Florida Senate - 2008 CS for SB 1018
By the Committee on Banking and Insurance; and Senator Fasano
597-04747-08 20081018c1
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A bill to be entitled
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An act relating to property insurance appraisal umpires;
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amending s. 624.501, F.S.; providing license application,
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issuance, biennial renewal, or continuation fees for
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property appraisal umpires; amending s. 626.015, F.S.;
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defining the terms "property insurance loss appraiser" and
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"property insurance appraisal umpire" for purposes of the
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Licensing Procedures Law; amending s. 626.016, F.S.;
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providing that property insurance appraisal umpires are
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subject to the powers of the Department of Financial
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Services, the Financial Services Commission, and the
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Office of Insurance Regulation; amending s. 626.022, F.S.;
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expanding the scope of part I of ch. 626, F.S., to include
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property insurance appraisal umpires; deleting obsolete
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provisions; amending s. 626.112, F.S.; requiring that
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property insurance appraisal umpires operating in this
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state be licensed by the department; exempting retired
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judges and certain mediators from the requirement for
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licensure; creating part XII of ch. 626, F.S.; creating s.
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626.9931, F.S.; providing a legislative finding and
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purpose; creating s. 626.9932, F.S.; providing the scope
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and parameters for application; creating s. 626.9933,
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F.S.; providing definitions; creating s. 626.9934, F.S.;
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providing procedures for the application for licensure as
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a property insurance appraisal umpire; requiring that all
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applicants be fingerprinted by a law enforcement agency or
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other entity approved by the department at the time of
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application; requiring the department to develop and
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maintain an updated list of licensed umpires; creating s.
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626.9935, F.S.; authorizing the department to adopt rules;
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creating s. 626.9936, F.S.; providing qualifications for
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licensure as a property insurance appraisal umpire;
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creating s. 626.9937, F.S.; providing professional and
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educational requirements for licensure as a property
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insurance appraisal umpire; creating s. 626.9938, F.S.;
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providing for the regulation of umpire course providers,
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instructors, and courses; requiring the department to
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adopt rules establishing standards for providers,
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instructors, and courses, and a process for determining
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compliance with certain prelicensure requirements and
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adopting forms to be used for the administration of such
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requirements; creating s. 626.9939, F.S.; providing
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grounds for the compulsory refusal, suspension, or
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revocation of an umpire's license; creating s. 626.9940,
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F.S.; providing grounds for the discretionary refusal,
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suspension, or revocation of an umpire's license; creating
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s. 626.9941, F.S.; providing ethical standards for
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property insurance loss appraisal umpires; creating s.
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626.9942, F.S.; requiring that a licensed property
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insurance appraisal umpire retain certain records for a
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specified period; requiring that umpires make such records
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available for inspection and copying by the department;
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requiring that appraisals that are the subject of
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litigation or have been admitted as evidence in a lawsuit
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be retained for a specified period; creating s. 626.9943,
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F.S.; providing ethical standards for property loss
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insurance appraisers; creating s. 627.4141, F.S.;
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providing procedures that must be followed if a
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residential or commercial property insurance contract
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provides that either party may submit a written demand to
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enter into the process of appraisal when the insured and
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the insurer fail to mutually agree to the actual cash
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value, the amount of loss, or the cost of repair or
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replacement of property for which a claim has been filed;
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providing an exception upon which an insurer may refuse to
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accept such demand; authorizing each party to select a
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competent and independent appraiser and to notify the
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opposing party within a specified period; requiring the
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appraisers to select an umpire from the department's list
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of licensed umpires; authorizing either party to file a
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petition, in a county or circuit court in the jurisdiction
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in which the covered property is located, to designate an
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umpire if the appraisers cannot agree on the selection of
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an umpire; providing that appraisal proceedings are
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informal unless the insurer and the insured agree
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otherwise; defining and providing the scope of the term
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"informal" for purposes of appraisal proceedings;
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requiring each appraiser to submit a written report to the
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other appraisers; requiring that any differences in
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findings among the appraisers which cannot be resolved by
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the appraisers themselves within a specified period be
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submitted to the umpire for review; requiring the umpire
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to submit his or her conclusions regarding any unresolved
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differences in the findings of the appraisers within a
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specified period; providing that if either appraiser
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agrees with the conclusions of the umpire, an itemized
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written appraisal award signed by the umpire and appraiser
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shall be filed with the insurer and shall determine the
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amount of the loss; providing that the appraisal award is
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binding upon the insurer and the insured; providing for
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compensation of the appraisers and the umpire; providing
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that the Florida Arbitration Code does not apply to
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residential or commercial property insurance loss
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appraisal proceedings; providing that certain provisions
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of the Florida Arbitration Code relating to procedural
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matters do apply; prohibiting the appraisal process from
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addressing issues involving coverage or lack thereof under
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an insurance contract; authorizing the umpire and
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appraisers to consider causation issues when necessary to
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determine the amount of loss; providing an effective date.
