Florida Senate - 2009                                    SB 1060
       
       
       
       By Senator Bennett
       
       
       
       
       21-01493-09                                           20091060__
    1                        A bill to be entitled                      
    2         An act relating to the Citizens Property Insurance
    3         Corporation; amending s. 627.351, F.S.; expanding plan
    4         of operation requirements for standard personal lines
    5         policy forms providing full coverage of residential
    6         property to include certain dwelling fire policies;
    7         providing an effective date.
    8         
    9  Be It Enacted by the Legislature of the State of Florida:
   10         
   11         Section 1. Paragraph (c) of subsection (6) of section
   12  627.351, Florida Statutes, is amended to read:
   13         627.351 Insurance risk apportionment plans.—
   14         (6) CITIZENS PROPERTY INSURANCE CORPORATION.—
   15         (c) The plan of operation of the corporation:
   16         1. Must provide for adoption of residential property and
   17  casualty insurance policy forms and commercial residential and
   18  nonresidential property insurance forms, which forms must be
   19  approved by the office prior to use. The corporation shall adopt
   20  the following policy forms:
   21         a. Standard personal lines policy forms that are
   22  comprehensive multiperil policies providing full coverage of a
   23  residential property equivalent to the coverage provided in the
   24  private insurance market under an HO-3, HO-4, or HO-6 policy,
   25  including dwelling fire policies with no limitation on
   26  replacement costs or coverage amount for owner-occupied
   27  dwellings, including builder's risk, for dwellings for which the
   28  named insured is a tenant, and for condominium unit owner risks.
   29         b. Basic personal lines policy forms that are policies
   30  similar to an HO-8 policy or a dwelling fire policy that provide
   31  coverage meeting the requirements of the secondary mortgage
   32  market, but which coverage is more limited than the coverage
   33  under a standard policy.
   34         c. Commercial lines residential and nonresidential policy
   35  forms that are generally similar to the basic perils of full
   36  coverage obtainable for commercial residential structures and
   37  commercial nonresidential structures in the admitted voluntary
   38  market.
   39         d. Personal lines and commercial lines residential property
   40  insurance forms that cover the peril of wind only. The forms are
   41  applicable only to residential properties located in areas
   42  eligible for coverage under the high-risk account referred to in
   43  sub-subparagraph (b)2.a.
   44         e. Commercial lines nonresidential property insurance forms
   45  that cover the peril of wind only. The forms are applicable only
   46  to nonresidential properties located in areas eligible for
   47  coverage under the high-risk account referred to in sub
   48  subparagraph (b)2.a.
   49         f. The corporation may adopt variations of the policy forms
   50  listed in sub-subparagraphs a.-e. that contain more restrictive
   51  coverage.
   52         2.a. Must provide that the corporation adopt a program in
   53  which the corporation and authorized insurers enter into quota
   54  share primary insurance agreements for hurricane coverage, as
   55  defined in s. 627.4025(2)(a), for eligible risks, and adopt
   56  property insurance forms for eligible risks which cover the
   57  peril of wind only. As used in this subsection, the term:
   58         (I) “Quota share primary insurance” means an arrangement in
   59  which the primary hurricane coverage of an eligible risk is
   60  provided in specified percentages by the corporation and an
   61  authorized insurer. The corporation and authorized insurer are
   62  each solely responsible for a specified percentage of hurricane
   63  coverage of an eligible risk as set forth in a quota share
   64  primary insurance agreement between the corporation and an
   65  authorized insurer and the insurance contract. The
   66  responsibility of the corporation or authorized insurer to pay
   67  its specified percentage of hurricane losses of an eligible
   68  risk, as set forth in the quota share primary insurance
   69  agreement, may not be altered by the inability of the other
   70  party to the agreement to pay its specified percentage of
   71  hurricane losses. Eligible risks that are provided hurricane
   72  coverage through a quota share primary insurance arrangement
   73  must be provided policy forms that set forth the obligations of
   74  the corporation and authorized insurer under the arrangement,
   75  clearly specify the percentages of quota share primary insurance
   76  provided by the corporation and authorized insurer, and
   77  conspicuously and clearly state that neither the authorized
   78  insurer nor the corporation may be held responsible beyond its
   79  specified percentage of coverage of hurricane losses.
