ENROLLED

2008 LegislatureCS for CS for SB's 2860 & 1196, 3rd Engrossed

20082860er

An act relating to insurance; providing a short title;

amending s. 215.5595, F.S.; revising legislative findings;

providing for an appropriation of state funds in exchange

for surplus notes issued by residential property insurers

under the program; revising the conditions and

requirements for providing funds to insurers under the

program; requiring a commitment by the insurer to meet

minimum premium-to-surplus writing ratios for residential

property insurance and for taking policies out of Citizens

Property Insurance Corporation; requiring insurers to

commit to maintaining certain levels of surplus and

reinsurance; authorizing the State Board of Administration

to charge a fee for late payments; providing for payment

of costs and fees incurred by the board in administering

the program from funds appropriated to the program,

subject to a specified limit; requiring the board to

submit an annual report to the Legislature on the program

and insurer compliance with certain requirements;

providing that amendments made by the act do not affect

the terms of surplus notes approved prior to a specified

date; authorizing the State Board of Administration and an

insurer to renegotiate such terms consistent with such

amendments; requiring the State Board of Administration to

transfer to Citizens Property Insurance Corporation

certain uncommitted or unreserved funds; amending s.

624.3161, F.S.; authorizing the Office of Insurance

Regulation to require an insurer to file its claims

handling practices and procedures as a public record based

on findings of a market conduct examination; amending s.

624.4211, F.S.; increasing the maximum amounts of

administrative fines that may be imposed upon an insurer

by the Office of Insurance Regulation for nonwillful and

willful violations of an order or rule of the office or

any provision of the Florida Insurance Code; creating s.

624.4213, F.S.; specifying requirements for submission of

a document or information to the Office of Insurance

Regulation or the Department of Financial Services in

order for a person to claim that the document is a trade

secret; requiring each page or portion to be labeled as a

trade secret and be separated from non-trade secret

material; requiring the submitting party to include an

affidavit certifying certain information about the

documents claimed to be trade secrets; requiring the

office or department to notify persons who submit trade

secret documents of any public-records request and the

opportunity to file a court action to bar disclosure;

specifying conditions for the office to retain or release

such documents; creating s. 624.4305, F.S.; requiring that

an insurer planning to nonrenew more than a specified

number of residential property insurance policies notify

the Office of Insurance Regulation and obtain approval for

such nonrenewals; specifying procedures for issuance of

such notice; amending s. 626.9521, F.S.; increasing the

maximum fines that may be imposed by the office or

department for nonwillful and willful violations of state

law regarding unfair methods of competition and unfair or

deceptive acts or practices related to insurance; amending

s. 626.9541, F.S.; specifying an additional unfair claims

settlement practice; amending s. 627.0612, F.S.; providing

criteria for administrative hearings to determine whether

an insurer's property insurance rates, rating manuals,

premium credits, discount schedules, and surcharge

schedules comply with the law; providing for entry of

certain orders; amending s. 627.062, F.S.; requiring that

an insurer seeking a rate for property insurance that is

greater than the rate most recently approved by the Office

of Insurance Regulation make a "file and use" filing for

all such rate filings made after a specified date;

revising the factors the office must consider in reviewing

a rate filing; prohibiting the Office of Insurance

Regulation from disapproving as excessive a rate solely

because the insurer obtained reinsurance covering a

specified probably maximum loss; allowing the office to

disapprove a rate as excessive within 1 year after the

rate has been approved under certain conditions related to

nonrenewal of policies by the insurer; requiring the

Division of Administrative Hearings to expedite a hearing

request by an insurer and for the administrative law judge

to commence the hearing within a specified time;

authorizing an insurer to request an expedited appellate

review pursuant to the Florida Rules of Appellate

Procedure; expressing legislative intent for an expedited

appellate review; revising provisions relating to the

submission of a disputed rate filing, other than a rate

filing for medical malpractice insurance, to an

arbitration panel in lieu of an administrative hearing if

the rate is filed before a specified date; deleting

provisions relating to mandatory arbitration in lieu of

certain hearings; amending s. 627.0628, F.S.; providing

legislative findings relating to final agency action for

insurance ratemaking; requiring the Financial Services

Commission to consider and adopt findings relating to

certain actuarial models, principles, standards, or models

for certain maximum loss level calculations; requiring

that with respect to rate filings, insurers must use

actuarial methods or models found to be accurate or

reliable by the Florida Commission on Hurricane Loss

Projection Methodology; deleting the requirement for the

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Office of Insurance Regulation and the Consumer Advocate

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to have access to all assumptions of a hurricane loss

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model in order for a model that has been found to be

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accurate and reliable by the Florida Commission on

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Hurricane Loss Projection Methodology to be admissible in

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a rate proceeding; deleting cross-references to conform to

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changes made by the act; amending s. 627.0629, F.S.;

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requiring that the Office of Insurance Regulation develop

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and make publicly available before a specified deadline a

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proposed method for insurers to establish windstorm

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mitigation premium discounts that correlate to the uniform

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home rating scale; requiring that the Financial Services

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Commission adopt rules before a specified deadline;

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requiring insurers to make rate filings pursuant to such

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method; authorizing the commission to make changes by rule

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to the uniform home grading scale and specify by rule the

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minimum required discounts, credits, or other rate

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differentials; requiring that such rate differentials be

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consistent with generally accepted actuarial principles

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and wind loss mitigation studies; amending s. 627.351,

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F.S., relating to Citizens Property Insurance Corporation;

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deleting a provision to conform to changes made in the

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act; deleting provisions defining the terms "homestead

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property" and "nonhomestead property"; increasing

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threshold replacement costs of certain structures for

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eligibility for coverage by the corporation; deleting

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requirements for certain properties to meeting building

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code plus requirements as a condition of eligibility for

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coverage by the corporation; decreasing the value at which

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certain structures are eligible for coverage; requiring

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written disclosure of windstorm mitigation ratings for

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certain structures; deleting outdated provisions requiring

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the corporation to submit a report for approval of

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offering multiperil coverage; revising threshold amounts

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of deficits incurred in a calendar year on which the

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decision to levy assessments and the types of such

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assessments are based; revising the formula used to

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calculate shares of assessments owed by certain assessable

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insureds; requiring that the board of governors make

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certain determinations before levying emergency

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assessments; providing the board of governors with

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discretion to set the amount of an emergency assessment

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within specified limits; requiring the board of governors

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to levy a Citizens policyholder surcharge under certain

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conditions; increasing the amount of the surcharge;

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deleting a provision requiring the levy of an immediate

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assessment against certain policyholders under such

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conditions; requiring that funds collected from the levy

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of such surcharges be used for certain purposes; providing

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that such surcharges are not considered premium and are

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not subject to commissions, fees, or premium taxes;

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requiring that the failure to pay such surcharges be

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treated as failure to pay premium; requiring that the

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amount of any assessment or surcharge which exceeds the

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amount of deficits be remitted to and used by the

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corporation for specified purposes; deleting provisions

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requiring that the plan of operation of the corporation

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provide for the levy of a Citizens policyholder surcharge

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if regular deficit assessments are levied as a result of

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deficits in certain accounts; deleting provisions related

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to the calculation, classification, and nonpayment of such

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surcharge; requiring that the corporation make an annual

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filing for each personal or commercial line of business it

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writes, beginning on a specified date; deleting a

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provision requiring an insurer to purchase bonds that

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remain unsold; deleting provisions requiring the

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corporation to make certain confidential underwriting and

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claims files available to agents to conform to changes

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made by the act relating to ineligibility of certain

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dwellings; clarifying the right of certain parties to

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discover underwriting and claims file records; authorizing

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the corporation to release such records as it deems

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necessary; amending s. 627.4133, F.S.; requiring insurers

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to provide written notice of certain cancellations,

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nonrenewals, or terminations; creating s. 689.262, F.S.;

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requiring a purchaser of residential property in wind-

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borne debris regions to be presented with the windstorm

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mitigation rating of the structure; authorizing the

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Financial Services Commission to adopt rules; requiring

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Citizens Property Insurance Corporation to transfer funds

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to the General Revenue Fund if the losses due to a

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hurricane do not exceed a specified amount; requiring the

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board of governors of Citizens Property Insurance

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Corporation to make a reasonable estimate of such losses

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by a certain date; requiring the board to make quarterly

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transfers of funds to the corporation under certain

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circumstances; requiring the corporation to credit certain

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accounts for funds removed to make certain transfers;

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requiring the State Board of Administration to transfer to

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Citizens Property Insurance Corporation certain

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uncommitted or unreserved funds under certain

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circumstances; prohibiting Citizens Property Insurance

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Corporation from using certain statutory changes or

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authorized transfers of funds as justification or cause to

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seek any rate or assessment increase; amending s.

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627.06281, F.S.; providing for residential property

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insurers to have access to and use a public hurricane loss

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projection model; requiring the office to establish a fee

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schedule for such model access and use; amending s.

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627.0655, F.S.; expanding application of policyholder loss

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or expense-related premium discounts; creating the

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Citizens Property Insurance Corporation Mission Review

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Task Force; providing purposes; requiring a report;

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providing report requirements; providing for appointment

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of members; providing responsibilities; specifying service

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without compensation; providing for reimbursement of per

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diem and travel expenses; providing meeting requirements;

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requiring the corporation to assist the task force;

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providing for the expiration of the task force; requiring

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the Chief Financial Officer to provide a report on the

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economic impact on the state of certain hurricanes;

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providing report requirements; creating s. 627.0621, F.S.;

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providing requirements for transparency in rate

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regulation; providing definitions; providing for a website

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for public access to rate filing information; providing

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requirements; providing for application of public meeting

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requirements; specifying nonapplication of attorney-client

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or work-product privileges to certain communications in

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certain administrative or judicial proceedings under

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certain circumstances; specifying criteria; amending s.

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215.555, F.S.; extending for an additional year the offer

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of reimbursement coverage for specified insurers; revising

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the qualifying criteria for such insurers; revising

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provisions to conform; amending s. 627.0613, F.S.;

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deleting cross-references to conform to changes made by

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the act; amending s. 627.712, F.S.; requiring insurers to

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provide notice to mortgageholders or lienholders of

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certain policies not providing wind coverage for certain

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structures; providing for provisions of the act to

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supersede and control over conflicting provisions of House

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Bill 5057; providing effective dates.

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

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Section 1. This act may be cited as the "Homeowner's Bill

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of Rights Act."

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Section 2. Section 215.5595, Florida Statutes, is amended

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to read:

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215.5595 Insurance Capital Build-Up Incentive Program.--

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(1) Upon entering the 2008 2006 hurricane season, the

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Legislature finds that:

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(a) The losses in this state Florida from eight hurricanes

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in 2004 and 2005 have seriously strained the resources of both

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the voluntary insurance market and the public sector mechanisms

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of Citizens Property Insurance Corporation and the Florida

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Hurricane Catastrophe Fund.

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(b) Private reinsurance is much less available and at a

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significantly greater cost to residential property insurers as

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compared to 1 year ago, particularly for amounts below the

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insurer's retention or retained losses that must be paid before

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reimbursement is provided by the Florida Hurricane Catastrophe

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Fund.

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the insolvency of certain insurers may be imminent.

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(d) Hurricane forecast experts predict that the 2006

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hurricane season will be an active hurricane season and that the

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Atlantic and Gulf Coast regions face an active hurricane cycle of

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10 to 20 years or longer.

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(b)(e) Citizens Property Insurance Corporation has over 1.2

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million policies in force, has the largest market share of any

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insurer writing residential property insurer in the state, and

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faces the threat of a catastrophic loss that The number of

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cancellations or nonrenewals of residential property insurance

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policies is expected to increase and the number of new

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residential policies written in the voluntary market are likely

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to decrease, causing increased policy growth and exposure to the

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state insurer of last resort, Citizens Property Insurance

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Corporation, and threatening to increase the deficit of the

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corporation, currently estimated to be over $1.7 billion. This

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deficit must be funded by assessments against insurers and

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policyholders, unless otherwise funded by the state. The program

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has a substantial positive effect on the depopulation efforts of

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Citizens Property Insurance Corporation since companies

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participating in the program have removed over 199,000 policies

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from the corporation. Companies participating in the program have

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issued a significant number of new policies, thereby keeping an

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estimated 480,000 new policies out of the corporation.

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(c)(f) Policyholders are subject to high increased premiums

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and assessments that are increasingly making such coverage

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unaffordable and that may force policyholders to sell their homes

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and even leave the state.

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(d)(g) The increased risk to the public sector and private

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sector continues to pose poses a serious threat to the economy of

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this state, particularly the building and financing of

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residential structures, and existing mortgages may be placed in

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default.

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(h) The losses from 2004 and 2005, combined with the

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expectation that the increase in hurricane activity will continue

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for the foreseeable future, have caused both insurers and

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reinsurers to limit the capital they are willing to commit to

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covering the hurricane risk in Florida; attracting new capital to

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the Florida market is a critical priority; and providing a low-

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cost source of capital would enable insurers to write additional

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residential property insurance coverage and act to mitigate

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premium increases.

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(e)(i) Appropriating state funds to be exchanged for used

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as surplus notes issued by for residential property insurers,

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under conditions requiring the insurer to contribute additional

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private sector capital and to write a minimum level of premiums

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for residential hurricane coverage, is a valid and important

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public purpose.

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(f) Extending the Insurance Capital Build-up Incentive

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Program will provide an incentive for investors to commit

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additional capital to Florida's residential insurance market.

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(2) The purpose of this section is to provide funds in

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exchange for surplus notes to be issued by to new or existing

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authorized residential property insurers under the Insurance

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Capital Build-Up Incentive Program administered by the State

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Board of Administration, under the following conditions:

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(a) The amount of state funds provided in exchange for a

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the surplus note to for any insurer or insurer group, other than

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an insurer writing only manufactured housing policies, may not

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exceed $25 million or 20 percent of the total amount of funds

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appropriated for available under the program, whichever is

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greater. The amount of the surplus note for any insurer or

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insurer group writing residential property insurance covering

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only manufactured housing may not exceed $7 million.

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(b) On or after April 1, 2008, the insurer must contribute

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an amount of new capital to its surplus which is at least equal

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to the amount of the surplus note and must apply to the board by

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September 1, 2008 July 1, 2006. If an insurer applies after

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September 1, 2008 July 1, 2006, but before June 1, 2009 2007, the

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amount of the surplus note is limited to one-half of the new

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capital that the insurer contributes to its surplus, except that

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an insurer writing only manufactured housing policies is eligible

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to receive a surplus note of up to $7 million. For purposes of

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this section, new capital must be in the form of cash or cash

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equivalents as specified in s. 625.012(1).

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note must total at least $50 million, except for insurers writing

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residential property insurance covering only manufactured

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housing. The insurer's surplus, new capital, and the surplus note

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must total at least $14 million for insurers writing only

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residential property insurance covering manufactured housing

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policies as provided in paragraph (a).

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(d) The insurer must commit to increase its writings of

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residential property insurance, including the peril of wind, and

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to meet meeting a minimum writing ratio of net written premium to

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surplus of at least 1:1 for the first calendar year after

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receiving the state funds or renegotiation of the surplus note,

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1.5:1 for the second calendar year, and 2:1 for the remaining

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term of the surplus note. Alternatively, the insurer must meet a

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minimum writing ratio of gross written premium to surplus of at

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least 3:1 for the first calendar year after receiving the state

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funds or renegotiation of the surplus note, 4.5:1 for the second

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calendar year, and 6:1 for the remaining term of the surplus

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note. The writing ratios, which shall be determined by the Office

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of Insurance Regulation and certified quarterly to the board. For

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this purpose, the term "premium" "net written premium" means net

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written premium for residential property insurance in this state

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Florida, including the peril of wind, and "surplus" means the new

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capital and surplus note refers to the entire surplus of the

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insurer. An insurer that makes an initial application after July

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1, 2008, must also commit to writing at least 15 percent of its

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net or gross written premium for new policies, not including

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renewal premiums, for policies taken out of Citizens Property

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Insurance Corporation, during each of the first 3 years after

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receiving the state funds in exchange for the surplus note, which

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shall be determined by the Office of Insurance Regulation and

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certified annually to the board. The insurer must also commit to

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maintaining a level of surplus and reinsurance sufficient to

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cover in excess of its 1-in-100 year probable maximum loss, as

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determined by a hurricane loss model accepted by the Florida

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Commission on Hurricane Loss Projection Methodology, which shall

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be determined by the Office of Insurance Regulation and certified

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annually to the board. If the board determines that the insurer

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has failed to meet any of the requirements of this paragraph

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required ratio is not maintained during the term of the surplus

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note, the board may increase the interest rate, accelerate the

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repayment of interest and principal, or shorten the term of the

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surplus note, subject to approval by the Commissioner of

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Insurance of payments by the insurer of principal and interest as

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provided in paragraph (f).

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(e) If the requirements of this section are met, the board

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may approve an application by an insurer for funds in exchange

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for issuance of a surplus note, unless the board determines that

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the financial condition of the insurer and its business plan for

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writing residential property insurance in Florida places an

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unreasonably high level of financial risk to the state of

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nonpayment in full of the interest and principal. The board shall

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consult with the Office of Insurance Regulation and may contract

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with independent financial and insurance consultants in making

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this determination.

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(f) The surplus note must be repayable to the state with a

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term of 20 years. The surplus note shall accrue interest on the

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unpaid principal balance at a rate equivalent to the 10-year U.S.

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Treasury Bond rate, require the payment only of interest during

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the first 3 years, and include such other terms as approved by

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the board. The board may charge late fees up to 5 percent for

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late payments or other late remittances. Payment of principal, or

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interest, or late fees by the insurer on the surplus note must be

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approved by the Commissioner of Insurance, who shall approve such

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payment unless the commissioner determines that such payment will

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substantially impair the financial condition of the insurer. If

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such a determination is made, the commissioner shall approve such

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payment that will not substantially impair the financial

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condition of the insurer.

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(g) The total amount of funds available for the program is

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limited to the amount appropriated by the Legislature for this

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purpose. If the amount of surplus notes requested by insurers

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exceeds the amount of funds available, the board may prioritize

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insurers that are eligible and approved, with priority for

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funding given to insurers writing only manufactured housing

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policies, regardless of the date of application, based on the

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financial strength of the insurer, the viability of its proposed

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business plan for writing additional residential property

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insurance in the state, and the effect on competition in the

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residential property insurance market. Between insurers writing

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residential property insurance covering manufactured housing,

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priority shall be given to the insurer writing the highest

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percentage of its policies covering manufactured housing.

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(h) The board may allocate portions of the funds available

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for the program and establish dates for insurers to apply for

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surplus notes from such allocation which are earlier than the

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dates established in paragraph (b).

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(h)(i) Notwithstanding paragraph (d), a newly formed

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manufactured housing insurer that is eligible for a surplus note

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under this section shall meet the premium to surplus ratio

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provisions of s. 624.4095.

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(i)(j) As used in this section, "an insurer writing only

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manufactured housing policies" includes:

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1. A Florida domiciled insurer that begins writing personal

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lines residential manufactured housing policies in Florida after

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March 1, 2007, and that removes a minimum of 50,000 policies from

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Citizens Property Insurance Corporation without accepting a

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bonus, provided at least 25 percent of its policies cover

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manufactured housing. Such an insurer may count any funds above

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the minimum capital and surplus requirement that were contributed

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into the insurer after March 1, 2007, as new capital under this

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section.

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2. A Florida domiciled insurer that writes at least 40

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percent of its policies covering manufactured housing in Florida.

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(3) As used in this section, the term:

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(a) "Board" means the State Board of Administration.

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(b) "Program" means the Insurance Capital Build-Up

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Incentive Program established by this section.

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(4) The state funds provided to the insurer in exchange for

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the A surplus note provided to an insurer pursuant to this

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section are is considered borrowed surplus an asset of the

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insurer pursuant to s. 628.401 s. 625.012.

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(5) If an insurer that receives funds in exchange for

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issuance of a surplus note pursuant to this section is rendered

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insolvent, the state is a class 3 creditor pursuant to s. 631.271

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for the unpaid principal and interest on the surplus note.

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(6) The board shall adopt rules prescribing the procedures,

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administration, and criteria for approving the applications of

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insurers to receive funds in exchange for issuance of surplus

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notes pursuant to this section, which may be adopted pursuant to

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the procedures for emergency rules of chapter 120. Otherwise,

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actions and determinations by the board pursuant to this section

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are exempt from chapter 120.

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(7) The board shall invest and reinvest the funds

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appropriated for the program in accordance with s. 215.47 and

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consistent with board policy.

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(8) Costs and fees incurred by the board in administering

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this program, including fees for investment services, shall be

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paid from funds appropriated by the Legislature for this program,

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but are limited to 1 percent of the amount appropriated.

