1 | A bill to be entitled |
2 | An act relating to windstorm insurance coverage; amending |
3 | s. 215.555, F.S.; providing additional legislative |
4 | findings; revising certain definitions; providing for |
5 | application of the Florida Hurricane Catastrophe Fund to |
6 | costs of the Florida Windstorm Insurance Program; revising |
7 | certain reimbursement contract board obligation |
8 | limitations; providing for future expiration of certain |
9 | limitations; revising legislative findings and |
10 | declarations relating to revenue bonds; providing for |
11 | application to coverage of costs of property damage under |
12 | policies issued under the Florida Windstorm Insurance |
13 | Program; revising emergency assessment requirement |
14 | provisions to include application to policies issued under |
15 | the Florida Windstorm Insurance Program; providing for |
16 | future expiration of certain provisions; creating the |
17 | Florida Windstorm Insurance Program within the Florida |
18 | Hurricane Catastrophe Fund; providing a purpose; providing |
19 | definitions; providing requirements for coverage, |
20 | standards, and policy forms under the program; providing |
21 | limitations; providing for administration of the program |
22 | by the State Board of Administration; requiring the board |
23 | to adopt rules; providing an eligibility limitation on |
24 | certain properties' participation in the program; |
25 | providing requirements for insurers participating in the |
26 | program; providing contract requirements; providing for |
27 | participating insurer compliance audits; specifying powers |
28 | and duties of the program; providing claims payment |
29 | requirements; providing for payment of certain insurer's |
30 | costs and expenses; providing for penalties for insurers |
31 | for certain actions; specifying absence of liability for |
32 | certain actions; providing for effect of termination of an |
33 | insurer's participation; specifying ratemaking |
34 | requirements; authorizing the board to add a rapid cash |
35 | buildup premium surcharge to rates under certain |
36 | circumstances; requiring the board to adopt a rate plan; |
37 | providing requirements for procuring reinsurance; |
38 | authorizing the board to waive or modify certain |
39 | reinsurance requirements; requiring an annual report to |
40 | the Legislature; requiring windstorm coverage under |
41 | certain insurance policies issued by certain insurers to |
42 | be subject to certain rate standards requirements; |
43 | providing transitional requirements; specifying |
44 | requirements for the board in implementing the program; |
45 | amending s. 627.351, F.S.; prohibiting the Citizens |
46 | Property Insurance Corporation from issuing or renewing |
47 | certain windstorm-only insurance policies after a certain |
48 | date; providing requirements for transfer of policies of |
49 | the corporation to the program; providing for transfer of |
50 | certain proceeds and funds to the Florida Hurricane |
51 | Catastrophe Fund for certain purposes; amending s. |
52 | 627.712, F.S.; revising windstorm coverage requirements |
53 | for insurers; providing effective dates. |
54 |
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55 | Be It Enacted by the Legislature of the State of Florida: |
56 |
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57 | Section 1. Effective June 1, 2009, paragraph (h) is added |
58 | to subsection (1) of section 215.555, Florida Statutes, |
59 | paragraphs (a), (c), and (e) of subsection (2), subsection (3), |
60 | paragraph (c) of subsection (4), and paragraphs (a) and (b) of |
61 | subsection (6) of that section are amended, and subsection (18) |
62 | is added to that section, to read: |
63 | 215.555 Florida Hurricane Catastrophe Fund.-- |
64 | (1) FINDINGS AND PURPOSE.--The Legislature finds and |
65 | declares as follows: |
66 | (h)1. The Legislature further finds that, as of January |
67 | 2008, more than 15 years of efforts to use state regulatory, |
68 | financial, and insurance mechanisms to ensure availability and |
69 | affordability of residential property insurance coverage have |
70 | failed to satisfactorily achieve these goals. |
71 | 2. The continuing lack of available, affordable coverage |
72 | creates a substantial burden on the state's economy. |
73 | 3. The unsatisfactory performance of a system intended to |
74 | provide available, affordable coverage for windstorm losses in |
75 | this state indicates that, in light of this state's unique |
76 | exposure to windstorm losses, windstorm may be an uninsurable |
77 | peril in all or parts of this state as the concept of |
78 | insurability is commonly understood. Therefore, a restructured |
79 | system of protecting homeowners from windstorm losses is |
80 | necessary to maintain the viability of the economy of this |
81 | state. |
82 | (2) DEFINITIONS.--As used in this section: |
83 | (a) "Actuarially indicated" means, with respect to |
84 | premiums paid by insurers for reimbursement provided by the fund |
85 | under subsection (4) and premiums paid by insureds for windstorm |
86 | coverage provided under subsection (18), an amount determined |
87 | according to principles of actuarial science to be adequate, but |
88 | not excessive, in the aggregate, to pay current and future |
89 | obligations and expenses of the fund, including additional |
90 | amounts if needed to pay debt service on revenue bonds issued |
91 | under this section and to provide required debt service coverage |
92 | in excess of the amounts required to pay actual debt service on |
93 | revenue bonds issued under subsection (6), and: |
94 | 1. With respect to premiums paid by insurers for |
95 | reimbursement under subsection (4), determined according to |
96 | principles of actuarial science to reflect each insurer's |
97 | relative exposure to hurricane losses; or |
98 | 2. With respect to premiums paid by insureds for windstorm |
99 | coverage under subsection (18), determined according to |
100 | principles of actuarial science to reflect each insured's |
101 | relative exposure to windstorm losses. |
102 | (c) "Covered policy" means any insurance policy covering |
103 | residential property in this state, including, but not limited |
104 | to, any homeowner's, mobile home owner's, farm owner's, |
105 | condominium association, condominium unit owner's, tenant's, or |
106 | apartment building policy, or any other policy covering a |
107 | residential structure or its contents issued by any authorized |
108 | insurer, including a commercial self-insurance fund holding a |
