of renewal. The

 3  insured may be charged such premiums only for the first 3

 4  years of coverage in the voluntary market. A premium under

 5  this subparagraph is deemed approved and is not an excess

 6  premium for purposes of s. 627.171.

 7         25.  Require that policies issued and applications must

 8  include a notice that the policy could be replaced by a policy

 9  issued from a voluntary market carrier and that, if an offer

10  of coverage is obtained from a voluntary market carrier, the

11  policyholder is no longer eligible for coverage through the

12  plan. The notice must also specify that acceptance of coverage

13  under the plan creates a conclusive presumption that the

14  applicant or policyholder is aware of this potential.

15         26.  Require that each application for coverage and

16  each renewal premium be accompanied by a nonrefundable fee of

17  $475 to cover costs of administration and fraud prevention.

18  The board may, with the prior approval of the office, increase

19  the amount of the fee pursuant to a rate filing to reflect

20  increased costs of administration and fraud prevention. The

21  fee is not subject to commission and is fully earned upon

22  commencement of coverage.

23         (d)1.  The funding of the plan shall include premiums

24  as provided in subparagraph (c)22. and assessments as provided

25  in this paragraph.

26         2.a.  If the board determines that a deficit exists in

27  Tier One or Tier Two or that there is any deficit remaining

28  attributable to any of the plan's former subplans and that the

29  deficit cannot be fully funded by using policyholder surplus

30  attributable to former subplan C or, if the surplus in the

31  former subplan C does not fully fund the deficit and the

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    Florida Senate - 2006   (PROPOSED COMMITTEE BILL)     SPB 7098
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 1  deficit cannot be fully funded by using any remaining funds in

 2  the contigency reserve without the use of deficit assessments,

 3  the board shall request the office to levy, by order, a

 4  deficit assessment against premiums charged to insureds for

 5  workers' compensation insurance by insurers as defined in s.

 6  631.904(5). The office shall issue the order after verifying

 7  the amount of the deficit. The assessment shall be specified

 8  as a percentage of future premium collections, as recommended

 9  by the board and approved by the office. The same percentage

10  shall apply to premiums on all workers' compensation policies

11  issued or renewed during the 12-month period beginning on the

12  effective date of the assessment, as specified in the order.

13         b.  With respect to each insurer collecting premiums

14  that are subject to the assessment, the insurer shall collect

15  the assessment at the same time as the insurer collects the

16  premium payment for each policy and shall remit the

17  assessments collected to the plan as provided in the order

18  issued by the office. The office shall verify the accurate and

19  timely collection and remittance of deficit assessments and

20  shall report such information to the board. Each insurer

21  collecting assessments shall provide such information with

22  respect to premiums and collections as may be required by the

23  office to enable the office to monitor and audit compliance

24  with this paragraph.

25         c.  Deficit assessments are not considered part of an

26  insurer's rate, are not premium, and are not subject to the

27  premium tax, to the assessments under ss. 440.49 and 440.51,

28  to the surplus lines tax, to any fees, or to any commissions.

29  The deficit assessment imposed shall become plan funds at the

30  moment of collection and shall not constitute income to the

31  insurer for any purpose, including financial reporting on the

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    Florida Senate - 2006   (PROPOSED COMMITTEE BILL)     SPB 7098
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 1  insurer's income statement. An insurer is liable for all

 2  assessments that the insurer collects and must treat the

 3  failure of an insured to pay an assessment as a failure to pay

 4  premium. An insurer is not liable for uncollectible

 5  assessments.

 6         d.  When an insurer is required to return unearned

 7  premium, the insurer shall also return any collected

 8  assessments attributable to the unearned premium.

 9         e.  Deficit assessments as described in this

10  subparagraph shall not be levied after July 1, 2008 2007.

11         3.a.  All policies issued to Tier Three insureds shall

12  be assessable. All Tier Three assessable policies must be

13  clearly identified as assessable by containing, in contrasting

14  color and in not less than 10-point type, the following

15  statement:

16  

17         "This is an assessable policy. If the plan is

18         unable to pay its obligations, policyholders

19         will be required to contribute on a pro rata

20         earned premium basis the money necessary to

21         meet any assessment levied."