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(9) The board shall submit a report to the President of the

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Senate and the Speaker of the House of Representatives by

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February 1 of each year as to the results of the program and each

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insurer's compliance with the terms of its surplus note.

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(10) The amendments to this section enacted in 2008 do not

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affect the terms or conditions of the surplus notes that were

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approved prior to January 1, 2008. However, the board may

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renegotiate the terms of any surplus note issued by an insurer

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prior to January 2008 under this program upon the agreement of

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the insurer and the board and consistent with the requirements of

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this section as amended in 2008.

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(11) On January 15, 2009, the State Board of Administration

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shall transfer to Citizens Property Insurance Corporation any

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funds that have not been committed or reserved for insurers

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approved to receive such funds under the program, from the funds

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that were transferred from Citizens Property Insurance

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Corporation in 2008-2009 for such purposes.

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Section 3. Subsection (6) is added to section, 624.3161,

476

Florida Statutes, to read:

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624.3161 Market conduct examinations.--

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(6) Based on the findings of a market conduct examination

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that an insurer has exhibited a pattern or practice of willful

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violations of an unfair insurance trade practice related to

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claims-handling which caused harm to policyholders, as prohibited

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by s. 626.9541(1)(i), the office may order an insurer pursuant to

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chapter 120 to file its claims-handling practices and procedures

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related to that line of insurance with the office for review and

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inspection, to be held by the office for the following 36-month

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period. Such claims-handling practices and procedures are public

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records and are not trade secrets or otherwise exempt from the

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provisions of s. 119.07(1). As used in this section, "claims-

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handling practices and procedures" are any policies, guidelines,

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rules, protocols, standard operating procedures, instructions, or

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directives that govern or guide how and the manner in which an

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insured's claims for benefits under any policy will be processed.

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Section 4. Subsections (2) and (3) of section 624.4211,

494

Florida Statutes, are amended to read:

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624.4211 Administrative fine in lieu of suspension or

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revocation.--

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(2) With respect to any nonwillful violation, such fine may

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shall not exceed $5,000 $2,500 per violation. In no event shall

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such fine exceed an aggregate amount of $20,000 $10,000 for all

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nonwillful violations arising out of the same action. If When an

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insurer discovers a nonwillful violation, the insurer shall

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correct the violation and, if restitution is due, make

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restitution to all affected persons. Such restitution shall

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include interest at 12 percent per year from either the date of

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the violation or the date of inception of the affected person's

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policy, at the insurer's option. The restitution may be a credit

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against future premiums due provided that the interest

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accumulates shall accumulate until the premiums are due. If the

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amount of restitution due to any person is $50 or more and the

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insurer wishes to credit it against future premiums, it shall

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notify such person that she or he may receive a check instead of

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a credit. If the credit is on a policy that which is not renewed,

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the insurer shall pay the restitution to the person to whom it is

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due.

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(3) With respect to any knowing and willful violation of a

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lawful order or rule of the office or commission or a provision

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of this code, the office may impose a fine upon the insurer in an

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amount not to exceed $40,000 $20,000 for each such violation. In

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no event shall such fine exceed an aggregate amount of $200,000

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$100,000 for all knowing and willful violations arising out of

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the same action. In addition to such fines, the such insurer

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shall make restitution when due in accordance with the provisions

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of subsection (2).

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Section 5. Section 624.4213, Florida Statutes, is created

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to read:

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624.4213 Trade secret documents.--

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(1) If any person who is required to submit documents or

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other information to the office or department pursuant to the

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Insurance Code or by rule or order of the office, department, or

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commission claims that such submission contains a trade secret,

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such person may file with the office or department a notice of

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trade secret as provided in this section. Failure to do so

533

constitutes a waiver of any claim by such person that the

534

document or information is a trade secret.

535

(a) Each page of such document or specific portion of a

536

document claimed to be a trade secret must be clearly marked as

537

"trade secret."

538

(b) All material marked as a trade secret must be separated

539

from all non-trade secret material, such as being submitted in a

540

separate envelope clearly marked as "trade secret."

541

542

department, the submitting party must include an affidavit

543

certifying under oath to the truth of the following statements

544

concerning all documents or information that are claimed to be

545

trade secrets:

546

1. [I consider/My company considers] this information a

547

trade secret that has value and provides an advantage or an

548

opportunity to obtain an advantage over those who do not know or

549

use it.

550

2. [I have/My company has] taken measures to prevent the

551

disclosure of the information to anyone other that those who have

552

been selected to have access for limited purposes, and [I

553

intend/my company intends] to continue to take such measures.

554

3. The information is not, and has not been, reasonably

555

obtainable without [my/our] consent by other persons by use of

556

legitimate means.

557

4. The information is not publicly available elsewhere.

558

(2) If the office or department receives a public-records

559

request for a document or information that is marked and

560

certified as a trade secret, the office or department shall

561

promptly notify the person that certified the document as a trade

562

secret. The notice shall inform such person that he or she or his

563

or her company has 30 days following receipt of such notice to

564

file an action in circuit court seeking a determination whether

565

the document in question contains trade secrets and an order

566

barring public disclosure of the document. If that person or

567

company files an action within 30 days after receipt of notice of

568

the public-records request, the office or department may not

569

release the documents pending the outcome of the legal action.

570

The failure to file an action within 30 days constitutes a waiver

571

of any claim of confidentiality and the office or department

572

shall release the document as requested.

573

(3) The office or department may disclose a trade secret,

574

together with the claim that it is a trade secret, to an officer

575

or employee of another governmental agency whose use of the trade

576

secret is within the scope of his or her employment.

577

Section 6. Section 624.4305, Florida Statutes, is created to

578

read:

579

624.4305 Nonrenewal of residential property insurance

580

policies.--Any insurer planning to nonrenew more than 10,000

581

residential property insurance policies in this state within a

582

12-month period shall give notice in writing to the Office of

583

Insurance Regulation for informational purposes 90 days before

584

the issuance of any notices of nonrenewal. The notice provided to

585

the office must set forth the insurer's reasons for such action,

586

the effective dates of nonrenewal, and any arrangements made for

587

other insurers to offer coverage to affected policyholders.

588

Section 7. Subsection (2) of section 626.9521, Florida

589

Statutes, is amended to read:

590

626.9521 Unfair methods of competition and unfair or

591

deceptive acts or practices prohibited; penalties.--

592

(2) Any person who violates any provision of this part

593

shall be subject to a fine in an amount not greater than $5,000

594

$2,500 for each nonwillful violation and not greater than $40,000

595

$20,000 for each willful violation. Fines under this subsection

596

imposed against an insurer may not exceed an aggregate amount of

597

$20,000 $10,000 for all nonwillful violations arising out of the

598

same action or an aggregate amount of $200,000 $100,000 for all

599

willful violations arising out of the same action. The fines

600

authorized by this subsection may be imposed in addition to any

601

other applicable penalty.

602

Section 8. Paragraph (i) of subsection (1) of section

603

626.9541, Florida Statutes, is amended to read:

604

626.9541 Unfair methods of competition and unfair or

605

deceptive acts or practices defined.--

606

(1) UNFAIR METHODS OF COMPETITION AND UNFAIR OR DECEPTIVE

607

ACTS.--The following are defined as unfair methods of competition

608

and unfair or deceptive acts or practices:

609

(i) Unfair claim settlement practices.--

610

1. Attempting to settle claims on the basis of an

611

application, when serving as a binder or intended to become a

612

part of the policy, or any other material document which was

613

altered without notice to, or knowledge or consent of, the

614

insured;

615

2. A material misrepresentation made to an insured or any

616

other person having an interest in the proceeds payable under

617

such contract or policy, for the purpose and with the intent of

618

effecting settlement of such claims, loss, or damage under such

619

contract or policy on less favorable terms than those provided

620

in, and contemplated by, such contract or policy; or

621

3. Committing or performing with such frequency as to

622

indicate a general business practice any of the following:

623

a. Failing to adopt and implement standards for the proper

624

investigation of claims;

625

b. Misrepresenting pertinent facts or insurance policy

626

provisions relating to coverages at issue;

627

c. Failing to acknowledge and act promptly upon

628

communications with respect to claims;

629

d. Denying claims without conducting reasonable

630

investigations based upon available information;

631

e. Failing to affirm or deny full or partial coverage of

632

claims, and, as to partial coverage, the dollar amount or extent

633

of coverage, or failing to provide a written statement that the

634

claim is being investigated, upon the written request of the

635

insured within 30 days after proof-of-loss statements have been

636

completed;

637

f. Failing to promptly provide a reasonable explanation in

638

writing to the insured of the basis in the insurance policy, in

639

relation to the facts or applicable law, for denial of a claim or

640

for the offer of a compromise settlement;

641

g. Failing to promptly notify the insured of any additional

642

information necessary for the processing of a claim; or

643

h. Failing to clearly explain the nature of the requested

644

information and the reasons why such information is necessary.

645

4. Failing to pay undisputed amounts of partial or full

646

benefits owed under first-party property insurance policies

647

within 90 days after an insurer receives notice of a residential

648

property insurance claim, determines the amounts of partial or

649

full benefits, and agrees to coverage, unless payment of the

650

undisputed benefits is prevented by an act of God, prevented by

651

the impossibility of performance, or due to actions by the

652

insured or claimant that constitute fraud, lack of cooperation,

653

or intentional misrepresentation regarding the claim for which

654

benefits are owed.

655

Section 9. Section 627.0612, Florida Statutes, is amended

656

to read:

657

627.0612 Administrative proceedings in rating

658

determinations.--

659

(1) In any proceeding to determine whether rates, rating

660

plans, or other matters governed by this part comply with the

661

law, the appellate court shall set aside a final order of the

662

office if the office has violated s. 120.57(1)(k) by substituting

663

its findings of fact for findings of an administrative law judge

664

which were supported by competent substantial evidence.

665

(2) In an administrative hearing to determine whether an

666

insurer's rates, rating schedules, rating manuals, premium

667

credits, discount schedules, surcharge schedules, or changes

668

thereto, for property insurance comply with the law, in addition

669

to any other findings of fact, findings on the following matters

670

shall be considered findings of fact:

671

(a) Whether a factor or factors used in a rate filing or

672

applied by the office is consistent with standard actuarial

673

techniques or practices or are otherwise based on reasonable

674

actuarial judgment.

675

(b) Whether a factor for underwriting profit and

676

contingencies is reasonable or excessive.

677

678

excessive.

679

(3) In an administrative hearing to determine whether an

680

insurer's rates, rating schedules, rating manuals, premium

681

credits, discount schedules, surcharge schedules, or changes

682

thereto, for property insurance comply with the law, a

683

recommended order may be entered that approves, modifies, or

684

rejects the requested change. A recommended order modifying the

685

requested rate change shall recommend such change as is supported

686

by the record in the case.

687

Section 10. Paragraphs (a), (b), and (g) of subsection (2),

688

subsection (6), and paragraph (a) of subsection (9) of section

689

627.062, Florida Statutes, are amended to read:

690

627.062 Rate standards.--

691

(2) As to all such classes of insurance:

692

(a) Insurers or rating organizations shall establish and

693

use rates, rating schedules, or rating manuals to allow the

694

insurer a reasonable rate of return on such classes of insurance

695

written in this state. A copy of rates, rating schedules, rating

696

manuals, premium credits or discount schedules, and surcharge

697

schedules, and changes thereto, shall be filed with the office

698

under one of the following procedures except as provided in

699

subparagraph 3.:

700

1. If the filing is made at least 90 days before the

701

proposed effective date and the filing is not implemented during

702

the office's review of the filing and any proceeding and judicial

703

review, then such filing shall be considered a "file and use"

704

filing. In such case, the office shall finalize its review by

705

issuance of a notice of intent to approve or a notice of intent

706

to disapprove within 90 days after receipt of the filing. The

707

notice of intent to approve and the notice of intent to

708

disapprove constitute agency action for purposes of the

709

Administrative Procedure Act. Requests for supporting

710

information, requests for mathematical or mechanical corrections,

711

or notification to the insurer by the office of its preliminary

712

findings shall not toll the 90-day period during any such

713

proceedings and subsequent judicial review. The rate shall be

714

deemed approved if the office does not issue a notice of intent

715

to approve or a notice of intent to disapprove within 90 days

716

after receipt of the filing.

717

2. If the filing is not made in accordance with the

718

provisions of subparagraph 1., such filing shall be made as soon

719

as practicable, but no later than 30 days after the effective

720

date, and shall be considered a "use and file" filing. An insurer

721

making a "use and file" filing is potentially subject to an order

722

by the office to return to policyholders portions of rates found

723

to be excessive, as provided in paragraph (h).

724

3. For all property insurance filings made or submitted

725

after January 25, 2007, but before December 31, 2009 2008, an

726

insurer seeking a rate that is greater than the rate most

727

recently approved by the office shall make a "file and use"

728

filing. This subparagraph applies to property insurance only. For

729

purposes of this subparagraph, motor vehicle collision and

730

comprehensive coverages are not considered to be property

731

coverages.

732

(b) Upon receiving a rate filing, the office shall review

733

the rate filing to determine if a rate is excessive, inadequate,

734

or unfairly discriminatory. In making that determination, the

735

office shall, in accordance with generally accepted and

736

reasonable actuarial techniques, consider the following factors:

737

1. Past and prospective loss experience within and without

738

this state.

739

2. Past and prospective expenses.

740

3. The degree of competition among insurers for the risk

741

insured.

742

4. Investment income reasonably expected by the insurer,

743

consistent with the insurer's investment practices, from

744

investable premiums anticipated in the filing, plus any other

745

expected income from currently invested assets representing the

746

amount expected on unearned premium reserves and loss reserves.

747

The commission may adopt rules using utilizing reasonable

748

techniques of actuarial science and economics to specify the

749

manner in which insurers shall calculate investment income

750

attributable to such classes of insurance written in this state

751

and the manner in which such investment income shall be used to

752

calculate in the calculation of insurance rates. Such manner

753

shall contemplate allowances for an underwriting profit factor

754

and full consideration of investment income which produce a

755

reasonable rate of return; however, investment income from

756

invested surplus may shall not be considered.

757

5. The reasonableness of the judgment reflected in the

758

filing.

759

6. Dividends, savings, or unabsorbed premium deposits

760

allowed or returned to Florida policyholders, members, or

761

subscribers.

762

7. The adequacy of loss reserves.

763

8. The cost of reinsurance. The office shall not disapprove

764

a rate as excessive solely due to the insurer having obtained

765

catastrophic reinsurance to cover the insurer's estimated 250-

766

year probable maximum loss or any lower level of loss.

767

9. Trend factors, including trends in actual losses per

768

insured unit for the insurer making the filing.

769

10. Conflagration and catastrophe hazards, if applicable.

770

11. Projected hurricane losses, if applicable, which must

771

be estimated using a model or method found to be acceptable or

772

reliable by the Florida Commission on Hurricane Loss Projection

773

Methodology, and as further provided in s. 627.0628.

774

12.11. A reasonable margin for underwriting profit and

775

contingencies. For that portion of the rate covering the risk of

776

hurricanes and other catastrophic losses for which the insurer

777

has not purchased reinsurance and has exposed its capital and

778

surplus to such risk, the office must approve a rating factor

779

that provides the insurer a reasonable rate of return that is

780

commensurate with such risk.

781

13.12. The cost of medical services, if applicable.

782

14.13. Other relevant factors which impact upon the

783

frequency or severity of claims or upon expenses.

784

(g) The office may at any time review a rate, rating

785

schedule, rating manual, or rate change; the pertinent records of

786

the insurer; and market conditions. If the office finds on a

787

preliminary basis that a rate may be excessive, inadequate, or

788

unfairly discriminatory, the office shall initiate proceedings to

789

disapprove the rate and shall so notify the insurer. However, the

790

office may not disapprove as excessive any rate for which it has

791

given final approval or which has been deemed approved for a

792

period of 1 year after the effective date of the filing unless

793

the office finds that a material misrepresentation or material

794

error was made by the insurer or was contained in the filing.

795

Upon being so notified, the insurer or rating organization shall,

796

within 60 days, file with the office all information which, in

797

the belief of the insurer or organization, proves the

798

reasonableness, adequacy, and fairness of the rate or rate

799

change. The office shall issue a notice of intent to approve or a

800

notice of intent to disapprove pursuant to the procedures of

801

paragraph (a) within 90 days after receipt of the insurer's

802

initial response. In such instances and in any administrative

803

proceeding relating to the legality of the rate, the insurer or

804

rating organization shall carry the burden of proof by a

805

preponderance of the evidence to show that the rate is not

806

excessive, inadequate, or unfairly discriminatory. After the

807

office notifies an insurer that a rate may be excessive,

808

inadequate, or unfairly discriminatory, unless the office

809

withdraws the notification, the insurer shall not alter the rate

810

except to conform with the office's notice until the earlier of

811

120 days after the date the notification was provided or 180 days

812

after the date of the implementation of the rate. The office may,

813

subject to chapter 120, disapprove without the 60-day

814

notification any rate increase filed by an insurer within the

815

prohibited time period or during the time that the legality of

816

the increased rate is being contested.

817

818

The provisions of this subsection shall not apply to workers'

819

compensation and employer's liability insurance and to motor

820

vehicle insurance.

821

(6)(a) If an insurer requests an administrative hearing

822

pursuant to s. 120.57 related to a rate filing under this

823

section, the director of the Division of Administrative Hearings

824

shall expedite the hearing and assign an administrative law judge

825

who shall commence the hearing within 30 days after the receipt

826

of the formal request and shall enter a recommended order within

827

30 days after the hearing or within 30 days after receipt of the

828

hearing transcript by the administrative law judge, whichever is

829

later. Each party shall be allowed 10 days in which to submit

830

written exceptions to the recommended order. The office shall

831

enter a final order within 30 days after the entry of the

832

recommended order. The provisions of this paragraph may be waived

833

upon stipulation of all parties.

834

(b) Upon entry of a final order, the insurer may request a

835

expedited appellate review pursuant to the Florida Rules of

836

Appellate Procedure. It is the intent of the Legislature that the

837

First District Court of Appeal grant an insurer's request for an

838

expedited appellate review.

839

(a) After any action with respect to a rate filing that

840

constitutes agency action for purposes of the Administrative

841

Procedure Act, except for a rate filing for medical malpractice,

842

an insurer may, in lieu of demanding a hearing under s. 120.57,

843

require arbitration of the rate filing. However, the arbitration

844

option provision in this subsection does not apply to a rate

845

filing that is made on or after the effective date of this act

846

until January 1, 2009. Arbitration shall be conducted by a board

847

of arbitrators consisting of an arbitrator selected by the

848

office, an arbitrator selected by the insurer, and an arbitrator

849

selected jointly by the other two arbitrators. Each arbitrator

850

must be certified by the American Arbitration Association. A

851

decision is valid only upon the affirmative vote of at least two

852

of the arbitrators. No arbitrator may be an employee of any

853

insurance regulator or regulatory body or of any insurer,

854

regardless of whether or not the employing insurer does business

855

in this state. The office and the insurer must treat the decision

856

of the arbitrators as the final approval of a rate filing. Costs

857

of arbitration shall be paid by the insurer.

858

(b) Arbitration under this subsection shall be conducted

859

pursuant to the procedures specified in ss. 682.06-682.10. Either

860

party may apply to the circuit court to vacate or modify the

861

decision pursuant to s. 682.13 or s. 682.14. The commission shall

862

adopt rules for arbitration under this subsection, which rules

863

may not be inconsistent with the arbitration rules of the

864

American Arbitration Association as of January 1, 1996.

865

866

waives all rights to challenge the action of the office under the

867

Administrative Procedure Act or any other provision of law;

868

however, such rights are restored to the insurer if the

869

arbitrators fail to render a decision within 90 days after

870

initiation of the arbitration process.

871

(9)(a) Effective March 1, 2007, The chief executive officer

872

or chief financial officer of a property insurer and the chief

873

actuary of a property insurer must certify under oath and subject

874

to the penalty of perjury, on a form approved by the commission,

875

the following information, which must accompany a rate filing:

876

1. The signing officer and actuary have reviewed the rate

877

filing;

878

2. Based on the signing officer's and actuary's knowledge,

879

the rate filing does not contain any untrue statement of a

880

material fact or omit to state a material fact necessary in order

881

to make the statements made, in light of the circumstances under

882

which such statements were made, not misleading;

883

3. Based on the signing officer's and actuary's knowledge,

884

the information and other factors described in paragraph (2)(b),

885

including, but not limited to, investment income, fairly present

886

in all material respects the basis of the rate filing for the

887

periods presented in the filing; and

888

4. Based on the signing officer's and actuary's knowledge,

889

the rate filing reflects all premium savings that are reasonably

890

expected to result from legislative enactments and are in

891

accordance with generally accepted and reasonable actuarial

892

techniques.