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Be It Enacted by the Legislature of the State of Florida:
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Section 1. Subsection (5) of section 624.501, Florida
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Statutes, is amended, and subsection (29) is added to that
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section, to read:
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624.501 Filing, license, appointment, and miscellaneous
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fees.--The department, commission, or office, as appropriate,
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shall collect in advance, and persons so served shall pay to it
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in advance, fees, licenses, and miscellaneous charges as follows:
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(5) All insurance representatives and property insurance
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appraisal umpires, application for license, each filing, filing
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fee....$50.00
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(29) Property appraisal umpire original appointment,
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biennial renewal, or continuation by the licensee....$50.00
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Section 2. Present subsections (16), (17), and (18) of
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section 626.015, Florida Statutes, are renumbered as subsections
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(18), (19), and (20), respectively, and new subsections (16) and
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(17) are added to that section, to read:
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626.015 Definitions.--As used in this part:
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(16) "Property insurance loss appraiser" has the same
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meaning as in s. 626.9933.
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(17) "Property insurance appraisal umpire" has the same
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meaning as in s. 626.9933.
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Section 3. Subsection (1) of section 626.016, Florida
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Statutes, is amended to read:
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626.016 Powers and duties of department, commission, and
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office.--
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(1) The powers and duties of the Chief Financial Officer
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and the department specified in this part apply only with respect
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to insurance agents, insurance agencies, managing general agents,
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insurance adjusters, reinsurance intermediaries, viatical
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settlement brokers, customer representatives, service
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representatives, and property insurance appraisal umpires
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agencies.
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Section 4. Subsection (1) of section 626.022, Florida
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Statutes, is amended to read:
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626.022 Scope of part.--
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(1) This part applies as to insurance agents, service
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representatives, adjusters, property insurance appraisal umpires,
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and insurance agencies; as to any and all kinds of insurance; and
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as to stock insurers, mutual insurers, reciprocal insurers, and
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all other types of insurers, except that:
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(a) It does not apply as to reinsurance, except that ss.
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intermediaries as defined in s. 626.7492.
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(b) The applicability of this chapter as to fraternal
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benefit societies shall be as provided in chapter 632.
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(c) It does not apply to a bail bond agent, as defined in
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s. 648.25, except as provided in chapter 648 or chapter 903.
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(d) It This part does not apply to a certified public
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accountant licensed under chapter 473 who is acting within the
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scope of the practice of public accounting, as defined in s.
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473.302, if provided that the activities of the certified public
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accountant are limited to advising a client of the necessity of
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obtaining insurance, the amount of insurance needed, or the line
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of coverage needed, and if provided that the certified public
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accountant does not directly or indirectly receive or share in
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any commission or referral fee.
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Section 5. Section 626.112, Florida Statutes, is amended to
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read:
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626.112 License and appointment required; agents, customer
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representatives, adjusters, insurance agencies, service
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representatives, managing general agents, and property insurance
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appraisal umpires.--
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(1)(a) No person may be, act as, or advertise or hold
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himself or herself out to be an insurance agent, insurance
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adjuster, or customer representative unless he or she is
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currently licensed by the department and appointed by an
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appropriate appointing entity or person.
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(b) Except as provided in subsection (6) or in applicable
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department rules, and in addition to other conduct described in
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this chapter with respect to particular types of agents, a
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license as an insurance agent, service representative, customer
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representative, or limited customer representative is required in
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order to engage in the solicitation of insurance. For purposes of
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this requirement, as applicable to any of the license types
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described in this section, the solicitation of insurance is the
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attempt to persuade any person to purchase an insurance product
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by:
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1. Describing the benefits or terms of insurance coverage,
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including premiums or rates of return;
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2. Distributing an invitation to contract to prospective
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purchasers;
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3. Making general or specific recommendations as to
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insurance products;
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4. Completing orders or applications for insurance
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products;
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5. Comparing insurance products, advising as to insurance
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matters, or interpreting policies or coverages; or
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6. Offering or attempting to negotiate on behalf of another
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person a viatical settlement contract as defined in s. 626.9911.
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However, an employee leasing company licensed pursuant to chapter
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468 which is seeking to enter into a contract with an employer
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that identifies products and services offered to employees may
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deliver proposals for the purchase of employee leasing services
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to prospective clients of the employee leasing company setting
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forth the terms and conditions of doing business; classify
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employees as permitted by s. 468.529; collect information from
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prospective clients and other sources as necessary to perform due
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diligence on the prospective client and to prepare a proposal for
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services; provide and receive enrollment forms, plans, and other
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documents; and discuss or explain in general terms the
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conditions, limitations, options, or exclusions of insurance
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benefit plans available to the client or employees of the
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employee leasing company were the client to contract with the
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employee leasing company. Any advertising materials or other
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documents describing specific insurance coverages must identify
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and be from a licensed insurer or its licensed agent or a
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licensed and appointed agent employed by the employee leasing
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company. The employee leasing company may not advise or inform
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the prospective business client or individual employees of
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specific coverage provisions, exclusions, or limitations of
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particular plans. As to clients for which the employee leasing
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company is providing services pursuant to s. 468.525(4), the
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employee leasing company may engage in activities permitted by
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specified in those sections. If a prospective client requests
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more specific information concerning the insurance provided by
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the employee leasing company, the employee leasing company must
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refer the prospective business client to the insurer or its
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licensed agent or to a licensed and appointed agent employed by
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the employee leasing company.
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(2) No agent or customer representative shall solicit or
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otherwise transact as agent or customer representative, or
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represent or hold himself or herself out to be an agent or
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customer representative as to, any kind or kinds of insurance for
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as to which he or she is not then licensed and appointed.