109 | certificate of authority issued by the Office of Insurance |
110 | Regulation under s. 624.462, the Citizens Property Insurance |
111 | Corporation, and any joint underwriting association or similar |
112 | entity created under law. The term "covered policy" includes any |
113 | collateral protection insurance policy covering personal |
114 | residences which protects both the borrower's and the lender's |
115 | financial interests, in an amount at least equal to the coverage |
116 | for the dwelling in place under the lapsed homeowner's policy, |
117 | if such policy can be accurately reported as required in |
118 | subsection (5). Additionally, covered policies include policies |
119 | covering the peril of wind removed from the Florida Residential |
120 | Property and Casualty Joint Underwriting Association or from the |
121 | Citizens Property Insurance Corporation, created under s. |
122 | 627.351(6), or from the Florida Windstorm Underwriting |
123 | Association, created under s. 627.351(2), by an authorized |
124 | insurer under the terms and conditions of an executed assumption |
125 | agreement between the authorized insurer and such association or |
126 | Citizens Property Insurance Corporation. Each assumption |
127 | agreement between the association and such authorized insurer or |
128 | Citizens Property Insurance Corporation must be approved by the |
129 | Office of Insurance Regulation before the effective date of the |
130 | assumption, and the Office of Insurance Regulation must provide |
131 | written notification to the board within 15 working days after |
132 | such approval. "Covered policy" does not include any policy that |
133 | excludes wind coverage or hurricane coverage or any reinsurance |
134 | agreement and does not include any policy otherwise meeting this |
135 | definition which is issued by a surplus lines insurer or a |
136 | reinsurer. All commercial residential excess policies and all |
137 | deductible buy-back policies that, based on sound actuarial |
138 | principles, require individual ratemaking shall be excluded by |
139 | rule if the actuarial soundness of the fund is not jeopardized. |
140 | For this purpose, the term "excess policy" means a policy that |
141 | provides insurance protection for large commercial property |
142 | risks and that provides a layer of coverage above a primary |
143 | layer insured by another insurer. Effective June 1, 2010, the |
144 | term "covered policy" does not include any policy providing |
145 | personal lines residential property insurance coverage as |
146 | defined in subsection (18). |
147 | (e) "Retention" means the amount of losses below which an |
148 | insurer is not entitled to reimbursement from the fund. An |
149 | insurer's retention shall be calculated as follows: |
150 | 1. The board shall calculate and report to each insurer |
151 | the retention multiples for that year. For the contract year |
152 | beginning June 1, 2005, the retention multiple shall be equal to |
153 | $4.5 billion divided by the total estimated reimbursement |
154 | premium for the contract year; for the contract year beginning |
155 | June 1, 2006, through the contract year beginning June 1, 2009 |
156 | subsequent years, the retention multiple shall be equal to $4.5 |
157 | billion, adjusted based upon the reported exposure from the |
158 | prior contract year to reflect the percentage growth in exposure |
159 | to the fund for covered policies since 2004, divided by the |
160 | total estimated reimbursement premium for the contract year. For |
161 | the contract year beginning June 1, 2010, the retention multiple |
162 | shall be equal to $1 billion divided by the total estimated |
163 | reimbursement premium for the contract year; for subsequent |
164 | years, the retention multiple shall be equal to $1 billion, |
165 | adjusted based upon the reported exposure from the prior |
166 | contract year to reflect the percentage growth in exposure to |
167 | the fund for covered policies since 2009, divided by the total |
168 | estimated reimbursement premium for the contract year. Total |
169 | reimbursement premium for purposes of the calculation under this |
170 | subparagraph shall be estimated using the assumption that all |
171 | insurers have selected the 90-percent coverage level. |
172 | 2. The retention multiple as determined under subparagraph |
173 | 1. shall be adjusted to reflect the coverage level elected by |
174 | the insurer. For insurers electing the 90-percent coverage |
175 | level, the adjusted retention multiple is 100 percent of the |
176 | amount determined under subparagraph 1. For insurers electing |
177 | the 75-percent coverage level, the retention multiple is 120 |
178 | percent of the amount determined under subparagraph 1. For |
179 | insurers electing the 45-percent coverage level, the adjusted |
180 | retention multiple is 200 percent of the amount determined under |
181 | subparagraph 1. |
182 | 3. An insurer shall determine its provisional retention by |
183 | multiplying its provisional reimbursement premium by the |
184 | applicable adjusted retention multiple and shall determine its |
185 | actual retention by multiplying its actual reimbursement premium |
186 | by the applicable adjusted retention multiple. |
187 | 4. For insurers who experience multiple covered events |
188 | causing loss during the contract year, beginning June 1, 2005, |
189 | each insurer's full retention shall be applied to each of the |
190 | covered events causing the two largest losses for that insurer. |
191 | For each other covered event resulting in losses, the insurer's |
192 | retention shall be reduced to one-third of the full retention. |
193 | The reimbursement contract shall provide for the reimbursement |
194 | of losses for each covered event based on the full retention |
195 | with adjustments made to reflect the reduced retentions after |
196 | January 1 of the contract year provided the insurer reports its |
197 | losses as specified in the reimbursement contract. |
198 | (3) FLORIDA HURRICANE CATASTROPHE FUND CREATED.--There is |
199 | created the Florida Hurricane Catastrophe Fund to be |
200 | administered by the State Board of Administration. Moneys in the |
201 | fund may not be expended, loaned, or appropriated except to pay |
202 | obligations of the fund arising out of reimbursement contracts |
203 | entered into under subsection (4), payment of debt service on |
204 | revenue bonds issued under subsection (6), costs of the |
205 | mitigation program under subsection (7), costs of procuring |