22  

23         b.  The board may from time to time assess Tier Three

24  insureds to whom the plan has issued assessable policies for

25  the purpose of funding plan deficits. Any such assessment

26  shall be based upon a reasonable actuarial estimate of the

27  amount of the deficit, taking into account the amount needed

28  to fund medical and indemnity reserves and reserves for

29  incurred but not reported claims, and allowing for general

30  administrative expenses, the cost of levying and collecting

31  the assessment, a reasonable allowance for estimated

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    Florida Senate - 2006   (PROPOSED COMMITTEE BILL)     SPB 7098
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 1  uncollectible assessments, and allocated and unallocated loss

 2  adjustment expenses.

 3         c.  Each Tier Three insured's share of a deficit shall

 4  be computed by applying to the premium earned on the insured's

 5  policy or policies during the period to be covered by the

 6  assessment the ratio of the total deficit to the total

 7  premiums earned during such period upon all policies subject

 8  to the assessment. If one or more Tier Three insureds fail to

 9  pay an assessment, the other Tier Three insureds shall be

10  liable on a proportionate basis for additional assessments to

11  fund the deficit. The plan may compromise and settle

12  individual assessment claims without affecting the validity of

13  or amounts due on assessments levied against other insureds.

14  The plan may offer and accept discounted payments for

15  assessments which are promptly paid. The plan may offset the

16  amount of any unpaid assessment against unearned premiums

17  which may otherwise be due to an insured. The plan shall

18  institute legal action when necessary and appropriate to

19  collect the assessment from any insured who fails to pay an

20  assessment when due.

21         d.  The venue of a proceeding to enforce or collect an

22  assessment or to contest the validity or amount of an

23  assessment shall be in the Circuit Court of Leon County.

24         e.  If the board finds that a deficit in Tier Three

25  exists for any period and that an assessment is necessary, the

26  board shall certify to the office the need for an assessment.

27  No sooner than 30 days after the date of such certification,

28  the board shall notify in writing each insured who is to be

29  assessed that an assessment is being levied against the

30  insured, and informing the insured of the amount of the

31  assessment, the period for which the assessment is being

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    Florida Senate - 2006   (PROPOSED COMMITTEE BILL)     SPB 7098
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 1  levied, and the date by which payment of the assessment is

 2  due. The board shall establish a date by which payment of the

 3  assessment is due, which shall be no sooner than 30 days nor

 4  later than 120 days after the date on which notice of the

 5  assessment is mailed to the insured.

 6         f.  Whenever the board makes a determination that the

 7  plan does not have a sufficient cash basis to meet 6 3 months

 8  of projected cash needs due to a deficit in Tier Three, the

 9  board may request the department to transfer funds from the

10  Workers' Compensation Administration Trust Fund to the plan in

11  an amount sufficient to fund the difference between the amount

12  available and the amount needed to meet a 6-month 3-month

13  projected cash need as determined by the board and verified by

14  the office, subject to the approval of the Legislative Budget

15  Commission. If the Legislative Budget Commission approves a

16  transfer of funds under this sub-subparagraph, the plan shall

17  report to the Legislature the transfer of funds and the

18  Legislature shall review the plan during the next legislative

19  session or the current legislative session, if the transfer

20  occurs during a legislative session. This sub-subparagraph

21  shall not apply until the plan determines and the office

22  verifies that assessments collected by the plan pursuant to

23  sub-subparagraph b. are insufficient to fund the deficit in

24  Tier Three and to meet 6 3 months of projected cash needs.

25         4.  The plan may offer rating, dividend plans, and

26  other plans to encourage loss prevention programs.

27         (e)  The plan shall file with the office each manual of

28  classifications, rules, and rates; each rating plan; and each

29  modification pursuant to the requirements of this part which

30  applies to workers' compensation insurers. The office shall

31  review and approve or disapprove the filing pursuant to such

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    Florida Senate - 2006   (PROPOSED COMMITTEE BILL)     SPB 7098
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 1  requirements and the requirements of this section establish

 2  and use its rates and rating plans, and the plan may establish

 3  and use changes in rating plans at any time, but no more

 4  frequently than two times per any rating class for any

 5  calendar year. By January 1 December 1, 1993, and December 1

 6  of each year thereafter, except as provided in subparagraph

 7  (c)22., the board shall establish and use actuarially sound

 8  rates approved by the office for use by the plan to assure

 9  that the plan is self-funding while those rates are in effect.

