Florida Senate - 2012                             CS for SB 1620
       
       
       
       By the Committee on Banking and Insurance; and Senator Richter
       
       
       
       
       597-02859-12                                          20121620c1
    1                        A bill to be entitled                      
    2         An act relating to insurance; amending s. 320.27,
    3         F.S.; providing that a salvage motor vehicle dealer is
    4         not required to carry certain insurance on vehicles
    5         that have been issued a certificate of destruction;
    6         amending s. 624.501, F.S.; conforming a cross
    7         reference; amending s. 624.610, F.S.; revising
    8         provisions specifying which insurers are not subject
    9         to certain filing requirements relating to
   10         reinsurance; amending s. 626.261, F.S.; authorizing
   11         the Department of Financial Services to provide
   12         examinations in Spanish; amending s. 626.321, F.S.;
   13         revising provisions relating to limited licenses for
   14         travel insurance; providing that a full-time salaried
   15         employee of a licensed general lines agent or a
   16         business entity that offers travel planning services
   17         may be issued such license under certain
   18         circumstances; amending s. 626.753, F.S., relating to
   19         the sharing of commissions; prohibiting certain
   20         rebates; creating s. 626.8675, F.S.; providing that
   21         provisions relating to insurance adjusters do not
   22         apply to individuals who conduct data entry into an
   23         automated claims adjustment system for portable
   24         electronics insurance claims; amending s. 627.351,
   25         F.S.; increasing the amount of surplus required for an
   26         association to qualify as a limited apportionment
   27         company; creating s. 627.6011, F.S.; providing that
   28         mandatory health benefits apply only to certain health
   29         benefit plans; amending s. 627.7015, F.S.; revising
   30         provisions relating to alternative procedures for the
   31         resolution of disputed property insurance claims;
   32         amending s. 627.7295, F.S.; revising provisions
   33         relating to cancellation for nonpayment of premiums
   34         for motor vehicle insurance; amending s. 627.736,
   35         F.S.; clarifying provisions relating to the amount of
   36         interest on overdue payments for personal injury
   37         protection benefits; providing effective dates.
   38  
   39  Be It Enacted by the Legislature of the State of Florida:
   40  
   41         Section 1. Subsection (3) of section 320.27, Florida
   42  Statutes, is amended to read:
   43         320.27 Motor vehicle dealers.—
   44         (3) APPLICATION AND FEE.—The application for the license
   45  shall be in such form as may be prescribed by the department and
   46  shall be subject to such rules with respect thereto as may be so
   47  prescribed by it. Such application shall be verified by oath or
   48  affirmation and shall contain a full statement of the name and
   49  birth date of the person or persons applying therefor; the name
   50  of the firm or copartnership, with the names and places of
   51  residence of all members thereof, if such applicant is a firm or
   52  copartnership; the names and places of residence of the
   53  principal officers, if the applicant is a body corporate or
   54  other artificial body; the name of the state under whose laws
   55  the corporation is organized; the present and former place or
   56  places of residence of the applicant; and prior business in
   57  which the applicant has been engaged and the location thereof.
   58  Such application shall describe the exact location of the place
   59  of business and shall state whether the place of business is
   60  owned by the applicant and when acquired, or, if leased, a true
   61  copy of the lease shall be attached to the application. The
   62  applicant shall certify that the location provides an adequately
   63  equipped office and is not a residence; that the location
   64  affords sufficient unoccupied space upon and within which
   65  adequately to store all motor vehicles offered and displayed for
   66  sale; and that the location is a suitable place where the
   67  applicant can in good faith carry on such business and keep and
   68  maintain books, records, and files necessary to conduct such
   69  business, which will be available at all reasonable hours to
   70  inspection by the department or any of its inspectors or other
   71  employees. The applicant shall certify that the business of a
   72  motor vehicle dealer is the principal business which shall be
   73  conducted at that location. Such application shall contain a
   74  statement that the applicant is either franchised by a
   75  manufacturer of motor vehicles, in which case the name of each
   76  motor vehicle that the applicant is franchised to sell shall be
   77  included, or an independent (nonfranchised) motor vehicle
   78  dealer. Such application shall contain such other relevant
   79  information as may be required by the department, including
   80  evidence that the applicant is insured under a garage liability
   81  insurance policy or a general liability insurance policy coupled
   82  with a business automobile policy, which shall include, at a
   83  minimum, $25,000 combined single-limit liability coverage
   84  including bodily injury and property damage protection and
   85  $10,000 personal injury protection. However, a salvage motor
   86  vehicle dealer as defined in subparagraph (1)(c)5. is exempt
   87  from the requirements for garage liability insurance and
   88  personal injury protection insurance on those vehicles that have
   89  been issued a certificate of destruction and cannot be operated
   90  legally on state roads, highways, or streets. Franchise dealers
   91  must submit a garage liability insurance policy, and all other
   92  dealers must submit a garage liability insurance policy or a
   93  general liability insurance policy coupled with a business
   94  automobile policy. Such policy shall be for the license period,
   95  and evidence of a new or continued policy shall be delivered to
   96  the department at the beginning of each license period. Upon
   97  making initial application, the applicant shall pay to the
   98  department a fee of $300 in addition to any other fees now
   99  required by law; upon making a subsequent renewal application,
  100  the applicant shall pay to the department a fee of $75 in
  101  addition to any other fees now required by law. Upon making an
  102  application for a change of location, the person shall pay a fee
  103  of $50 in addition to any other fees now required by law. The
  104  department shall, in the case of every application for initial
  105  licensure, verify whether certain facts set forth in the
  106  application are true. Each applicant, general partner in the
  107  case of a partnership, or corporate officer and director in the
  108  case of a corporate applicant, must file a set of fingerprints
  109  with the department for the purpose of determining any prior
  110  criminal record or any outstanding warrants. The department
  111  shall submit the fingerprints to the Department of Law
  112  Enforcement for state processing and forwarding to the Federal
  113  Bureau of Investigation for federal processing. The actual cost
  114  of state and federal processing shall be borne by the applicant
  115  and is in addition to the fee for licensure. The department may
  116  issue a license to an applicant pending the results of the
  117  fingerprint investigation, which license is fully revocable if
  118  the department subsequently determines that any facts set forth
  119  in the application are not true or correctly represented.