206 | reinsurance, costs of the Florida Windstorm Insurance Program |
207 | under subsection (18), and costs of administration of the fund. |
208 | The board shall invest the moneys in the fund pursuant to ss. |
209 | 215.44-215.52. Except as otherwise provided in this section, |
210 | earnings from all investments shall be retained in the fund. The |
211 | board may employ or contract with such staff and professionals |
212 | as the board deems necessary for the administration of the fund. |
213 | The board may adopt such rules as are reasonable and necessary |
214 | to implement this section and shall specify interest due on any |
215 | delinquent remittances, which interest may not exceed the fund's |
216 | rate of return plus 5 percent. Such rules must conform to the |
217 | Legislature's specific intent in establishing the fund as |
218 | expressed in subsection (1), must enhance the fund's potential |
219 | ability to respond to claims for covered events, must contain |
220 | general provisions so that the rules can be applied with |
221 | reasonable flexibility so as to accommodate insurers in |
222 | situations of an unusual nature or where undue hardship may |
223 | result, except that such flexibility may not in any way impair, |
224 | override, supersede, or constrain the public purpose of the |
225 | fund, and must be consistent with sound insurance practices. The |
226 | board may, by rule, provide for the exemption from subsections |
227 | (4) and (5) of insurers writing covered policies with less than |
228 | $10 million in aggregate exposure for covered policies if the |
229 | exemption does not affect the actuarial soundness of the fund. |
230 | (4) REIMBURSEMENT CONTRACTS.-- |
231 | (c)1.a. The contract shall also provide that the |
232 | obligation of the board with respect to all contracts covering a |
233 | particular contract year shall not exceed the actual claims- |
234 | paying capacity of the fund up to a limit of $15 billion for |
235 | that contract year adjusted based upon the reported exposure |
236 | from the prior contract year to reflect the percentage growth in |
237 | exposure to the fund for covered policies since 2003, provided |
238 | the dollar growth in the limit may not increase in any year by |
239 | an amount greater than the dollar growth of the balance of the |
240 | fund as of December 31, less any premiums or interest |
241 | attributable to optional coverage, as defined by rule which |
242 | occurred over the prior calendar year. This sub-subparagraph |
243 | expires June 1, 2010. |
244 | b. For the contract year beginning June 1, 2010, and |
245 | subsequent contract years, the contract shall provide that the |
246 | obligation of the board with respect to all reimbursement |
247 | contracts covering a particular contract year shall not exceed |
248 | $3 billion for that contract year plus an adjustment based upon |
249 | the reported exposure from the prior contract year to reflect |
250 | the percentage growth in exposure of the fund for commercial |
251 | lines residential policies since 2009. |
252 | 2. In May before the start of the upcoming contract year |
253 | and in October during the contract year, the board shall publish |
254 | in the Florida Administrative Weekly a statement of the fund's |
255 | estimated borrowing capacity and the projected balance of the |
256 | fund as of December 31. After the end of each calendar year, the |
257 | board shall notify insurers of the estimated borrowing capacity |
258 | and the balance of the fund as of December 31 to provide |
259 | insurers with data necessary to assist them in determining their |
260 | retention and projected payout from the fund for loss |
261 | reimbursement purposes. In conjunction with the development of |
262 | the premium formula, as provided for in subsection (5), the |
263 | board shall publish factors or multiples that assist insurers in |
264 | determining their retention and projected payout for the next |
265 | contract year. For all regulatory and reinsurance purposes, an |
266 | insurer may calculate its projected payout from the fund as its |
267 | share of the total fund premium for the current contract year |
268 | multiplied by the sum of the projected balance of the fund as of |
269 | December 31 and the estimated borrowing capacity for that |
270 | contract year as reported under this subparagraph. |
271 | (6) REVENUE BONDS.-- |
272 | (a) General provisions.-- |
273 | 1. Upon the occurrence of a hurricane and a determination |
274 | that the moneys in the fund are or will be insufficient to pay |
275 | reimbursement at the levels promised in the reimbursement |
276 | contracts, the board may take the necessary steps under |
277 | paragraph (c) or paragraph (d) for the issuance of revenue bonds |
278 | for the benefit of the fund. The proceeds of such revenue bonds |
279 | may be used to make reimbursement payments under reimbursement |
280 | contracts; to refinance or replace previously existing |
281 | borrowings or financial arrangements; to pay interest on bonds; |
282 | to fund reserves for the bonds; to pay expenses incident to the |
283 | issuance or sale of any bond issued under this section, |
284 | including costs of validating, printing, and delivering the |
285 | bonds, costs of printing the official statement, costs of |
286 | publishing notices of sale of the bonds, and related |
287 | administrative expenses; or for such other purposes related to |
288 | the financial obligations of the fund as the board may |
289 | determine. The term of the bonds may not exceed 30 years. The |
290 | board may pledge or authorize the corporation to pledge all or a |
291 | portion of all revenues under subsection (5) and under paragraph |
292 | (b) to secure such revenue bonds and the board may execute such |
293 | agreements between the board and the issuer of any revenue bonds |
294 | and providers of other financing arrangements under paragraph |
295 | (7)(b) as the board deems necessary to evidence, secure, |
296 | preserve, and protect such pledge. If reimbursement premiums |
297 | received under subsection (5) or earnings on such premiums are |
298 | used to pay debt service on revenue bonds, such premiums and |
299 | earnings shall be used only after the use of the moneys derived |
300 | from assessments under paragraph (b). The funds, credit, |
301 | property, or taxing power of the state or political subdivisions |
302 | of the state shall not be pledged for the payment of such bonds. |
303 | The board may also enter into agreements under paragraph (c) or |