893

Section 11. Paragraph (c) of subsection (1) and subsection

894

(3) of section 627.0628, Florida Statutes, are amended, and

895

paragraph (e) is added to subsection (1) of that section, to

896

read:

897

627.0628 Florida Commission on Hurricane Loss Projection

898

Methodology; public records exemption; public meetings

899

exemption.--

900

(1) LEGISLATIVE FINDINGS AND INTENT.--

901

902

Florida Commission on Hurricane Loss Projection Methodology as a

903

panel of experts to provide the most actuarially sophisticated

904

guidelines and standards for projection of hurricane losses

905

possible, given the current state of actuarial science. It is the

906

further intent of the Legislature that such standards and

907

guidelines must be used by the State Board of Administration in

908

developing reimbursement premium rates for the Florida Hurricane

909

Catastrophe Fund, and, subject to paragraph (3)(c), must may be

910

used by insurers in rate filings under s. 627.062 unless the way

911

in which such standards and guidelines were applied by the

912

insurer was erroneous, as shown by a preponderance of the

913

evidence.

914

(e) The Legislature finds that the authority to take final

915

agency action with respect to insurance ratemaking is vested in

916

the Office of Insurance Regulation and the Financial Services

917

Commission, and that the processes, standards, and guidelines of

918

the Florida Commission on Hurricane Loss Projection Methodology

919

do not constitute final agency action or statements of general

920

applicability that implement, interpret, or prescribe law or

921

policy; accordingly, chapter 120 does not apply to the processes,

922

standards, and guidelines of the Florida Commission on Hurricane

923

Loss Projection Methodology.

924

(3) ADOPTION AND EFFECT OF STANDARDS AND GUIDELINES.--

925

(a) The commission shall consider any actuarial methods,

926

principles, standards, models, or output ranges that have the

927

potential for improving the accuracy of or reliability of the

928

hurricane loss projections used in residential property insurance

929

rate filings. The commission shall, from time to time, adopt

930

findings as to the accuracy or reliability of particular methods,

931

principles, standards, models, or output ranges.

932

(b) The commission shall consider any actuarial methods,

933

principles, standards, or models that have the potential for

934

improving the accuracy of or reliability of projecting probable

935

maximum loss levels. The commission shall adopt findings as to

936

the accuracy or reliability of particular methods, principles,

937

standards, or models related to probable maximum loss

938

calculations.

939

(c)(b) In establishing reimbursement premiums for the

940

Florida Hurricane Catastrophe Fund, the State Board of

941

Administration must, to the extent feasible, employ actuarial

942

methods, principles, standards, models, or output ranges found by

943

the commission to be accurate or reliable.

944

(d)(c) With respect to a rate filing under s. 627.062, an

945

insurer shall may employ and may not modify or adjust actuarial

946

methods, principles, standards, models, or output ranges found by

947

the commission to be accurate or reliable in determining to

948

determine hurricane loss factors for use in a rate filing under

949

s. 627.062. An insurer shall employ and may not modify or adjust

950

models found by the commission to be accurate or reliable in

951

determining probable maximum loss levels pursuant to paragraph

952

(b) with respect to a rate filing under s. 627.062 made more than

953

60 days after the commission has made such findings. Such

954

findings and factors are admissible and relevant in consideration

955

of a rate filing by the office or in any arbitration or

956

administrative or judicial review only if the office and the

957

consumer advocate appointed pursuant to s. 627.0613 have access

958

to all of the assumptions and factors that were used in

959

developing the actuarial methods, principles, standards, models,

960

or output ranges, and are not precluded from disclosing such

961

information in a rate proceeding. In any rate hearing under s.

962

120.57 or in any arbitration proceeding under s. 627.062(6), the

963

hearing officer, judge, or arbitration panel may determine

964

whether the office and the consumer advocate were provided with

965

access to all of the assumptions and factors that were used in

966

developing the actuarial methods, principles, standards, models,

967

or output ranges and to determine their admissibility.

968

(e)(d) The commission shall adopt revisions to previously

969

adopted actuarial methods, principles, standards, models, or

970

output ranges at least annually.

971

(f)(e)1. A trade secret, as defined in s. 812.081, that is

972

used in designing and constructing a hurricane loss model and

973

that is provided pursuant to this section, by a private company,

974

to the commission, office, or consumer advocate appointed

975

pursuant to s. 627.0613, is confidential and exempt from s.

976

119.07(1) and s. 24(a), Art. I of the State Constitution.

977

2. That portion of a meeting of the commission or of a rate

978

proceeding on an insurer's rate filing at which a trade secret

979

made confidential and exempt by this paragraph is discussed is

980

exempt from s. 286.011 and s. 24(b), Art. I of the State

981

Constitution.

982

3. This paragraph is subject to the Open Government Sunset

983

Review Act of 1995 in accordance with s. 119.15, and shall stand

984

repealed on October 2, 2010, unless reviewed and saved from

985

repeal through reenactment by the Legislature.

986

Section 12. Subsection (1) of section 627.0629, Florida

987

Statutes, is amended to read:

988

627.0629 Residential property insurance; rate filings.--

989

(1)(a) It is the intent of the Legislature that insurers

990

must provide savings to consumers who install or implement

991

windstorm damage mitigation techniques, alterations, or solutions

992

to their properties to prevent windstorm losses. A rate filing

993

for residential property insurance must include actuarially

994

reasonable discounts, credits, or other rate differentials, or

995

appropriate reductions in deductibles, for properties on which

996

fixtures or construction techniques demonstrated to reduce the

997

amount of loss in a windstorm have been installed or implemented.

998

The fixtures or construction techniques shall include, but not be

999

limited to, fixtures or construction techniques which enhance

1000

roof strength, roof covering performance, roof-to-wall strength,

1001

wall-to-floor-to-foundation strength, opening protection, and

1002

window, door, and skylight strength. Credits, discounts, or other

1003

rate differentials, or appropriate reductions in deductibles, for

1004

fixtures and construction techniques which meet the minimum

1005

requirements of the Florida Building Code must be included in the

1006

rate filing. All insurance companies must make a rate filing

1007

which includes the credits, discounts, or other rate

1008

differentials or reductions in deductibles by February 28, 2003.

1009

By July 1, 2007, the office shall reevaluate the discounts,

1010

credits, other rate differentials, and appropriate reductions in

1011

deductibles for fixtures and construction techniques that meet

1012

the minimum requirements of the Florida Building Code, based upon

1013

actual experience or any other loss relativity studies available

1014

to the office. The office shall determine the discounts, credits,

1015

other rate differentials, and appropriate reductions in

1016

deductibles that reflect the full actuarial value of such

1017

revaluation, which may be used by insurers in rate filings.

1018

(b) By February 1, 2011, the Office of Insurance

1019

Regulation, in consultation with the Department of Financial

1020

Services and the Department of Community Affairs, shall develop

1021

and make publicly available a proposed method for insurers to

1022

establish discounts, credits, or other rate differentials for

1023

hurricane mitigation measures which directly correlate to the

1024

numerical rating assigned to a structure pursuant to the uniform

1025

home grading scale adopted by the Financial Services Commission

1026

pursuant to s. 215.55865, including any proposed changes to the

1027

uniform home grading scale. By October 1, 2011, the commission

1028

shall adopt rules requiring insurers to make rate filings for

1029

residential property insurance which revise insurers' discounts,

1030

credits, or other rate differentials for hurricane mitigation

1031

measures so that such rate differentials correlate directly to

1032

the uniform home grading scale. The rules may include such

1033

changes to the uniform home grading scale as the commission

1034

determines are necessary, and may specify the minimum required

1035

discounts, credits, or other rate differentials. Such rate

1036

differentials must be consistent with generally accepted

1037

actuarial principles and wind-loss mitigation studies. The rules

1038

shall allow a period of at least 2 years after the effective date

1039

of the revised mitigation discounts, credits, or other rate

1040

differentials for a property owner to obtain an inspection or

1041

otherwise qualify for the revised credit, during which time the

1042

insurer shall continue to apply the mitigation credit that was

1043

applied immediately prior to the effective date of the revised

1044

credit.

1045

Section 13. Subsection (2) and paragraphs (a), (b), (c),

1046

(m), (p), (w), (dd), (ee), and (ff) of subsection (6) of section

1047

627.351, Florida Statutes, are amended to read:

1048

627.351 Insurance risk apportionment plans.--

1049

(2) WINDSTORM INSURANCE RISK APPORTIONMENT.--

1050

(b) The department shall require all insurers holding a

1051

certificate of authority to transact property insurance on a

1052

direct basis in this state, other than joint underwriting

1053

associations and other entities formed pursuant to this section,

1054

to provide windstorm coverage to applicants from areas determined

1055

to be eligible pursuant to paragraph (c) who in good faith are

1056

entitled to, but are unable to procure, such coverage through

1057

ordinary means; or it shall adopt a reasonable plan or plans for

1058

the equitable apportionment or sharing among such insurers of

1059

windstorm coverage, which may include formation of an association

1060

for this purpose. As used in this subsection, the term "property

1061

insurance" means insurance on real or personal property, as

1062

defined in s. 624.604, including insurance for fire, industrial

1063

fire, allied lines, farmowners multiperil, homeowners'

1064

multiperil, commercial multiperil, and mobile homes, and

1065

including liability coverages on all such insurance, but

1066

excluding inland marine as defined in s. 624.607(3) and excluding

1067

vehicle insurance as defined in s. 624.605(1)(a) other than

1068

insurance on mobile homes used as permanent dwellings. The

1069

department shall adopt rules that provide a formula for the

1070

recovery and repayment of any deferred assessments.

1071

1. For the purpose of this section, properties eligible for

1072

such windstorm coverage are defined as dwellings, buildings, and

1073

other structures, including mobile homes which are used as

1074

dwellings and which are tied down in compliance with mobile home

1075

tie-down requirements prescribed by the Department of Highway

1076

Safety and Motor Vehicles pursuant to s. 320.8325, and the

1077

contents of all such properties. An applicant or policyholder is

1078

eligible for coverage only if an offer of coverage cannot be

1079

obtained by or for the applicant or policyholder from an admitted

1080

insurer at approved rates.

1081

2.a.(I) All insurers required to be members of such

1082

association shall participate in its writings, expenses, and

1083

losses. Surplus of the association shall be retained for the

1084

payment of claims and shall not be distributed to the member

1085

insurers. Such participation by member insurers shall be in the

1086

proportion that the net direct premiums of each member insurer

1087

written for property insurance in this state during the preceding

1088

calendar year bear to the aggregate net direct premiums for

1089

property insurance of all member insurers, as reduced by any

1090

credits for voluntary writings, in this state during the

1091

preceding calendar year. For the purposes of this subsection, the

1092

term "net direct premiums" means direct written premiums for

1093

property insurance, reduced by premium for liability coverage and

1094

for the following if included in allied lines: rain and hail on

1095

growing crops; livestock; association direct premiums booked;

1096

National Flood Insurance Program direct premiums; and similar

1097

deductions specifically authorized by the plan of operation and

1098

approved by the department. A member's participation shall begin

1099

on the first day of the calendar year following the year in which

1100

it is issued a certificate of authority to transact property

1101

insurance in the state and shall terminate 1 year after the end

1102

of the calendar year during which it no longer holds a

1103

certificate of authority to transact property insurance in the

1104

state. The commissioner, after review of annual statements, other

1105

reports, and any other statistics that the commissioner deems

1106

necessary, shall certify to the association the aggregate direct

1107

premiums written for property insurance in this state by all

1108

member insurers.

1109

(II) Effective July 1, 2002, the association shall operate

1110

subject to the supervision and approval of a board of governors

1111

who are the same individuals that have been appointed by the

1112

Treasurer to serve on the board of governors of the Citizens

1113

Property Insurance Corporation.

1114

(III) The plan of operation shall provide a formula whereby

1115

a company voluntarily providing windstorm coverage in affected

1116

areas will be relieved wholly or partially from apportionment of

1117

a regular assessment pursuant to sub-sub-subparagraph d.(I) or

1118

sub-sub-subparagraph d.(II).

1119

(IV) A company which is a member of a group of companies

1120

under common management may elect to have its credits applied on

1121

a group basis, and any company or group may elect to have its

1122

credits applied to any other company or group.

1123

(V) There shall be no credits or relief from apportionment

1124

to a company for emergency assessments collected from its

1125

policyholders under sub-sub-subparagraph d.(III).

1126

(VI) The plan of operation may also provide for the award

1127

of credits, for a period not to exceed 3 years, from a regular

1128

assessment pursuant to sub-sub-subparagraph d.(I) or sub-sub-

1129

subparagraph d.(II) as an incentive for taking policies out of

1130

the Residential Property and Casualty Joint Underwriting

1131

Association. In order to qualify for the exemption under this

1132

sub-sub-subparagraph, the take-out plan must provide that at

1133

least 40 percent of the policies removed from the Residential

1134

Property and Casualty Joint Underwriting Association cover risks

1135

located in Dade, Broward, and Palm Beach Counties or at least 30

1136

percent of the policies so removed cover risks located in Dade,

1137

Broward, and Palm Beach Counties and an additional 50 percent of

1138

the policies so removed cover risks located in other coastal

1139

counties, and must also provide that no more than 15 percent of

1140

the policies so removed may exclude windstorm coverage. With the

1141

approval of the department, the association may waive these

1142

geographic criteria for a take-out plan that removes at least the

1143

lesser of 100,000 Residential Property and Casualty Joint

1144

Underwriting Association policies or 15 percent of the total

1145

number of Residential Property and Casualty Joint Underwriting

1146

Association policies, provided the governing board of the

1147

Residential Property and Casualty Joint Underwriting Association

1148

certifies that the take-out plan will materially reduce the

1149

Residential Property and Casualty Joint Underwriting

1150

Association's 100-year probable maximum loss from hurricanes.

1151

With the approval of the department, the board may extend such

1152

credits for an additional year if the insurer guarantees an

1153

additional year of renewability for all policies removed from the

1154

Residential Property and Casualty Joint Underwriting Association,

1155

or for 2 additional years if the insurer guarantees 2 additional

1156

years of renewability for all policies removed from the

1157

Residential Property and Casualty Joint Underwriting Association.

1158

b. Assessments to pay deficits in the association under

1159

this subparagraph shall be included as an appropriate factor in

1160

the making of rates as provided in s. 627.3512.

1161

c. The Legislature finds that the potential for unlimited

1162

deficit assessments under this subparagraph may induce insurers

1163

to attempt to reduce their writings in the voluntary market, and

1164

that such actions would worsen the availability problems that the

1165

association was created to remedy. It is the intent of the

1166

Legislature that insurers remain fully responsible for paying

1167

regular assessments and collecting emergency assessments for any

1168

deficits of the association; however, it is also the intent of

1169

the Legislature to provide a means by which assessment

1170

liabilities may be amortized over a period of years.

1171

d.(I) When the deficit incurred in a particular calendar

1172

year is 10 percent or less of the aggregate statewide direct

1173

written premium for property insurance for the prior calendar

1174

year for all member insurers, the association shall levy an

1175

assessment on member insurers in an amount equal to the deficit.

1176

(II) When the deficit incurred in a particular calendar

1177

year exceeds 10 percent of the aggregate statewide direct written

1178

premium for property insurance for the prior calendar year for

1179

all member insurers, the association shall levy an assessment on

1180

member insurers in an amount equal to the greater of 10 percent

1181

of the deficit or 10 percent of the aggregate statewide direct

1182

written premium for property insurance for the prior calendar

1183

year for member insurers. Any remaining deficit shall be

1184

recovered through emergency assessments under sub-sub-

1185

subparagraph (III).

1186

(III) Upon a determination by the board of directors that a

1187

deficit exceeds the amount that will be recovered through regular

1188

assessments on member insurers, pursuant to sub-sub-subparagraph

1189

(I) or sub-sub-subparagraph (II), the board shall levy, after

1190

verification by the department, emergency assessments to be

1191

collected by member insurers and by underwriting associations

1192

created pursuant to this section which write property insurance,

1193

upon issuance or renewal of property insurance policies other

1194

than National Flood Insurance policies in the year or years

1195

following levy of the regular assessments. The amount of the

1196

emergency assessment collected in a particular year shall be a

1197

uniform percentage of that year's direct written premium for

1198

property insurance for all member insurers and underwriting

1199

associations, excluding National Flood Insurance policy premiums,

1200

as annually determined by the board and verified by the

1201

department. The department shall verify the arithmetic

1202

calculations involved in the board's determination within 30 days

1203

after receipt of the information on which the determination was

1204

based. Notwithstanding any other provision of law, each member

1205

insurer and each underwriting association created pursuant to

1206

this section shall collect emergency assessments from its

1207

policyholders without such obligation being affected by any

1208

credit, limitation, exemption, or deferment. The emergency

1209

assessments so collected shall be transferred directly to the

1210

association on a periodic basis as determined by the association.

1211

The aggregate amount of emergency assessments levied under this

1212

sub-sub-subparagraph in any calendar year may not exceed the

1213

greater of 10 percent of the amount needed to cover the original

1214

deficit, plus interest, fees, commissions, required reserves, and

1215

other costs associated with financing of the original deficit, or

1216

10 percent of the aggregate statewide direct written premium for

1217

property insurance written by member insurers and underwriting

1218

associations for the prior year, plus interest, fees,

1219

commissions, required reserves, and other costs associated with

1220

financing the original deficit. The board may pledge the proceeds

1221

of the emergency assessments under this sub-sub-subparagraph as

1222

the source of revenue for bonds, to retire any other debt

1223

incurred as a result of the deficit or events giving rise to the

1224

deficit, or in any other way that the board determines will

1225

efficiently recover the deficit. The emergency assessments under

1226

this sub-sub-subparagraph shall continue as long as any bonds

1227

issued or other indebtedness incurred with respect to a deficit

1228

for which the assessment was imposed remain outstanding, unless

1229

adequate provision has been made for the payment of such bonds or

1230

other indebtedness pursuant to the document governing such bonds

1231

or other indebtedness. Emergency assessments collected under this

1232

sub-sub-subparagraph are not part of an insurer's rates, are not

1233

premium, and are not subject to premium tax, fees, or

1234

commissions; however, failure to pay the emergency assessment

1235

shall be treated as failure to pay premium.

1236

(IV) Each member insurer's share of the total regular

1237

assessments under sub-sub-subparagraph (I) or sub-sub-

1238

subparagraph (II) shall be in the proportion that the insurer's

1239

net direct premium for property insurance in this state, for the

1240

year preceding the assessment bears to the aggregate statewide

1241

net direct premium for property insurance of all member insurers,

1242

as reduced by any credits for voluntary writings for that year.

1243

(V) If regular deficit assessments are made under sub-sub-

1244

subparagraph (I) or sub-sub-subparagraph (II), or by the

1245

Residential Property and Casualty Joint Underwriting Association

1246

under sub-subparagraph (6)(b)3.a. or sub-subparagraph (6)(b)3.b.,

1247

the association shall levy upon the association's policyholders,

1248

as part of its next rate filing, or by a separate rate filing

1249

solely for this purpose, a market equalization surcharge in a

1250

percentage equal to the total amount of such regular assessments

1251

divided by the aggregate statewide direct written premium for

1252

property insurance for member insurers for the prior calendar

1253

year. Market equalization surcharges under this sub-sub-

1254

subparagraph are not considered premium and are not subject to

1255

commissions, fees, or premium taxes; however, failure to pay a

1256

market equalization surcharge shall be treated as failure to pay

1257

premium.

1258

e. The governing body of any unit of local government, any

1259

residents of which are insured under the plan, may issue bonds as

1260

defined in s. 125.013 or s. 166.101 to fund an assistance

1261

program, in conjunction with the association, for the purpose of

1262

defraying deficits of the association. In order to avoid needless

1263

and indiscriminate proliferation, duplication, and fragmentation

1264

of such assistance programs, any unit of local government, any

1265

residents of which are insured by the association, may provide

1266

for the payment of losses, regardless of whether or not the

1267

losses occurred within or outside of the territorial jurisdiction

1268

of the local government. Revenue bonds may not be issued until

1269

validated pursuant to chapter 75, unless a state of emergency is

1270

declared by executive order or proclamation of the Governor

1271

pursuant to s. 252.36 making such findings as are necessary to

1272

determine that it is in the best interests of, and necessary for,

1273

the protection of the public health, safety, and general welfare

1274

of residents of this state and the protection and preservation of

1275

the economic stability of insurers operating in this state, and

1276

declaring it an essential public purpose to permit certain

1277

municipalities or counties to issue bonds as will provide relief

1278

to claimants and policyholders of the association and insurers

1279

responsible for apportionment of plan losses. Any such unit of

1280

local government may enter into such contracts with the

1281

association and with any other entity created pursuant to this

1282

subsection as are necessary to carry out this paragraph. Any

1283

bonds issued under this sub-subparagraph shall be payable from

1284

and secured by moneys received by the association from

1285

assessments under this subparagraph, and assigned and pledged to

1286

or on behalf of the unit of local government for the benefit of

1287

the holders of such bonds. The funds, credit, property, and

1288

taxing power of the state or of the unit of local government

1289

shall not be pledged for the payment of such bonds. If any of the

1290

bonds remain unsold 60 days after issuance, the department shall

1291

require all insurers subject to assessment to purchase the bonds,

1292

which shall be treated as admitted assets; each insurer shall be

1293

required to purchase that percentage of the unsold portion of the

1294

bond issue that equals the insurer's relative share of assessment

1295

liability under this subsection. An insurer shall not be required

1296

to purchase the bonds to the extent that the department

1297

determines that the purchase would endanger or impair the

1298

solvency of the insurer. The authority granted by this sub-

1299

subparagraph is additional to any bonding authority granted by

1300

subparagraph 6.