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(3) No person shall act as an adjuster as to any class of
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business for which he or she is not then licensed and appointed.
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(4) No person shall be, act as, or represent or hold
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himself or herself out to be a service representative unless he
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or she then holds a currently effective service representative
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license and appointment. This subsection does not apply as to
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similar representatives or employees of casualty insurers whose
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duties are restricted to health insurance.
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(5) No person shall be, act as, or represent or hold
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himself or herself out to be a managing general agent unless he
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or she then holds a currently effective managing general agent
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license and appointment.
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(6) An individual employed by a life or health insurer as
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an officer or other salaried representative may solicit and
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effect contracts of life insurance or annuities or of health
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insurance, without being licensed as an agent, when and only if
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when he or she is accompanied by and solicits for and on the
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behalf of a licensed and appointed agent.
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(7)(a) Effective October 1, 2006, No individual, firm,
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partnership, corporation, association, or any other entity shall
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act in its own name or under a trade name, directly or
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indirectly, as an insurance agency, unless it complies with s.
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626.172 with respect to possessing an insurance agency license
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for each place of business at which it engages in any activity
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which may be performed only by a licensed insurance agent. Each
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agency engaged in business in this state before January 1, 2003,
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which is wholly owned by insurance agents currently licensed and
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appointed under this chapter, each incorporated agency whose
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voting shares are traded on a securities exchange, each agency
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designated and subject to supervision and inspection as a branch
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office under the rules of the National Association of Securities
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Dealers, and each agency whose primary function is offering
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insurance as a service or member benefit to members of a
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nonprofit corporation may file an application for registration in
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lieu of licensure in accordance with s. 626.172(3). Each agency
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engaged in business before October 1, 2006, shall file an
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application for licensure or registration on or before October 1,
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2006.
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1. If an agency is required to be licensed but fails to
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file an application for licensure in accordance with this
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section, the department shall impose on the agency an
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administrative penalty in an amount of up to $10,000.
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2. If an agency is eligible for registration but fails to
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file an application for registration or an application for
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licensure in accordance with this section, the department shall
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impose on the agency an administrative penalty in an amount of up
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to $5,000.
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(b) A registered insurance agency shall, as a condition
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precedent to continuing business, obtain an insurance agency
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license if the department finds that, with respect to any
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majority owner, partner, manager, director, officer, or other
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person who manages or controls the agency, any person has:
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1. Been found guilty of, or has pleaded guilty or nolo
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contendere to, a felony in this state or any other state relating
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to the business of insurance or to an insurance agency, without
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regard to whether a judgment of conviction has been entered by
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the court having jurisdiction of the cases.
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2. Employed any individual in a managerial capacity or in a
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capacity dealing with the public who is under an order of
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revocation or suspension issued by the department. An insurance
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agency may request, on forms prescribed by the department,
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verification of any person's license status. If a request is
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mailed within 5 working days after an employee is hired, and the
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employee's license is currently suspended or revoked, the agency
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shall not be required to obtain a license, if the unlicensed
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person's employment is immediately terminated.
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3. Operated the agency or permitted the agency to be
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operated in violation of s. 626.747.
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4. With such frequency as to have made the operation of the
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agency hazardous to the insurance-buying public or other persons:
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a. Solicited or handled controlled business. This
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subparagraph shall not prohibit the licensing of any lending or
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financing institution or creditor, with respect to insurance
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only, under credit life or disability insurance policies of
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borrowers from the institutions, which policies are subject to
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part IX of chapter 627.
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b. Misappropriated, converted, or unlawfully withheld
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moneys belonging to insurers, insureds, beneficiaries, or others
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and received in the conduct of business under the license.
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c. Unlawfully rebated, attempted to unlawfully rebate, or
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unlawfully divided or offered to divide commissions with another.
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d. Misrepresented any insurance policy or annuity contract,
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or used deception with regard to any policy or contract, done
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either in person or by any form of dissemination of information
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or advertising.
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e. Violated any provision of this code or any other law
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applicable to the business of insurance in the course of dealing
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under the license.
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f. Violated any lawful order or rule of the department.
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g. Failed or refused, upon demand, to pay over to any
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insurer he or she represents or has represented any money coming
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into his or her hands belonging to the insurer.
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h. Violated the provision against twisting as defined in s.
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626.9541(1)(l).
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i. In the conduct of business, engaged in unfair methods of
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competition or in unfair or deceptive acts or practices, as
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prohibited under part IX of this chapter.
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j. Willfully overinsured any property insurance risk.
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k. Engaged in fraudulent or dishonest practices in the
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conduct of business arising out of activities related to
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insurance or the insurance agency.
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l. Demonstrated lack of fitness or trustworthiness to
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engage in the business of insurance arising out of activities
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related to insurance or the insurance agency.
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m. Authorized or knowingly allowed individuals to transact
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insurance who were not then licensed as required by this code.
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5. Knowingly employed any person who within the preceding 3
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years has had his or her relationship with an agency terminated
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in accordance with paragraph (d).
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6. Willfully circumvented the requirements or prohibitions
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of this code.
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(8) No insurance agent, insurance agency, or other person
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licensed under the Insurance Code may pay any fee or other
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consideration to an unlicensed person other than an insurance
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agency for the referral of prospective purchasers to an insurance
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agent which is in any way dependent upon whether the referral
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results in the purchase of an insurance product.