304 | paragraph (d) for the purpose of issuing revenue bonds in the |
305 | absence of a hurricane upon a determination that such action |
306 | would maximize the ability of the fund to meet future |
307 | obligations. |
308 | 2. The Legislature finds and declares that the issuance of |
309 | bonds under this subsection is for the public purpose of paying |
310 | the proceeds of the bonds to insurers as required by the |
311 | contracts entered into under subsection (4), thereby enabling |
312 | insurers to pay the claims of policyholders to assure that |
313 | policyholders are able to pay the cost of construction, |
314 | reconstruction, repair, and restoration, and other costs |
315 | associated with damage to property of policyholders of covered |
316 | policies after the occurrence of a hurricane, and for the public |
317 | purpose of paying claims of policyholders under subsection (18) |
318 | to ensure that policyholders are able to pay the costs of |
319 | construction, reconstruction, repair, and restoration and other |
320 | costs associated with damage to their property after a hurricane |
321 | or other windstorm. |
322 | (b) Emergency assessments.-- |
323 | 1.a. If the board determines that the amount of revenue |
324 | produced under subsections subsection (5) and (18) is |
325 | insufficient to fund the obligations, costs, and expenses of the |
326 | fund and the corporation, including repayment of revenue bonds |
327 | and that portion of the debt service coverage not met by |
328 | reimbursement premiums, the board shall direct the Office of |
329 | Insurance Regulation to levy, by order, an emergency assessment |
330 | on direct premiums for all property and casualty lines of |
331 | business in this state, including property and casualty business |
332 | of surplus lines insurers regulated under part VIII of chapter |
333 | 626, but not including any workers' compensation premiums or |
334 | medical malpractice premiums. As used in this subsection, the |
335 | term "property and casualty business" includes all lines of |
336 | business identified on Form 2, Exhibit of Premiums and Losses, |
337 | in the annual statement required of authorized insurers by s. |
338 | 624.424 and any rule adopted under this section, except for |
339 | those lines identified as accident and health insurance and |
340 | except for policies written under the National Flood Insurance |
341 | Program. The assessment shall be specified as a percentage of |
342 | direct written premium and is subject to annual adjustments by |
343 | the board in order to meet debt obligations. The same percentage |
344 | shall apply to all policies in lines of business subject to the |
345 | assessment issued or renewed during the 12-month period |
346 | beginning on the effective date of the assessment. This sub- |
347 | subparagraph expires June 1, 2010; however, the expiration of |
348 | this sub-subparagraph does not affect any assessments levied |
349 | under this sub-subparagraph prior to that date. |
350 | b. Effective June 1, 2010, if the board determines that |
351 | the amount of revenue produced under subsections (5) and (18) is |
352 | insufficient to fund the obligations, costs, and expenses of the |
353 | fund and the corporation, including repayment of revenue bonds |
354 | and that portion of the debt service coverage not met by |
355 | reimbursement premiums, the board shall direct the Office of |
356 | Insurance Regulation to levy, by order, an emergency assessment |
357 | on direct premiums for all personal lines and commercial lines |
358 | policies providing property insurance coverage, including |
359 | policies issued by the Florida Windstorm Insurance Program under |
360 | subsection (18). The assessment shall be specified as a |
361 | percentage of direct written premium and is subject to annual |
362 | adjustments by the board in order to meet debt obligations. The |
363 | same percentage shall apply to all policies in lines of business |
364 | subject to the assessment issued or renewed during the 12-month |
365 | period beginning on the effective date of the assessment. |
366 | Assessments under this sub-subparagraph do not apply to policies |
367 | providing personal lines residential property insurance coverage |
368 | issued by an insurer that is not a participating insurer within |
369 | the meaning provided in subsection (18). |
370 | 2.a. A premium is not subject to an annual assessment |
371 | under this paragraph in excess of 6 percent of premium with |
372 | respect to obligations arising out of losses attributable to any |
373 | one contract year, and a premium is not subject to an aggregate |
374 | annual assessment under this paragraph in excess of 10 percent |
375 | of premium. This sub-subparagraph expires June 1, 2010; however, |
376 | the expiration of this sub-subparagraph does not affect any |
377 | assessments levied under this sub-subparagraph prior to that |
378 | date. |
379 | b. Effective June 1, 2010, the total amount of emergency |
380 | assessments under this paragraph with respect to any year may |
381 | not exceed 10 percent of the statewide total gross written |
382 | premium for all insurers for personal lines and commercial lines |
383 | policies providing property insurance coverage, including |
384 | policies issued by the Florida Windstorm Insurance Program under |
385 | subsection (18), for the prior year. However, if the fund |
386 | deficit with respect to any year exceeds such amount and bonds |
387 | are issued to defray the deficit, the total amount of emergency |
388 | assessments with respect to such deficit may not in any year |
389 | exceed 10 percent of the deficit or such lesser percentage as is |
390 | sufficient to retire the bonds as determined by the board. |
391 | c. An annual assessment under this paragraph shall |
392 | continue as long as the revenue bonds issued with respect to |
393 | which the assessment was imposed are outstanding, including any |
394 | bonds the proceeds of which were used to refund the revenue |
395 | bonds, unless adequate provision has been made for the payment |
396 | of the bonds under the documents authorizing issuance of the |
397 | bonds. |
398 | 3. Emergency assessments shall be collected from |
399 | policyholders. Emergency assessments shall be remitted by |
400 | insurers as a percentage of direct written premium for the |
401 | preceding calendar quarter as specified in the order from the |
402 | Office of Insurance Regulation. The office shall verify the |
403 | accurate and timely collection and remittance of emergency |