10  Such rates and rating plans must be filed with the office

11  within 30 calendar days after their effective dates, and shall

12  be considered a "use and file" filing. Any disapproval by the

13  office must have an effective date that is at least 60 days

14  from the date of disapproval of the rates and rating plan and

15  must have prospective effect only. The plan may not be subject

16  to any order by the office to return to policyholders any

17  portion of the rates disapproved by the office. The office may

18  not disapprove any rates or rating plans unless it

19  demonstrates that such rates and rating plans are excessive,

20  inadequate, or unfairly discriminatory.

21         (f)  No later than June 1 of each year, the plan shall

22  obtain an independent actuarial certification of the results

23  of the operations of the plan for prior years, and shall

24  furnish a copy of the certification to the office. If, after

25  the effective date of the plan, the projected ultimate

26  incurred losses and expenses and dividends for prior years

27  exceed collected premiums, accrued net investment income, and

28  prior assessments for prior years, the certification is

29  subject to review and approval by the office before it becomes

30  final.

31  

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    Florida Senate - 2006   (PROPOSED COMMITTEE BILL)     SPB 7098
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 1         (g)  Whenever a deficit exists, the plan shall, within

 2  90 days, provide the office with a program to eliminate the

 3  deficit within a reasonable time. The deficit may be funded

 4  through increased premiums charged to insureds of the plan for

 5  subsequent years, through the use of policyholder surplus

 6  attributable to any year, including policyholder surplus in

 7  former subplan C as authorized in subparagraph (d)2., through

 8  the use of assessments as provided in subparagraph (d)2., and

 9  through assessments on assessable policies as provided in

10  subparagraph (d)3. Policyholders in former subplan C shall not

11  be subject to any assessments attributable to deficits in

12  subplan D and Tiers One, Two, and Three.

13         (h)  Any premium or assessments collected by the plan

14  in excess of the amount necessary to fund projected ultimate

15  incurred losses and expenses of the plan and not paid to

16  insureds of the plan in conjunction with loss prevention or

17  dividend programs shall be retained by the plan for future

18  use. Any state funds received by the plan in excess of the

19  amount necessary to fund deficits in subplan D or any tier

20  shall be returned to the state.

21         (i)  The decisions of the board of governors do not

22  constitute final agency action and are not subject to chapter

23  120.

24         (j)  Policies for insureds shall be issued by the plan.

25         (k)  The plan created under this subsection is liable

26  only for payment for losses arising under policies issued by

27  the plan with dates of accidents occurring on or after January

28  1, 1994.

29         (l)  Plan losses are the sole and exclusive

30  responsibility of the plan, and payment for such losses must

31  be funded in accordance with this subsection and must not

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    Florida Senate - 2006   (PROPOSED COMMITTEE BILL)     SPB 7098
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 1  come, directly or indirectly, from insurers or any guaranty

 2  association for such insurers.

 3         (m)  Each joint underwriting plan or association

 4  created under this section is not a state agency, board, or

 5  commission. However, for the purposes of s. 199.183(1) only,

 6  the joint underwriting plan is a political subdivision of the

 7  state and is exempt from the corporate income tax.

 8         (n)  Each joint underwriting plan or association may

 9  elect to pay premium taxes on the premiums received on its

10  behalf or may elect to have the member insurers to whom the

11  premiums are allocated pay the premium taxes if the member

12  insurer had written the policy. The joint underwriting plan or

13  association shall notify the member insurers and the

14  Department of Revenue by January 15 of each year of its

15  election for the same year. As used in this paragraph, the

16  term "premiums received" means the consideration for

17  insurance, by whatever name called, but does not include any

18  policy assessment or surcharge received by the joint

19  underwriting association as a result of apportioning losses or

20  deficits of the association pursuant to this section.

