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 policyor a dwelling fire policythat 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.