404 | assessments and shall report the information to the board in a |
405 | form and at a time specified by the board. Each insurer |
406 | collecting assessments shall provide the information with |
407 | respect to premiums and collections as may be required by the |
408 | office to enable the office to monitor and verify compliance |
409 | with this paragraph. |
410 | 4. With respect to assessments of surplus lines premiums, |
411 | each surplus lines agent shall collect the assessment at the |
412 | same time as the agent collects the surplus lines tax required |
413 | by s. 626.932, and the surplus lines agent shall remit the |
414 | assessment to the Florida Surplus Lines Service Office created |
415 | by s. 626.921 at the same time as the agent remits the surplus |
416 | lines tax to the Florida Surplus Lines Service Office. The |
417 | emergency assessment on each insured procuring coverage and |
418 | filing under s. 626.938 shall be remitted by the insured to the |
419 | Florida Surplus Lines Service Office at the time the insured |
420 | pays the surplus lines tax to the Florida Surplus Lines Service |
421 | Office. The Florida Surplus Lines Service Office shall remit the |
422 | collected assessments to the fund or corporation as provided in |
423 | the order levied by the Office of Insurance Regulation. The |
424 | Florida Surplus Lines Service Office shall verify the proper |
425 | application of such emergency assessments and shall assist the |
426 | board in ensuring the accurate and timely collection and |
427 | remittance of assessments as required by the board. The Florida |
428 | Surplus Lines Service Office shall annually calculate the |
429 | aggregate written premium on property and casualty business, |
430 | other than workers' compensation and medical malpractice, |
431 | procured through surplus lines agents and insureds procuring |
432 | coverage and filing under s. 626.938 and shall report the |
433 | information to the board in a form and at a time specified by |
434 | the board. |
435 | 5. Any assessment authority not used for a particular |
436 | contract year may be used for a subsequent contract year. If, |
437 | for a subsequent contract year, the board determines that the |
438 | amount of revenue produced under subsection (5) is insufficient |
439 | to fund the obligations, costs, and expenses of the fund and the |
440 | corporation, including repayment of revenue bonds and that |
441 | portion of the debt service coverage not met by reimbursement |
442 | premiums, the board shall direct the Office of Insurance |
443 | Regulation to levy an emergency assessment up to an amount not |
444 | exceeding the amount of unused assessment authority from a |
445 | previous contract year or years, plus an additional 4 percent |
446 | provided that the assessments in the aggregate do not exceed the |
447 | limits specified in subparagraph 2. This subparagraph expires |
448 | June 1, 2010; however, the expiration of this subparagraph does |
449 | not affect any assessments levied under this subparagraph prior |
450 | to that date. |
451 | 6. The assessments otherwise payable to the corporation |
452 | under this paragraph shall be paid to the fund unless and until |
453 | the Office of Insurance Regulation and the Florida Surplus Lines |
454 | Service Office have received from the corporation and the fund a |
455 | notice, which shall be conclusive and upon which they may rely |
456 | without further inquiry, that the corporation has issued bonds |
457 | and the fund has no agreements in effect with local governments |
458 | under paragraph (c). On or after the date of the notice and |
459 | until the date the corporation has no bonds outstanding, the |
460 | fund shall have no right, title, or interest in or to the |
461 | assessments, except as provided in the fund's agreement with the |
462 | corporation. |
463 | 7. Emergency assessments are not premium and are not |
464 | subject to the premium tax, to the surplus lines tax, to any |
465 | fees, or to any commissions. An insurer is liable for all |
466 | assessments that it collects and must treat the failure of an |
467 | insured to pay an assessment as a failure to pay the premium. An |
468 | insurer is not liable for uncollectible assessments. |
469 | 8. When an insurer is required to return an unearned |
470 | premium, it shall also return any collected assessment |
471 | attributable to the unearned premium. A credit adjustment to the |
472 | collected assessment may be made by the insurer with regard to |
473 | future remittances that are payable to the fund or corporation, |
474 | but the insurer is not entitled to a refund. |
475 | 9. When a surplus lines insured or an insured who has |
476 | procured coverage and filed under s. 626.938 is entitled to the |
477 | return of an unearned premium, the Florida Surplus Lines Service |
478 | Office shall provide a credit or refund to the agent or such |
479 | insured for the collected assessment attributable to the |
480 | unearned premium prior to remitting the emergency assessment |
481 | collected to the fund or corporation. |
482 | 10. The exemption of medical malpractice insurance |
483 | premiums from emergency assessments under this paragraph is |
484 | repealed May 31, 2010, and medical malpractice insurance |
485 | premiums shall be subject to emergency assessments attributable |
486 | to loss events occurring in the contract years commencing on |
487 | June 1, 2010. |
488 | (18) FLORIDA WINDSTORM INSURANCE PROGRAM.-- |
489 | (a) Creation; purpose.--The Florida Windstorm Insurance |
490 | Program is created within the Florida Hurricane Catastrophe |
491 | Fund. The purpose of the program is to provide personal lines |
492 | residential windstorm insurance coverage for properties |
493 | throughout the state. |
494 | (b) Definitions.--The definitions in subsection (2) apply |
495 | to the program, except as modified by this paragraph. As used in |
496 | this subsection: |
497 | 1. "Board" means the State Board of Administration. |
498 | 2. "Participating insurer" means an insurer providing |
499 | personal lines residential property insurance coverage for |
500 | nonwindstorm perils that administers windstorm coverage on |
501 | behalf of the program. |
502 | 3. "Personal lines residential property insurance |
503 | coverage" consists of the type of coverage provided by |
504 | homeowner's, mobile home owner's, dwelling, tenant's, |
505 | condominium unit owner's, cooperative unit owner's, and similar |
506 | policies. The term "personal lines residential property |