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(9) Any person who knowingly transacts insurance or
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otherwise engages in insurance activities in this state without a
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license in violation of this section commits a felony of the
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or s. 775.084.
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(10) Effective July 1, 2009, a person may not act as,
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represent himself or herself as, or hold himself or herself out
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to be a property insurance appraisal umpire unless he or she
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holds a current property insurance appraisal umpire license
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issued by the department. However, retired judges and Circuit
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Court Civil Certified Mediators who are approved by the Florida
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Supreme Court pursuant to the Florida Rules of Certified and
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Court Appointed Mediators or who are on the list of approved
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mediators pursuant to rule 69B-166.031, Florida Administrative
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Code, are exempt from the umpire licensing requirements of this
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section.
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Section 6. Part XII of chapter 626, Florida Statutes,
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consisting of sections 626.9931, 626.9932, 626.9933, 626.9934,
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626.9935, 626.9936, 626.9937, 626.9938, 626.9939, 626.9940,
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626.9941, 626.9942, and 626.9943, is created to read:
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626.9931 Purpose.--The Legislature finds that it is in the
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interest of the public welfare to regulate property insurance
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loss appraisers and property insurance appraisal umpires in this
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state.
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626.9932 Scope of part.--This part applies to residential
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and commercial residential property insurance contracts that
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contain an appraisal clause and to the umpires and appraisers who
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participate in the appraisal process as a result of an appraisal
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clause.
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626.9933 Definitions.--As used in this part, the term:
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(1) "Appraisal" means the process of estimating or
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evaluating actual cash value, the amount of loss, or the cost of
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repair or replacement of property for the purpose of quantifying
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the monetary value of a property loss claim when an insurer and
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an insured have failed to mutually agree on the value of the loss
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pursuant to a residential or commercial residential property
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insurance contract that provides for the resolution of a claim
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dispute by appraisal.
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(2) "Competent" means properly or sufficiently qualified or
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capable to perform an appraisal.
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(3) "Independent" means not subject to control,
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restriction, modification, or limitation by the appointing party.
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(4) "Property insurance appraisal umpire" or "umpire" means
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a competent, independent, and impartial third party selected by
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the appraisers for the insurer and the insured to resolve issues
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for which the appraisers are unable to reach an agreement in the
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course of the appraisal process pursuant to a residential or
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commercial residential property insurance contract that provides
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for the resolution of a claim dispute by appraisal.
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(5) "Property insurance loss appraiser" or "appraiser" mean
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a competent and independent third party selected by an insurer or
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an insured to develop an appraisal for purposes of the appraisal
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process under a residential or commercial residential property
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insurance contract that provides for the resolution of a claim
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dispute by appraisal.
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626.9934 Appraisal umpire application; fingerprinting
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required; umpire list.--
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(1) Application for a license under this part shall be made
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as provided in s. 626.171 and related sections of this code.
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(2) At the time of application, the applicant must be
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fingerprinted by a law enforcement agency or other entity
410
approved by the department and must pay the fingerprint
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processing fee specified in s. 624.501. Fingerprints must be
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processed in accordance with s. 624.34.
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(3) The department shall develop and maintain as a public
414
record a current list of licensed property insurance appraisal
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umpires.
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626.9935 Rulemaking authority.--The department may adopt
417
rules to administer the requirements of this part pursuant to ss.
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626.9936 Qualifications for licensure as a property
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insurance appraisal umpire.--
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(1) The department may not issue a license as a property
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insurance appraisal umpire to any individual found by it to be
423
untrustworthy or incompetent, or who has not met the following
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qualifications:
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(a) The applicant has filed an application with the
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department in accordance with s. 626.171;
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(b) The applicant is a natural person who is at least 18
428
years of age;
429
(c) The applicant is a United States citizen or legal alien
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who possesses work authorization from the United States Bureau of
431
Citizenship and Immigration Services; and
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(d) The applicant has completed the education, experience,
433
or licensing requirements in s. 626.9937.
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(2) An incomplete application expires 6 months after the
435
date it is received.
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(3) An applicant seeking to become licensed under this part
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may not be rejected solely by virtue of membership or lack of
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membership in any particular appraisal organization.
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626.9937 Professional or educational requirements for
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insurance appraisal umpires applicants.--The department may not
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issue a license to an applicant for licensure as a property
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insurance appraisal umpire unless the applicant meets one of the
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following requirements:
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(1) The applicant is currently licensed, registered,
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certified, or approved as an engineer as defined in s. 471.005,
446
or as a retired professional engineer as defined in s. 471.005
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and has taught or successfully completed 4 hours of classroom
448
coursework, approved by the department, specifically related to
449
construction, building codes, appraisal procedure, appraisal
450
preparation, and any other related material deemed appropriate by
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the department.
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(2) The applicant is currently or, within the 5 years
453
immediately preceding the date on which the application is filed
454
with the department, has been licensed, registered, certified, or
455
approved as a general contractor, building contractor, or
456
residential contractor as defined in s. 489.105 and has taught or
457
successfully completed 4 hours of classroom coursework, approved
458
by the department, specifically related to construction, building
459
codes, appraisal procedure, appraisal preparation, and any other
460
related material deemed appropriate by the department.