   80         (II) “Eligible risks” means personal lines residential and
   81  commercial lines residential risks that meet the underwriting
   82  criteria of the corporation and are located in areas that were
   83  eligible for coverage by the Florida Windstorm Underwriting
   84  Association on January 1, 2002.
   85         b. The corporation may enter into quota share primary
   86  insurance agreements with authorized insurers at corporation
   87  coverage levels of 90 percent and 50 percent.
   88         c. If the corporation determines that additional coverage
   89  levels are necessary to maximize participation in quota share
   90  primary insurance agreements by authorized insurers, the
   91  corporation may establish additional coverage levels. However,
   92  the corporation's quota share primary insurance coverage level
   93  may not exceed 90 percent.
   94         d. Any quota share primary insurance agreement entered into
   95  between an authorized insurer and the corporation must provide
   96  for a uniform specified percentage of coverage of hurricane
   97  losses, by county or territory as set forth by the corporation
   98  board, for all eligible risks of the authorized insurer covered
   99  under the quota share primary insurance agreement.
  100         e. Any quota share primary insurance agreement entered into
  101  between an authorized insurer and the corporation is subject to
  102  review and approval by the office. However, such agreement shall
  103  be authorized only as to insurance contracts entered into
  104  between an authorized insurer and an insured who is already
  105  insured by the corporation for wind coverage.
  106         f. For all eligible risks covered under quota share primary
  107  insurance agreements, the exposure and coverage levels for both
  108  the corporation and authorized insurers shall be reported by the
  109  corporation to the Florida Hurricane Catastrophe Fund. For all
  110  policies of eligible risks covered under quota share primary
  111  insurance agreements, the corporation and the authorized insurer
  112  shall maintain complete and accurate records for the purpose of
  113  exposure and loss reimbursement audits as required by Florida
  114  Hurricane Catastrophe Fund rules. The corporation and the
  115  authorized insurer shall each maintain duplicate copies of
  116  policy declaration pages and supporting claims documents.
  117         g. The corporation board shall establish in its plan of
  118  operation standards for quota share agreements which ensure that
  119  there is no discriminatory application among insurers as to the
  120  terms of quota share agreements, pricing of quota share
  121  agreements, incentive provisions if any, and consideration paid
  122  for servicing policies or adjusting claims.
  123         h. The quota share primary insurance agreement between the
  124  corporation and an authorized insurer must set forth the
  125  specific terms under which coverage is provided, including, but
  126  not limited to, the sale and servicing of policies issued under
  127  the agreement by the insurance agent of the authorized insurer
  128  producing the business, the reporting of information concerning
  129  eligible risks, the payment of premium to the corporation, and
  130  arrangements for the adjustment and payment of hurricane claims
  131  incurred on eligible risks by the claims adjuster and personnel
  132  of the authorized insurer. Entering into a quota sharing
  133  insurance agreement between the corporation and an authorized
  134  insurer shall be voluntary and at the discretion of the
  135  authorized insurer.
  136         3. May provide that the corporation may employ or otherwise
  137  contract with individuals or other entities to provide
  138  administrative or professional services that may be appropriate
  139  to effectuate the plan. The corporation shall have the power to
  140  borrow funds, by issuing bonds or by incurring other
  141  indebtedness, and shall have other powers reasonably necessary
  142  to effectuate the requirements of this subsection, including,
  143  without limitation, the power to issue bonds and incur other
  144  indebtedness in order to refinance outstanding bonds or other
  145  indebtedness. The corporation may, but is not required to, seek
  146  judicial validation of its bonds or other indebtedness under
  147  chapter 75. The corporation may issue bonds or incur other
  148  indebtedness, or have bonds issued on its behalf by a unit of
  149  local government pursuant to subparagraph (p)2., in the absence
  150  of a hurricane or other weather-related event, upon a
  151  determination by the corporation, subject to approval by the
  152  office, that such action would enable it to efficiently meet the
  153  financial obligations of the corporation and that such
  154  financings are reasonably necessary to effectuate the
  155  requirements of this subsection. The corporation is authorized
  156  to take all actions needed to facilitate tax-free status for any
  157  such bonds or indebtedness, including formation of trusts or
  158  other affiliated entities. The corporation shall have the
  159  authority to pledge assessments, projected recoveries from the
  160  Florida Hurricane Catastrophe Fund, other reinsurance
  161  recoverables, market equalization and other surcharges, and
  162  other funds available to the corporation as security for bonds
  163  or other indebtedness. In recognition of s. 10, Art. I of the
  164  State Constitution, prohibiting the impairment of obligations of
  165  contracts, it is the intent of the Legislature that no action be
  166  taken whose purpose is to impair any bond indenture or financing
  167  agreement or any revenue source committed by contract to such
  168  bond or other indebtedness.