507 | insurance coverage" does not include the type of coverage |
508 | provided by condominium association, cooperative association, |
509 | apartment building, and similar policies, including policies |
510 | covering the common elements of a homeowners' association. |
511 | 4. "Program" means the Florida Windstorm Insurance Program |
512 | created under this subsection. |
513 | 5. "Windstorm coverage" means coverage for loss or damage |
514 | to personal lines residential property caused by wind, wind |
515 | gusts, hail, rain, tornadoes, cyclones, tropical storms, or |
516 | hurricanes. The term "windstorm coverage" does not include |
517 | coverage for loss or damage to residential property caused by |
518 | flood, storm surge, or rising water. |
519 | (c) Coverage provided; standards; policy forms.-- |
520 | 1. The program shall issue a policy providing windstorm |
521 | coverage to each personal lines residential risk covered by a |
522 | participating insurer, except if inconsistent with the |
523 | underwriting standards adopted under the program. Coverage shall |
524 | include structure, contents, additional living expenses, |
525 | emergency debris removal, and temporary repairs after loss. |
526 | 2. The board shall adopt by rule standards for the |
527 | program, including, but not limited to, standards relating to |
528 | underwriting, mitigation discounts, deductibles, cancellation |
529 | and nonrenewal, agent compensation, and recordkeeping. |
530 | 3. The board shall adopt by rule policy forms to be used |
531 | for program policies. Program policies must comply with part X |
532 | of chapter 627. The board shall also adopt by rule such notices, |
533 | coverage summaries, and outlines of coverage as are required by |
534 | law or as the board deems appropriate, including a notice |
535 | informing an insured of the duties of the program and the duties |
536 | of the participating insurer. |
537 | 4. The policy for coverage of a structure may not exceed |
538 | $2 million. The board shall establish by rule policy limits for |
539 | coverage of contents, additional living expenses, emergency |
540 | debris removal, and temporary repairs after loss. |
541 | 5. This subsection does not restrict an insured's ability |
542 | to exclude windstorm coverage, hurricane coverage, or contents |
543 | coverage under s. 627.712. |
544 | 6. Any residential property covered by the program that |
545 | sustains a total loss for windstorm coverage more than three |
546 | times in any given 10-year period shall no longer be eligible |
547 | for coverage under the program. |
548 | (d) Participating insurers.-- |
549 | 1. The board shall adopt by rule a form for the contract |
550 | between the program and a participating insurer specifying the |
551 | respective rights and duties of the program and the |
552 | participating insurer. The contract shall be effective for a |
553 | term of 5 years. |
554 | 2. Any insurer writing personal lines residential property |
555 | insurance coverage may elect to, and Citizens Property Insurance |
556 | Corporation shall, enter into a contract with the program under |
557 | which the program agrees to issue a policy providing windstorm |
558 | coverage to each insured for which the participating insurer |
559 | provides a policy providing personal lines residential property |
560 | insurance coverage for other perils, except as provided in sub- |
561 | subparagraph 3.b., and under which the participating insurer |
562 | agrees to administer the program policy. In the case of a group |
563 | of two or more insurers under common ownership, all members of |
564 | the group writing personal lines residential property insurance |
565 | coverage must make the same election as to participation or |
566 | nonparticipation in the program. |
567 | 3. The contract shall require the participating insurer |
568 | to: |
569 | a. Collect premiums for program coverage as established by |
570 | the program and apply deductibles, discounts, surcharges, |
571 | credits, and limits as established by the program. |
572 | b. Administer the windstorm coverage under the program |
573 | policy and provide the program policy to each of its personal |
574 | lines residential property insureds, except to the extent |
575 | inconsistent with program underwriting standards or the property |
576 | owner's option to exclude coverage under s. 627.712(2) or (3). |
577 | c. Comply with program rules and standards relating to |
578 | program policies, including underwriting, cancellation and |
579 | nonrenewal, and agent compensation. |
580 | d. Provide application processing, premium processing, |
581 | claims processing, and adjusting services in accordance with |
582 | program rules and standards. |
583 | 4. An insurer has a fiduciary duty to the program to |
584 | fairly adjust claims and allocate losses between windstorm and |
585 | nonwindstorm perils. |
586 | 5. The program shall establish an annual audit process to |
587 | determine each participating insurer's compliance with the |
588 | requirements of the contract. |
589 | (e) Program powers and duties.-- |
590 | 1. The program shall make claims payments directly to |
591 | insureds based on the information provided to the program by the |
592 | participating insurer. The contract between the program and the |
593 | participating insurer may provide that the participating insurer |
594 | shall make claims payments to the insured on behalf of the |
595 | program, but only to the extent the program has advanced funds |
596 | to the participating insurer for the purpose of paying claims. |
597 | 2. The contract between the program and the participating |
598 | insurer shall require the program to pay the participating |
599 | insurer's loss adjustment expense, acquisition cost, litigation |
600 | costs, and judgments attributable to program policies, except to |
601 | the extent that the costs or expenses are the result of the |
602 | participating insurer's breach of the contract or breach of its |
603 | fiduciary duty. |
604 | 3. If a participating insurer fails to substantially |
605 | comply with its obligations under the program contract or |
606 | breaches its fiduciary duty to the program, the program may |
607 | impose any combination of the following sanctions: suspension of |
608 | the participating insurer's ability to participate in the |
609 | program for a period not to exceed 5 years, actual damages plus |
610 | a penalty of up to 50 percent, or liquidated damages as |
611 | specified in the program contract. |