  120         Section 2. Paragraph (b) of subsection (9) of section
  121  624.501, Florida Statutes, is amended to read:
  122         624.501 Filing, license, appointment, and miscellaneous
  123  fees.—The department, commission, or office, as appropriate,
  124  shall collect in advance, and persons so served shall pay to it
  125  in advance, fees, licenses, and miscellaneous charges as
  126  follows:
  127         (9)
  128         (b) For all limited appointments as agent, as provided for
  129  in s. 626.321(1)(c) and (d) 626.321(1)(d), the agent’s original
  130  appointment and biennial renewal or continuation thereof for
  131  each insurer is shall be equal to the number of offices, branch
  132  offices, or places of business covered by the license multiplied
  133  by the fees set forth in paragraph (a).
  134         Section 3. Paragraph (c) of subsection (11) of section
  135  624.610, Florida Statutes, is amended to read:
  136         624.610 Reinsurance.—
  137         (11)
  138         (c) This subsection applies to cessions of directly written
  139  risk or loss. This subsection does not apply to contracts of
  140  facultative reinsurance or to any ceding insurer that has a with
  141  surplus as to policyholders which that exceeds $100 million as
  142  of the immediately preceding December 31. A Additionally, any
  143  ceding insurer otherwise subject to this section which had with
  144  less than $500,000 in direct premiums written in this state
  145  during the preceding calendar year and no more than $250,000 in
  146  direct premiums written in this state during the preceding
  147  calendar quarter, or which had fewer with less than 1,000
  148  policyholders at the end of the preceding calendar year, is
  149  exempt from the requirements of this subsection. However, any
  150  ceding insurer otherwise subject to this section with more than
  151  $250,000 in direct premiums written in this state during the
  152  preceding calendar quarter is not exempt from the requirements
  153  of this subsection.
  154         Section 4. Subsection (5) is added to section 626.261,
  155  Florida Statutes, to read:
  156         626.261 Conduct of examination.—
  157         (5) The department may provide licensure examinations in
  158  Spanish. Applicants requesting examination or reexamination in
  159  Spanish must bear the full cost of the department’s development,
  160  preparation, administration, grading, and evaluation of the
  161  Spanish-language examination. When determining whether it is in
  162  the public interest to allow the examination to be translated
  163  into and administered in Spanish, the department shall consider
  164  the percentage of the population who speak Spanish.
  165         Section 5. Paragraph (c) of subsection (1) of section
  166  626.321, Florida Statutes, is amended to read:
  167         626.321 Limited licenses.—
  168         (1) The department shall issue to a qualified individual,
  169  or a qualified individual or entity under paragraphs (c), (d),
  170  (e), and (i), a license as agent authorized to transact a
  171  limited class of business in any of the following categories:
  172         (c) Travel insurance.—License covering only policies and
  173  certificates of travel insurance, which are subject to review by
  174  the office under s. 624.605(1)(q). Policies and certificates of
  175  travel insurance may provide coverage for risks incidental to
  176  travel, planned travel, or accommodations while traveling,
  177  including, but not limited to, accidental death and
  178  dismemberment of a traveler; trip or event cancellation,
  179  interruption, or delay; loss of or damage to personal effects or
  180  travel documents; damages to travel accommodations; baggage
  181  delay; emergency medical travel or evacuation of a traveler; or
  182  medical, surgical, and hospital expenses related to an illness
  183  or emergency of a traveler. Any Such policy or certificate may
  184  be issued for terms longer than 90 60 days, but each policy or
  185  certificate, other than a policy or certificate providing
  186  coverage for air ambulatory services only, each policy or
  187  certificate must be limited to coverage for travel or use of
  188  accommodations of no longer than 90 60 days. The license may be
  189  issued only:
  190         1. To a full-time salaried employee of a common carrier or
  191  a full-time salaried employee or owner of a transportation
  192  ticket agency and may authorize the sale of such ticket policies
  193  only in connection with the sale of transportation tickets, or
  194  to the full-time salaried employee of such an agent. No Such
  195  policy may not shall be for a duration of more than 48 hours or
  196  more than for the duration of a specified one-way trip or round
  197  trip.
  198         2. To an entity or individual that is:
  199         a. The developer of a timeshare plan that is the subject of
  200  an approved public offering statement under chapter 721;
  201         b. An exchange company operating an exchange program
  202  approved under chapter 721;
  203         c. A managing entity operating a timeshare plan approved
  204  under chapter 721;
  205         d. A seller of travel as defined in chapter 559; or
  206         e. A subsidiary or affiliate of any of the entities
  207  described in sub-subparagraphs a.-d.
  208         3. To a full-time salaried employee of a licensed general
  209  lines agent or to a business entity that offers travel planning
  210  services if insurance sales activities authorized by the license
  211  are in connection with, and incidental to, travel.
  212         a. A license issued to a business entity that offers travel
  213  planning services must encompass each office, branch office, or
  214  place of business making use of the entity’s business name in
  215  order to offer, solicit, and sell insurance pursuant to this
  216  paragraph.
  217         b. The application for licensure must list the name,
  218  address, and phone number for each office, branch office, or
  219  place of business that is to be covered by the license. The
  220  licensee shall notify the department of the name, address, and
  221  phone number of any new location that is to be covered by the
  222  license before the new office, branch office, or place of
  223  business engages in the sale of insurance pursuant to this
  224  paragraph. The licensee shall notify the department within 30
  225  days after the closing or terminating of an office, branch
  226  office, or place of business. Upon receipt of the notice, the
  227  department shall delete the office, branch office, or place of
  228  business from the license.
  229         c. A licensed and appointed entity is directly responsible
  230  and accountable for all acts of the licensee’s employees and
  231  parties with whom the licensee has entered into a contractual
  232  agreement to offer travel insurance.
  233  
  234  A licensee shall require each individual employee who offers
  235  policies or certificates under subparagraph 2. or subparagraph
  236  3. this subparagraph to receive initial training from a general
  237  lines agent or an insurer authorized under chapter 624 to
  238  transact insurance within this state. For an entity applying for
  239  a license as a travel insurance agent, the fingerprinting
  240  requirement of this section applies only to the president,
  241  secretary, and treasurer and to any other officer or person who
  242  directs or controls the travel insurance operations of the
  243  entity.