461
(3) The applicant is currently or, within the 5 years
462
immediately preceding the date on which the application is filed
463
with the department, has been licensed or registered as an
464
architect to engage in the practice of architecture pursuant to
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part I of chapter 481 and has taught or successfully completed 4
466
hours of classroom coursework, approved by the department,
467
specifically related to construction, building codes, appraisal
468
procedure, appraisal preparation, and any other related material
469
deemed appropriate by the department.
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(4) The applicant is currently or, within the 5 years
471
immediately preceding the date on which the application is filed
472
with the department, has been a qualified geologist or
473
professional geologist as defined in s. 492.102 and has taught or
474
successfully completed 4 hours of classroom coursework, approved
475
by the department, specifically related to construction, building
476
codes, appraisal procedure, appraisal preparation, and any other
477
related material deemed appropriate by the department.
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(5) The applicant is currently or, within the 5 years
479
immediately preceding the date on which the application is filed
480
with the department, has been licensed as a certified public
481
accountant as defined in s. 473.302 and has taught or
482
successfully completed 4 hours of classroom coursework, approved
483
by the department, specifically related to construction, building
484
codes, appraisal procedure, appraisal preparation, and any other
485
related material deemed appropriate by the department.
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(6) The applicant is currently or, within the 5 years
487
immediately preceding the date on which the application is filed
488
with the department, has been licensed as an attorney at law in
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this state and has taught or successfully completed 4 hours of
490
classroom coursework, approved by the department, specifically
491
related to construction, building codes, appraisal procedure,
492
appraisal preparation, and any other related material deemed
493
appropriate by the department.
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(7) The applicant has received a baccalaureate degree from
495
an accredited 4-year college in the field of engineering,
496
architecture, or building construction and has taught or
497
successfully completed 4 hours of classroom coursework, approved
498
by the department, specifically related to construction, building
499
codes, appraisal procedure, appraisal preparation, and any other
500
related material deemed appropriate by the department.
501
(8) The applicant is currently licensed as an all-lines or
502
property and casualty adjuster pursuant to part VI and:
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(a) Has 1 year of proven experience as an employee of a
504
general contractor, building contractor, or residential
505
contractor;
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(b) Has received a minimum of 8 semester hours or 12
507
quarter hours of credit from an accredited college in the field
508
of accounting, geology, engineering, architecture, or building
509
construction;
510
(c) Has taught or successfully completed 4 hours of
511
classroom coursework, approved by the department, specifically
512
related to construction, building codes, appraisal procedure,
513
appraisal preparation, and any other related material deemed
514
appropriate by the department; or
515
(d) Has acted as an appraiser or umpire in a minimum of 20
516
appraisal proceedings under a property insurance contract.
517
(9) The applicant has successfully completed 40 hours of
518
classroom coursework, approved by the department, specifically
519
related to construction, building codes, appraisal procedure,
520
appraisal preparation, property insurance, and any other related
521
material deemed appropriate by the department.
522
626.9938 Regulation of umpire course providers,
523
instructors, and courses.--
524
(1) Each umpire course provider, instructor, and classroom
525
course must be approved by and registered with the department
526
before prelicensure courses for property insurance appraisal
527
umpires may be offered. Each classroom course must include a
528
written examination at the conclusion of the course and must
529
cover all of the material contained in the course. A student may
530
not receive credit for the course unless the student achieves a
531
grade of at least 75 on the examination.
532
(2) The department shall adopt rules establishing:
533
(a) Standards for the approval, registration, discipline,
534
or removal from registration of course providers, instructors,
535
and courses. The standards must be designed to ensure that
536
instructors have the knowledge, competence, and integrity to
537
fulfill the educational objectives of the prelicensure
538
requirements of this part.
539
(b) A process for determining compliance with the
540
prelicensure requirements of this part. The department shall
541
adopt rules prescribing the forms necessary to administer the
542
prelicensure requirements of this part.
543
(3) Approval to teach prescribed or approved appraisal
544
courses does not entitle the instructor to teach any courses
545
outside the scope of this part.
546
626.9939 Grounds for compulsory refusal, suspension, or
547
revocation of an umpire's license.--In addition to the grounds
548
set forth in s. 626.611, the department shall deny an application
549
for, and suspend, revoke, or refuse to renew or continue, a
550
license as a property insurance appraisal umpire if the applicant
551
or licensee has:
552
(1) Violated a duty imposed upon her or him by law or by
553
the terms of a contract, whether written, oral, express, or
554
implied, in an appraisal; has aided, assisted, or conspired with
555
any other person engaged in any such misconduct and in
556
furtherance thereof; or has formed an intent, design, or scheme
557
to engage in such misconduct and committed an overt act in
558
furtherance of such intent, design, or scheme. It is immaterial
559
to a finding that a licensee has committed a violation of this
560
subsection that the victim or intended victim of the misconduct
561
has sustained no damage or loss, that the damage or loss has been
562
settled and paid after the discovery of misconduct, or that such
563
victim or intended victim was a customer or a person in a
564
confidential relation with the licensee or was an identified
565
member of the general public.
566
(2) Violated any provision of this part or any lawful order
567
or rule of the department.
