| 1 | A bill to be entitled |
| 2 | An act relating to motor vehicle personal injury |
| 3 | protection insurance; amending s. 316.066, F.S.; |
| 4 | revising criteria relating to whether a motor vehicle |
| 5 | crash report must be submitted to the Department of |
| 6 | Highway Safety and Motor Vehicles by an investigating |
| 7 | law enforcement officer; providing a penalty; revising |
| 8 | requirements relating to the content of crash reports; |
| 9 | authorizing the submission of certain crash reports to |
| 10 | a traffic records center; authorizing an investigating |
| 11 | officer to testify at trial or provide an affidavit |
| 12 | concerning the information in a crash report; amending |
| 13 | s. 324.0221, F.S.; increasing certain license |
| 14 | reinstatement fees; amending s. 400.991, F.S.; |
| 15 | requiring that an application for licensure as a |
| 16 | health care clinic include a statement regarding |
| 17 | insurance fraud; amending s. 400.9925, F.S.; imposing |
| 18 | a licensing fee for health care clinics authorized to |
| 19 | submit claims for payment under personal injury |
| 20 | protection insurance policies; directing a portion of |
| 21 | the proceeds from such licensing fees to the operation |
| 22 | of the Automobile Insurance Fraud Strike Force; |
| 23 | creating s. 626.9898, F.S.; providing definitions; |
| 24 | authorizing the Division of Insurance Fraud to |
| 25 | establish a direct-support organization for the |
| 26 | purpose of prosecuting, investigating, and preventing |
| 27 | motor vehicle insurance fraud; providing requirements |
| 28 | for the organization and the organization's contract |
| 29 | with the division; providing for a board of directors; |
| 30 | authorizing the organization to use the division's |
| 31 | property and facilities subject to certain |
| 32 | requirements; authorizing contributions from insurers; |
| 33 | providing that any moneys received by the organization |
| 34 | may be held in a separate depository account in the |
| 35 | name of the organization; requiring the division to |
| 36 | deposit certain proceeds into the Insurance Regulatory |
| 37 | Trust Fund; amending s. 627.736, F.S.; revising |
| 38 | criteria relating to the entities that are authorized |
| 39 | to file a claim for payment under a personal injury |
| 40 | protection insurance policy; prohibiting attorney fees |
| 41 | from being awarded when representation is secured by |
| 42 | an illegal solicitation; specifying guidelines for |
| 43 | determining a reasonable attorney fee; limiting a |
| 44 | court's authority to award an attorney fee multiplier; |
| 45 | providing an exception; revising circumstances under |
| 46 | which information relating to a motor vehicle no-fault |
| 47 | case may be transmitted electronically; amending s. |
| 48 | 817.234, F.S.; providing for the loss of an |
| 49 | occupational license and prohibition from receiving |
| 50 | reimbursement for personal injury protection benefits |
| 51 | for a specified time if a business entity is found |
| 52 | guilty of insurance fraud; providing for the loss of a |
| 53 | health care practitioner's license to practice and |
| 54 | prohibition from receiving reimbursement for personal |
| 55 | injury protection benefits for a specified time if the |
| 56 | practitioner is found guilty of insurance fraud; |
| 57 | providing civil penalties; providing an effective |
| 58 | date. |
| 59 |
|
| 60 | Be It Enacted by the Legislature of the State of Florida: |
| 61 |
|
| 62 | Section 1. Subsection (1) of section 316.066, Florida |
| 63 | Statutes, is amended, and paragraph (a) of subsection (3) of |
| 64 | that section is reenacted, to read: |
| 65 | 316.066 Written reports of crashes.- |
| 66 | (1)(a) A Florida Traffic Crash Report, Long Form is |
| 67 | required to be completed and submitted to the department within |
| 68 | 10 days after completing an investigation by every law |
| 69 | enforcement officer who in the regular course of duty |
| 70 | investigates a motor vehicle crash that: |
| 71 | 1. That resulted in death, or personal injury, or any |
| 72 | indication of complaints of pain or discomfort by any of the |
| 73 | parties or passengers involved in the crash;. |
| 74 | 2. That involved one or more passengers, other than the |
| 75 | drivers of the vehicles, in any of the vehicles involved in the |
| 76 | crash; |