1301

3. The plan shall also provide that any member with a

1302

surplus as to policyholders of $20 million or less writing 25

1303

percent or more of its total countrywide property insurance

1304

premiums in this state may petition the department, within the

1305

first 90 days of each calendar year, to qualify as a limited

1306

apportionment company. The apportionment of such a member company

1307

in any calendar year for which it is qualified shall not exceed

1308

its gross participation, which shall not be affected by the

1309

formula for voluntary writings. In no event shall a limited

1310

apportionment company be required to participate in any

1311

apportionment of losses pursuant to sub-sub-subparagraph 2.d.(I)

1312

or sub-sub-subparagraph 2.d.(II) in the aggregate which exceeds

1313

$50 million after payment of available plan funds in any calendar

1314

year. However, a limited apportionment company shall collect from

1315

its policyholders any emergency assessment imposed under sub-sub-

1316

subparagraph 2.d.(III). The plan shall provide that, if the

1317

department determines that any regular assessment will result in

1318

an impairment of the surplus of a limited apportionment company,

1319

the department may direct that all or part of such assessment be

1320

deferred. However, there shall be no limitation or deferment of

1321

an emergency assessment to be collected from policyholders under

1322

sub-sub-subparagraph 2.d.(III).

1323

4. The plan shall provide for the deferment, in whole or in

1324

part, of a regular assessment of a member insurer under sub-sub-

1325

subparagraph 2.d.(I) or sub-sub-subparagraph 2.d.(II), but not

1326

for an emergency assessment collected from policyholders under

1327

sub-sub-subparagraph 2.d.(III), if, in the opinion of the

1328

commissioner, payment of such regular assessment would endanger

1329

or impair the solvency of the member insurer. In the event a

1330

regular assessment against a member insurer is deferred in whole

1331

or in part, the amount by which such assessment is deferred may

1332

be assessed against the other member insurers in a manner

1333

consistent with the basis for assessments set forth in sub-sub-

1334

subparagraph 2.d.(I) or sub-sub-subparagraph 2.d.(II).

1335

5.a. The plan of operation may include deductibles and

1336

rules for classification of risks and rate modifications

1337

consistent with the objective of providing and maintaining funds

1338

sufficient to pay catastrophe losses.

1339

b. The association may require arbitration of a rate filing

1340

under s. 627.062(6). It is the intent of the Legislature that the

1341

rates for coverage provided by the association be actuarially

1342

sound and not competitive with approved rates charged in the

1343

admitted voluntary market such that the association functions as

1344

a residual market mechanism to provide insurance only when the

1345

insurance cannot be procured in the voluntary market. The plan of

1346

operation shall provide a mechanism to assure that, beginning no

1347

later than January 1, 1999, the rates charged by the association

1348

for each line of business are reflective of approved rates in the

1349

voluntary market for hurricane coverage for each line of business

1350

in the various areas eligible for association coverage.

1351

c. The association shall provide for windstorm coverage on

1352

residential properties in limits up to $10 million for commercial

1353

lines residential risks and up to $1 million for personal lines

1354

residential risks. If coverage with the association is sought for

1355

a residential risk valued in excess of these limits, coverage

1356

shall be available to the risk up to the replacement cost or

1357

actual cash value of the property, at the option of the insured,

1358

if coverage for the risk cannot be located in the authorized

1359

market. The association must accept a commercial lines

1360

residential risk with limits above $10 million or a personal

1361

lines residential risk with limits above $1 million if coverage

1362

is not available in the authorized market. The association may

1363

write coverage above the limits specified in this subparagraph

1364

with or without facultative or other reinsurance coverage, as the

1365

association determines appropriate.

1366

d. The plan of operation must provide objective criteria

1367

and procedures, approved by the department, to be uniformly

1368

applied for all applicants in determining whether an individual

1369

risk is so hazardous as to be uninsurable. In making this

1370

determination and in establishing the criteria and procedures,

1371

the following shall be considered:

1372

(I) Whether the likelihood of a loss for the individual

1373

risk is substantially higher than for other risks of the same

1374

class; and

1375

(II) Whether the uncertainty associated with the individual

1376

risk is such that an appropriate premium cannot be determined.

1377

1378

The acceptance or rejection of a risk by the association pursuant

1379

to such criteria and procedures must be construed as the private

1380

placement of insurance, and the provisions of chapter 120 do not

1381

apply.

1382

e. If the risk accepts an offer of coverage through the

1383

market assistance program or through a mechanism established by

1384

the association, either before the policy is issued by the

1385

association or during the first 30 days of coverage by the

1386

association, and the producing agent who submitted the

1387

application to the association is not currently appointed by the

1388

insurer, the insurer shall:

1389

(I) Pay to the producing agent of record of the policy, for

1390

the first year, an amount that is the greater of the insurer's

1391

usual and customary commission for the type of policy written or

1392

a fee equal to the usual and customary commission of the

1393

association; or

1394

(II) Offer to allow the producing agent of record of the

1395

policy to continue servicing the policy for a period of not less

1396

than 1 year and offer to pay the agent the greater of the

1397

insurer's or the association's usual and customary commission for

1398

the type of policy written.

1399

1400

If the producing agent is unwilling or unable to accept

1401

appointment, the new insurer shall pay the agent in accordance

1402

with sub-sub-subparagraph (I). Subject to the provisions of s.

1403

627.3517, the policies issued by the association must provide

1404

that if the association obtains an offer from an authorized

1405

insurer to cover the risk at its approved rates under either a

1406

standard policy including wind coverage or, if consistent with

1407

the insurer's underwriting rules as filed with the department, a

1408

basic policy including wind coverage, the risk is no longer

1409

eligible for coverage through the association. Upon termination

1410

of eligibility, the association shall provide written notice to

1411

the policyholder and agent of record stating that the association

1412

policy must be canceled as of 60 days after the date of the

1413

notice because of the offer of coverage from an authorized

1414

insurer. Other provisions of the insurance code relating to

1415

cancellation and notice of cancellation do not apply to actions

1416

under this sub-subparagraph.

1417

f. When the association enters into a contractual agreement

1418

for a take-out plan, the producing agent of record of the

1419

association policy is entitled to retain any unearned commission

1420

on the policy, and the insurer shall:

1421

(I) Pay to the producing agent of record of the association

1422

policy, for the first year, an amount that is the greater of the

1423

insurer's usual and customary commission for the type of policy

1424

written or a fee equal to the usual and customary commission of

1425

the association; or

1426

(II) Offer to allow the producing agent of record of the

1427

association policy to continue servicing the policy for a period

1428

of not less than 1 year and offer to pay the agent the greater of

1429

the insurer's or the association's usual and customary commission

1430

for the type of policy written.

1431

1432

If the producing agent is unwilling or unable to accept

1433

appointment, the new insurer shall pay the agent in accordance

1434

with sub-sub-subparagraph (I).

1435

6.a. The plan of operation may authorize the formation of a

1436

private nonprofit corporation, a private nonprofit unincorporated

1437

association, a partnership, a trust, a limited liability company,

1438

or a nonprofit mutual company which may be empowered, among other

1439

things, to borrow money by issuing bonds or by incurring other

1440

indebtedness and to accumulate reserves or funds to be used for

1441

the payment of insured catastrophe losses. The plan may authorize

1442

all actions necessary to facilitate the issuance of bonds,

1443

including the pledging of assessments or other revenues.

1444

b. Any entity created under this subsection, or any entity

1445

formed for the purposes of this subsection, may sue and be sued,

1446

may borrow money; issue bonds, notes, or debt instruments; pledge

1447

or sell assessments, market equalization surcharges and other

1448

surcharges, rights, premiums, contractual rights, projected

1449

recoveries from the Florida Hurricane Catastrophe Fund, other

1450

reinsurance recoverables, and other assets as security for such

1451

bonds, notes, or debt instruments; enter into any contracts or

1452

agreements necessary or proper to accomplish such borrowings; and

1453

take other actions necessary to carry out the purposes of this

1454

subsection. The association may issue bonds or incur other

1455

indebtedness, or have bonds issued on its behalf by a unit of

1456

local government pursuant to subparagraph (6)(p)2., in the

1457

absence of a hurricane or other weather-related event, upon a

1458

determination by the association subject to approval by the

1459

department that such action would enable it to efficiently meet

1460

the financial obligations of the association and that such

1461

financings are reasonably necessary to effectuate the

1462

requirements of this subsection. Any such entity may accumulate

1463

reserves and retain surpluses as of the end of any association

1464

year to provide for the payment of losses incurred by the

1465

association during that year or any future year. The association

1466

shall incorporate and continue the plan of operation and articles

1467

of agreement in effect on the effective date of chapter 76-96,

1468

Laws of Florida, to the extent that it is not inconsistent with

1469

chapter 76-96, and as subsequently modified consistent with

1470

chapter 76-96. The board of directors and officers currently

1471

serving shall continue to serve until their successors are duly

1472

qualified as provided under the plan. The assets and obligations

1473

of the plan in effect immediately prior to the effective date of

1474

chapter 76-96 shall be construed to be the assets and obligations

1475

of the successor plan created herein.

1476

c. In recognition of s. 10, Art. I of the State

1477

Constitution, prohibiting the impairment of obligations of

1478

contracts, it is the intent of the Legislature that no action be

1479

taken whose purpose is to impair any bond indenture or financing

1480

agreement or any revenue source committed by contract to such

1481

bond or other indebtedness issued or incurred by the association

1482

or any other entity created under this subsection.

1483

7. On such coverage, an agent's remuneration shall be that

1484

amount of money payable to the agent by the terms of his or her

1485

contract with the company with which the business is placed.

1486

However, no commission will be paid on that portion of the

1487

premium which is in excess of the standard premium of that

1488

company.

1489

8. Subject to approval by the department, the association

1490

may establish different eligibility requirements and operational

1491

procedures for any line or type of coverage for any specified

1492

eligible area or portion of an eligible area if the board

1493

determines that such changes to the eligibility requirements and

1494

operational procedures are justified due to the voluntary market

1495

being sufficiently stable and competitive in such area or for

1496

such line or type of coverage and that consumers who, in good

1497

faith, are unable to obtain insurance through the voluntary

1498

market through ordinary methods would continue to have access to

1499

coverage from the association. When coverage is sought in

1500

connection with a real property transfer, such requirements and

1501

procedures shall not provide for an effective date of coverage

1502

later than the date of the closing of the transfer as established

1503

by the transferor, the transferee, and, if applicable, the

1504

lender.

1505

9. Notwithstanding any other provision of law:

1506

a. The pledge or sale of, the lien upon, and the security

1507

interest in any rights, revenues, or other assets of the

1508

association created or purported to be created pursuant to any

1509

financing documents to secure any bonds or other indebtedness of

1510

the association shall be and remain valid and enforceable,

1511

notwithstanding the commencement of and during the continuation

1512

of, and after, any rehabilitation, insolvency, liquidation,

1513

bankruptcy, receivership, conservatorship, reorganization, or

1514

similar proceeding against the association under the laws of this

1515

state or any other applicable laws.

1516

b. No such proceeding shall relieve the association of its

1517

obligation, or otherwise affect its ability to perform its

1518

obligation, to continue to collect, or levy and collect,

1519

assessments, market equalization or other surcharges, projected

1520

recoveries from the Florida Hurricane Catastrophe Fund,

1521

reinsurance recoverables, or any other rights, revenues, or other

1522

assets of the association pledged.

1523

c. Each such pledge or sale of, lien upon, and security

1524

interest in, including the priority of such pledge, lien, or

1525

security interest, any such assessments, emergency assessments,

1526

market equalization or renewal surcharges, projected recoveries

1527

from the Florida Hurricane Catastrophe Fund, reinsurance

1528

recoverables, or other rights, revenues, or other assets which

1529

are collected, or levied and collected, after the commencement of

1530

and during the pendency of or after any such proceeding shall

1531

continue unaffected by such proceeding.

1532

d. As used in this subsection, the term "financing

1533

documents" means any agreement, instrument, or other document now

1534

existing or hereafter created evidencing any bonds or other

1535

indebtedness of the association or pursuant to which any such

1536

bonds or other indebtedness has been or may be issued and

1537

pursuant to which any rights, revenues, or other assets of the

1538

association are pledged or sold to secure the repayment of such

1539

bonds or indebtedness, together with the payment of interest on

1540

such bonds or such indebtedness, or the payment of any other

1541

obligation of the association related to such bonds or

1542

indebtedness.

1543

e. Any such pledge or sale of assessments, revenues,

1544

contract rights or other rights or assets of the association

1545

shall constitute a lien and security interest, or sale, as the

1546

case may be, that is immediately effective and attaches to such

1547

assessments, revenues, contract, or other rights or assets,

1548

whether or not imposed or collected at the time the pledge or

1549

sale is made. Any such pledge or sale is effective, valid,

1550

binding, and enforceable against the association or other entity

1551

making such pledge or sale, and valid and binding against and

1552

superior to any competing claims or obligations owed to any other

1553

person or entity, including policyholders in this state,

1554

asserting rights in any such assessments, revenues, contract, or

1555

other rights or assets to the extent set forth in and in

1556

accordance with the terms of the pledge or sale contained in the

1557

applicable financing documents, whether or not any such person or

1558

entity has notice of such pledge or sale and without the need for

1559

any physical delivery, recordation, filing, or other action.

1560

f. There shall be no liability on the part of, and no cause

1561

of action of any nature shall arise against, any member insurer

1562

or its agents or employees, agents or employees of the

1563

association, members of the board of directors of the

1564

association, or the department or its representatives, for any

1565

action taken by them in the performance of their duties or

1566

responsibilities under this subsection. Such immunity does not

1567

apply to actions for breach of any contract or agreement

1568

pertaining to insurance, or any willful tort.

1569

(6) CITIZENS PROPERTY INSURANCE CORPORATION.--

1570

(a)1. It is the public purpose of this subsection to ensure

1571

the existence of an orderly market for property insurance for

1572

Floridians and Florida businesses. The Legislature finds that

1573

private insurers are unwilling or unable to provide affordable

1574

property insurance coverage in this state to the extent sought

1575

and needed. The absence of affordable property insurance

1576

threatens the public health, safety, and welfare and likewise

1577

threatens the economic health of the state. The state therefore

1578

has a compelling public interest and a public purpose to assist

1579

in assuring that property in the state is insured and that it is

1580

insured at affordable rates so as to facilitate the remediation,

1581

reconstruction, and replacement of damaged or destroyed property

1582

in order to reduce or avoid the negative effects otherwise

1583

resulting to the public health, safety, and welfare, to the

1584

economy of the state, and to the revenues of the state and local

1585

governments which are needed to provide for the public welfare.

1586

It is necessary, therefore, to provide affordable property

1587

insurance to applicants who are in good faith entitled to procure

1588

insurance through the voluntary market but are unable to do so.

1589

The Legislature intends by this subsection that affordable

1590

property insurance be provided and that it continue to be

1591

provided, as long as necessary, through Citizens Property

1592

Insurance Corporation, a government entity that is an integral

1593

part of the state, and that is not a private insurance company.

1594

To that end, Citizens Property Insurance Corporation shall strive

1595

to increase the availability of affordable property insurance in

1596

this state, while achieving efficiencies and economies, and while

1597

providing service to policyholders, applicants, and agents which

1598

is no less than the quality generally provided in the voluntary

1599

market, for the achievement of the foregoing public purposes.

1600

Because it is essential for this government entity to have the

1601

maximum financial resources to pay claims following a

1602

catastrophic hurricane, it is the intent of the Legislature that

1603

Citizens Property Insurance Corporation continue to be an

1604

integral part of the state and that the income of the corporation

1605

be exempt from federal income taxation and that interest on the

1606

debt obligations issued by the corporation be exempt from federal

1607

income taxation.

1608

2. The Residential Property and Casualty Joint Underwriting

1609

Association originally created by this statute shall be known, as

1610

of July 1, 2002, as the Citizens Property Insurance Corporation.

1611

The corporation shall provide insurance for residential and

1612

commercial property, for applicants who are in good faith

1613

entitled, but are unable, to procure insurance through the

1614

voluntary market. The corporation shall operate pursuant to a

1615

plan of operation approved by order of the Financial Services

1616

Commission. The plan is subject to continuous review by the

1617

commission. The commission may, by order, withdraw approval of

1618

all or part of a plan if the commission determines that

1619

conditions have changed since approval was granted and that the

1620

purposes of the plan require changes in the plan. The corporation

1621

shall continue to operate pursuant to the plan of operation

1622

approved by the Office of Insurance Regulation until October 1,

1623

2006. For the purposes of this subsection, residential coverage

1624

includes both personal lines residential coverage, which consists

1625

of the type of coverage provided by homeowner's, mobile home

1626

owner's, dwelling, tenant's, condominium unit owner's, and

1627

similar policies, and commercial lines residential coverage,

1628

which consists of the type of coverage provided by condominium

1629

association, apartment building, and similar policies.

1630

3. For the purposes of this subsection, the term "homestead

1631

property" means:

1632

a. Property that has been granted a homestead exemption

1633

under chapter 196;

1634

b. Property for which the owner has a current, written

1635

lease with a renter for a term of at least 7 months and for which

1636

the dwelling is insured by the corporation for $200,000 or less;

1637

c. An owner-occupied mobile home or manufactured home, as

1638

defined in s. 320.01, which is permanently affixed to real

1639

property, is owned by a Florida resident, and has been granted a

1640

homestead exemption under chapter 196 or, if the owner does not

1641

own the real property, the owner certifies that the mobile home

1642

or manufactured home is his or her principal place of residence;

1643

d. Tenant's coverage;

1644

e. Commercial lines residential property; or

1645

f. Any county, district, or municipal hospital; a hospital

1646

licensed by any not-for-profit corporation qualified under s.

1647

501(c)(3) of the United States Internal Revenue Code; or a

1648

continuing care retirement community that is certified under

1649

chapter 651 and that receives an exemption from ad valorem taxes

1650

under chapter 196.

1651

4. For the purposes of this subsection, the term

1652

"nonhomestead property" means property that is not homestead

1653

property.

1654

3.5. Effective January 1, 2009, a personal lines

1655

residential structure that has a dwelling replacement cost of $2

1656

$1 million or more, or a single condominium unit that has a

1657

combined dwelling and content replacement cost of $2 $1 million

1658

or more is not eligible for coverage by the corporation. Such

1659

dwellings insured by the corporation on December 31, 2008, may

1660

continue to be covered by the corporation until the end of the

1661

policy term. However, such dwellings that are insured by the

1662

corporation and become ineligible for coverage due to the

1663

provisions of this subparagraph may reapply and obtain coverage

1664

in the high-risk account and be considered "nonhomestead

1665

property" if the property owner provides the corporation with a

1666

sworn affidavit from one or more insurance agents, on a form

1667

provided by the corporation, stating that the agents have made

1668

their best efforts to obtain coverage and that the property has

1669

been rejected for coverage by at least one authorized insurer and

1670

at least three surplus lines insurers. If such conditions are

1671

met, the dwelling may be insured by the corporation for up to 3

1672

years, after which time the dwelling is ineligible for coverage.

1673

The office shall approve the method used by the corporation for

1674

valuing the dwelling replacement cost for the purposes of this

1675

subparagraph. If a policyholder is insured by the corporation

1676

prior to being determined to be ineligible pursuant to this

1677

subparagraph and such policyholder files a lawsuit challenging

1678

the determination, the policyholder may remain insured by the

1679

corporation until the conclusion of the litigation.

1680

6. For properties constructed on or after January 1, 2009,

1681

the corporation may not insure any property located within 2,500

1682

feet landward of the coastal construction control line created

1683

pursuant to s. 161.053 unless the property meets the requirements

1684

of the code-plus building standards developed by the Florida

1685

Building Commission.