  244         Section 6. Present subsection (4) of section 626.753,
  245  Florida Statutes, is renumbered as subsection (6), and new
  246  subsections (4) and (5) are added to that section to read:
  247         626.753 Sharing commissions; penalty.—
  248         (4) Any patronage dividend or other payment, discount, or
  249  credit provided to a member of a production credit association
  250  or federal land bank association which is directly or indirectly
  251  calculated on the basis of the premium charged to that member
  252  for crop hail or multiple-peril crop insurance is an unlawful
  253  rebate in violation of ss. 626.572 and 626.9541(1)(h).
  254         (5) An agent who engages in commission sharing with a
  255  production credit association or federal land bank association,
  256  and who has knowledge that the association provides patronage
  257  dividends or other payments, discounts, or credits that
  258  constitute unlawful rebates as described in subsection (4), is
  259  participating in a violation of this section.
  260         Section 7. Section 626.8675, Florida Statutes, is created
  261  to read:
  262         626.8675Portable electronics insurance claims employee
  263  exemption.—
  264         (1)This part does not apply to individuals who collect
  265  claims information from, or furnish claims information to,
  266  insureds or claimants, and who conduct data entry, including
  267  entering data into an automated claims adjudication system, if
  268  such individuals are employees of a business entity licensed
  269  under this chapter, or its affiliate, where up to 25 such
  270  individuals are under the supervision of a licensed independent
  271  adjuster or licensed agent who is exempt from licensure pursuant
  272  to s. 626.862. For purposes of this section, “automated claims
  273  adjudication system” means a preprogrammed computer system
  274  designed for the collection, data entry, calculation, and final
  275  resolution of portable electronics insurance claims that:
  276         (a) May be used only by a licensed independent adjuster,
  277  licensed agent, or supervised individual operating pursuant to
  278  this section;
  279         (b) Must comply with all claims payment requirements of the
  280  insurance code; and
  281         (c) Must be certified as compliant with this section by a
  282  licensed independent adjuster who is an officer of a licensed
  283  business entity under this chapter.
  284         (2) Notwithstanding any other provision of law, a resident
  285  of Canada may not be licensed as a nonresident independent
  286  adjuster for purposes of adjusting portable electronics
  287  insurance claims unless that person has successfully obtained an
  288  adjuster license in another state.
  289         Section 8. Paragraph (b) of subsection (2) of section
  290  627.351, Florida Statutes, is amended to read:
  291         627.351 Insurance risk apportionment plans.—
  292         (2) WINDSTORM INSURANCE RISK APPORTIONMENT.—
  293         (b) The department shall require all insurers holding a
  294  certificate of authority to transact property insurance on a
  295  direct basis in this state, other than joint underwriting
  296  associations and other entities formed pursuant to this section,
  297  to provide windstorm coverage to applicants from areas
  298  determined to be eligible pursuant to paragraph (c) who in good
  299  faith are entitled to, but are unable to procure, such coverage
  300  through ordinary means; or it shall adopt a reasonable plan or
  301  plans for the equitable apportionment or sharing among such
  302  insurers of windstorm coverage, which may include formation of
  303  an association for this purpose. As used in this subsection, the
  304  term “property insurance” means insurance on real or personal
  305  property, as defined in s. 624.604, including insurance for
  306  fire, industrial fire, allied lines, farmowners multiperil,
  307  homeowners’ multiperil, commercial multiperil, and mobile homes,
  308  and including liability coverages on all such insurance, but
  309  excluding inland marine as defined in s. 624.607(3) and
  310  excluding vehicle insurance as defined in s. 624.605(1)(a) other
  311  than insurance on mobile homes used as permanent dwellings. The
  312  department shall adopt rules that provide a formula for the
  313  recovery and repayment of any deferred assessments.
  314         1. For the purpose of this section, properties eligible for
  315  such windstorm coverage are defined as dwellings, buildings, and
  316  other structures, including mobile homes which are used as
  317  dwellings and which are tied down in compliance with mobile home
  318  tie-down requirements prescribed by the Department of Highway
  319  Safety and Motor Vehicles pursuant to s. 320.8325, and the
  320  contents of all such properties. An applicant or policyholder is
  321  eligible for coverage only if an offer of coverage cannot be
  322  obtained by or for the applicant or policyholder from an
  323  admitted insurer at approved rates.
  324         2.a.(I) All insurers required to be members of such
  325  association shall participate in its writings, expenses, and
  326  losses. Surplus of the association shall be retained for the
  327  payment of claims and shall not be distributed to the member
  328  insurers. Such participation by member insurers shall be in the
  329  proportion that the net direct premiums of each member insurer
  330  written for property insurance in this state during the
  331  preceding calendar year bear to the aggregate net direct
  332  premiums for property insurance of all member insurers, as
  333  reduced by any credits for voluntary writings, in this state
  334  during the preceding calendar year. For the purposes of this
  335  subsection, the term “net direct premiums” means direct written
  336  premiums for property insurance, reduced by premium for
  337  liability coverage and for the following if included in allied
  338  lines: rain and hail on growing crops; livestock; association
  339  direct premiums booked; National Flood Insurance Program direct
  340  premiums; and similar deductions specifically authorized by the
  341  plan of operation and approved by the department. A member’s
  342  participation shall begin on the first day of the calendar year
  343  following the year in which it is issued a certificate of
  344  authority to transact property insurance in the state and shall
  345  terminate 1 year after the end of the calendar year during which
  346  it no longer holds a certificate of authority to transact
  347  property insurance in the state. The commissioner, after review
  348  of annual statements, other reports, and any other statistics
  349  that the commissioner deems necessary, shall certify to the
  350  association the aggregate direct premiums written for property
  351  insurance in this state by all member insurers.