21         (m)(o)  Neither the plan nor any member of the board of

22  governors is liable for monetary damages to any person for any

23  statement, vote, decision, or failure to act, regarding the

24  management or policies of the plan, unless:

25         1.  The member breached or failed to perform her or his

26  duties as a member; and

27         2.  The member's breach of, or failure to perform,

28  duties constitutes:

29         a.  A violation of the criminal law, unless the member

30  had reasonable cause to believe her or his conduct was not

31  unlawful. A judgment or other final adjudication against a

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    Florida Senate - 2006   (PROPOSED COMMITTEE BILL)     SPB 7098
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 1  member in any criminal proceeding for violation of the

 2  criminal law estops that member from contesting the fact that

 3  her or his breach, or failure to perform, constitutes a

 4  violation of the criminal law; but does not estop the member

 5  from establishing that she or he had reasonable cause to

 6  believe that her or his conduct was lawful or had no

 7  reasonable cause to believe that her or his conduct was

 8  unlawful;

 9         b.  A transaction from which the member derived an

10  improper personal benefit, either directly or indirectly; or

11         c.  Recklessness or any act or omission that was

12  committed in bad faith or with malicious purpose or in a

13  manner exhibiting wanton and willful disregard of human

14  rights, safety, or property. For purposes of this

15  sub-subparagraph, the term "recklessness" means the acting, or

16  omission to act, in conscious disregard of a risk:

17         (I)  Known, or so obvious that it should have been

18  known, to the member; and

19         (II)  Known to the member, or so obvious that it should

20  have been known, to be so great as to make it highly probable

21  that harm would follow from such act or omission.

22         (n)(p)  No insurer shall provide workers' compensation

23  and employer's liability insurance to any person who is

24  delinquent in the payment of premiums, assessments, penalties,

25  or surcharges owed to the plan or to any person who is an

26  affiliated person of a person who is delinquent in the payment

27  of premiums, assessments, penalties, or surcharges owed to the

28  plan. For purposes of this paragraph, the term "affiliated

29  person" of another person means:

30         1.  The spouse of such other natural person;

31  

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    Florida Senate - 2006   (PROPOSED COMMITTEE BILL)     SPB 7098
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 1         2.  Any person who directly or indirectly owns or

 2  controls, or holds with the power to vote, 5 percent or more

 3  of the outstanding voting securities of such other person;

 4         3.  Any person who directly or indirectly owns 5

 5  percent or more of the outstanding voting securities that are

 6  directly or indirectly owned or controlled, or held with the

 7  power to vote, by such other person;

 8         4.  Any person or group of persons who directly or

 9  indirectly control, are controlled by, or are under common

10  control with such other person;

11         5.  Any officer, director, trustee, partner, owner,

12  manager, joint venturer, or employee, or other person

13  performing duties similar to persons in those positions, of

14  such other persons; or

15         6.  Any person who has an officer, director, trustee,

16  partner, or joint venturer in common with such other person.

17         (o)(q)  Effective July 1, 2004, the plan is exempt from

18  the premium tax under s. 624.509 and any assessments under ss.

19  440.49 and 440.51.

20         (6)  Each joint underwriting plan or association

21  created under this section is not a state agency, board, or

22  commission. However, for the purposes of s. 199.183(1) only,

23  the joint underwriting plan created under subsection (5) is a

24  political subdivision of the state and is exempt from the

25  corporate income tax.

26         (7)  Each joint underwriting plan or association may

27  elect to pay premium taxes on the premiums received on its

28  behalf or may elect to have the member insurers to whom the

29  premiums are allocated pay the premium taxes if the member

30  insurer had written the policy. The joint underwriting plan or

31  association shall notify the member insurers and the

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    Florida Senate - 2006   (PROPOSED COMMITTEE BILL)     SPB 7098
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 1  Department of Revenue by January 15 of each year of its

 2  election for the same year. As used in this paragraph, the

 3  term "premiums received" means the consideration for

 4  insurance, by whatever name called, but does not include any

 5  policy assessment or surcharge received by the joint

 6  underwriting association as a result of apportioning losses or

 7  deficits of the association pursuant to this section.

 8         (8)(6)  As used in this section and ss. 215.555 and

 9  627.351, the term "collateral protection insurance" means

10  commercial property insurance of which a creditor is the

11  primary beneficiary and policyholder and which protects or

12  covers an interest of the creditor arising out of a credit

13  transaction secured by real or personal property. Initiation

14  of such coverage is triggered by the mortgagor's failure to

15  maintain insurance coverage as required by the mortgage or

16  other lending document. Collateral protection insurance is not

17  residential coverage.