  169         4.a. Must require that the corporation operate subject to
  170  the supervision and approval of a board of governors consisting
  171  of eight individuals who are residents of this state, from
  172  different geographical areas of this state. The Governor, the
  173  Chief Financial Officer, the President of the Senate, and the
  174  Speaker of the House of Representatives shall each appoint two
  175  members of the board. At least one of the two members appointed
  176  by each appointing officer must have demonstrated expertise in
  177  insurance. The Chief Financial Officer shall designate one of
  178  the appointees as chair. All board members serve at the pleasure
  179  of the appointing officer. All members of the board of governors
  180  are subject to removal at will by the officers who appointed
  181  them. All board members, including the chair, must be appointed
  182  to serve for 3-year terms beginning annually on a date
  183  designated by the plan. Any board vacancy shall be filled for
  184  the unexpired term by the appointing officer. The Chief
  185  Financial Officer shall appoint a technical advisory group to
  186  provide information and advice to the board of governors in
  187  connection with the board's duties under this subsection. The
  188  executive director and senior managers of the corporation shall
  189  be engaged by the board and serve at the pleasure of the board.
  190  Any executive director appointed on or after July 1, 2006, is
  191  subject to confirmation by the Senate. The executive director is
  192  responsible for employing other staff as the corporation may
  193  require, subject to review and concurrence by the board.
  194         b. The board shall create a Market Accountability Advisory
  195  Committee to assist the corporation in developing awareness of
  196  its rates and its customer and agent service levels in
  197  relationship to the voluntary market insurers writing similar
  198  coverage. The members of the advisory committee shall consist of
  199  the following 11 persons, one of whom must be elected chair by
  200  the members of the committee: four representatives, one
  201  appointed by the Florida Association of Insurance Agents, one by
  202  the Florida Association of Insurance and Financial Advisors, one
  203  by the Professional Insurance Agents of Florida, and one by the
  204  Latin American Association of Insurance Agencies; three
  205  representatives appointed by the insurers with the three highest
  206  voluntary market share of residential property insurance
  207  business in the state; one representative from the Office of
  208  Insurance Regulation; one consumer appointed by the board who is
  209  insured by the corporation at the time of appointment to the
  210  committee; one representative appointed by the Florida
  211  Association of Realtors; and one representative appointed by the
  212  Florida Bankers Association. All members must serve for 3-year
  213  terms and may serve for consecutive terms. The committee shall
  214  report to the corporation at each board meeting on insurance
  215  market issues which may include rates and rate competition with
  216  the voluntary market; service, including policy issuance, claims
  217  processing, and general responsiveness to policyholders,
  218  applicants, and agents; and matters relating to depopulation.