  352         (II) Effective July 1, 2002, the association shall operate
  353  subject to the supervision and approval of a board of governors
  354  who are the same individuals that have been appointed by the
  355  Treasurer to serve on the board of governors of the Citizens
  356  Property Insurance Corporation.
  357         (III) The plan of operation shall provide a formula whereby
  358  a company voluntarily providing windstorm coverage in affected
  359  areas will be relieved wholly or partially from apportionment of
  360  a regular assessment pursuant to sub-sub-subparagraph d.(I) or
  361  sub-sub-subparagraph d.(II).
  362         (IV) A company which is a member of a group of companies
  363  under common management may elect to have its credits applied on
  364  a group basis, and any company or group may elect to have its
  365  credits applied to any other company or group.
  366         (V) There shall be no credits or relief from apportionment
  367  to a company for emergency assessments collected from its
  368  policyholders under sub-sub-subparagraph d.(III).
  369         (VI) The plan of operation may also provide for the award
  370  of credits, for a period not to exceed 3 years, from a regular
  371  assessment pursuant to sub-sub-subparagraph d.(I) or sub-sub
  372  subparagraph d.(II) as an incentive for taking policies out of
  373  the Residential Property and Casualty Joint Underwriting
  374  Association. In order to qualify for the exemption under this
  375  sub-sub-subparagraph, the take-out plan must provide that at
  376  least 40 percent of the policies removed from the Residential
  377  Property and Casualty Joint Underwriting Association cover risks
  378  located in Miami-Dade, Broward, and Palm Beach Counties or at
  379  least 30 percent of the policies so removed cover risks located
  380  in Miami-Dade, Broward, and Palm Beach Counties and an
  381  additional 50 percent of the policies so removed cover risks
  382  located in other coastal counties, and must also provide that no
  383  more than 15 percent of the policies so removed may exclude
  384  windstorm coverage. With the approval of the department, the
  385  association may waive these geographic criteria for a take-out
  386  plan that removes at least the lesser of 100,000 Residential
  387  Property and Casualty Joint Underwriting Association policies or
  388  15 percent of the total number of Residential Property and
  389  Casualty Joint Underwriting Association policies, provided the
  390  governing board of the Residential Property and Casualty Joint
  391  Underwriting Association certifies that the take-out plan will
  392  materially reduce the Residential Property and Casualty Joint
  393  Underwriting Association’s 100-year probable maximum loss from
  394  hurricanes. With the approval of the department, the board may
  395  extend such credits for an additional year if the insurer
  396  guarantees an additional year of renewability for all policies
  397  removed from the Residential Property and Casualty Joint
  398  Underwriting Association, or for 2 additional years if the
  399  insurer guarantees 2 additional years of renewability for all
  400  policies removed from the Residential Property and Casualty
  401  Joint Underwriting Association.
  402         b. Assessments to pay deficits in the association under
  403  this subparagraph shall be included as an appropriate factor in
  404  the making of rates as provided in s. 627.3512.
  405         c. The Legislature finds that the potential for unlimited
  406  deficit assessments under this subparagraph may induce insurers
  407  to attempt to reduce their writings in the voluntary market, and
  408  that such actions would worsen the availability problems that
  409  the association was created to remedy. It is the intent of the
  410  Legislature that insurers remain fully responsible for paying
  411  regular assessments and collecting emergency assessments for any
  412  deficits of the association; however, it is also the intent of
  413  the Legislature to provide a means by which assessment
  414  liabilities may be amortized over a period of years.
  415         d.(I) When the deficit incurred in a particular calendar
  416  year is 10 percent or less of the aggregate statewide direct
  417  written premium for property insurance for the prior calendar
  418  year for all member insurers, the association shall levy an
  419  assessment on member insurers in an amount equal to the deficit.
  420         (II) When the deficit incurred in a particular calendar
  421  year exceeds 10 percent of the aggregate statewide direct
  422  written premium for property insurance for the prior calendar
  423  year for all member insurers, the association shall levy an
  424  assessment on member insurers in an amount equal to the greater
  425  of 10 percent of the deficit or 10 percent of the aggregate
  426  statewide direct written premium for property insurance for the
  427  prior calendar year for member insurers. Any remaining deficit
  428  shall be recovered through emergency assessments under sub-sub
  429  subparagraph (III).
  430         (III) Upon a determination by the board of directors that a
  431  deficit exceeds the amount that will be recovered through
  432  regular assessments on member insurers, pursuant to sub-sub
  433  subparagraph (I) or sub-sub-subparagraph (II), the board shall
  434  levy, after verification by the department, emergency
  435  assessments to be collected by member insurers and by
  436  underwriting associations created pursuant to this section which
  437  write property insurance, upon issuance or renewal of property
  438  insurance policies other than National Flood Insurance policies
  439  in the year or years following levy of the regular assessments.
  440  The amount of the emergency assessment collected in a particular
  441  year shall be a uniform percentage of that year’s direct written
  442  premium for property insurance for all member insurers and
  443  underwriting associations, excluding National Flood Insurance
  444  policy premiums, as annually determined by the board and
  445  verified by the department. The department shall verify the
  446  arithmetic calculations involved in the board’s determination
  447  within 30 days after receipt of the information on which the
  448  determination was based. Notwithstanding any other provision of
  449  law, each member insurer and each underwriting association
  450  created pursuant to this section shall collect emergency
  451  assessments from its policyholders without such obligation being
  452  affected by any credit, limitation, exemption, or deferment. The
  453  emergency assessments so collected shall be transferred directly
  454  to the association on a periodic basis as determined by the
  455  association. The aggregate amount of emergency assessments
  456  levied under this sub-sub-subparagraph in any calendar year may
  457  not exceed the greater of 10 percent of the amount needed to
  458  cover the original deficit, plus interest, fees, commissions,
  459  required reserves, and other costs associated with financing of
  460  the original deficit, or 10 percent of the aggregate statewide
  461  direct written premium for property insurance written by member
  462  insurers and underwriting associations for the prior year, plus
  463  interest, fees, commissions, required reserves, and other costs
  464  associated with financing the original deficit. The board may
  465  pledge the proceeds of the emergency assessments under this sub
  466  sub-subparagraph as the source of revenue for bonds, to retire
  467  any other debt incurred as a result of the deficit or events
  468  giving rise to the deficit, or in any other way that the board
  469  determines will efficiently recover the deficit. The emergency
  470  assessments under this sub-sub-subparagraph shall continue as
  471  long as any bonds issued or other indebtedness incurred with
  472  respect to a deficit for which the assessment was imposed remain
  473  outstanding, unless adequate provision has been made for the
  474  payment of such bonds or other indebtedness pursuant to the
  475  document governing such bonds or other indebtedness. Emergency
  476  assessments collected under this sub-sub-subparagraph are not
  477  part of an insurer’s rates, are not premium, and are not subject
  478  to premium tax, fees, or commissions; however, failure to pay
  479  the emergency assessment shall be treated as failure to pay
  480  premium.