568
(3) Had a registration, license, or certification as an
569
appraiser revoked, suspended, or otherwise acted against; has had
570
his or her registration, license, or certificate to practice or
571
conduct any regulated profession, business, or vocation revoked
572
or suspended by this or any other state, any nation, or any
573
possession or district of the United States; or has had an
574
application for such registration, licensure, or certification to
575
practice or conduct any regulated profession, business, or
576
vocation denied by this or any other state, any nation, or any
577
possession or district of the United States.
578
(4) Made or filed a report or record, written or oral,
579
which the licensee knows to be false; has willfully failed to
580
file a report or record required by state or federal law; has
581
willfully impeded or obstructed such filing; or has induced
582
another person to impede or obstruct such filing.
583
(5) Accepted an appointment as an umpire if the appointment
584
is contingent upon the umpire reporting a predetermined result,
585
analysis, or opinion, or if the fee to be paid for the services
586
of the umpire is contingent upon the opinion, conclusion, or
587
valuation reached by the umpire.
588
626.9940 Grounds for discretionary denial, suspension, or
589
revocation of a license as a property insurance appraisal
590
umpire.--In addition to the applicable grounds set forth in s.
591
626.621, the department may deny an application for and suspend,
592
revoke, or refuse to renew or continue a license as a property
593
insurance appraisal umpire if the applicant or licensee has:
594
(1) Failed to timely communicate with the appraisers
595
without good cause.
596
(2) Failed or refused to exercise reasonable diligence in
597
submitting recommendations to the appraisers.
598
(3) Violated any ethical standard for property insurance
599
appraisal umpires set forth in s. 626.9941.
600
(4) Failed to inform the department in writing within 30
601
days after pleading guilty or nolo contendere to, or being
602
convicted or found guilty of, any felony.
603
(5) Failed to timely notify the department of any change in
604
business location, or has failed to fully disclose all business
605
locations from which he or she operates as a property insurance
606
appraisal umpire.
607
626.9941 Ethical standards for property insurance appraisal
608
umpires.--
609
(1) IMPARTIALITY.--An umpire shall be neutral and maintain
610
impartiality throughout the appraisal process. Impartiality means
611
freedom from favoritism or bias in word, action, or appearance.
612
An umpire shall withdraw from appraisal if the umpire is no
613
longer impartial.
614
(2) GIFTS AND SOLICITATION.--An umpire may not give or
615
accept any gift, favor, loan, or other item of value in an
616
appraisal process. During the appraisal process, an umpire may
617
not solicit or otherwise attempt to procure future professional
618
services.
619
(3) CONFLICTS OF INTEREST.--An umpire may not participate
620
in a matter that presents a clear or undisclosed conflict of
621
interest. A conflict of interest arises when any relationship
622
between the umpire and the appraisal participants or the subject
623
matter of the dispute compromises, or appears to compromise, the
624
umpire's impartiality.
625
(4) BURDEN OF DISCLOSURE.--The burden of disclosing a
626
potential conflict of interest rests on the umpire. Disclosure
627
must be made as soon as practical after the umpire becomes aware
628
of the interest or relationship giving rise to the potential
629
conflict of interest.
630
(5) EFFECT OF DISCLOSURE.--After appropriate disclosure,
631
the umpire may serve if all parties agree. However, if a conflict
632
of interest clearly impairs an umpire's impartiality, the umpire
633
shall withdraw regardless of the express agreement of the
634
parties.
635
(6) CONFIDENTIALITY.--An umpire shall maintain
636
confidentiality of all information revealed during an appraisal
637
except where disclosure is required by law.
638
(7) RECORDKEEPING.--An umpire shall maintain
639
confidentiality in the storage and disposal of records and may
640
not disclose any identifying information when materials are used
641
for research, training, or statistical compilations.
642
(8) FEES AND EXPENSES.--An umpire holds a position of
643
trust. Fees charged for appraisal services shall be reasonable
644
and consistent with the nature of the case. An umpire shall be
645
guided by the following general principles in determining fees:
646
(a) Any charges for services as an umpire based on time may
647
not exceed actual time spent or allocated;
648
(b) Charges for costs shall be for those actually incurred;
649
and
650
(c) An umpire may not charge, agree to, or accept as
651
compensation or reimbursement any payment, commission, or fee
652
that is based on a percentage basis, or that is contingent upon
653
arriving at a particular value or any future happening or outcome
654
of the assignment.
655
(9) MAINTENANCE OF RECORDS.--An umpire shall maintain
656
records necessary to support charges for services and expenses,
657
and upon request shall provide an accounting of all applicable
658
charges to the parties.
659
(10) ADVERTISING.--An umpire may not engage in marketing
660
practices that contain false or misleading information. An umpire
661
shall ensure that any advertisements of the umpire's
662
qualifications, services to be rendered, or the appraisal process
663
are accurate and honest. An umpire may not make claims of
664
achieving specific outcomes or promises implying favoritism for
665
the purpose of obtaining business.
666
(11) INTEGRITY AND IMPARTIALITY.--An umpire may not accept
667
any engagement, provide any service, or perform any act that
668
would compromise the umpire's integrity or impartiality.
669
(12) SKILL AND EXPERIENCE.--An umpire shall decline an
670
appointment or selection, withdraw, or request appropriate
671
assistance when the facts and circumstances of the appraisal are
672
beyond the umpire's skill or experience.