  219         5. Must provide a procedure for determining the eligibility
  220  of a risk for coverage, as follows:
  221         a. Subject to the provisions of s. 627.3517, with respect
  222  to personal lines residential risks, if the risk is offered
  223  coverage from an authorized insurer at the insurer's approved
  224  rate under either a standard policy including wind coverage or,
  225  if consistent with the insurer's underwriting rules as filed
  226  with the office, a basic policy including wind coverage, for a
  227  new application to the corporation for coverage, the risk is not
  228  eligible for any policy issued by the corporation unless the
  229  premium for coverage from the authorized insurer is more than 15
  230  percent greater than the premium for comparable coverage from
  231  the corporation. If the risk is not able to obtain any such
  232  offer, the risk is eligible for either a standard policy
  233  including wind coverage or a basic policy including wind
  234  coverage issued by the corporation; however, if the risk could
  235  not be insured under a standard policy including wind coverage
  236  regardless of market conditions, the risk shall be eligible for
  237  a basic policy including wind coverage unless rejected under
  238  subparagraph 8. However, with regard to a policyholder of the
  239  corporation or a policyholder removed from the corporation
  240  through an assumption agreement until the end of the assumption
  241  period, the policyholder remains eligible for coverage from the
  242  corporation regardless of any offer of coverage from an
  243  authorized insurer or surplus lines insurer. The corporation
  244  shall determine the type of policy to be provided on the basis
  245  of objective standards specified in the underwriting manual and
  246  based on generally accepted underwriting practices.
  247         (I) If the risk accepts an offer of coverage through the
  248  market assistance plan or an offer of coverage through a
  249  mechanism established by the corporation before a policy is
  250  issued to the risk by the corporation or during the first 30
  251  days of coverage by the corporation, and the producing agent who
  252  submitted the application to the plan or to the corporation is
  253  not currently appointed by the insurer, the insurer shall:
  254         (A) Pay to the producing agent of record of the policy, for
  255  the first year, an amount that is the greater of the insurer's
  256  usual and customary commission for the type of policy written or
  257  a fee equal to the usual and customary commission of the
  258  corporation; or
  259         (B) Offer to allow the producing agent of record of the
  260  policy to continue servicing the policy for a period of not less
  261  than 1 year and offer to pay the agent the greater of the
  262  insurer's or the corporation's usual and customary commission
  263  for the type of policy written.
  264  If the producing agent is unwilling or unable to accept
  265  appointment, the new insurer shall pay the agent in accordance
  266  with sub-sub-sub-subparagraph (A).
  267         (II) When the corporation enters into a contractual
  268  agreement for a take-out plan, the producing agent of record of
  269  the corporation policy is entitled to retain any unearned
  270  commission on the policy, and the insurer shall:
  271         (A) Pay to the producing agent of record of the corporation
  272  policy, for the first year, an amount that is the greater of the
  273  insurer's usual and customary commission for the type of policy
  274  written or a fee equal to the usual and customary commission of
  275  the corporation; or
  276         (B) Offer to allow the producing agent of record of the
  277  corporation policy to continue servicing the policy for a period
  278  of not less than 1 year and offer to pay the agent the greater
  279  of the insurer's or the corporation's usual and customary
  280  commission for the type of policy written.
  281  If the producing agent is unwilling or unable to accept
  282  appointment, the new insurer shall pay the agent in accordance
  283  with sub-sub-sub-subparagraph (A).
  284         b. With respect to commercial lines residential risks, for
  285  a new application to the corporation for coverage, if the risk
  286  is offered coverage under a policy including wind coverage from
  287  an authorized insurer at its approved rate, the risk is not
  288  eligible for any policy issued by the corporation unless the
  289  premium for coverage from the authorized insurer is more than 15
  290  percent greater than the premium for comparable coverage from
  291  the corporation. If the risk is not able to obtain any such
  292  offer, the risk is eligible for a policy including wind coverage
  293  issued by the corporation. However, with regard to a
  294  policyholder of the corporation or a policyholder removed from
  295  the corporation through an assumption agreement until the end of
  296  the assumption period, the policyholder remains eligible for
  297  coverage from the corporation regardless of any offer of
  298  coverage from an authorized insurer or surplus lines insurer.
  299         (I) If the risk accepts an offer of coverage through the
  300  market assistance plan or an offer of coverage through a
  301  mechanism established by the corporation before a policy is
  302  issued to the risk by the corporation or during the first 30
  303  days of coverage by the corporation, and the producing agent who
  304  submitted the application to the plan or the corporation is not
  305  currently appointed by the insurer, the insurer shall:
  306         (A) Pay to the producing agent of record of the policy, for
  307  the first year, an amount that is the greater of the insurer's
  308  usual and customary commission for the type of policy written or
  309  a fee equal to the usual and customary commission of the
  310  corporation; or
  311         (B) Offer to allow the producing agent of record of the
  312  policy to continue servicing the policy for a period of not less
  313  than 1 year and offer to pay the agent the greater of the
  314  insurer's or the corporation's usual and customary commission
  315  for the type of policy written.