  481         (IV) Each member insurer’s share of the total regular
  482  assessments under sub-sub-subparagraph (I) or sub-sub
  483  subparagraph (II) shall be in the proportion that the insurer’s
  484  net direct premium for property insurance in this state, for the
  485  year preceding the assessment bears to the aggregate statewide
  486  net direct premium for property insurance of all member
  487  insurers, as reduced by any credits for voluntary writings for
  488  that year.
  489         (V) If regular deficit assessments are made under sub-sub
  490  subparagraph (I) or sub-sub-subparagraph (II), or by the
  491  Residential Property and Casualty Joint Underwriting Association
  492  under sub-subparagraph (6)(b)3.a. or sub-subparagraph
  493  (6)(b)3.b., the association shall levy upon the association’s
  494  policyholders, as part of its next rate filing, or by a separate
  495  rate filing solely for this purpose, a market equalization
  496  surcharge in a percentage equal to the total amount of such
  497  regular assessments divided by the aggregate statewide direct
  498  written premium for property insurance for member insurers for
  499  the prior calendar year. Market equalization surcharges under
  500  this sub-sub-subparagraph are not considered premium and are not
  501  subject to commissions, fees, or premium taxes; however, failure
  502  to pay a market equalization surcharge shall be treated as
  503  failure to pay premium.
  504         e. The governing body of any unit of local government, any
  505  residents of which are insured under the plan, may issue bonds
  506  as defined in s. 125.013 or s. 166.101 to fund an assistance
  507  program, in conjunction with the association, for the purpose of
  508  defraying deficits of the association. In order to avoid
  509  needless and indiscriminate proliferation, duplication, and
  510  fragmentation of such assistance programs, any unit of local
  511  government, any residents of which are insured by the
  512  association, may provide for the payment of losses, regardless
  513  of whether or not the losses occurred within or outside of the
  514  territorial jurisdiction of the local government. Revenue bonds
  515  may not be issued until validated pursuant to chapter 75, unless
  516  a state of emergency is declared by executive order or
  517  proclamation of the Governor pursuant to s. 252.36 making such
  518  findings as are necessary to determine that it is in the best
  519  interests of, and necessary for, the protection of the public
  520  health, safety, and general welfare of residents of this state
  521  and the protection and preservation of the economic stability of
  522  insurers operating in this state, and declaring it an essential
  523  public purpose to permit certain municipalities or counties to
  524  issue bonds as will provide relief to claimants and
  525  policyholders of the association and insurers responsible for
  526  apportionment of plan losses. Any such unit of local government
  527  may enter into such contracts with the association and with any
  528  other entity created pursuant to this subsection as are
  529  necessary to carry out this paragraph. Any bonds issued under
  530  this sub-subparagraph shall be payable from and secured by
  531  moneys received by the association from assessments under this
  532  subparagraph, and assigned and pledged to or on behalf of the
  533  unit of local government for the benefit of the holders of such
  534  bonds. The funds, credit, property, and taxing power of the
  535  state or of the unit of local government shall not be pledged
  536  for the payment of such bonds. If any of the bonds remain unsold
  537  60 days after issuance, the department shall require all
  538  insurers subject to assessment to purchase the bonds, which
  539  shall be treated as admitted assets; each insurer shall be
  540  required to purchase that percentage of the unsold portion of
  541  the bond issue that equals the insurer’s relative share of
  542  assessment liability under this subsection. An insurer shall not
  543  be required to purchase the bonds to the extent that the
  544  department determines that the purchase would endanger or impair
  545  the solvency of the insurer. The authority granted by this sub
  546  subparagraph is additional to any bonding authority granted by
  547  subparagraph 6.
  548         3. The plan shall also provide that any member with a
  549  surplus as to policyholders of $25 $20 million or less writing
  550  25 percent or more of its total countrywide property insurance
  551  premiums in this state may petition the department, within the
  552  first 90 days of each calendar year, to qualify as a limited
  553  apportionment company. The apportionment of such a member
  554  company in any calendar year for which it is qualified shall not
  555  exceed its gross participation, which shall not be affected by
  556  the formula for voluntary writings. In no event shall a limited
  557  apportionment company be required to participate in any
  558  apportionment of losses pursuant to sub-sub-subparagraph 2.d.(I)
  559  or sub-sub-subparagraph 2.d.(II) in the aggregate which exceeds
  560  $50 million after payment of available plan funds in any
  561  calendar year. However, a limited apportionment company shall
  562  collect from its policyholders any emergency assessment imposed
  563  under sub-sub-subparagraph 2.d.(III). The plan shall provide
  564  that, if the department determines that any regular assessment
  565  will result in an impairment of the surplus of a limited
  566  apportionment company, the department may direct that all or
  567  part of such assessment be deferred. However, there shall be no
  568  limitation or deferment of an emergency assessment to be
  569  collected from policyholders under sub-sub-subparagraph
  570  2.d.(III).
  571         4. The plan shall provide for the deferment, in whole or in
  572  part, of a regular assessment of a member insurer under sub-sub
  573  subparagraph 2.d.(I) or sub-sub-subparagraph 2.d.(II), but not
  574  for an emergency assessment collected from policyholders under
  575  sub-sub-subparagraph 2.d.(III), if, in the opinion of the
  576  commissioner, payment of such regular assessment would endanger
  577  or impair the solvency of the member insurer. In the event a
  578  regular assessment against a member insurer is deferred in whole
  579  or in part, the amount by which such assessment is deferred may
  580  be assessed against the other member insurers in a manner
  581  consistent with the basis for assessments set forth in sub-sub
  582  subparagraph 2.d.(I) or sub-sub-subparagraph 2.d.(II).