18         (9)(7)(a)  The Florida Automobile Joint Underwriting

19  Association created under this section shall be deemed to have

20  appointed its general manager as its agent to receive service

21  of all legal process issued against the association in any

22  civil action or proceeding in this state. Process so served

23  shall be valid and binding upon the insurer.

24         (b)  Service of process upon the association's general

25  manager as the association's agent pursuant to such an

26  appointment shall be the sole method of service of process

27  upon the association.

28         Section 2.  Section 2 of chapter 2004-266, Laws of

29  Florida, appearing as a footnote to section 627.311, Florida

30  Statutes, is amended to read:

31  

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    Florida Senate - 2006   (PROPOSED COMMITTEE BILL)     SPB 7098
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 1         Notwithstanding the provisions of ss. 440.50 and

 2  440.51, Florida Statutes, subject to the following procedures

 3  and approval, the Department of Financial Services may request

 4  transfer funds from the Workers' Compensation Administration

 5  Trust Fund within the Department of Financial Services to the

 6  workers' compensation joint underwriting plan provided in s.

 7  627.311(5), Florida Statutes.

 8         (1)  The department shall establish a contingency

 9  reserve within the Workers' Compensation Administration Trust

10  Fund, from which the department is authorized to expend funds

11  as provided in the subsection, in an amount not to exceed $15

12  million to be released only upon the approval of a budget

13  amendment presented to the Legislative Budget Commission. For

14  actuarial deficits projected for policyholders, based on

15  actuarial best estimates, covered in subplan "D" prior to July

16  1, 2004, and upon verification by the Office of Insurance

17  Regulation, the plan is authorized to request and the

18  department is authorized to submit a budget amendment in an

19  amount not to exceed $15 million for the purpose of funding

20  deficits in subplan "D".

21         (2)  After the contingency reserve is established,

22  whenever the board determines subplan "D" does not have a

23  sufficient cash basis to meet a 6-month period 3 months of

24  projected cash needs due to any deficit in subplan "D,"

25  remaining after accessing any policyholder surplus

26  attributable to former subplan C, the board is authorized to

27  request the department to transfer funds from the contingency

28  reserve fund within the Workers' Compensation Administration

29  Trust Fund to the plan in an amount sufficient to fund the

30  difference between the amount available and the amount needed

31  to meet subplan "D"'s projected cash need for the subsequent

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    Florida Senate - 2006   (PROPOSED COMMITTEE BILL)     SPB 7098
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 1  6-month 3-month period. The board and the office must first

 2  certify to the Department of Financial Services that there is

 3  not sufficient cash within subplan "D" to meet the projected

 4  cash needs in subplan "D" within the subsequent 6-month period

 5  3 months. The amount requested for transfer to subplan "D" may

 6  not exceed the difference between the amount available within

 7  subplan "D" and the amount needed to meet subplan "D"'s

 8  projected cash need for the subsequent 6-month 3-month period,

 9  as jointly certified by the board and the Office of Insurance

10  Regulation to the Department of Financial Services,

11  attributable to the former subplan "D" policyholders. The

12  Department of Financial Services may submit a budget amendment

13  to request release of funds from the Workers' Compensation

14  Administration Trust Fund, subject to the approval of the

15  Legislative Budget Commission. The board will provide, for

16  review of the Legislative Budget Commission, information on

17  the reasonableness of the plan's administration, including,

18  but not limited to, the plan of operations and costs, claims

19  costs, claims administration costs, overhead costs, claims

20  reserves, and the latest report submitted on administration

21  cost reduction alternatives as required in s.

22  627.311(5)(c)17., Florida Statutes.

23         (3)  This section expires July 1, 2011 2007.

24         Section 3.  This act shall take effect July 1, 2006.

25  

26  

27  

28  

29  

30  

31  

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    Florida Senate - 2006   (PROPOSED COMMITTEE BILL)     SPB 7098
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 1            *****************************************

 2                          SENATE SUMMARY

 3    Revises provisions governing the Florida Workers'
      Compensation Joint Underwriting Association. Increases
 4    the membership of the board of governors. Authorizes the
      use of surplus funds of former plan C to fund certain
 5    deficits. Requires that the Office of Insurance
      Regulation approve rates. Requires that excess funds be
 6    returned to the state. Extends operation of the
      contingency reserve until July 1, 2011. (See bill for
 7    details.)

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