  316  If the producing agent is unwilling or unable to accept
  317  appointment, the new insurer shall pay the agent in accordance
  318  with sub-sub-sub-subparagraph (A).
  319         (II) When the corporation enters into a contractual
  320  agreement for a take-out plan, the producing agent of record of
  321  the corporation policy is entitled to retain any unearned
  322  commission on the policy, and the insurer shall:
  323         (A) Pay to the producing agent of record of the corporation
  324  policy, for the first year, an amount that is the greater of the
  325  insurer's usual and customary commission for the type of policy
  326  written or a fee equal to the usual and customary commission of
  327  the corporation; or
  328         (B) Offer to allow the producing agent of record of the
  329  corporation policy to continue servicing the policy for a period
  330  of not less than 1 year and offer to pay the agent the greater
  331  of the insurer's or the corporation's usual and customary
  332  commission for the type of policy written.
  333  If the producing agent is unwilling or unable to accept
  334  appointment, the new insurer shall pay the agent in accordance
  335  with sub-sub-sub-subparagraph (A).
  336         c. For purposes of determining comparable coverage under
  337  sub-subparagraphs a. and b., the comparison shall be based on
  338  those forms and coverages that are reasonably comparable. The
  339  corporation may rely on a determination of comparable coverage
  340  and premium made by the producing agent who submits the
  341  application to the corporation, made in the agent's capacity as
  342  the corporation's agent. A comparison may be made solely of the
  343  premium with respect to the main building or structure only on
  344  the following basis: the same coverage A or other building
  345  limits; the same percentage hurricane deductible that applies on
  346  an annual basis or that applies to each hurricane for commercial
  347  residential property; the same percentage of ordinance and law
  348  coverage, if the same limit is offered by both the corporation
  349  and the authorized insurer; the same mitigation credits, to the
  350  extent the same types of credits are offered both by the
  351  corporation and the authorized insurer; the same method for loss
  352  payment, such as replacement cost or actual cash value, if the
  353  same method is offered both by the corporation and the
  354  authorized insurer in accordance with underwriting rules; and
  355  any other form or coverage that is reasonably comparable as
  356  determined by the board. If an application is submitted to the
  357  corporation for wind-only coverage in the high-risk account, the
  358  premium for the corporation's wind-only policy plus the premium
  359  for the ex-wind policy that is offered by an authorized insurer
  360  to the applicant shall be compared to the premium for multiperil
  361  coverage offered by an authorized insurer, subject to the
  362  standards for comparison specified in this subparagraph. If the
  363  corporation or the applicant requests from the authorized
  364  insurer a breakdown of the premium of the offer by types of
  365  coverage so that a comparison may be made by the corporation or
  366  its agent and the authorized insurer refuses or is unable to
  367  provide such information, the corporation may treat the offer as
  368  not being an offer of coverage from an authorized insurer at the
  369  insurer's approved rate.
  370         6. Must include rules for classifications of risks and
  371  rates therefor.
  372         7. Must provide that if premium and investment income for
  373  an account attributable to a particular calendar year are in
  374  excess of projected losses and expenses for the account
  375  attributable to that year, such excess shall be held in surplus
  376  in the account. Such surplus shall be available to defray
  377  deficits in that account as to future years and shall be used
  378  for that purpose prior to assessing assessable insurers and
  379  assessable insureds as to any calendar year.
  380         8. Must provide objective criteria and procedures to be
  381  uniformly applied for all applicants in determining whether an
  382  individual risk is so hazardous as to be uninsurable. In making
  383  this determination and in establishing the criteria and
  384  procedures, the following shall be considered:
  385         a. Whether the likelihood of a loss for the individual risk
  386  is substantially higher than for other risks of the same class;
  387  and
  388         b. Whether the uncertainty associated with the individual
  389  risk is such that an appropriate premium cannot be determined.