612 | 4. There shall be no liability on the part of, and no |
613 | cause of action of any nature shall arise against, any |
614 | participating insurer or its agents or employees, the program or |
615 | its employees, or members of the board for any action taken by |
616 | such persons or entities in the performance of their respective |
617 | duties or responsibilities under this subsection. Such immunity |
618 | does not apply to: |
619 | a. Any of the foregoing persons or entities for any |
620 | willful tort. |
621 | b. The program, a participating insurer, or a |
622 | participating insurer's producing agents for breach of any |
623 | written contract or written agreement pertaining to insurance |
624 | coverage. |
625 | c. The program or the fund with respect to issuance or |
626 | payment of debt. |
627 | d. Any participating insurer with respect to any action by |
628 | the program to enforce a participating insurer's obligations to |
629 | the program under this subsection. |
630 | e. The program in any action for breach of contract or for |
631 | benefits under a policy issued by the program. In any such |
632 | action, the program shall be liable to the policyholders and |
633 | beneficiaries for attorney's fees as provided in s. 627.428. |
634 | 5. The termination of an insurer's participation in the |
635 | program terminates the program policies the insurer had been |
636 | administering, and such policies remain in effect until their |
637 | expiration date unless terminated for some other cause. The |
638 | insurer shall continue to have a duty to administer such |
639 | policies unless the program makes other arrangements for the |
640 | administration of such policies. |
641 | (f) Ratemaking.-- |
642 | 1. The board shall select an independent consultant to |
643 | recommend to the board a rate plan for program coverage. |
644 | 2.a. Program rates must be as close as possible to |
645 | actuarially indicated rates, taking into account the state's |
646 | need to restore or maintain affordability of property insurance |
647 | coverage for property owners and the cost of reinsurance and |
648 | other risk-transfer mechanisms. |
649 | b. Except as otherwise provided in this paragraph, rates |
650 | may not be excessive, inadequate, or unfairly discriminatory |
651 | within the meaning provided in s. 627.062 and must provide the |
652 | mitigation discounts and other loss-prevention incentives |
653 | specified in s. 627.0629. |
654 | c. In the aggregate, the rates must generate premium |
655 | revenue equal to or greater than the statewide average annual |
656 | insured windstorm loss, based on an average of all models |
657 | currently determined to meet the standards and guidelines of the |
658 | Florida Commission on Hurricane Loss Projection Methodology plus |
659 | expenses. |
660 | d. If the board determines that the cash balance of the |
661 | fund, net of the proceeds of any pre-event debt instruments, is |
662 | less than $1 billion, the board may add to the rates determined |
663 | under this subparagraph a rapid cash buildup premium surcharge |
664 | of not more than 25 percent. |
665 | 3. Annually, after a public hearing, the board shall adopt |
666 | a rate plan pursuant to this paragraph. A rate plan takes effect |
667 | upon its approval by the unanimous vote of all members of the |
668 | board or at a later date specified in the rate plan and remains |
669 | in effect until the effective date of a subsequently adopted |
670 | rate plan. |
671 | 4. The rate plan recommended to or adopted by the board is |
672 | not subject to any other regulatory review or approval. The rate |
673 | plan as adopted is final agency action for purposes of chapter |
674 | 120 and is subject to judicial review in the manner provided in |
675 | s. 120.68, except judicial review must be sought in the District |
676 | Court of Appeal, First District, regardless of where any party |
677 | resides. |
678 | (g) Reinsurance; annual report.-- |
679 | 1. The program may procure reinsurance or other financial |
680 | alternatives at any loss level. |
681 | 2. The program shall annually engage in negotiations to |
682 | procure reinsurance or other financial alternatives to transfer |
683 | some or all of the risk of loss in excess of the program's 100- |
684 | year probable maximum loss. |
685 | 3.a. The program shall annually procure reinsurance or |
686 | other financial alternatives to transfer at least 50 percent of |
687 | the risk of loss between the program's 50-year probable maximum |
688 | loss and the program's 100-year probable maximum loss. The board |
689 | may structure such reinsurance and other financial alternatives |
690 | in such layer or layers, and with such percentages of retained |
691 | liability in a particular layer, as the board deems appropriate. |
692 | b. The program shall annually procure reinsurance or other |
693 | financial alternatives to transfer at least the first 50 percent |
694 | of the risk of loss between the program's 100-year probable |
695 | maximum loss and the program's 250-year probable maximum loss. |
696 | c. The board may, with respect to any year, waive or |
697 | modify the requirements of this subparagraph only if the board |
698 | finds, after a public hearing and by a unanimous vote of all |
699 | members of the board, that transferring risk as required by this |
700 | subparagraph would not be a cost-effective means of reducing the |
701 | potential assessment liability of property owners. |
702 | 4. The board shall provide an annual report to the |
703 | President of the Senate and the Speaker of the House of |
704 | Representatives describing the state of the market for |
705 | reinsurance and other risk-transfer mechanisms, summarizing |
706 | negotiations for reinsurance and other financial alternatives to |
707 | transfer program risk, and explaining the program's actions with |
708 | regard to reinsurance and other financial alternatives. |
709 | (h) Personal lines residential windstorm coverage issued |
710 | by nonparticipating insurers.--Windstorm coverage under a |
711 | personal lines residential property insurance policy issued by |
712 | an insurer that is not a participating insurer is subject to s. |
713 | 627.062, except that the rates for such coverage may be |
714 | disapproved only if they are inadequate or unfairly |
715 | discriminatory. |
716 | (i) Transition.--It is the intent of the Legislature that |
717 | participating insurers continue to provide windstorm coverage to |
718 | their existing policyholders under policies providing personal |