1686

4.7. It is the intent of the Legislature that

1687

policyholders, applicants, and agents of the corporation receive

1688

service and treatment of the highest possible level but never

1689

less than that generally provided in the voluntary market. It

1690

also is intended that the corporation be held to service

1691

standards no less than those applied to insurers in the voluntary

1692

market by the office with respect to responsiveness, timeliness,

1693

customer courtesy, and overall dealings with policyholders,

1694

applicants, or agents of the corporation.

1695

5.8. Effective January 1, 2009, a personal lines

1696

residential structure that is located in the "wind-borne debris

1697

region," as defined in s. 1609.2, International Building Code

1698

(2006), and that has an insured value on the structure of

1699

$750,000 or more is not eligible for coverage by the corporation

1700

unless the structure has opening protections as required under

1701

the Florida Building Code for a newly constructed residential

1702

structure in that area. A residential structure shall be deemed

1703

to comply with the requirements of this subparagraph if it has

1704

shutters or opening protections on all openings and if such

1705

opening protections complied with the Florida Building Code at

1706

the time they were installed. Effective January 1, 2010, for

1707

personal lines residential property insured by the corporation

1708

that is located in the wind-borne debris region and has an

1709

insured value on the structure of $500,000 or more, a prospective

1710

purchaser of any such residential property must be provided by

1711

the seller a written disclosure that contains the structure's

1712

windstorm mitigation rating based on the uniform home grading

1713

scale adopted under s. 215.55865. Such rating shall be provided

1714

to the purchaser at or before the time the purchaser executes a

1715

contract for sale and purchase.

1716

(b)1. All insurers authorized to write one or more subject

1717

lines of business in this state are subject to assessment by the

1718

corporation and, for the purposes of this subsection, are

1719

referred to collectively as "assessable insurers." Insurers

1720

writing one or more subject lines of business in this state

1721

pursuant to part VIII of chapter 626 are not assessable insurers,

1722

but insureds who procure one or more subject lines of business in

1723

this state pursuant to part VIII of chapter 626 are subject to

1724

assessment by the corporation and are referred to collectively as

1725

"assessable insureds." An authorized insurer's assessment

1726

liability shall begin on the first day of the calendar year

1727

following the year in which the insurer was issued a certificate

1728

of authority to transact insurance for subject lines of business

1729

in this state and shall terminate 1 year after the end of the

1730

first calendar year during which the insurer no longer holds a

1731

certificate of authority to transact insurance for subject lines

1732

of business in this state.

1733

2.a. All revenues, assets, liabilities, losses, and

1734

expenses of the corporation shall be divided into three separate

1735

accounts as follows:

1736

(I) A personal lines account for personal residential

1737

policies issued by the corporation or issued by the Residential

1738

Property and Casualty Joint Underwriting Association and renewed

1739

by the corporation that provide comprehensive, multiperil

1740

coverage on risks that are not located in areas eligible for

1741

coverage in the Florida Windstorm Underwriting Association as

1742

those areas were defined on January 1, 2002, and for such

1743

policies that do not provide coverage for the peril of wind on

1744

risks that are located in such areas;

1745

(II) A commercial lines account for commercial residential

1746

and commercial nonresidential policies issued by the corporation

1747

or issued by the Residential Property and Casualty Joint

1748

Underwriting Association and renewed by the corporation that

1749

provide coverage for basic property perils on risks that are not

1750

located in areas eligible for coverage in the Florida Windstorm

1751

Underwriting Association as those areas were defined on January

1752

1, 2002, and for such policies that do not provide coverage for

1753

the peril of wind on risks that are located in such areas; and

1754

(III) A high-risk account for personal residential policies

1755

and commercial residential and commercial nonresidential property

1756

policies issued by the corporation or transferred to the

1757

corporation that provide coverage for the peril of wind on risks

1758

that are located in areas eligible for coverage in the Florida

1759

Windstorm Underwriting Association as those areas were defined on

1760

January 1, 2002. Subject to the approval of a business plan by

1761

the Financial Services Commission and Legislative Budget

1762

Commission as provided in this sub-sub-subparagraph, but no

1763

earlier than March 31, 2007, The corporation may offer policies

1764

that provide multiperil coverage and the corporation shall

1765

continue to offer policies that provide coverage only for the

1766

peril of wind for risks located in areas eligible for coverage in

1767

the high-risk account. In issuing multiperil coverage, the

1768

corporation may use its approved policy forms and rates for the

1769

personal lines account. An applicant or insured who is eligible

1770

to purchase a multiperil policy from the corporation may purchase

1771

a multiperil policy from an authorized insurer without prejudice

1772

to the applicant's or insured's eligibility to prospectively

1773

purchase a policy that provides coverage only for the peril of

1774

wind from the corporation. An applicant or insured who is

1775

eligible for a corporation policy that provides coverage only for

1776

the peril of wind may elect to purchase or retain such policy and

1777

also purchase or retain coverage excluding wind from an

1778

authorized insurer without prejudice to the applicant's or

1779

insured's eligibility to prospectively purchase a policy that

1780

provides multiperil coverage from the corporation. It is the goal

1781

of the Legislature that there would be an overall average savings

1782

of 10 percent or more for a policyholder who currently has a

1783

wind-only policy with the corporation, and an ex-wind policy with

1784

a voluntary insurer or the corporation, and who then obtains a

1785

multiperil policy from the corporation. It is the intent of the

1786

Legislature that the offer of multiperil coverage in the high-

1787

risk account be made and implemented in a manner that does not

1788

adversely affect the tax-exempt status of the corporation or

1789

creditworthiness of or security for currently outstanding

1790

financing obligations or credit facilities of the high-risk

1791

account, the personal lines account, or the commercial lines

1792

account. By March 1, 2007, the corporation shall prepare and

1793

submit for approval by the Financial Services Commission and

1794

Legislative Budget Commission a report detailing the

1795

corporation's business plan for issuing multiperil coverage in

1796

the high-risk account. The business plan shall be approved or

1797

disapproved within 30 days after receipt, as submitted or

1798

modified and resubmitted by the corporation. The business plan

1799

must include: the impact of such multiperil coverage on the

1800

corporation's financial resources, the impact of such multiperil

1801

coverage on the corporation's tax-exempt status, the manner in

1802

which the corporation plans to implement the processing of

1803

applications and policy forms for new and existing policyholders,

1804

the impact of such multiperil coverage on the corporation's

1805

ability to deliver customer service at the high level required by

1806

this subsection, the ability of the corporation to process

1807

claims, the ability of the corporation to quote and issue

1808

policies, the impact of such multiperil coverage on the

1809

corporation's agents, the impact of such multiperil coverage on

1810

the corporation's existing policyholders, and the impact of such

1811

multiperil coverage on rates and premium. The high-risk account

1812

must also include quota share primary insurance under

1813

subparagraph (c)2. The area eligible for coverage under the high-

1814

risk account also includes the area within Port Canaveral, which

1815

is bordered on the south by the City of Cape Canaveral, bordered

1816

on the west by the Banana River, and bordered on the north by

1817

Federal Government property.

1818

b. The three separate accounts must be maintained as long

1819

as financing obligations entered into by the Florida Windstorm

1820

Underwriting Association or Residential Property and Casualty

1821

Joint Underwriting Association are outstanding, in accordance

1822

with the terms of the corresponding financing documents. When the

1823

financing obligations are no longer outstanding, in accordance

1824

with the terms of the corresponding financing documents, the

1825

corporation may use a single account for all revenues, assets,

1826

liabilities, losses, and expenses of the corporation. Consistent

1827

with the requirement of this subparagraph and prudent investment

1828

policies that minimize the cost of carrying debt, the board shall

1829

exercise its best efforts to retire existing debt or to obtain

1830

approval of necessary parties to amend the terms of existing

1831

debt, so as to structure the most efficient plan to consolidate

1832

the three separate accounts into a single account. By February 1,

1833

2007, the board shall submit a report to the Financial Services

1834

Commission, the President of the Senate, and the Speaker of the

1835

House of Representatives which includes an analysis of

1836

consolidating the accounts, the actions the board has taken to

1837

minimize the cost of carrying debt, and its recommendations for

1838

executing the most efficient plan.

1839

c. Creditors of the Residential Property and Casualty Joint

1840

Underwriting Association and of the accounts specified in sub-

1841

sub-subparagraphs a.(I) and (II) may have a claim against, and

1842

recourse to, the accounts referred to in sub-sub-subparagraphs

1843

a.(I) and (II) and shall have no claim against, or recourse to,

1844

the account referred to in sub-sub-subparagraph a.(III).

1845

Creditors of the Florida Windstorm Underwriting Association shall

1846

have a claim against, and recourse to, the account referred to in

1847

sub-sub-subparagraph a.(III) and shall have no claim against, or

1848

recourse to, the accounts referred to in sub-sub-subparagraphs

1849

a.(I) and (II).

1850

d. Revenues, assets, liabilities, losses, and expenses not

1851

attributable to particular accounts shall be prorated among the

1852

accounts.

1853

e. The Legislature finds that the revenues of the

1854

corporation are revenues that are necessary to meet the

1855

requirements set forth in documents authorizing the issuance of

1856

bonds under this subsection.

1857

f. No part of the income of the corporation may inure to

1858

the benefit of any private person.

1859

3. With respect to a deficit in an account:

1860

a. After accounting for the Citizens policyholder surcharge

1861

imposed under sub-subparagraph i., when the remaining projected

1862

deficit incurred in a particular calendar year is not greater

1863

than 6 10 percent of the aggregate statewide direct written

1864

premium for the subject lines of business for the prior calendar

1865

year, the entire deficit shall be recovered through regular

1866

assessments of assessable insurers under paragraph (p) and

1867

assessable insureds.

1868

b. After accounting for the Citizens policyholder surcharge

1869

imposed under sub-subparagraph i., when the remaining projected

1870

deficit incurred in a particular calendar year exceeds 6 10

1871

percent of the aggregate statewide direct written premium for the

1872

subject lines of business for the prior calendar year, the

1873

corporation shall levy regular assessments on assessable insurers

1874

under paragraph (p) and on assessable insureds in an amount equal

1875

to the greater of 6 10 percent of the deficit or 6 10 percent of

1876

the aggregate statewide direct written premium for the subject

1877

lines of business for the prior calendar year. Any remaining

1878

deficit shall be recovered through emergency assessments under

1879

sub-subparagraph d.

1880

c. Each assessable insurer's share of the amount being

1881

assessed under sub-subparagraph a. or sub-subparagraph b. shall

1882

be in the proportion that the assessable insurer's direct written

1883

premium for the subject lines of business for the year preceding

1884

the assessment bears to the aggregate statewide direct written

1885

premium for the subject lines of business for that year. The

1886

assessment percentage applicable to each assessable insured is

1887

the ratio of the amount being assessed under sub-subparagraph a.

1888

or sub-subparagraph b. to the aggregate statewide direct written

1889

premium for the subject lines of business for the prior year.

1890

Assessments levied by the corporation on assessable insurers

1891

under sub-subparagraphs a. and b. shall be paid as required by

1892

the corporation's plan of operation and paragraph (p).

1893

notwithstanding any other provision of this subsection, the

1894

aggregate amount of a regular assessment for a deficit incurred

1895

in a particular calendar year shall be reduced by the estimated

1896

amount to be received by the corporation from the Citizens

1897

policyholder surcharge under subparagraph (c)10. and the amount

1898

collected or estimated to be collected from the assessment on

1899

Citizens policyholders pursuant to sub-subparagraph i.

1900

Assessments levied by the corporation on assessable insureds

1901

under sub-subparagraphs a. and b. shall be collected by the

1902

surplus lines agent at the time the surplus lines agent collects

1903

the surplus lines tax required by s. 626.932 and shall be paid to

1904

the Florida Surplus Lines Service Office at the time the surplus

1905

lines agent pays the surplus lines tax to the Florida Surplus

1906

Lines Service Office. Upon receipt of regular assessments from

1907

surplus lines agents, the Florida Surplus Lines Service Office

1908

shall transfer the assessments directly to the corporation as

1909

determined by the corporation.

1910

d. Upon a determination by the board of governors that a

1911

deficit in an account exceeds the amount that will be recovered

1912

through regular assessments under sub-subparagraph a. or sub-

1913

subparagraph b., plus the amount that is expected to be recovered

1914

through surcharges under sub-subparagraph i., as to the remaining

1915

projected deficit the board shall levy, after verification by the

1916

office, emergency assessments, for as many years as necessary to

1917

cover the deficits, to be collected by assessable insurers and

1918

the corporation and collected from assessable insureds upon

1919

issuance or renewal of policies for subject lines of business,

1920

excluding National Flood Insurance policies. The amount of the

1921

emergency assessment collected in a particular year shall be a

1922

uniform percentage of that year's direct written premium for

1923

subject lines of business and all accounts of the corporation,

1924

excluding National Flood Insurance Program policy premiums, as

1925

annually determined by the board and verified by the office. The

1926

office shall verify the arithmetic calculations involved in the

1927

board's determination within 30 days after receipt of the

1928

information on which the determination was based. Notwithstanding

1929

any other provision of law, the corporation and each assessable

1930

insurer that writes subject lines of business shall collect

1931

emergency assessments from its policyholders without such

1932

obligation being affected by any credit, limitation, exemption,

1933

or deferment. Emergency assessments levied by the corporation on

1934

assessable insureds shall be collected by the surplus lines agent

1935

at the time the surplus lines agent collects the surplus lines

1936

tax required by s. 626.932 and shall be paid to the Florida

1937

Surplus Lines Service Office at the time the surplus lines agent

1938

pays the surplus lines tax to the Florida Surplus Lines Service

1939

Office. The emergency assessments so collected shall be

1940

transferred directly to the corporation on a periodic basis as

1941

determined by the corporation and shall be held by the

1942

corporation solely in the applicable account. The aggregate

1943

amount of emergency assessments levied for an account under this

1944

sub-subparagraph in any calendar year may, at the discretion of

1945

the board of governors, be less than but may not exceed the

1946

greater of 10 percent of the amount needed to cover the original

1947

deficit, plus interest, fees, commissions, required reserves, and

1948

other costs associated with financing of the original deficit, or

1949

10 percent of the aggregate statewide direct written premium for

1950

subject lines of business and for all accounts of the corporation

1951

for the prior year, plus interest, fees, commissions, required

1952

reserves, and other costs associated with financing the original

1953

deficit.

1954

e. The corporation may pledge the proceeds of assessments,

1955

projected recoveries from the Florida Hurricane Catastrophe Fund,

1956

other insurance and reinsurance recoverables, policyholder

1957

surcharges and other surcharges, and other funds available to the

1958

corporation as the source of revenue for and to secure bonds

1959

issued under paragraph (p), bonds or other indebtedness issued

1960

under subparagraph (c)3., or lines of credit or other financing

1961

mechanisms issued or created under this subsection, or to retire

1962

any other debt incurred as a result of deficits or events giving

1963

rise to deficits, or in any other way that the board determines

1964

will efficiently recover such deficits. The purpose of the lines

1965

of credit or other financing mechanisms is to provide additional

1966

resources to assist the corporation in covering claims and

1967

expenses attributable to a catastrophe. As used in this

1968

subsection, the term "assessments" includes regular assessments

1969

under sub-subparagraph a., sub-subparagraph b., or subparagraph

1970

(p)1. and emergency assessments under sub-subparagraph d.

1971

Emergency assessments collected under sub-subparagraph d. are not

1972

part of an insurer's rates, are not premium, and are not subject

1973

to premium tax, fees, or commissions; however, failure to pay the

1974

emergency assessment shall be treated as failure to pay premium.

1975

The emergency assessments under sub-subparagraph d. shall

1976

continue as long as any bonds issued or other indebtedness

1977

incurred with respect to a deficit for which the assessment was

1978

imposed remain outstanding, unless adequate provision has been

1979

made for the payment of such bonds or other indebtedness pursuant

1980

to the documents governing such bonds or other indebtedness.

1981

f. As used in this subsection for purposes of any deficit

1982

incurred on or after January 25, 2007, the term "subject lines of

1983

business" means insurance written by assessable insurers or

1984

procured by assessable insureds for all property and casualty

1985

lines of business in this state, but not including workers'

1986

compensation or medical malpractice. As used in the sub-

1987

subparagraph, the term "property and casualty lines of business"

1988

includes all lines of business identified on Form 2, Exhibit of

1989

Premiums and Losses, in the annual statement required of

1990

authorized insurers by s. 624.424 and any rule adopted under this

1991

section, except for those lines identified as accident and health

1992

insurance and except for policies written under the National

1993

Flood Insurance Program or the Federal Crop Insurance Program.

1994

For purposes of this sub-subparagraph, the term "workers'

1995

compensation" includes both workers' compensation insurance and

1996

excess workers' compensation insurance.

1997

g. The Florida Surplus Lines Service Office shall determine

1998

annually the aggregate statewide written premium in subject lines

1999

of business procured by assessable insureds and shall report that

2000

information to the corporation in a form and at a time the

2001

corporation specifies to ensure that the corporation can meet the

2002

requirements of this subsection and the corporation's financing

2003

obligations.

2004

h. The Florida Surplus Lines Service Office shall verify

2005

the proper application by surplus lines agents of assessment

2006

percentages for regular assessments and emergency assessments

2007

levied under this subparagraph on assessable insureds and shall

2008

assist the corporation in ensuring the accurate, timely

2009

collection and payment of assessments by surplus lines agents as

2010

required by the corporation.

2011

i. If a deficit is incurred in any account in 2008 or

2012

thereafter, the board of governors shall levy a Citizens

2013

policyholder surcharge an immediate assessment against the

2014

premium of each nonhomestead property policyholder in all

2015

accounts of the corporation, as a uniform percentage of the

2016

premium of the policy of up to 10 percent of such premium, which

2017

funds shall be used to offset the deficit. If this assessment is

2018

insufficient to eliminate the deficit, the board of governors

2019

shall levy an additional assessment against all policyholders of

2020

the corporation for a 12-month period, which shall be collected

2021

at the time of issuance or renewal of a policy, as a uniform

2022

percentage of the premium for the policy of up to 15 10 percent

2023

of such premium, which funds shall be used to further offset the

2024

deficit. Citizens policyholder surcharges under this sub-

2025

subparagraph are not considered premium and are not subject to

2026

commissions, fees, or premium taxes. However, failure to pay such

2027

surcharges shall be treated as failure to pay premium.

2028

j. If the amount of any assessments or surcharges collected

2029

from corporation policyholders, assessable insurers or their

2030

policyholders, or assessable insureds exceeds the amount of the

2031

deficits, such excess amounts shall be remitted to and retained

2032

by the corporation in a reserve to be used by the corporation, as

2033

determined by the board of governors and approved by the office,

2034

to pay claims or reduce any past, present, or future plan-year

2035

deficits or to reduce outstanding debt. The board of governors

2036

shall maintain separate accounting records that consolidate data

2037

for nonhomestead properties, including, but not limited to,

2038

number of policies, insured values, premiums written, and losses.

2039

The board of governors shall annually report to the office and

2040

the Legislature a summary of such data.

2041

2042

1. Must provide for adoption of residential property and

2043

casualty insurance policy forms and commercial residential and

2044

nonresidential property insurance forms, which forms must be

2045

approved by the office prior to use. The corporation shall adopt

2046

the following policy forms:

2047

a. Standard personal lines policy forms that are

2048

comprehensive multiperil policies providing full coverage of a

2049

residential property equivalent to the coverage provided in the

2050

private insurance market under an HO-3, HO-4, or HO-6 policy.

2051

b. Basic personal lines policy forms that are policies

2052

similar to an HO-8 policy or a dwelling fire policy that provide

2053

coverage meeting the requirements of the secondary mortgage

2054

market, but which coverage is more limited than the coverage

2055

under a standard policy.

2056

c. Commercial lines residential and nonresidential policy

2057

forms that are generally similar to the basic perils of full

2058

coverage obtainable for commercial residential structures and

2059

commercial nonresidential structures in the admitted voluntary

2060

market.

2061

d. Personal lines and commercial lines residential property

2062

insurance forms that cover the peril of wind only. The forms are

2063

applicable only to residential properties located in areas

2064

eligible for coverage under the high-risk account referred to in

2065

sub-subparagraph (b)2.a.

2066

e. Commercial lines nonresidential property insurance forms

2067

that cover the peril of wind only. The forms are applicable only

2068

to nonresidential properties located in areas eligible for

2069

coverage under the high-risk account referred to in sub-

2070

subparagraph (b)2.a.

2071

f. The corporation may adopt variations of the policy forms

2072

listed in sub-subparagraphs a.-e. that contain more restrictive

2073

coverage.