673
626.9942 Retention of records.--An umpire licensed under
674
this part shall retain for at least 5 years original or true
675
copies of any contracts engaging the umpire's services, appraisal
676
reports, and supporting data assembled and formulated by the
677
umpire in preparing appraisal reports. The period for retaining
678
the records applicable to each engagement starts on the date of
679
the submission of the appraisal report to the client. These
680
records must be made available by the umpire for inspection and
681
copying by the department upon reasonable notice to the umpire.
682
If an appraisal has been the subject of, or has been admitted as
683
evidence in, a lawsuit, reports and records must be retained for
684
at least 2 years after the date the trial ends.
685
626.9943 Ethical standards for property insurance loss
686
appraisers.--
687
(1) INTEGRITY AND IMPARTIALITY.--
688
(a) An appraiser may not accept an appointment unless he or
689
she can serve impartially; can serve independently from the party
690
appointing him or her; is competent to serve; and is available to
691
promptly commence the appraisal, and thereafter devote the time
692
and attention for its completion that the parties are reasonably
693
entitled to expect.
694
(b) An appraiser shall conduct the appraisal process in a
695
manner that advances the fair and efficient resolution of the
696
matters submitted for decision. An appraiser shall make all
697
reasonable efforts to prevent delays in the appraisal process,
698
the harassment of parties or other participants, or other abuse
699
or disruption of the appraisal process.
700
(c) Once an appraiser has accepted an appointment, the
701
appraiser may not withdraw or abandon the appointment unless
702
compelled to do so by unanticipated circumstances that would
703
render it impossible or impracticable to continue.
704
(d) The appraiser shall, after careful deliberation, decide
705
all issues submitted for determination and no other issues. An
706
appraiser shall decide all matters justly, exercising independent
707
judgment, and may not allow outside pressure to affect the
708
decision. An appraiser may not delegate the duty to decide to any
709
other person.
710
(2) COMMUNICATIONS WITH PARTIES.--
711
(a) If an agreement of the parties establishes the manner
712
or content of the communications between the appraisers and the
713
parties, the appraiser shall abide by such agreement. In the
714
absence of agreement, an appraiser may not discuss a proceeding
715
with any party in the absence of any other party, except in the
716
following circumstances:
717
1. If the appointment of the appraiser is being considered,
718
the prospective appraiser may ask about the identities of the
719
parties, counsel, and the general nature of the case, and may
720
respond to inquiries from a party or its counsel designed to
721
determine his or her suitability and availability for the
722
appointment;
723
2. To consult with the party who appointed the appraiser
724
concerning the selection of a neutral umpire;
725
3. To make arrangements for any compensation to be paid by
726
the party who appointed the appraiser; or
727
4. To make arrangements for obtaining materials and
728
inspection of the property with the party who appointed the
729
appraiser. Such communication is limited to scheduling and the
730
exchange of materials.
731
(b) There may be no communications whereby a party dictates
732
to an appraiser what the result of the proceedings must be, what
733
matters or elements may be included or considered by the
734
appraiser, or what actions the appraiser may take.
735
(3) GIFTS AND SOLICITATION.--An appraiser may not give or
736
accept any gift, favor, loan, or other item of value in an
737
appraisal process. During the appraisal process, an appraiser may
738
not solicit or otherwise attempt to procure future professional
739
services.
740
(4) CONFLICTS OF INTEREST.--An appraiser may not
741
participate in a matter that presents a clear or undisclosed
742
conflict of interest. A conflict of interest arises when any
743
known existing or past financial, business, professional, or
744
personal relationship between the appraiser and the appraisal
745
participants or the subject matter of the dispute might
746
reasonably affect impartiality or lack of independence in the
747
eyes of any of the parties.
748
(5) BURDEN OF DISCLOSURE.--The burden of disclosing any
749
potential conflict of interest rests on the appraiser. Disclosure
750
must be made before accepting an appointment, or, if the conflict
751
of interest arises after accepting an appointment, disclosure
752
must be made as soon as practical after the appraiser becomes
753
aware of the interest or relationship giving rise to the
754
potential conflict of interest.
755
(6) EFFECT OF DISCLOSURE.--After appropriate disclosure,
756
the appraiser may serve if all parties agree. However, if an
757
appraiser is requested to withdraw by all parties, he or she must
758
withdraw. If an appraiser is requested to withdraw due to
759
alleged partiality, the appraiser must withdraw. If the appraiser
760
refuses to withdraw, a party may challenge the appraiser's
761
partiality by filing a petition with a county or circuit court in
762
the jurisdiction in which the covered property is located.
763
(7) FEES and EXPENSES.--An appraiser holds a position of
764
trust. Fees charged for appraisal services shall be reasonable
765
and consistent with the nature of the case. An appraiser shall be
766
guided by the following general principles in determining fees:
767
(a) Any charges for services as an appraiser based on time
768
may not exceed the actual time spent or allocated; and
769
(b) Charges for costs shall be only for those costs
770
actually incurred.
771
(8) MAINTENANCE OF RECORDS.--An appraiser shall maintain
772
records to support charges for services, fees, and expenses, and
773
upon request shall provide an accounting of all applicable
774
charges to the parties.