  583         5.a. The plan of operation may include deductibles and
  584  rules for classification of risks and rate modifications
  585  consistent with the objective of providing and maintaining funds
  586  sufficient to pay catastrophe losses.
  587         b. It is the intent of the Legislature that the rates for
  588  coverage provided by the association be actuarially sound and
  589  not competitive with approved rates charged in the admitted
  590  voluntary market such that the association functions as a
  591  residual market mechanism to provide insurance only when the
  592  insurance cannot be procured in the voluntary market. The plan
  593  of operation shall provide a mechanism to assure that, beginning
  594  no later than January 1, 1999, the rates charged by the
  595  association for each line of business are reflective of approved
  596  rates in the voluntary market for hurricane coverage for each
  597  line of business in the various areas eligible for association
  598  coverage.
  599         c. The association shall provide for windstorm coverage on
  600  residential properties in limits up to $10 million for
  601  commercial lines residential risks and up to $1 million for
  602  personal lines residential risks. If coverage with the
  603  association is sought for a residential risk valued in excess of
  604  these limits, coverage shall be available to the risk up to the
  605  replacement cost or actual cash value of the property, at the
  606  option of the insured, if coverage for the risk cannot be
  607  located in the authorized market. The association must accept a
  608  commercial lines residential risk with limits above $10 million
  609  or a personal lines residential risk with limits above $1
  610  million if coverage is not available in the authorized market.
  611  The association may write coverage above the limits specified in
  612  this subparagraph with or without facultative or other
  613  reinsurance coverage, as the association determines appropriate.
  614         d. The plan of operation must provide objective criteria
  615  and procedures, approved by the department, to be uniformly
  616  applied for all applicants in determining whether an individual
  617  risk is so hazardous as to be uninsurable. In making this
  618  determination and in establishing the criteria and procedures,
  619  the following shall be considered:
  620         (I) Whether the likelihood of a loss for the individual
  621  risk is substantially higher than for other risks of the same
  622  class; and
  623         (II) Whether the uncertainty associated with the individual
  624  risk is such that an appropriate premium cannot be determined.
  625  
  626  The acceptance or rejection of a risk by the association
  627  pursuant to such criteria and procedures must be construed as
  628  the private placement of insurance, and the provisions of
  629  chapter 120 do not apply.
  630         e. If the risk accepts an offer of coverage through the
  631  market assistance program or through a mechanism established by
  632  the association, either before the policy is issued by the
  633  association or during the first 30 days of coverage by the
  634  association, and the producing agent who submitted the
  635  application to the association is not currently appointed by the
  636  insurer, the insurer shall:
  637         (I) Pay to the producing agent of record of the policy, for
  638  the first year, an amount that is the greater of the insurer’s
  639  usual and customary commission for the type of policy written or
  640  a fee equal to the usual and customary commission of the
  641  association; or
  642         (II) Offer to allow the producing agent of record of the
  643  policy to continue servicing the policy for a period of not less
  644  than 1 year and offer to pay the agent the greater of the
  645  insurer’s or the association’s usual and customary commission
  646  for the type of policy written.
  647  
  648  If the producing agent is unwilling or unable to accept
  649  appointment, the new insurer shall pay the agent in accordance
  650  with sub-sub-subparagraph (I). Subject to the provisions of s.
  651  627.3517, the policies issued by the association must provide
  652  that if the association obtains an offer from an authorized
  653  insurer to cover the risk at its approved rates under either a
  654  standard policy including wind coverage or, if consistent with
  655  the insurer’s underwriting rules as filed with the department, a
  656  basic policy including wind coverage, the risk is no longer
  657  eligible for coverage through the association. Upon termination
  658  of eligibility, the association shall provide written notice to
  659  the policyholder and agent of record stating that the
  660  association policy must be canceled as of 60 days after the date
  661  of the notice because of the offer of coverage from an
  662  authorized insurer. Other provisions of the insurance code
  663  relating to cancellation and notice of cancellation do not apply
  664  to actions under this sub-subparagraph.
  665         f. When the association enters into a contractual agreement
  666  for a take-out plan, the producing agent of record of the
  667  association policy is entitled to retain any unearned commission
  668  on the policy, and the insurer shall:
  669         (I) Pay to the producing agent of record of the association
  670  policy, for the first year, an amount that is the greater of the
  671  insurer’s usual and customary commission for the type of policy
  672  written or a fee equal to the usual and customary commission of
  673  the association; or
  674         (II) Offer to allow the producing agent of record of the
  675  association policy to continue servicing the policy for a period
  676  of not less than 1 year and offer to pay the agent the greater
  677  of the insurer’s or the association’s usual and customary
  678  commission for the type of policy written.
  679  
  680  If the producing agent is unwilling or unable to accept
  681  appointment, the new insurer shall pay the agent in accordance
  682  with sub-sub-subparagraph (I).
  683         6.a. The plan of operation may authorize the formation of a
  684  private nonprofit corporation, a private nonprofit
  685  unincorporated association, a partnership, a trust, a limited
  686  liability company, or a nonprofit mutual company which may be
  687  empowered, among other things, to borrow money by issuing bonds
  688  or by incurring other indebtedness and to accumulate reserves or
  689  funds to be used for the payment of insured catastrophe losses.
  690  The plan may authorize all actions necessary to facilitate the
  691  issuance of bonds, including the pledging of assessments or
  692  other revenues.