2074

2.a. Must provide that the corporation adopt a program in

2075

which the corporation and authorized insurers enter into quota

2076

share primary insurance agreements for hurricane coverage, as

2077

defined in s. 627.4025(2)(a), for eligible risks, and adopt

2078

property insurance forms for eligible risks which cover the peril

2079

of wind only. As used in this subsection, the term:

2080

(I) "Quota share primary insurance" means an arrangement in

2081

which the primary hurricane coverage of an eligible risk is

2082

provided in specified percentages by the corporation and an

2083

authorized insurer. The corporation and authorized insurer are

2084

each solely responsible for a specified percentage of hurricane

2085

coverage of an eligible risk as set forth in a quota share

2086

primary insurance agreement between the corporation and an

2087

authorized insurer and the insurance contract. The responsibility

2088

of the corporation or authorized insurer to pay its specified

2089

percentage of hurricane losses of an eligible risk, as set forth

2090

in the quota share primary insurance agreement, may not be

2091

altered by the inability of the other party to the agreement to

2092

pay its specified percentage of hurricane losses. Eligible risks

2093

that are provided hurricane coverage through a quota share

2094

primary insurance arrangement must be provided policy forms that

2095

set forth the obligations of the corporation and authorized

2096

insurer under the arrangement, clearly specify the percentages of

2097

quota share primary insurance provided by the corporation and

2098

authorized insurer, and conspicuously and clearly state that

2099

neither the authorized insurer nor the corporation may be held

2100

responsible beyond its specified percentage of coverage of

2101

hurricane losses.

2102

(II) "Eligible risks" means personal lines residential and

2103

commercial lines residential risks that meet the underwriting

2104

criteria of the corporation and are located in areas that were

2105

eligible for coverage by the Florida Windstorm Underwriting

2106

Association on January 1, 2002.

2107

b. The corporation may enter into quota share primary

2108

insurance agreements with authorized insurers at corporation

2109

coverage levels of 90 percent and 50 percent.

2110

c. If the corporation determines that additional coverage

2111

levels are necessary to maximize participation in quota share

2112

primary insurance agreements by authorized insurers, the

2113

corporation may establish additional coverage levels. However,

2114

the corporation's quota share primary insurance coverage level

2115

may not exceed 90 percent.

2116

d. Any quota share primary insurance agreement entered into

2117

between an authorized insurer and the corporation must provide

2118

for a uniform specified percentage of coverage of hurricane

2119

losses, by county or territory as set forth by the corporation

2120

board, for all eligible risks of the authorized insurer covered

2121

under the quota share primary insurance agreement.

2122

e. Any quota share primary insurance agreement entered into

2123

between an authorized insurer and the corporation is subject to

2124

review and approval by the office. However, such agreement shall

2125

be authorized only as to insurance contracts entered into between

2126

an authorized insurer and an insured who is already insured by

2127

the corporation for wind coverage.

2128

f. For all eligible risks covered under quota share primary

2129

insurance agreements, the exposure and coverage levels for both

2130

the corporation and authorized insurers shall be reported by the

2131

corporation to the Florida Hurricane Catastrophe Fund. For all

2132

policies of eligible risks covered under quota share primary

2133

insurance agreements, the corporation and the authorized insurer

2134

shall maintain complete and accurate records for the purpose of

2135

exposure and loss reimbursement audits as required by Florida

2136

Hurricane Catastrophe Fund rules. The corporation and the

2137

authorized insurer shall each maintain duplicate copies of policy

2138

declaration pages and supporting claims documents.

2139

g. The corporation board shall establish in its plan of

2140

operation standards for quota share agreements which ensure that

2141

there is no discriminatory application among insurers as to the

2142

terms of quota share agreements, pricing of quota share

2143

agreements, incentive provisions if any, and consideration paid

2144

for servicing policies or adjusting claims.

2145

h. The quota share primary insurance agreement between the

2146

corporation and an authorized insurer must set forth the specific

2147

terms under which coverage is provided, including, but not

2148

limited to, the sale and servicing of policies issued under the

2149

agreement by the insurance agent of the authorized insurer

2150

producing the business, the reporting of information concerning

2151

eligible risks, the payment of premium to the corporation, and

2152

arrangements for the adjustment and payment of hurricane claims

2153

incurred on eligible risks by the claims adjuster and personnel

2154

of the authorized insurer. Entering into a quota sharing

2155

insurance agreement between the corporation and an authorized

2156

insurer shall be voluntary and at the discretion of the

2157

authorized insurer.

2158

3. May provide that the corporation may employ or otherwise

2159

contract with individuals or other entities to provide

2160

administrative or professional services that may be appropriate

2161

to effectuate the plan. The corporation shall have the power to

2162

borrow funds, by issuing bonds or by incurring other

2163

indebtedness, and shall have other powers reasonably necessary to

2164

effectuate the requirements of this subsection, including,

2165

without limitation, the power to issue bonds and incur other

2166

indebtedness in order to refinance outstanding bonds or other

2167

indebtedness. The corporation may, but is not required to, seek

2168

judicial validation of its bonds or other indebtedness under

2169

chapter 75. The corporation may issue bonds or incur other

2170

indebtedness, or have bonds issued on its behalf by a unit of

2171

local government pursuant to subparagraph (p)2., in the absence

2172

of a hurricane or other weather-related event, upon a

2173

determination by the corporation, subject to approval by the

2174

office, that such action would enable it to efficiently meet the

2175

financial obligations of the corporation and that such financings

2176

are reasonably necessary to effectuate the requirements of this

2177

subsection. The corporation is authorized to take all actions

2178

needed to facilitate tax-free status for any such bonds or

2179

indebtedness, including formation of trusts or other affiliated

2180

entities. The corporation shall have the authority to pledge

2181

assessments, projected recoveries from the Florida Hurricane

2182

Catastrophe Fund, other reinsurance recoverables, market

2183

equalization and other surcharges, and other funds available to

2184

the corporation as security for bonds or other indebtedness. In

2185

recognition of s. 10, Art. I of the State Constitution,

2186

prohibiting the impairment of obligations of contracts, it is the

2187

intent of the Legislature that no action be taken whose purpose

2188

is to impair any bond indenture or financing agreement or any

2189

revenue source committed by contract to such bond or other

2190

indebtedness.

2191

4.a. Must require that the corporation operate subject to

2192

the supervision and approval of a board of governors consisting

2193

of eight individuals who are residents of this state, from

2194

different geographical areas of this state. The Governor, the

2195

Chief Financial Officer, the President of the Senate, and the

2196

Speaker of the House of Representatives shall each appoint two

2197

members of the board. At least one of the two members appointed

2198

by each appointing officer must have demonstrated expertise in

2199

insurance. The Chief Financial Officer shall designate one of the

2200

appointees as chair. All board members serve at the pleasure of

2201

the appointing officer. All members of the board of governors are

2202

subject to removal at will by the officers who appointed them.

2203

All board members, including the chair, must be appointed to

2204

serve for 3-year terms beginning annually on a date designated by

2205

the plan. Any board vacancy shall be filled for the unexpired

2206

term by the appointing officer. The Chief Financial Officer shall

2207

appoint a technical advisory group to provide information and

2208

advice to the board of governors in connection with the board's

2209

duties under this subsection. The executive director and senior

2210

managers of the corporation shall be engaged by the board and

2211

serve at the pleasure of the board. Any executive director

2212

appointed on or after July 1, 2006, is subject to confirmation by

2213

the Senate. The executive director is responsible for employing

2214

other staff as the corporation may require, subject to review and

2215

concurrence by the board.

2216

b. The board shall create a Market Accountability Advisory

2217

Committee to assist the corporation in developing awareness of

2218

its rates and its customer and agent service levels in

2219

relationship to the voluntary market insurers writing similar

2220

coverage. The members of the advisory committee shall consist of

2221

the following 11 persons, one of whom must be elected chair by

2222

the members of the committee: four representatives, one appointed

2223

by the Florida Association of Insurance Agents, one by the

2224

Florida Association of Insurance and Financial Advisors, one by

2225

the Professional Insurance Agents of Florida, and one by the

2226

Latin American Association of Insurance Agencies; three

2227

representatives appointed by the insurers with the three highest

2228

voluntary market share of residential property insurance business

2229

in the state; one representative from the Office of Insurance

2230

Regulation; one consumer appointed by the board who is insured by

2231

the corporation at the time of appointment to the committee; one

2232

representative appointed by the Florida Association of Realtors;

2233

and one representative appointed by the Florida Bankers

2234

Association. All members must serve for 3-year terms and may

2235

serve for consecutive terms. The committee shall report to the

2236

corporation at each board meeting on insurance market issues

2237

which may include rates and rate competition with the voluntary

2238

market; service, including policy issuance, claims processing,

2239

and general responsiveness to policyholders, applicants, and

2240

agents; and matters relating to depopulation.

2241

5. Must provide a procedure for determining the eligibility

2242

of a risk for coverage, as follows:

2243

a. Subject to the provisions of s. 627.3517, with respect

2244

to personal lines residential risks, if the risk is offered

2245

coverage from an authorized insurer at the insurer's approved

2246

rate under either a standard policy including wind coverage or,

2247

if consistent with the insurer's underwriting rules as filed with

2248

the office, a basic policy including wind coverage, for a new

2249

application to the corporation for coverage, the risk is not

2250

eligible for any policy issued by the corporation unless the

2251

premium for coverage from the authorized insurer is more than 15

2252

percent greater than the premium for comparable coverage from the

2253

corporation. If the risk is not able to obtain any such offer,

2254

the risk is eligible for either a standard policy including wind

2255

coverage or a basic policy including wind coverage issued by the

2256

corporation; however, if the risk could not be insured under a

2257

standard policy including wind coverage regardless of market

2258

conditions, the risk shall be eligible for a basic policy

2259

including wind coverage unless rejected under subparagraph 9.

2260

However, with regard to a policyholder of the corporation or a

2261

policyholder removed from the corporation through an assumption

2262

agreement until the end of the assumption period, the

2263

policyholder remains eligible for coverage from the corporation

2264

regardless of any offer of coverage from an authorized insurer or

2265

surplus lines insurer. The corporation shall determine the type

2266

of policy to be provided on the basis of objective standards

2267

specified in the underwriting manual and based on generally

2268

accepted underwriting practices.

2269

(I) If the risk accepts an offer of coverage through the

2270

market assistance plan or an offer of coverage through a

2271

mechanism established by the corporation before a policy is

2272

issued to the risk by the corporation or during the first 30 days

2273

of coverage by the corporation, and the producing agent who

2274

submitted the application to the plan or to the corporation is

2275

not currently appointed by the insurer, the insurer shall:

2276

(A) Pay to the producing agent of record of the policy, for

2277

the first year, an amount that is the greater of the insurer's

2278

usual and customary commission for the type of policy written or

2279

a fee equal to the usual and customary commission of the

2280

corporation; or

2281

(B) Offer to allow the producing agent of record of the

2282

policy to continue servicing the policy for a period of not less

2283

than 1 year and offer to pay the agent the greater of the

2284

insurer's or the corporation's usual and customary commission for

2285

the type of policy written.

2286

2287

If the producing agent is unwilling or unable to accept

2288

appointment, the new insurer shall pay the agent in accordance

2289

with sub-sub-sub-subparagraph (A).

2290

(II) When the corporation enters into a contractual

2291

agreement for a take-out plan, the producing agent of record of

2292

the corporation policy is entitled to retain any unearned

2293

commission on the policy, and the insurer shall:

2294

(A) Pay to the producing agent of record of the corporation

2295

policy, for the first year, an amount that is the greater of the

2296

insurer's usual and customary commission for the type of policy

2297

written or a fee equal to the usual and customary commission of

2298

the corporation; or

2299

(B) Offer to allow the producing agent of record of the

2300

corporation policy to continue servicing the policy for a period

2301

of not less than 1 year and offer to pay the agent the greater of

2302

the insurer's or the corporation's usual and customary commission

2303

for the type of policy written.

2304

2305

If the producing agent is unwilling or unable to accept

2306

appointment, the new insurer shall pay the agent in accordance

2307

with sub-sub-sub-subparagraph (A).

2308

b. With respect to commercial lines residential risks, for

2309

a new application to the corporation for coverage, if the risk is

2310

offered coverage under a policy including wind coverage from an

2311

authorized insurer at its approved rate, the risk is not eligible

2312

for any policy issued by the corporation unless the premium for

2313

coverage from the authorized insurer is more than 15 percent

2314

greater than the premium for comparable coverage from the

2315

corporation. If the risk is not able to obtain any such offer,

2316

the risk is eligible for a policy including wind coverage issued

2317

by the corporation. However, with regard to a policyholder of the

2318

corporation or a policyholder removed from the corporation

2319

through an assumption agreement until the end of the assumption

2320

period, the policyholder remains eligible for coverage from the

2321

corporation regardless of any offer of coverage from an

2322

authorized insurer or surplus lines insurer.

2323

(I) If the risk accepts an offer of coverage through the

2324

market assistance plan or an offer of coverage through a

2325

mechanism established by the corporation before a policy is

2326

issued to the risk by the corporation or during the first 30 days

2327

of coverage by the corporation, and the producing agent who

2328

submitted the application to the plan or the corporation is not

2329

currently appointed by the insurer, the insurer shall:

2330

(A) Pay to the producing agent of record of the policy, for

2331

the first year, an amount that is the greater of the insurer's

2332

usual and customary commission for the type of policy written or

2333

a fee equal to the usual and customary commission of the

2334

corporation; or

2335

(B) Offer to allow the producing agent of record of the

2336

policy to continue servicing the policy for a period of not less

2337

than 1 year and offer to pay the agent the greater of the

2338

insurer's or the corporation's usual and customary commission for

2339

the type of policy written.

2340

2341

If the producing agent is unwilling or unable to accept

2342

appointment, the new insurer shall pay the agent in accordance

2343

with sub-sub-sub-subparagraph (A).

2344

(II) When the corporation enters into a contractual

2345

agreement for a take-out plan, the producing agent of record of

2346

the corporation policy is entitled to retain any unearned

2347

commission on the policy, and the insurer shall:

2348

(A) Pay to the producing agent of record of the corporation

2349

policy, for the first year, an amount that is the greater of the

2350

insurer's usual and customary commission for the type of policy

2351

written or a fee equal to the usual and customary commission of

2352

the corporation; or

2353

(B) Offer to allow the producing agent of record of the

2354

corporation policy to continue servicing the policy for a period

2355

of not less than 1 year and offer to pay the agent the greater of

2356

the insurer's or the corporation's usual and customary commission

2357

for the type of policy written.

2358

2359

If the producing agent is unwilling or unable to accept

2360

appointment, the new insurer shall pay the agent in accordance

2361

with sub-sub-sub-subparagraph (A).

2362

c. For purposes of determining comparable coverage under

2363

sub-subparagraphs a. and b., the comparison shall be based on

2364

those forms and coverages that are reasonably comparable. The

2365

corporation may rely on a determination of comparable coverage

2366

and premium made by the producing agent who submits the

2367

application to the corporation, made in the agent's capacity as

2368

the corporation's agent. A comparison may be made solely of the

2369

premium with respect to the main building or structure only on

2370

the following basis: the same coverage A or other building

2371

limits; the same percentage hurricane deductible that applies on

2372

an annual basis or that applies to each hurricane for commercial

2373

residential property; the same percentage of ordinance and law

2374

coverage, if the same limit is offered by both the corporation

2375

and the authorized insurer; the same mitigation credits, to the

2376

extent the same types of credits are offered both by the

2377

corporation and the authorized insurer; the same method for loss

2378

payment, such as replacement cost or actual cash value, if the

2379

same method is offered both by the corporation and the authorized

2380

insurer in accordance with underwriting rules; and any other form

2381

or coverage that is reasonably comparable as determined by the

2382

board. If an application is submitted to the corporation for

2383

wind-only coverage in the high-risk account, the premium for the

2384

corporation's wind-only policy plus the premium for the ex-wind

2385

policy that is offered by an authorized insurer to the applicant

2386

shall be compared to the premium for multiperil coverage offered

2387

by an authorized insurer, subject to the standards for comparison

2388

specified in this subparagraph. If the corporation or the

2389

applicant requests from the authorized insurer a breakdown of the

2390

premium of the offer by types of coverage so that a comparison

2391

may be made by the corporation or its agent and the authorized

2392

insurer refuses or is unable to provide such information, the

2393

corporation may treat the offer as not being an offer of coverage

2394

from an authorized insurer at the insurer's approved rate.

2395

6. Must include rules for classifications of risks and

2396

rates therefor.

2397

7. Must provide that if premium and investment income for

2398

an account attributable to a particular calendar year are in

2399

excess of projected losses and expenses for the account

2400

attributable to that year, such excess shall be held in surplus

2401

in the account. Such surplus shall be available to defray

2402

deficits in that account as to future years and shall be used for

2403

that purpose prior to assessing assessable insurers and

2404

assessable insureds as to any calendar year.

2405

8. Must provide objective criteria and procedures to be

2406

uniformly applied for all applicants in determining whether an

2407

individual risk is so hazardous as to be uninsurable. In making

2408

this determination and in establishing the criteria and

2409

procedures, the following shall be considered:

2410

a. Whether the likelihood of a loss for the individual risk

2411

is substantially higher than for other risks of the same class;

2412

and

2413

b. Whether the uncertainty associated with the individual

2414

risk is such that an appropriate premium cannot be determined.

2415

2416

The acceptance or rejection of a risk by the corporation shall be

2417

construed as the private placement of insurance, and the

2418

provisions of chapter 120 shall not apply.

2419

9. Must provide that the corporation shall make its best

2420

efforts to procure catastrophe reinsurance at reasonable rates,

2421

to cover its projected 100-year probable maximum loss as

2422

determined by the board of governors.

2423

10. Must provide that in the event of regular deficit

2424

assessments under sub-subparagraph (b)3.a. or sub-subparagraph

2425

(b)3.b., in the personal lines account, the commercial lines

2426

residential account, or the high-risk account, the corporation

2427

shall levy upon corporation policyholders in its next rate

2428

filing, or by a separate rate filing solely for this purpose, a

2429

Citizens policyholder surcharge arising from a regular assessment

2430

in such account in a percentage equal to the total amount of such

2431

regular assessments divided by the aggregate statewide direct

2432

written premium for subject lines of business for the prior

2433

calendar year. For purposes of calculating the Citizens

2434

policyholder surcharge to be levied under this subparagraph, the

2435

total amount of the regular assessment to which this surcharge is

2436

related shall be determined as set forth in subparagraph (b)3.,

2437

without deducting the estimated Citizens policyholder surcharge.

2438

Citizens policyholder surcharges under this subparagraph are not

2439

considered premium and are not subject to commissions, fees, or

2440

premium taxes; however, failure to pay a market equalization

2441

surcharge shall be treated as failure to pay premium.

2442

10.11. The policies issued by the corporation must provide

2443

that, if the corporation or the market assistance plan obtains an

2444

offer from an authorized insurer to cover the risk at its

2445

approved rates, the risk is no longer eligible for renewal

2446

through the corporation, except as otherwise provided in this

2447

subsection.

2448

11.12. Corporation policies and applications must include a

2449

notice that the corporation policy could, under this section, be

2450

replaced with a policy issued by an authorized insurer that does

2451

not provide coverage identical to the coverage provided by the

2452

corporation. The notice shall also specify that acceptance of

2453

corporation coverage creates a conclusive presumption that the

2454

applicant or policyholder is aware of this potential.

2455

12.13. May establish, subject to approval by the office,

2456

different eligibility requirements and operational procedures for

2457

any line or type of coverage for any specified county or area if

2458

the board determines that such changes to the eligibility

2459

requirements and operational procedures are justified due to the

2460

voluntary market being sufficiently stable and competitive in

2461

such area or for such line or type of coverage and that consumers

2462

who, in good faith, are unable to obtain insurance through the

2463

voluntary market through ordinary methods would continue to have

2464

access to coverage from the corporation. When coverage is sought

2465

in connection with a real property transfer, such requirements

2466

and procedures shall not provide for an effective date of

2467

coverage later than the date of the closing of the transfer as

2468

established by the transferor, the transferee, and, if

2469

applicable, the lender.

2470

13.14. Must provide that, with respect to the high-risk

2471

account, any assessable insurer with a surplus as to

2472

policyholders of $25 million or less writing 25 percent or more

2473

of its total countrywide property insurance premiums in this

2474

state may petition the office, within the first 90 days of each

2475

calendar year, to qualify as a limited apportionment company. A

2476

regular assessment levied by the corporation on a limited

2477

apportionment company for a deficit incurred by the corporation

2478

for the high-risk account in 2006 or thereafter may be paid to

2479

the corporation on a monthly basis as the assessments are

2480

collected by the limited apportionment company from its insureds

2481

pursuant to s. 627.3512, but the regular assessment must be paid

2482

in full within 12 months after being levied by the corporation. A

2483

limited apportionment company shall collect from its

2484

policyholders any emergency assessment imposed under sub-

2485

subparagraph (b)3.d. The plan shall provide that, if the office

2486

determines that any regular assessment will result in an

2487

impairment of the surplus of a limited apportionment company, the

2488

office may direct that all or part of such assessment be deferred

2489

as provided in subparagraph (p)4. However, there shall be no

2490

limitation or deferment of an emergency assessment to be

2491

collected from policyholders under sub-subparagraph (b)3.d.