| 77 | 3.2. That involved a violation of s. 316.061(1) or s. |
| 78 | 316.193; or. |
| 79 | 4. In which a vehicle was rendered inoperative to a degree |
| 80 | that required a wrecker to remove it from traffic, if such |
| 81 | action is appropriate, in the officer's discretion. |
| 82 | (b) In every crash for which a Florida Traffic Crash |
| 83 | Report, Long Form is not required by this section, the law |
| 84 | enforcement officer may complete a short-form crash report or |
| 85 | provide a driver exchange-of-information form to be completed by |
| 86 | each party involved in the crash. Short-form crash reports |
| 87 | prepared by the law enforcement officer shall be maintained by |
| 88 | the officer's agency. |
| 89 | (c) The long-form and short-form reports report must |
| 90 | include: |
| 91 | 1. The date, time, and location of the crash. |
| 92 | 2. A description of the vehicles involved. |
| 93 | 3. The names and addresses of the parties involved, |
| 94 | including all drivers and passengers. |
| 95 | 4. The names and addresses of all passengers in all |
| 96 | vehicles involved in the crash, each clearly identified as being |
| 97 | a passenger, and the identification of the vehicle in which each |
| 98 | was a passenger. |
| 99 | 5.4. The names and addresses of witnesses. |
| 100 | 6.5. The name, badge number, and law enforcement agency of |
| 101 | the officer investigating the crash. |
| 102 | 7.6. The names of the insurance companies for the |
| 103 | respective parties involved in the crash. |
| 104 | (d) The phone numbers of the parties involved in the crash |
| 105 | may not be included in any crash report except in the case of a |
| 106 | criminal traffic offense. |
| 107 | (e)(c) Each party to the crash must provide the law |
| 108 | enforcement officer with proof of insurance, which must be |
| 109 | included documented in the crash report. If a law enforcement |
| 110 | officer submits a report on the crash, proof of insurance must |
| 111 | be provided to the officer by each party involved in the crash. |
| 112 | Any party who fails to provide the required information commits |
| 113 | a noncriminal traffic infraction, punishable as a nonmoving |
| 114 | violation as provided in chapter 318, unless the officer |
| 115 | determines that due to injuries or other special circumstances |
| 116 | such insurance information cannot be provided immediately. If |
| 117 | the person provides the law enforcement agency, within 24 hours |
| 118 | after the crash, proof of insurance that was valid at the time |
| 119 | of the crash, the law enforcement agency may void the citation. |
| 120 | (f)(d) The driver of a vehicle that was in any manner |
| 121 | involved in a crash resulting in damage to any vehicle or other |
| 122 | property in an amount of $500 or more, which crash was not |
| 123 | investigated by a law enforcement agency, shall, within 10 days |
| 124 | after the crash, submit a written report of the crash to the |
| 125 | department or traffic records center. The entity receiving the |
| 126 | report may require witnesses of the crash to render reports and |
| 127 | may require any driver of a vehicle involved in a crash of which |
| 128 | a written report must be made to file supplemental written |
| 129 | reports if the original report is deemed insufficient by the |
| 130 | receiving entity. |
| 131 | (g) The investigating law enforcement officer may testify |
| 132 | at trial or provide a signed affidavit to confirm or supplement |
| 133 | the information included on the long-form or short-form report. |
| 134 | (e) Short-form crash reports prepared by law enforcement |
| 135 | shall be maintained by the law enforcement officer's agency. |
| 136 | (3)(a) Any driver failing to file the written report |
| 137 | required under subsection (1) commits a noncriminal traffic |
| 138 | infraction, punishable as a nonmoving violation as provided in |
| 139 | chapter 318. |
| 140 | Section 2. Subsection (3) of section 324.0221, Florida |
| 141 | Statutes, is amended to read: |
| 142 | 324.0221 Reports by insurers to the department; suspension |
| 143 | of driver driver's license and vehicle registrations; |
| 144 | reinstatement.- |
| 145 | (3) An operator or owner whose driver driver's license or |
| 146 | registration has been suspended under this section or s. 316.646 |