775
(9) ADVERTISING.--An appraiser may not engage in marketing
776
practices that contain false or misleading information. An
777
appraiser shall ensure that any advertisements of the appraiser's
778
qualifications, services to be rendered, or the appraisal process
779
are accurate and honest. An appraiser may not make claims of
780
achieving specific outcomes or promises implying favoritism for
781
the purpose of obtaining business.
782
(10) SKILL AND EXPERIENCE.--An appraiser shall decline an
783
appointment or selection, withdraw, or request appropriate
784
assistance when the facts and circumstances of the appraisal are
785
beyond the appraiser's skill or experience.
786
Section 7. Section 627.4141, Florida Statutes, is created
787
to read:
788
627.4141 Residential or commercial property insurance loss
789
appraisal.--If a residential or commercial residential property
790
insurance contract provides that either party may submit a
791
written demand to enter into the process of appraisal if the
792
insured and the insurer fail to mutually agree as to the actual
793
cash value, the amount of loss, or the cost of repair or
794
replacement of property for which a claim has been filed, that
795
process shall be governed by this section. The insurer may refuse
796
to accept the demand only if the insured materially fails to
797
comply with the proof-of -loss obligations of the insured as set
798
forth in the policy conditions. The insurer is deemed to have
799
waived its right to demand an appraisal if it fails to invoke an
800
appraisal within 30 days after the insured substantially complies
801
with the proof-of-loss obligation as set forth in the policy
802
conditions.
803
(1) Each party shall select a competent and independent
804
appraiser and notify the other party of the appraiser selected
805
within 20 days after the date of the demand for an appraisal. The
806
appraisers shall select a competent, independent, and impartial
807
umpire who is on the department's list of licensed property
808
insurance appraisal umpires or who is otherwise qualified and
809
exempt from licensure as provided in s. 626.112(10). If the
810
appraisers are unable to agree on an umpire within 15 days, the
811
insured or the insurer may file a petition with a county or
812
circuit court in the jurisdiction in which the covered property
813
is located to designate a licensed property insurance appraisal
814
umpire for the appraisal.
815
(2) Appraisal proceedings are informal unless the insured
816
and the insurer mutually agree otherwise. For purposes of this
817
section, "informal" means that no formal discovery shall be
818
conducted, including depositions, interrogatories, requests for
819
admission, or other forms of formal civil discovery; no formal
820
rules of evidence shall be applied; and no court reporter shall
821
be used for the proceedings.
822
(3) Within 60 days after being appointed, each appraiser
823
shall appraise the loss and submit a written report to the other
824
appraiser, separately stating the cost of the loss, the actual
825
cash value, or the cost to repair or replace each item. Within 30
826
days after submitting the reports, the appraisers shall attempt
827
to resolve any differences in the appraisals and reach a mutual
828
agreement on all matters. If the appraisers are unable to agree,
829
they shall, within 5 days, submit the differences in their
830
findings in writing to the umpire. However, the appraisers have
831
an additional 60 days after appointment to appraise the loss and
832
submit a written report if the loss is covered under a commercial
833
property insurance policy and the insured structure is 10,000
834
square feet or more, or is covered under a commercial residential
835
or residential insurance policy and the claim is based on and
836
made subsequent to a hurricane designated by the National
837
Hurricane Center or a declared emergency by the Governor.
838
(4) The umpire shall review any differences in appraisals
839
submitted by the appraisers and determine the amount of the loss
840
for each item submitted. Within 10 days after receipt of any
841
differences in appraisals, the umpire shall submit the umpire's
842
conclusions in writing to each appraiser.
843
(5) If either appraiser agrees with the conclusions of the
844
umpire, an itemized written appraisal award signed by the umpire
845
and the appraiser shall be filed with the insurer and shall
846
determine the amount of the loss.
847
(6) The appraisal award is binding on the insurer and the
848
insured with regard to the amount of the loss. If the insurance
849
policy so provides, the insurer may assert that there is no
850
coverage under the policy for the loss as a whole or that there
851
has been a violation of the policy conditions with respect to
852
fraud, lack of notice, or failure to cooperate.
853
(7) Each appraiser shall be paid by the party who selects
854
the appraiser and the expenses of the appraisal and fees of the
855
umpire shall be paid by the parties equally, except that if the
856
final determination of the amount of the loss is 50 percent
857
greater than the insurer's preappraisal estimate of the loss
858
communicated to the insured in writing, the insurer shall pay all
859
the expenses, including any fees and expenses charged by the
860
insured's appraiser and all fees and expenses of the umpire. This
861
subsection does not affect an insured's claim for attorney's fees
862
under s. 627.428.
863
(8) The provisions of the Florida Arbitration Code do not
864
apply to residential and commercial residential property
865
insurance loss appraisal proceedings. However, the provisions
866
regarding proceedings to compel and stay arbitration in s.
867
682.03; procedures for correcting, vacating, or modifying an
869
judgment on the award in s. 682.15; and procedures regarding
870
confirmation of an award in s. 682.12 do apply.
871
(9) The appraisal process may not address issues involving
872
whether or not the loss or damage is covered under the terms of
873
the insurance contract. However, the appraisers and the umpire
874
may consider causation issues, if necessary, to determine the
875
amount of loss.
876
Section 8. This act shall take effect July 1, 2008.
CODING: Words stricken are deletions; words underlined are additions.