2492

14.15. Must provide that the corporation appoint as its

2493

licensed agents only those agents who also hold an appointment as

2494

defined in s. 626.015(3) with an insurer who at the time of the

2495

agent's initial appointment by the corporation is authorized to

2496

write and is actually writing personal lines residential property

2497

coverage, commercial residential property coverage, or commercial

2498

nonresidential property coverage within the state.

2499

15.16. Must provide, by July 1, 2007, a premium payment

2500

plan option to its policyholders which allows at a minimum for

2501

quarterly and semiannual payment of premiums. A monthly payment

2502

plan may, but is not required to, be offered.

2503

16.17. Must limit coverage on mobile homes or manufactured

2504

homes built prior to 1994 to actual cash value of the dwelling

2505

rather than replacement costs of the dwelling.

2506

17.18. May provide such limits of coverage as the board

2507

determines, consistent with the requirements of this subsection.

2508

18.19. May require commercial property to meet specified

2509

hurricane mitigation construction features as a condition of

2510

eligibility for coverage.

2511

(m)1. Rates for coverage provided by the corporation shall

2512

be actuarially sound and subject to the requirements of s.

2513

627.062, except as otherwise provided in this paragraph. The

2514

corporation shall file its recommended rates with the office at

2515

least annually. The corporation shall provide any additional

2516

information regarding the rates which the office requires. The

2517

office shall consider the recommendations of the board and issue

2518

a final order establishing the rates for the corporation within

2519

45 days after the recommended rates are filed. The corporation

2520

may not pursue an administrative challenge or judicial review of

2521

the final order of the office.

2522

2. In addition to the rates otherwise determined pursuant

2523

to this paragraph, the corporation shall impose and collect an

2524

amount equal to the premium tax provided for in s. 624.509 to

2525

augment the financial resources of the corporation.

2526

3. After the public hurricane loss-projection model under

2527

s. 627.06281 has been found to be accurate and reliable by the

2528

Florida Commission on Hurricane Loss Projection Methodology, that

2529

model shall serve as the minimum benchmark for determining the

2530

windstorm portion of the corporation's rates. This subparagraph

2531

does not require or allow the corporation to adopt rates lower

2532

than the rates otherwise required or allowed by this paragraph.

2533

4. The rate filings for the corporation which were approved

2534

by the office and which took effect January 1, 2007, are

2535

rescinded, except for those rates that were lowered. As soon as

2536

possible, the corporation shall begin using the lower rates that

2537

were in effect on December 31, 2006, and shall provide refunds to

2538

policyholders who have paid higher rates as a result of that rate

2539

filing. The rates in effect on December 31, 2006, shall remain in

2540

effect for the 2007 and 2008 calendar years except for any rate

2541

change that results in a lower rate. The next rate change that

2542

may increase rates shall take effect January 1, 2009, pursuant to

2543

a new rate filing recommended by the corporation and established

2544

by the office, subject to the requirements of this paragraph.

2545

5. Beginning on July 15, 2009, and each year thereafter,

2546

the corporation must make a recommended actuarially sound rate

2547

filing for each personal and commercial line of business it

2548

writes, to be effective no earlier than January 1, 2010.

2549

(p)1. The corporation shall certify to the office its needs

2550

for annual assessments as to a particular calendar year, and for

2551

any interim assessments that it deems to be necessary to sustain

2552

operations as to a particular year pending the receipt of annual

2553

assessments. Upon verification, the office shall approve such

2554

certification, and the corporation shall levy such annual or

2555

interim assessments. Such assessments shall be prorated as

2556

provided in paragraph (b). The corporation shall take all

2557

reasonable and prudent steps necessary to collect the amount of

2558

assessment due from each assessable insurer, including, if

2559

prudent, filing suit to collect such assessment. If the

2560

corporation is unable to collect an assessment from any

2561

assessable insurer, the uncollected assessments shall be levied

2562

as an additional assessment against the assessable insurers and

2563

any assessable insurer required to pay an additional assessment

2564

as a result of such failure to pay shall have a cause of action

2565

against such nonpaying assessable insurer. Assessments shall be

2566

included as an appropriate factor in the making of rates. The

2567

failure of a surplus lines agent to collect and remit any regular

2568

or emergency assessment levied by the corporation is considered

2569

to be a violation of s. 626.936 and subjects the surplus lines

2570

agent to the penalties provided in that section.

2571

2. The governing body of any unit of local government, any

2572

residents of which are insured by the corporation, may issue

2573

bonds as defined in s. 125.013 or s. 166.101 from time to time to

2574

fund an assistance program, in conjunction with the corporation,

2575

for the purpose of defraying deficits of the corporation. In

2576

order to avoid needless and indiscriminate proliferation,

2577

duplication, and fragmentation of such assistance programs, any

2578

unit of local government, any residents of which are insured by

2579

the corporation, may provide for the payment of losses,

2580

regardless of whether or not the losses occurred within or

2581

outside of the territorial jurisdiction of the local government.

2582

Revenue bonds under this subparagraph may not be issued until

2583

validated pursuant to chapter 75, unless a state of emergency is

2584

declared by executive order or proclamation of the Governor

2585

pursuant to s. 252.36 making such findings as are necessary to

2586

determine that it is in the best interests of, and necessary for,

2587

the protection of the public health, safety, and general welfare

2588

of residents of this state and declaring it an essential public

2589

purpose to permit certain municipalities or counties to issue

2590

such bonds as will permit relief to claimants and policyholders

2591

of the corporation. Any such unit of local government may enter

2592

into such contracts with the corporation and with any other

2593

entity created pursuant to this subsection as are necessary to

2594

carry out this paragraph. Any bonds issued under this

2595

subparagraph shall be payable from and secured by moneys received

2596

by the corporation from emergency assessments under sub-

2597

subparagraph (b)3.d., and assigned and pledged to or on behalf of

2598

the unit of local government for the benefit of the holders of

2599

such bonds. The funds, credit, property, and taxing power of the

2600

state or of the unit of local government shall not be pledged for

2601

the payment of such bonds. If any of the bonds remain unsold 60

2602

days after issuance, the office shall require all insurers

2603

subject to assessment to purchase the bonds, which shall be

2604

treated as admitted assets; each insurer shall be required to

2605

purchase that percentage of the unsold portion of the bond issue

2606

that equals the insurer's relative share of assessment liability

2607

under this subsection. An insurer shall not be required to

2608

purchase the bonds to the extent that the office determines that

2609

the purchase would endanger or impair the solvency of the

2610

insurer.

2611

3.a. The corporation shall adopt one or more programs

2612

subject to approval by the office for the reduction of both new

2613

and renewal writings in the corporation. Beginning January 1,

2614

2008, any program the corporation adopts for the payment of

2615

bonuses to an insurer for each risk the insurer removes from the

2616

corporation shall comply with s. 627.3511(2) and may not exceed

2617

the amount referenced in s. 627.3511(2) for each risk removed.

2618

The corporation may consider any prudent and not unfairly

2619

discriminatory approach to reducing corporation writings, and may

2620

adopt a credit against assessment liability or other liability

2621

that provides an incentive for insurers to take risks out of the

2622

corporation and to keep risks out of the corporation by

2623

maintaining or increasing voluntary writings in counties or areas

2624

in which corporation risks are highly concentrated and a program

2625

to provide a formula under which an insurer voluntarily taking

2626

risks out of the corporation by maintaining or increasing

2627

voluntary writings will be relieved wholly or partially from

2628

assessments under sub-subparagraphs (b)3.a. and b. However, any

2629

"take-out bonus" or payment to an insurer must be conditioned on

2630

the property being insured for at least 5 years by the insurer,

2631

unless canceled or nonrenewed by the policyholder. If the policy

2632

is canceled or nonrenewed by the policyholder before the end of

2633

the 5-year period, the amount of the take-out bonus must be

2634

prorated for the time period the policy was insured. When the

2635

corporation enters into a contractual agreement for a take-out

2636

plan, the producing agent of record of the corporation policy is

2637

entitled to retain any unearned commission on such policy, and

2638

the insurer shall either:

2639

(I) Pay to the producing agent of record of the policy, for

2640

the first year, an amount which is the greater of the insurer's

2641

usual and customary commission for the type of policy written or

2642

a policy fee equal to the usual and customary commission of the

2643

corporation; or

2644

(II) Offer to allow the producing agent of record of the

2645

policy to continue servicing the policy for a period of not less

2646

than 1 year and offer to pay the agent the insurer's usual and

2647

customary commission for the type of policy written. If the

2648

producing agent is unwilling or unable to accept appointment by

2649

the new insurer, the new insurer shall pay the agent in

2650

accordance with sub-sub-subparagraph (I).

2651

b. Any credit or exemption from regular assessments adopted

2652

under this subparagraph shall last no longer than the 3 years

2653

following the cancellation or expiration of the policy by the

2654

corporation. With the approval of the office, the board may

2655

extend such credits for an additional year if the insurer

2656

guarantees an additional year of renewability for all policies

2657

removed from the corporation, or for 2 additional years if the

2658

insurer guarantees 2 additional years of renewability for all

2659

policies so removed.

2660

c. There shall be no credit, limitation, exemption, or

2661

deferment from emergency assessments to be collected from

2662

policyholders pursuant to sub-subparagraph (b)3.d.

2663

4. The plan shall provide for the deferment, in whole or in

2664

part, of the assessment of an assessable insurer, other than an

2665

emergency assessment collected from policyholders pursuant to

2666

sub-subparagraph (b)3.d., if the office finds that payment of the

2667

assessment would endanger or impair the solvency of the insurer.

2668

In the event an assessment against an assessable insurer is

2669

deferred in whole or in part, the amount by which such assessment

2670

is deferred may be assessed against the other assessable insurers

2671

in a manner consistent with the basis for assessments set forth

2672

in paragraph (b).

2673

5. Effective July 1, 2007, in order to evaluate the costs

2674

and benefits of approved take-out plans, if the corporation pays

2675

a bonus or other payment to an insurer for an approved take-out

2676

plan, it shall maintain a record of the address or such other

2677

identifying information on the property or risk removed in order

2678

to track if and when the property or risk is later insured by the

2679

corporation.

2680

6. Any policy taken out, assumed, or removed from the

2681

corporation is, as of the effective date of the take-out,

2682

assumption, or removal, direct insurance issued by the insurer

2683

and not by the corporation, even if the corporation continues to

2684

service the policies. This subparagraph applies to policies of

2685

the corporation and not policies taken out, assumed, or removed

2686

from any other entity.

2687

(w)1. The following records of the corporation are

2688

confidential and exempt from the provisions of s. 119.07(1) and

2689

s. 24(a), Art. I of the State Constitution:

2690

a. Underwriting files, except that a policyholder or an

2691

applicant shall have access to his or her own underwriting files.

2692

Confidential and exempt underwriting file records may also be

2693

released to other governmental agencies upon written request and

2694

demonstration of need; such records held by the receiving agency

2695

remain confidential and exempt as provided herein.

2696

b. Claims files, until termination of all litigation and

2697

settlement of all claims arising out of the same incident,

2698

although portions of the claims files may remain exempt, as

2699

otherwise provided by law. Confidential and exempt claims file

2700

records may be released to other governmental agencies upon

2701

written request and demonstration of need; such records held by

2702

the receiving agency remain confidential and exempt as provided

2703

for herein.

2704

c. Records obtained or generated by an internal auditor

2705

pursuant to a routine audit, until the audit is completed, or if

2706

the audit is conducted as part of an investigation, until the

2707

investigation is closed or ceases to be active. An investigation

2708

is considered "active" while the investigation is being conducted

2709

with a reasonable, good faith belief that it could lead to the

2710

filing of administrative, civil, or criminal proceedings.

2711

d. Matters reasonably encompassed in privileged attorney-

2712

client communications.

2713

e. Proprietary information licensed to the corporation

2714

under contract and the contract provides for the confidentiality

2715

of such proprietary information.

2716

f. All information relating to the medical condition or

2717

medical status of a corporation employee which is not relevant to

2718

the employee's capacity to perform his or her duties, except as

2719

otherwise provided in this paragraph. Information that which is

2720

exempt shall include, but is not limited to, information relating

2721

to workers' compensation, insurance benefits, and retirement or

2722

disability benefits.

2723

g. Upon an employee's entrance into the employee assistance

2724

program, a program to assist any employee who has a behavioral or

2725

medical disorder, substance abuse problem, or emotional

2726

difficulty which affects the employee's job performance, all

2727

records relative to that participation shall be confidential and

2728

exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I

2729

of the State Constitution, except as otherwise provided in s.

2730

112.0455(11).

2731

h. Information relating to negotiations for financing,

2732

reinsurance, depopulation, or contractual services, until the

2733

conclusion of the negotiations.

2734

i. Minutes of closed meetings regarding underwriting files,

2735

and minutes of closed meetings regarding an open claims file

2736

until termination of all litigation and settlement of all claims

2737

with regard to that claim, except that information otherwise

2738

confidential or exempt by law shall will be redacted.

2739

2. If When an authorized insurer is considering

2740

underwriting a risk insured by the corporation, relevant

2741

underwriting files and confidential claims files may be released

2742

to the insurer provided the insurer agrees in writing, notarized

2743

and under oath, to maintain the confidentiality of such files. If

2744

When a file is transferred to an insurer that file is no longer a

2745

public record because it is not held by an agency subject to the

2746

provisions of the public records law. Underwriting files and

2747

confidential claims files may also be released to staff of and

2748

the board of governors of the market assistance plan established

2749

pursuant to s. 627.3515, who must retain the confidentiality of

2750

such files, except such files may be released to authorized

2751

insurers that are considering assuming the risks to which the

2752

files apply, provided the insurer agrees in writing, notarized

2753

and under oath, to maintain the confidentiality of such files.

2754

Finally, the corporation or the board or staff of the market

2755

assistance plan may make the following information obtained from

2756

underwriting files and confidential claims files available to

2757

licensed general lines insurance agents: name, address, and

2758

telephone number of the residential property owner or insured;

2759

location of the risk; rating information; loss history; and

2760

policy type. The receiving licensed general lines insurance agent

2761

must retain the confidentiality of the information received.

2762

3. A policyholder who has filed suit against the

2763

corporation has the right to discover the contents of his or her

2764

own claims file to the same extent that discovery of such

2765

contents would be available from a private insurer in litigation

2766

as provided by the Florida Rules of Civil Procedure, the Florida

2767

Evidence Code, and other applicable law. Pursuant to subpoena, a

2768

third party has the right to discover the contents of an

2769

insured's or applicant's underwriting or claims file to the same

2770

extent that discovery of such contents would be available from a

2771

private insurer by subpoena as provided by the Florida Rules of

2772

Civil Procedure, the Florida Evidence Code, and other applicable

2773

law, and subject to any confidentiality protections requested by

2774

the corporation and agreed to by the seeking party or ordered by

2775

the court. The corporation may release confidential underwriting

2776

and claims file contents and information as it deems necessary

2777

and appropriate to underwrite or service insurance policies and

2778

claims, subject to any confidentiality protections deemed

2779

necessary and appropriate by the corporation.

2780

4.2. Portions of meetings of the corporation are exempt

2781

from the provisions of s. 286.011 and s. 24(b), Art. I of the

2782

State Constitution wherein confidential underwriting files or

2783

confidential open claims files are discussed. All portions of

2784

corporation meetings which are closed to the public shall be

2785

recorded by a court reporter. The court reporter shall record the

2786

times of commencement and termination of the meeting, all

2787

discussion and proceedings, the names of all persons present at

2788

any time, and the names of all persons speaking. No portion of

2789

any closed meeting shall be off the record. Subject to the

2790

provisions hereof and s. 119.07(1)(e)-(g), the court reporter's

2791

notes of any closed meeting shall be retained by the corporation

2792

for a minimum of 5 years. A copy of the transcript, less any

2793

exempt matters, of any closed meeting wherein claims are

2794

discussed shall become public as to individual claims after

2795

settlement of the claim.

2796

(dd)1. For policies subject to nonrenewal as a result of

2797

the risk being no longer eligible for coverage due to being

2798

valued at $1 million or more, the corporation shall, directly or

2799

through the market assistance plan, make information from

2800

confidential underwriting and claims files of policyholders

2801

available only to licensed general lines agents who register with

2802

the corporation to receive such information according to the

2803

following procedures:

2804

2. By August 1, 2006, the corporation shall provide such

2805

policyholders who are not eligible for renewal the opportunity to

2806

request in writing, within 30 days after the notification is

2807

sent, that information from their confidential underwriting and

2808

claims files not be released to licensed general lines agents

2809

registered pursuant to this paragraph.

2810

3. By August 1, 2006, the corporation shall make available

2811

to licensed general lines agents the registration procedures to

2812

be used to obtain confidential information from underwriting and

2813

claims files for such policies not eligible for renewal. As a

2814

condition of registration, the corporation shall require the

2815

licensed general lines agent to attest that the agent has the

2816

experience and relationships with authorized or surplus lines

2817

carriers to attempt to offer replacement coverage for such

2818

policies.

2819

4. By September 1, 2006, the corporation shall make

2820

available through a secured website to licensed general lines

2821

agents registered pursuant to this paragraph application, rating,

2822

loss history, mitigation, and policy type information relating to

2823

such policies not eligible for renewal and for which the

2824

policyholder has not requested the corporation withhold such

2825

information. The registered licensed general lines agent may use

2826

such information to contact and assist the policyholder in

2827

securing replacement policies, and the agent may disclose to the

2828

policyholder that such information was obtained from the

2829

corporation.

2830

(dd)(ee) The assets of the corporation may be invested and

2831

managed by the State Board of Administration.

2832

(ee)(ff) The office may establish a pilot program to offer

2833

optional sinkhole coverage in one or more counties or other

2834

territories of the corporation for the purpose of implementing s.

2835

627.706, as amended by s. 30, chapter 2007-1, Laws of Florida.

2836

Under the pilot program, the corporation is not required to issue

2837

a notice of nonrenewal to exclude sinkhole coverage upon the

2838

renewal of existing policies, but may exclude such coverage using

2839

a notice of coverage change.

2840

Section 14. Paragraph (b) of subsection (2) of section

2841

627.4133, Florida Statutes, is amended to read:

2842

627.4133 Notice of cancellation, nonrenewal, or renewal

2843

premium.--

2844

(2) With respect to any personal lines or commercial

2845

residential property insurance policy, including, but not limited

2846

to, any homeowner's, mobile home owner's, farmowner's,

2847

condominium association, condominium unit owner's, apartment

2848

building, or other policy covering a residential structure or its

2849

contents:

2850

(b) The insurer shall give the named insured written notice

2851

of nonrenewal, cancellation, or termination at least 100 days

2852

prior to the effective date of the nonrenewal, cancellation, or

2853

termination. However, the insurer shall give at least 100 days'

2854

written notice, or written notice by June 1, whichever is

2855

earlier, for any nonrenewal, cancellation, or termination that

2856

would be effective between June 1 and November 30. The notice

2857

must include the reason or reasons for the nonrenewal,

2858

cancellation, or termination, except that:

2859

1. The insurer shall give the named insured written notice

2860

of nonrenewal, cancellation, or termination at least 180 days

2861

prior to the effective date of the nonrenewal, cancellation, or

2862

termination for a named insured whose residential structure has

2863

been insured by that insurer or an affiliated insurer for at

2864

least a 5-year period immediately prior to date of the written

2865

notice.

2866

2.1. When cancellation is for nonpayment of premium, at

2867

least 10 days' written notice of cancellation accompanied by the

2868

reason therefor shall be given. As used in this subparagraph, the

2869

term "nonpayment of premium" means failure of the named insured

2870

to discharge when due any of her or his obligations in connection

2871

with the payment of premiums on a policy or any installment of

2872

such premium, whether the premium is payable directly to the

2873

insurer or its agent or indirectly under any premium finance plan

2874

or extension of credit, or failure to maintain membership in an

2875

organization if such membership is a condition precedent to

2876

insurance coverage. "Nonpayment of premium" also means the

2877

failure of a financial institution to honor an insurance

2878

applicant's check after delivery to a licensed agent for payment

2879

of a premium, even if the agent has previously delivered or

2880

transferred the premium to the insurer. If a dishonored check

2881

represents the initial premium payment, the contract and all

2882

contractual obligations shall be void ab initio unless the

2883

nonpayment is cured within the earlier of 5 days after actual

2884

notice by certified mail is received by the applicant or 15 days

2885

after notice is sent to the applicant by certified mail or

2886

registered mail, and if the contract is void, any premium

2887

received by the insurer from a third party shall be refunded to

2888

that party in full.