| 147 | may effect its reinstatement upon compliance with the |
| 148 | requirements of this section and upon payment to the department |
| 149 | of a nonrefundable reinstatement fee of $250 $150 for the first |
| 150 | reinstatement. The reinstatement fee is $350 $250 for the second |
| 151 | reinstatement and $750 $500 for each subsequent reinstatement |
| 152 | during the 3 years following the first reinstatement. A person |
| 153 | reinstating her or his insurance under this subsection must also |
| 154 | secure noncancelable coverage as described in ss. 324.021(8), |
| 155 | 324.023, and 627.7275(2) and present to the appropriate person |
| 156 | proof that the coverage is in force on a form adopted by the |
| 157 | department, and such proof shall be maintained for 2 years. If |
| 158 | the person does not have a second reinstatement within 3 years |
| 159 | after her or his initial reinstatement, the reinstatement fee is |
| 160 | $250 $150 for the first reinstatement after that 3-year period. |
| 161 | If a person's license and registration are suspended under this |
| 162 | section or s. 316.646, only one reinstatement fee must be paid |
| 163 | to reinstate the license and the registration. All fees shall be |
| 164 | collected by the department at the time of reinstatement. The |
| 165 | department shall issue proper receipts for such fees and shall |
| 166 | promptly deposit those fees in the Highway Safety Operating |
| 167 | Trust Fund. One-third of the fees collected under this |
| 168 | subsection shall be distributed from the Highway Safety |
| 169 | Operating Trust Fund to the local governmental entity or state |
| 170 | agency that employed the law enforcement officer seizing the |
| 171 | license plate pursuant to s. 324.201. The funds may be used by |
| 172 | the local governmental entity or state agency for any authorized |
| 173 | purpose. |
| 174 | Section 3. Subsection (6) is added to section 400.991, |
| 175 | Florida Statutes, to read: |
| 176 | 400.991 License requirements; background screenings; |
| 177 | prohibitions.- |
| 178 | (6) All forms that constitute part of the application for |
| 179 | licensure or exemption from licensure under this part must |
| 180 | contain the following statement: |
| 181 | INSURANCE FRAUD NOTICE |
| 182 | Submitting a false, misleading, or fraudulent application or |
| 183 | other document when applying for licensure as a health care |
| 184 | clinic, when seeking an exemption from licensure as a health |
| 185 | care clinic, or when demonstrating compliance with part X of |
| 186 | chapter 400, Florida Statutes, is a fraudulent insurance act, as |
| 187 | described in ss. 626.989 and 817.234, Florida Statutes, and as |
| 188 | such is a basis for investigation by the Division of Insurance |
| 189 | Fraud and grounds for discipline by the appropriate licensing |
| 190 | board of the Department of Health. |
| 191 | Section 4. Subsection (4) is added to section 400.9925, |
| 192 | Florida Statutes, to read: |
| 193 | 400.9925 Rulemaking authority; license fees.- |
| 194 | (4) The licensing fee for any health care clinic |
| 195 | authorized to submit claims for payment under a personal injury |
| 196 | protection insurance policy pursuant to s. 627.736(5)(a)1.c. |
| 197 | shall be $2,000. Two-thirds of the proceeds from the licensing |
| 198 | fee shall be used to assist in the operation of the Automobile |
| 199 | Insurance Fraud Strike Force established under s. 626.9898. |
| 200 | Section 5. Section 626.9898, Florida Statutes, is created |
| 201 | to read: |
| 202 | 626.9898 Motor vehicle insurance fraud direct-support |
| 203 | organization.- |
| 204 | (1) DEFINITIONS.-As used in this section, the term: |
| 205 | (a) "Division" means the Division of Insurance Fraud of |
| 206 | the Department of Financial Services. |
| 207 | (b) "Motor vehicle insurance fraud" means any act defined |
| 208 | as a "fraudulent insurance act" under s. 626.989 that relates to |
| 209 | motor vehicle insurance coverage as described in part XI of |
| 210 | chapter 627. |
| 211 | (c) "Organization" means the direct-support organization |
| 212 | established under this section. |
| 213 | (2) ORGANIZATION ESTABLISHED.-The division may establish a |
| 214 | direct-support organization, to be known as the "Automobile |
| 215 | Insurance Fraud Strike Force," whose sole purpose is to support |