  693         b. Any entity created under this subsection, or any entity
  694  formed for the purposes of this subsection, may sue and be sued,
  695  may borrow money; issue bonds, notes, or debt instruments;
  696  pledge or sell assessments, market equalization surcharges and
  697  other surcharges, rights, premiums, contractual rights,
  698  projected recoveries from the Florida Hurricane Catastrophe
  699  Fund, other reinsurance recoverables, and other assets as
  700  security for such bonds, notes, or debt instruments; enter into
  701  any contracts or agreements necessary or proper to accomplish
  702  such borrowings; and take other actions necessary to carry out
  703  the purposes of this subsection. The association may issue bonds
  704  or incur other indebtedness, or have bonds issued on its behalf
  705  by a unit of local government pursuant to subparagraph (6)(q)2.,
  706  in the absence of a hurricane or other weather-related event,
  707  upon a determination by the association subject to approval by
  708  the department that such action would enable it to efficiently
  709  meet the financial obligations of the association and that such
  710  financings are reasonably necessary to effectuate the
  711  requirements of this subsection. Any such entity may accumulate
  712  reserves and retain surpluses as of the end of any association
  713  year to provide for the payment of losses incurred by the
  714  association during that year or any future year. The association
  715  shall incorporate and continue the plan of operation and
  716  articles of agreement in effect on the effective date of chapter
  717  76-96, Laws of Florida, to the extent that it is not
  718  inconsistent with chapter 76-96, and as subsequently modified
  719  consistent with chapter 76-96. The board of directors and
  720  officers currently serving shall continue to serve until their
  721  successors are duly qualified as provided under the plan. The
  722  assets and obligations of the plan in effect immediately prior
  723  to the effective date of chapter 76-96 shall be construed to be
  724  the assets and obligations of the successor plan created herein.
  725         c. In recognition of s. 10, Art. I of the State
  726  Constitution, prohibiting the impairment of obligations of
  727  contracts, it is the intent of the Legislature that no action be
  728  taken whose purpose is to impair any bond indenture or financing
  729  agreement or any revenue source committed by contract to such
  730  bond or other indebtedness issued or incurred by the association
  731  or any other entity created under this subsection.
  732         7. On such coverage, an agent’s remuneration shall be that
  733  amount of money payable to the agent by the terms of his or her
  734  contract with the company with which the business is placed.
  735  However, no commission will be paid on that portion of the
  736  premium which is in excess of the standard premium of that
  737  company.
  738         8. Subject to approval by the department, the association
  739  may establish different eligibility requirements and operational
  740  procedures for any line or type of coverage for any specified
  741  eligible area or portion of an eligible area if the board
  742  determines that such changes to the eligibility requirements and
  743  operational procedures are justified due to the voluntary market
  744  being sufficiently stable and competitive in such area or for
  745  such line or type of coverage and that consumers who, in good
  746  faith, are unable to obtain insurance through the voluntary
  747  market through ordinary methods would continue to have access to
  748  coverage from the association. When coverage is sought in
  749  connection with a real property transfer, such requirements and
  750  procedures shall not provide for an effective date of coverage
  751  later than the date of the closing of the transfer as
  752  established by the transferor, the transferee, and, if
  753  applicable, the lender.
  754         9. Notwithstanding any other provision of law:
  755         a. The pledge or sale of, the lien upon, and the security
  756  interest in any rights, revenues, or other assets of the
  757  association created or purported to be created pursuant to any
  758  financing documents to secure any bonds or other indebtedness of
  759  the association shall be and remain valid and enforceable,
  760  notwithstanding the commencement of and during the continuation
  761  of, and after, any rehabilitation, insolvency, liquidation,
  762  bankruptcy, receivership, conservatorship, reorganization, or
  763  similar proceeding against the association under the laws of
  764  this state or any other applicable laws.
  765         b. No such proceeding shall relieve the association of its
  766  obligation, or otherwise affect its ability to perform its
  767  obligation, to continue to collect, or levy and collect,
  768  assessments, market equalization or other surcharges, projected
  769  recoveries from the Florida Hurricane Catastrophe Fund,
  770  reinsurance recoverables, or any other rights, revenues, or
  771  other assets of the association pledged.
  772         c. Each such pledge or sale of, lien upon, and security
  773  interest in, including the priority of such pledge, lien, or
  774  security interest, any such assessments, emergency assessments,
  775  market equalization or renewal surcharges, projected recoveries
  776  from the Florida Hurricane Catastrophe Fund, reinsurance
  777  recoverables, or other rights, revenues, or other assets which
  778  are collected, or levied and collected, after the commencement
  779  of and during the pendency of or after any such proceeding shall
  780  continue unaffected by such proceeding.
  781         d. As used in this subsection, the term “financing
  782  documents” means any agreement, instrument, or other document
  783  now existing or hereafter created evidencing any bonds or other
  784  indebtedness of the association or pursuant to which any such
  785  bonds or other indebtedness has been or may be issued and
  786  pursuant to which any rights, revenues, or other assets of the
  787  association are pledged or sold to secure the repayment of such
  788  bonds or indebtedness, together with the payment of interest on
  789  such bonds or such indebtedness, or the payment of any other
  790  obligation of the association related to such bonds or
  791  indebtedness.
  792         e. Any such pledge or sale of assessments, revenues,
  793  contract rights or other rights or assets of the association
  794  shall constitute a lien and security interest, or sale, as the
  795  case may be, that is immediately effective and attaches to such
  796  assessments, revenues, contract, or other rights or assets,
  797  whether or not imposed or collected at the time the pledge or
  798  sale is made. Any such pledge or sale is effective, valid,
  799  binding, and enforceable against the association or other entity
  800  making such pledge or sale, and valid and binding against and
  801  superior to any competing claims or obligations owed to any
  802  other person or entity, including policyholders in this state,
  803  asserting rights in any such assessments, revenues, contract, or
  804  other rights or assets to the extent set forth in and in
  805  accordance with the terms of the pledge or sale contained in the
  806  applicable financing documents, whether or not any such person
  807  or entity has notice of such pledge or sale and without the need
  808  for any physical delivery, recordation, filing, or other action.
  809         f. There shall be no liability on the part of, and no cause
  810  of action of any nature shall arise against, any member insurer
  811  or its agents or employees, agents or employees of the
  812  association, members of the board of directors of the
  813  association, or the department or its representatives, for any
  814  action taken by them in the performance of their duties or
  815  responsibilities under this subsection. Such immunity does not
  816  apply to actions for breach of any contract or agreement
  817  pertaining to insurance, or any willful tort.