2889

3.2. When such cancellation or termination occurs during

2890

the first 90 days during which the insurance is in force and the

2891

insurance is canceled or terminated for reasons other than

2892

nonpayment of premium, at least 20 days' written notice of

2893

cancellation or termination accompanied by the reason therefor

2894

shall be given except where there has been a material

2895

misstatement or misrepresentation or failure to comply with the

2896

underwriting requirements established by the insurer.

2897

4.3. The requirement for providing written notice of

2898

nonrenewal by June 1 of any nonrenewal that would be effective

2899

between June 1 and November 30 does not apply to the following

2900

situations, but the insurer remains subject to the requirement to

2901

provide such notice at least 100 days prior to the effective date

2902

of nonrenewal:

2903

a. A policy that is nonrenewed due to a revision in the

2904

coverage for sinkhole losses and catastrophic ground cover

2905

collapse pursuant to s. 627.730, as amended by s. 30, chapter

2906

2007-1, Laws of Florida.

2907

b. A policy that is nonrenewed by Citizens Property

2908

Insurance Corporation, pursuant to s. 627.351(6), for a policy

2909

that has been assumed by an authorized insurer offering

2910

replacement or renewal coverage to the policyholder.

2911

2912

After the policy has been in effect for 90 days, the policy shall

2913

not be canceled by the insurer except when there has been a

2914

material misstatement, a nonpayment of premium, a failure to

2915

comply with underwriting requirements established by the insurer

2916

within 90 days of the date of effectuation of coverage, or a

2917

substantial change in the risk covered by the policy or when the

2918

cancellation is for all insureds under such policies for a given

2919

class of insureds. This paragraph does not apply to individually

2920

rated risks having a policy term of less than 90 days.

2921

Section 15. Effective January 1, 2011, section 689.262,

2922

Florida Statutes, is created to read:

2923

689.262 Sale of residential property; disclosure of

2924

windstorm mitigation rating.--A purchaser of residential property

2925

that is located in the wind-borne debris region, as defined in s.

2926

1609.2 of the International Building Code(2006), must be

2927

informed of the windstorm mitigation rating of the structure,

2928

based on the uniform home grading scale adopted pursuant to s.

2929

215.55865. The rating must be included in the contract for sale

2930

or as a separate document attached to the contract for sale. The

2931

Financial Services Commission may adopt rules, consistent with

2932

other state laws, to administer this section, including the form

2933

of the disclosure and the requirements for the windstorm

2934

mitigation inspection or report that is required for purposes of

2935

determining the rating.

2936

Section 16. (1) By December 15, 2008, Citizens Property

2937

Insurance Corporation shall transfer $250 million to the General

2938

Revenue Fund, from the personal lines account and the commercial

2939

lines account only, if the combined surplus of the personal lines

2940

account and commercial lines account as defined in s. 627.351(6),

2941

Florida Statutes, exceeds $1 billion. The board of governors of

2942

Citizens Property Insurance Corporation must make a reasonable

2943

estimate of such surplus on or after December 1, 2008, and no

2944

later than December 14, 2008, using generally accepted actuarial

2945

and accounting practices, recognizing that audited financial

2946

statements will not yet be available.

2947

(2) Beginning July 1, 2009, the board shall make quarterly

2948

transfers of any interest earned prior to the issuance of any

2949

surplus notes, interest paid, and principal repaid to the state

2950

for any surplus notes issued by the program after December 1,

2951

2008, to Citizens Property Insurance Corporation, provided such

2952

surplus notes were funded exclusively by an appropriation to the

2953

program by the Legislature for the 2008-2009 fiscal year. The

2954

corporation shall credit each account as defined in s. 627.351(6)

2955

in a pro rata manner for the funds removed from each account to

2956

make the transfer required by subsection (1).

2957

(3) On July 1, 2009, the State Board of Administration

2958

shall transfer to Citizens Property Insurance Corporation any

2959

funds that have not been committed or reserved for insurers

2960

approved to receive such funds under the program from the funds

2961

that were appropriated from the corporation in 2008-2009 for such

2962

purposes.

2963

Section 17. Citizens Property Insurance Corporation may not

2964

use any amendments made to s. 215.5595, Florida Statutes, by this

2965

act or any transfer of funds authorized by this act as

2966

justification or cause in seeking any rate or assessment

2967

increase.

2968

Section 18. Subsection (3) is added to section 627.06281,

2969

Florida Statutes, to read:

2970

627.06281 Public hurricane loss projection model; reporting

2971

of data by insurers.--

2972

(3)(a) A residential property insurer may have access to

2973

and use the public hurricane loss projection model, including all

2974

assumptions and factors and all detailed loss results, for the

2975

purpose of calculating rate indications in a rate filing and for

2976

analytical purposes, including any analysis or evaluation of the

2977

model required under actuarial standards of practice.

2978

(b) By January 1, 2009, the office shall establish by rule

2979

a fee schedule for access to and the use of the model. The fee

2980

schedule must be reasonably calculated to cover only the actual

2981

costs of providing access to and the use of the model.

2982

Section 19. Section 627.0655, Florida Statutes, is amended

2983

to read:

2984

627.0655 Policyholder loss or expense-related premium

2985

discounts.--An insurer or person authorized to engage in the

2986

business of insurance in this state may include, in the premium

2987

charged an insured for any policy, contract, or certificate of

2988

insurance, a discount based on the fact that another policy,

2989

contract, or certificate of any type has been purchased by the

2990

insured from the same insurer or insurer group, the Citizens

2991

Property Insurance Corporation created under s. 627.351(6) if the

2992

same insurance agent is servicing both policies, or an insurer

2993

that has removed the policy from the Citizens Property Insurance

2994

Corporation if the same insurance agent is servicing both

2995

policies.

2996

Section 20. (1) The Citizens Property Insurance

2997

Corporation Mission Review Task Force is created to analyze and

2998

compile available data and to develop a report setting forth the

2999

statutory and operational changes needed to return Citizens

3000

Property Insurance Corporation to its former role as a state-

3001

created, noncompetitive residual market mechanism that provides

3002

property insurance coverage to risks that are otherwise entitled

3003

but unable to obtain such coverage in the private insurance

3004

market. The task force shall submit a report to the Governor, the

3005

President of the Senate, and the Speaker of the House of

3006

Representatives by January 31, 2009. At a minimum, the task force

3007

shall analyze and evaluate relevant and applicable information

3008

and data and develop recommendations concerning:

3009

(a) The nature of Citizens Property Insurance Corporation's

3010

role in providing property insurance coverage only if such

3011

coverage is not available from private insurers.

3012

(b) The ability of the admitted market to offer policies to

3013

those consumers formerly insured through Citizens Property

3014

Insurance Corporation. This consideration shall include, but not

3015

be limited to, the availability of private market reinsurance and

3016

coverage through the Florida Hurricane Catastrophe Fund and the

3017

capacity of the industry to offer policies to former Citizens

3018

Property Insurance Corporation policyholders within existing

3019

writing ratio limitations.

3020

3021

Insurance Corporation to rates charged by private insurers, with

3022

due consideration for the corporation's role as a noncompetitive

3023

residual market mechanism.

3024

(d) The relationships between the exposure of Citizens

3025

Property Insurance Corporation to catastrophic hurricane losses,

3026

the corporation's history of purchasing any reinsurance coverage,

3027

and the corporation's capital capacity to meet its potential

3028

claim obligations without incurring large deficits.

3029

(e) The projected assessments on all policies required to

3030

offset the lack of capitol to pay claims.

3031

(f) The projections under paragraph (e) shall be specific

3032

to losses of $3 billion, $12 billion, and $23 billion caused by a

3033

storm or a group of storms in any given year.

3034

(g) The operational implications of the variation in the

3035

number of policies in force over time in Citizens Property

3036

Insurance Corporation and the merits of outsourcing some or all

3037

of its operational responsibilities.

3038

(h) Changes in the mission and operations of Citizens

3039

Property Insurance Corporation to reduce or eliminate any adverse

3040

effect such mission and operations may be having on the promotion

3041

of sound and economic growth and development of the coastal areas

3042

of this state.

3043

(i) Appropriate and consistent geographic boundaries of the

3044

high-risk account.

3045

(j) The rankings, by county, of the average approved rates

3046

in Citizens Property Insurance Corporation and any savings

3047

associated with policyholder choice in selecting Citizens.

3048

(2) The task force shall be composed of 11 members as

3049

follows:

3050

(a) Two members appointed by the Speaker of the House of

3051

Representatives.

3052

1. One member representing a property and casualty

3053

residential insurer that provides at least 150,000 homeowner's

3054

insurance policies in this state at the time of the creation of

3055

the task force.

3056

2. One member representing a surplus lines insurance

3057

company.

3058

(b) Two members appointed by the President of the

3059

Senate.

3060

1. One member representing a property and casualty

3061

commercial non-residential insurer.

3062

2. One member representing a property and casualty

3063

residential insurer with fewer than 150,000 homeowner's policies

3064

in this state at the time of the creation of the task force.

3065

3066

employed by or professionally affiliated with an insurance

3067

company or a subsidiary of an insurance company, at least one of

3068

whom must be consumer advocates or members of a consumer advocacy

3069

organization or agency.

3070

(d) Two members appointed by the Chief Financial Officer

3071

representing insurance agents in this state.

3072

(e) One member representing Citizens Property Insurance

3073

Corporation selected by Citizens Chairman of the Board.

3074

(f) The Commissioner of Insurance Regulation or his or her

3075

designee.

3076

(3) The task force shall conduct research, hold public

3077

meetings, receive testimony, employ consultants and

3078

administrative staff, and undertake other activities determined

3079

by its members to be necessary to complete its responsibilities.

3080

Citizens Property Insurance Corporation shall have appropriate

3081

senior staff attend task force meetings, shall respond to

3082

requests for testimony and data by the task force, shall

3083

otherwise cooperate with the task force, and shall provide

3084

funding for the necessary costs of implementing the provisions of

3085

this section.

3086

(4) A member of the task force may not delegate his or her

3087

attendance or voting power to a designee.

3088

(5) Members of the task force shall serve without

3089

compensation but are entitled to receive reimbursement for travel

3090

and per diem as provided in s. 112.061, Florida Statutes.

3091

(6) The appointments to the task force must be completed

3092

within 30 calendar days after the effective date of this act, and

3093

the task force must hold its initial meeting within 1 month after

3094

appointment of all members. The task force shall expire no later

3095

than 60 calendar days after submission of the report required in

3096

subsection (1).

3097

Section 21. The Chief Financial Officer shall provide a

3098

report on the economic impact on the state of a 1-in-100-year

3099

hurricane to the Governor, the President of the Senate, and the

3100

Speaker of the House of Representatives by March 1 of each year.

3101

The report shall include an estimate of the short-term and long-

3102

term fiscal impacts of such a storm on Citizens Property

3103

Insurance Corporation, the Florida Hurricane Catastrophe Fund,

3104

the private insurance and reinsurance markets, the state economy,

3105

and the state debt. The report shall also include an analysis of

3106

the average premium increase to fund a 1-in-100-year hurricane

3107

event and list the average cost, in both a percentage and dollar

3108

amount, impact to consumers on a county-level basis. The report

3109

may also include recommendations by the Chief Financial Officer

3110

for preparing for such a hurricane and reducing the economic

3111

impact of such a hurricane on the state. In preparing the

3112

analysis, the Chief Financial Officer shall coordinate with and

3113

obtain data from the Office of Insurance Regulation, Citizens

3114

Property Insurance Corporation, the Florida Hurricane Catastrophe

3115

Fund, the Florida Commission on Hurricane Loss Projection

3116

Methodology, the State Board of Administration, the Office of

3117

Economic and Demographic Research, and other state agencies.

3118

Section 22. Section 627.0621, Florida Statutes, is created

3119

to read:

3120

627.0621 Transparency in rate regulation.--

3121

(1) DEFINITIONS.--As used in this section, the term:

3122

(a) "Rate filing" means any original or amended rate

3123

residential property insurance filing.

3124

(b) "Recommendation" means any proposed, preliminary, or

3125

final recommendation from an office actuary reviewing a rate

3126

filing with respect to the issue of approval or disapproval of

3127

the rate filing or with respect to rate indications that the

3128

office would consider acceptable.

3129

(2) WEBSITE FOR PUBLIC ACCESS TO RATE FILING

3130

INFORMATION.--With respect to any rate filing made on after July

3131

1, 2008, the office shall provide the following information on a

3132

publicly accessible Internet website:

3133

(a) The overall rate change requested by the insurer.

3134

(b) All assumptions made by the office's actuaries.

3135

3136

deviate from the actuarial standards of practice of the Casualty

3137

Actuarial Society or the American Academy of Actuaries, including

3138

an explanation of the nature, rationale, and effect of the

3139

deviation.

3140

(d) All recommendations made by any office actuary who

3141

reviewed the rate filing.

3142

(e) Certification by the office's actuary that, based on

3143

the actuary's knowledge, his or her recommendations are

3144

consistent with accepted actuarial principles.

3145

(f) The overall rate change approved by the office.

3146

(3) ATTORNEY-CLIENT PRIVILEGE; WORK PRODUCT.--It is the

3147

intent of the Legislature that the principles of the public

3148

records and open meetings laws apply to the assertion of

3149

attorney-client privilege and work product confidentiality by the

3150

office in connection with a challenge to its actions on a rate

3151

filing. Therefore, in any administrative or judicial proceeding

3152

relating to a rate filing, attorney-client privilege and work

3153

product exemptions from disclosure do not apply to communications

3154

with office attorneys or records prepared by or at the direction

3155

of an office attorney, except when the conditions of paragraphs

3156

(a) and (b) have been met:

3157

(a) The communication or record reflects a mental

3158

impression, conclusion, litigation strategy, or legal theory of

3159

the attorney or office that was prepared exclusively for civil or

3160

criminal litigation or adversarial administrative proceedings.

3161

(b) The communication occurred or the record was prepared

3162

after the initiation of an action in a court of competent

3163

jurisdiction, after the issuance of a notice of intent to deny a

3164

rate filing, or after the filing of a request for a proceeding

3165

under ss. 120.569 and 120.57.

3166

Section 23. Paragraph (b) of subsection (4) of section

3167

215.555, Florida Statutes, is amended to read:

3168

215.555 Florida Hurricane Catastrophe Fund.--

3169

(4) REIMBURSEMENT CONTRACTS.--

3170

(b)1. The contract shall contain a promise by the board to

3171

reimburse the insurer for 45 percent, 75 percent, or 90 percent

3172

of its losses from each covered event in excess of the insurer's

3173

retention, plus 5 percent of the reimbursed losses to cover loss

3174

adjustment expenses.

3175

2. The insurer must elect one of the percentage coverage

3176

levels specified in this paragraph and may, upon renewal of a

3177

reimbursement contract, elect a lower percentage coverage level

3178

if no revenue bonds issued under subsection (6) after a covered

3179

event are outstanding, or elect a higher percentage coverage

3180

level, regardless of whether or not revenue bonds are

3181

outstanding. All members of an insurer group must elect the same

3182

percentage coverage level. Any joint underwriting association,

3183

risk apportionment plan, or other entity created under s. 627.351

3184

must elect the 90-percent coverage level.

3185

3. The contract shall provide that reimbursement amounts

3186

shall not be reduced by reinsurance paid or payable to the

3187

insurer from other sources.

3188

4. Notwithstanding any other provision contained in this

3189

section, the board shall make available to insurers that

3190

purchased coverage provided by this subparagraph in 2007 2006,

3191

insurers qualifying as limited apportionment companies under s.

3192

627.351(6)(c), and insurers that have been were approved to

3193

participate in 2006 or that are approved in 2007 for the

3194

Insurance Capital Build-Up Incentive Program pursuant to s.

3195

215.5595, a contract or contract addendum that provides an

3196

additional amount of reimbursement coverage of up to $10 million.

3197

The premium to be charged for this additional reimbursement

3198

coverage shall be 50 percent of the additional reimbursement

3199

coverage provided, which shall include one prepaid reinstatement.

3200

The minimum retention level that an eligible participating

3201

insurer must retain associated with this additional coverage

3202

layer is 30 percent of the insurer's surplus as of December 31,

3203

2007 2006. This coverage shall be in addition to all other

3204

coverage that may be provided under this section. The coverage

3205

provided by the fund under this subparagraph shall be in addition

3206

to the claims-paying capacity as defined in subparagraph (c)1.,

3207

but only with respect to those insurers that select the

3208

additional coverage option and meet the requirements of this

3209

subparagraph. The claims-paying capacity with respect to all

3210

other participating insurers and limited apportionment companies

3211

that do not select the additional coverage option shall be

3212

limited to their reimbursement premium's proportionate share of

3213

the actual claims-paying capacity otherwise defined in

3214

subparagraph (c)1. and as provided for under the terms of the

3215

reimbursement contract. Coverage provided in the reimbursement

3216

contract shall will not be affected by the additional premiums

3217

paid by participating insurers exercising the additional coverage

3218

option allowed in this subparagraph. This subparagraph expires on

3219

May 31, 2009 2008.

3220

Section 24. Subsection (1) of section 627.0613, Florida

3221

Statutes, is amended to read:

3222

627.0613 Consumer advocate.--The Chief Financial Officer

3223

must appoint a consumer advocate who must represent the general

3224

public of the state before the department and the office. The

3225

consumer advocate must report directly to the Chief Financial

3226

Officer, but is not otherwise under the authority of the

3227

department or of any employee of the department. The consumer

3228

advocate has such powers as are necessary to carry out the duties

3229

of the office of consumer advocate, including, but not limited

3230

to, the powers to:

3231

(1) Recommend to the department or office, by petition, the

3232

commencement of any proceeding or action; appear in any

3233

proceeding or action before the department or office; or appear

3234

in any proceeding before the Division of Administrative Hearings

3235

or arbitration panel specified in s. 627.062(6) relating to

3236

subject matter under the jurisdiction of the department or

3237

office.

3238

Section 25. Subsections (1) and (2) of section 627.712,

3239

Florida Statutes, are amended to read:

3240

627.712 Residential windstorm coverage required;

3241

availability of exclusions for windstorm or contents.--

3242

(1) An insurer issuing a residential property insurance

3243

policy must provide windstorm coverage. Except as provided in

3244

paragraph (2)(c), this section subsection does not apply with

3245

respect to risks that are eligible for wind-only coverage from

3246

Citizens Property Insurance Corporation under s. 627.351(6).

3247

(2) A property insurer must make available, at the option

3248

of the policyholder, an exclusion of windstorm coverage.

3249

(a) The coverage may be excluded only if:

3250

(a)1. When the policyholder is a natural person, the

3251

policyholder personally writes and provides to the insurer the

3252

following statement in his or her own handwriting and signs his

3253

or her name, which must also be signed by every other named

3254

insured on the policy, and dated: "I do not want the insurance on

3255

my (home/mobile home/condominium unit) to pay for damage from

3256

windstorms. I will pay those costs. My insurance will not."

3257

2. When the policyholder is other than a natural person,

3258

the policyholder provides to the insurer on the policyholder's

3259

letterhead the following statement that must be signed by the

3260

policyholder's authorized representative and dated: " (Name of

3261

entity) does not want the insurance on its (type of

3262

structure) to pay for damage from windstorms. (Name of

3263

entity) will be responsible for these costs. (Name of

3264

entity's) insurance will not."

3265

(b) If the structure insured by the policy is subject to a

3266

mortgage or lien, the policyholder must provide the insurer with

3267

a written statement from the mortgageholder or lienholder

3268

indicating that the mortgageholder or lienholder approves the

3269

policyholder electing to exclude windstorm coverage or hurricane

3270

coverage from his or her or its property insurance policy.

3271

3272

coverage from Citizens Property Insurance Corporation, an insurer

3273

nonrenewing a policy and issuing a replacement policy, or issuing

3274

a new policy, that does not provide wind coverage shall provide a

3275

notice to the mortgageholder or lienholder indicating the

3276

policyholder has elected coverage that does not cover wind.

3277

Section 26. The provisions of this act shall supersede and

3278

control over any conflicting provisions adopted in House Bill

3279

5057, 2008 Regular Session, to the extent of such conflict, if

3280

that bill becomes a law.

3281

Section 27. Except as otherwise expressly provided in this

3282

act, this act shall take effect July 1, 2008.

CODING: Words stricken are deletions; words underlined are additions.