719 | lines residential property insurance coverage until the first |
720 | renewal date on or after June 1, 2009, at which time the |
721 | windstorm coverage shall be provided under a program policy. For |
722 | that purpose, a participating insurer remains eligible for |
723 | coverage under subsection (4) during the contract year beginning |
724 | June 1, 2009, to the extent the participating insurer has in |
725 | force policies defined as covered policies under subsection (2). |
726 | The replacement of windstorm coverage under a participating |
727 | insurer's policy providing personal lines residential property |
728 | insurance coverage with windstorm coverage under a program |
729 | policy does not constitute a cancellation or nonrenewal for |
730 | purposes of s. 627.4133 or any other purposes under the |
731 | Insurance Code. With respect to noncommercial residential |
732 | property insurance policy renewals taking effect on or after |
733 | June 1, 2009, and before June 1, 2010, the notice of renewal |
734 | premium shall include a notice, in a form specified by the |
735 | board, that, as of the policy renewal date, windstorm coverage |
736 | will be provided under a program policy administered by the |
737 | insurer and coverage for other perils will be provided under a |
738 | residential property insurance policy issued by the insurer. |
739 | Section 2. State Board of Administration; implementation |
740 | of the Florida Windstorm Insurance Program.--No later than |
741 | January 1, 2009, the State Board of Administration shall adopt |
742 | all contract forms, rules, standards, policy forms, mitigation |
743 | discounts, and rates required to implement the Florida Windstorm |
744 | Insurance Program created by s. 215.555, Florida Statutes, as |
745 | amended by this act. |
746 | Section 3. Paragraph (gg) is added to subsection (6) of |
747 | section 627.351, Florida Statutes, to read: |
748 | 627.351 Insurance risk apportionment plans.-- |
749 | (6) CITIZENS PROPERTY INSURANCE CORPORATION.-- |
750 | (gg) Notwithstanding any provision of this subsection or |
751 | s. 627.3517: |
752 | 1. On or after June 1, 2009, the corporation may not issue |
753 | or renew any personal lines residential property insurance |
754 | policy providing windstorm-only coverage. |
755 | 2.a. In order to facilitate the transfer of policies of |
756 | the corporation from the corporation to the competitive market |
757 | and in order to provide a capital contribution to the Florida |
758 | Windstorm Insurance Program, the corporation shall offer |
759 | insurers the opportunity to bid on the right to provide |
760 | nonwindstorm coverage to current policyholders of the |
761 | corporation, to take effect on the policyholder's first renewal |
762 | date on or after June 1, 2009, or through an assumption |
763 | agreement effective on or after June 1, 2009. |
764 | b. The corporation shall prepare blocks of business that |
765 | are balanced as to geographic location and insured value and |
766 | shall offer the blocks of business at auction beginning no later |
767 | than October 1, 2008. The insurer that prevails in the auction |
768 | shall have an exclusive right to enter into an assumption |
769 | agreement with the corporation under which the participating |
770 | insurer assumes the nonwindstorm coverage for the remainder of |
771 | the policy term and the Florida Windstorm Insurance Program |
772 | assumes the windstorm coverage for the remainder of the policy |
773 | term. If an assumption occurs, any renewal shall be at the |
774 | participating insurer's rates as to the nonwindstorm coverage |
775 | and the Florida Windstorm Insurance Program rates as to the |
776 | windstorm coverage. Any assumptions under this sub-subparagraph |
777 | must take effect no later than May 31, 2010. |
778 | c. The provisions of s. 627.3517 do not apply to any offer |
779 | to replace coverage by the corporation with personal lines |
780 | residential property insurance coverage provided by a |
781 | participating insurer as defined in s. 215.555(18), including |
782 | any assumption under this subparagraph. |
783 | d. The corporation shall transfer all proceeds of the |
784 | auctions to the Florida Hurricane Catastrophe Fund, which shall |
785 | treat the proceeds as a capital contribution for the benefit of |
786 | the Florida Windstorm Insurance Program. |
787 | 3. Effective June 1, 2009, the corporation may not issue |
788 | or renew a policy providing personal lines residential property |
789 | insurance coverage if the owner of the property has received an |
790 | offer of coverage from a participating insurer as defined in s. |
791 | 215.555(18), provided the participating insurer has provided the |
792 | corporation with notice of the offer of coverage at least 30 |
793 | days prior to the renewal date or expected issuance date of the |
794 | corporation's policy. |
795 | 4. No later than December 31, 2010, the corporation shall |
796 | transfer to the Florida Hurricane Catastrophe Fund an additional |
797 | capital contribution for the benefit of the Florida Windstorm |
798 | Insurance Program. The contribution shall consist of the |
799 | corporation's surplus as to policyholders, multiplied by a |
800 | ratio: |
801 | a. The numerator of which is the total structural insured |
802 | value as of June 1, 2010, for risks covered by all policies |
803 | issued by the corporation; and |
804 | b. The denominator of which is the total structural |
805 | insured value as of June 1, 2009, for risks covered by all |
806 | policies issued by the corporation. |
807 | Section 4. Effective June 1, 2009, subsection (1) of |
808 | section 627.712, Florida Statutes, is amended to read: |
809 | 627.712 Residential windstorm coverage required; |
810 | availability of exclusions for windstorm or contents.-- |
811 | (1) Effective upon the date of issuance of the policy or |
812 | the date of the first renewal on or after June 1, 2009, an |
813 | insurer issuing or renewing a residential property insurance |
814 | policy must provide windstorm coverage as part of the policy |
815 | issued by the insurer or under a separate policy issued by the |
816 | Florida Windstorm Insurance Program under s. 215.555 and |
817 | administered by the insurer. This subsection does not apply with |
818 | respect to risks that are eligible for wind-only coverage from |
819 | Citizens Property Insurance Corporation under s. 627.351(6). |
820 | Section 5. Except as otherwise expressly provided in this |
821 | act, this act shall take effect upon becoming a law. |