  818         Section 9. Section 627.6011, Florida Statutes, is created
  819  to read:
  820         627.6011Mandated coverages.—Mandatory health benefits
  821  regulated under this chapter which must be covered by an insurer
  822  are intended to apply only to the type of health benefit plan
  823  defined in s. 627.6699(3), issued in any market, unless
  824  specifically designated otherwise. For purposes of this section,
  825  the term “mandatory health benefits” means those benefits set
  826  forth in ss. 627.6401-627.64193 and any cross-references to
  827  these sections, and any other mandatory treatment or health
  828  coverages or benefits enacted on or after July 1, 2012.
  829         Section 10. Subsections (1), (2), (7), and (9) of section
  830  627.7015, Florida Statutes, are amended to read:
  831         627.7015 Alternative procedure for resolution of disputed
  832  property insurance claims.—
  833         (1) PURPOSE AND SCOPE.—This section sets forth a
  834  nonadversarial alternative dispute resolution procedure for a
  835  mediated claim resolution conference prompted by the need for
  836  effective, fair, and timely handling of property insurance
  837  claims. There is a particular need for an informal,
  838  nonthreatening forum for helping parties who elect this
  839  procedure to resolve their claims disputes because most
  840  homeowner’s and commercial residential insurance policies
  841  obligate policyholders insureds to participate in a potentially
  842  expensive and time-consuming adversarial appraisal process
  843  before prior to litigation. The procedure set forth in this
  844  section is designed to bring the parties together for a mediated
  845  claims settlement conference without any of the trappings or
  846  drawbacks of an adversarial process. Before resorting to these
  847  procedures, policyholders insureds and insurers are encouraged
  848  to resolve claims as quickly and fairly as possible. This
  849  section is available with respect to claims under personal lines
  850  and commercial residential policies before for all claimants and
  851  insurers prior to commencing the appraisal process, or before
  852  commencing litigation. Mediation may be requested only by the
  853  policyholder, as a first-party claimant, or the insurer. If
  854  requested by the policyholder insured, participation by legal
  855  counsel or any other person having relevant information is shall
  856  be permitted. Mediation under this section is also available to
  857  litigants referred to the department by a county court or
  858  circuit court. This section does not apply to commercial
  859  coverages, to private passenger motor vehicle insurance
  860  coverages, or to disputes relating to liability coverages in
  861  policies of property insurance.
  862         (2) At the time a first-party claim within the scope of
  863  this section is filed by the policyholder, the insurer shall
  864  notify the policyholder all first-party claimants of its their
  865  right to participate in the mediation program under this
  866  section. The department shall prepare a consumer information
  867  pamphlet for distribution to persons participating in mediation
  868  under this section.
  869         (7) If the insurer fails to comply with subsection (2) by
  870  failing to notify a policyholder first-party claimant of its
  871  right to participate in the mediation program under this section
  872  or if the insurer requests the mediation, and the mediation
  873  results are rejected by either party, the policyholder is
  874  insured shall not be required to submit to or participate in any
  875  contractual loss appraisal process of the property loss damage
  876  as a precondition to legal action for breach of contract against
  877  the insurer for its failure to pay the policyholder’s claims
  878  covered by the policy.
  879         (9) For purposes of this section, the term “claim” refers
  880  to any dispute between an insurer and a policyholder an insured
  881  relating to a material issue of fact other than a dispute:
  882         (a) With respect to which the insurer has a reasonable
  883  basis to suspect fraud;
  884         (b) Where, based on agreed-upon facts as to the cause of
  885  loss, there is no coverage under the policy;
  886         (c) With respect to which the insurer has a reasonable
  887  basis to believe that the policyholder claimant has
  888  intentionally made a material misrepresentation of fact which is
  889  relevant to the claim, and the entire request for payment of a
  890  loss has been denied on the basis of the material
  891  misrepresentation; or
  892         (d) With respect to which the amount in controversy is less
  893  than $500, unless the parties agree to mediate a dispute
  894  involving a lesser amount; or.
  895         (e) Where the notice of loss is reported to the insurer
  896  more than 36 months after the declaration of a state of
  897  emergency by the Governor in response to a hurricane that makes
  898  landfall in this state.
  899         Section 11. Effective upon this act becoming a law,
  900  subsection (4) of section 627.7295, Florida Statutes, is amended
  901  to read:
  902         627.7295 Motor vehicle insurance contracts.—
  903         (4) If subsection (7) does not apply, The insurer may
  904  cancel the policy in accordance with this code except that,
  905  notwithstanding s. 627.728, an insurer may not cancel a new
  906  policy or binder during the first 60 days immediately following
  907  the effective date of the policy or binder except for nonpayment
  908  of premium unless the reason for the cancellation is the
  909  issuance of a check for the premium that is dishonored for any
  910  reason or any other type of premium payment that was
  911  subsequently determined to be rejected or invalid.
  912         Section 12. Effective upon this act becoming a law,
  913  paragraph (d) of subsection (4) of section 627.736, Florida
  914  Statutes, is amended to read:
  915         627.736 Required personal injury protection benefits;
  916  exclusions; priority; claims.—
  917         (4) BENEFITS; WHEN DUE.—Benefits due from an insurer under
  918  ss. 627.730-627.7405 shall be primary, except that benefits
  919  received under any workers’ compensation law shall be credited
  920  against the benefits provided by subsection (1) and shall be due
  921  and payable as loss accrues, upon receipt of reasonable proof of
  922  such loss and the amount of expenses and loss incurred which are
  923  covered by the policy issued under ss. 627.730-627.7405. When
  924  the Agency for Health Care Administration provides, pays, or
  925  becomes liable for medical assistance under the Medicaid program
  926  related to injury, sickness, disease, or death arising out of
  927  the ownership, maintenance, or use of a motor vehicle, benefits
  928  under ss. 627.730-627.7405 shall be subject to the provisions of
  929  the Medicaid program.
  930         (d) All overdue payments shall bear simple interest fixed
  931  at the rate established under s. 55.03 or the rate established
  932  in the insurance contract, whichever is greater, in effect on
  933  the date for the year in which the payment became overdue,
  934  calculated from the date the insurer was furnished with written
  935  notice of the amount of covered loss. Interest is shall be due
  936  at the time payment of the overdue claim is made.
  937         Section 13. Except as otherwise expressly provided in this
  938  act and except for this section, which shall take effect upon
  939  this act becoming a law, this act shall take effect July 1,
  940  2012.