  390  The acceptance or rejection of a risk by the corporation shall
  391  be construed as the private placement of insurance, and the
  392  provisions of chapter 120 shall not apply.
  393         9. Must provide that the corporation shall make its best
  394  efforts to procure catastrophe reinsurance at reasonable rates,
  395  to cover its projected 100-year probable maximum loss as
  396  determined by the board of governors.
  397         10. The policies issued by the corporation must provide
  398  that, if the corporation or the market assistance plan obtains
  399  an offer from an authorized insurer to cover the risk at its
  400  approved rates, the risk is no longer eligible for renewal
  401  through the corporation, except as otherwise provided in this
  402  subsection.
  403         11. Corporation policies and applications must include a
  404  notice that the corporation policy could, under this section, be
  405  replaced with a policy issued by an authorized insurer that does
  406  not provide coverage identical to the coverage provided by the
  407  corporation. The notice shall also specify that acceptance of
  408  corporation coverage creates a conclusive presumption that the
  409  applicant or policyholder is aware of this potential.
  410         12. May establish, subject to approval by the office,
  411  different eligibility requirements and operational procedures
  412  for any line or type of coverage for any specified county or
  413  area if the board determines that such changes to the
  414  eligibility requirements and operational procedures are
  415  justified due to the voluntary market being sufficiently stable
  416  and competitive in such area or for such line or type of
  417  coverage and that consumers who, in good faith, are unable to
  418  obtain insurance through the voluntary market through ordinary
  419  methods would continue to have access to coverage from the
  420  corporation. When coverage is sought in connection with a real
  421  property transfer, such requirements and procedures shall not
  422  provide for an effective date of coverage later than the date of
  423  the closing of the transfer as established by the transferor,
  424  the transferee, and, if applicable, the lender.
  425         13. Must provide that, with respect to the high-risk
  426  account, any assessable insurer with a surplus as to
  427  policyholders of $25 million or less writing 25 percent or more
  428  of its total countrywide property insurance premiums in this
  429  state may petition the office, within the first 90 days of each
  430  calendar year, to qualify as a limited apportionment company. A
  431  regular assessment levied by the corporation on a limited
  432  apportionment company for a deficit incurred by the corporation
  433  for the high-risk account in 2006 or thereafter may be paid to
  434  the corporation on a monthly basis as the assessments are
  435  collected by the limited apportionment company from its insureds
  436  pursuant to s. 627.3512, but the regular assessment must be paid
  437  in full within 12 months after being levied by the corporation.
  438  A limited apportionment company shall collect from its
  439  policyholders any emergency assessment imposed under sub
  440  subparagraph (b)3.d. The plan shall provide that, if the office
  441  determines that any regular assessment will result in an
  442  impairment of the surplus of a limited apportionment company,
  443  the office may direct that all or part of such assessment be
  444  deferred as provided in subparagraph (p)4. However, there shall
  445  be no limitation or deferment of an emergency assessment to be
  446  collected from policyholders under sub-subparagraph (b)3.d.
  447         14. Must provide that the corporation appoint as its
  448  licensed agents only those agents who also hold an appointment
  449  as defined in s. 626.015(3) with an insurer who at the time of
  450  the agent's initial appointment by the corporation is authorized
  451  to write and is actually writing personal lines residential
  452  property coverage, commercial residential property coverage, or
  453  commercial nonresidential property coverage within the state.
  454         15. Must provide, by July 1, 2007, a premium payment plan
  455  option to its policyholders which allows at a minimum for
  456  quarterly and semiannual payment of premiums. A monthly payment
  457  plan may, but is not required to, be offered.
  458         16. Must limit coverage on mobile homes or manufactured
  459  homes built prior to 1994 to actual cash value of the dwelling
  460  rather than replacement costs of the dwelling.
  461         17. May provide such limits of coverage as the board
  462  determines, consistent with the requirements of this subsection.
  463         18. May require commercial property to meet specified
  464  hurricane mitigation construction features as a condition of
  465  eligibility for coverage.
  466         Section 2. This act shall take effect July 1, 2009.