| 216 | the prosecution, investigation, and prevention of motor vehicle |
| 217 | insurance fraud. The organization shall: |
| 218 | (a) Be a not-for-profit corporation incorporated under |
| 219 | chapter 617 and approved by the Department of State. |
| 220 | (b) Be organized and operated to conduct programs and |
| 221 | activities; to raise funds; to request and receive grants, |
| 222 | gifts, and bequests of money; to acquire, receive, hold, invest, |
| 223 | and administer, in its own name, securities, funds, objects of |
| 224 | value, or other property, real or personal; and to make grants |
| 225 | and expenditures to or for the direct or indirect benefit of the |
| 226 | division, state attorneys' offices, the statewide prosecutor, |
| 227 | the Agency for Health Care Administration, and the Department of |
| 228 | Health to the extent that such grants and expenditures are to be |
| 229 | used exclusively to advance the purpose of prosecuting, |
| 230 | investigating, or preventing motor vehicle insurance fraud. |
| 231 | Grants and expenditures may include the cost of salaries or |
| 232 | benefits of dedicated motor vehicle insurance fraud |
| 233 | investigators, prosecutors, or support personnel if such grants |
| 234 | and expenditures do not interfere with prosecutorial |
| 235 | independence or otherwise create conflicts of interest that |
| 236 | threaten the success of prosecutions. Funds received under this |
| 237 | paragraph by a state attorney's office or the statewide |
| 238 | prosecutor, and staff or prosecutors employed by a state |
| 239 | attorney's office or the statewide prosecutor with such funds, |
| 240 | shall be under the exclusive direction and control of that state |
| 241 | attorney or the statewide prosecutor, as applicable. |
| 242 | (c) Be determined by the division to operate in a manner |
| 243 | that promotes the goals of laws relating to motor vehicle |
| 244 | insurance fraud, that is in the best interest of the state, and |
| 245 | that is in accordance with the adopted goals and mission of the |
| 246 | division. |
| 247 | (d) Use all of its grants and expenditures solely for the |
| 248 | purpose of preventing and decreasing motor vehicle insurance |
| 249 | fraud and not for the purpose of lobbying as defined in s. |
| 250 | 11.045. |
| 251 | (e) Be subject to an annual financial audit in accordance |
| 252 | with s. 215.981. |
| 253 | (3) CONTRACT.-The organization shall operate under written |
| 254 | contract with the division. The contract must provide for: |
| 255 | (a) Approval of the articles of incorporation and bylaws |
| 256 | of the organization by the division. |
| 257 | (b) Submission of an annual budget for division approval. |
| 258 | The budget must require the organization to minimize costs to |
| 259 | the division and its members at all times by using existing |
| 260 | personnel and property and allowing for telephonic meetings when |
| 261 | appropriate. |
| 262 | (c) Certification by the division that the organization is |
| 263 | complying with the terms of the contract and in a manner |
| 264 | consistent with the goals and purposes of the department and in |
| 265 | the best interest of the state. Such certification must be made |
| 266 | annually and reported in the official minutes of a meeting of |
| 267 | the organization. |
| 268 | (d) Allocation of funds to address motor vehicle insurance |
| 269 | fraud. |
| 270 | (e) Reversion of moneys and property held in trust by the |
| 271 | organization for motor vehicle insurance fraud prosecution, |
| 272 | investigation, and prevention to the division if the |
| 273 | organization is no longer approved to operate for the department |
| 274 | or if the organization ceases to exist, or to the state if the |
| 275 | division ceases to exist. |
| 276 | (f) Specific criteria to be used by the organization's |
| 277 | board of directors to evaluate the effectiveness of funding used |
| 278 | to combat motor vehicle insurance fraud. |
| 279 | (g) The fiscal year of the organization, which begins July |
| 280 | 1 of each year and ends June 30 of the following year. |
| 281 | (h) Disclosure of the material provisions of the contract, |
| 282 | and distinguishing between the department and the organization |
| 283 | to donors of gifts, contributions, or bequests, including |
| 284 | providing such disclosure on all promotional and fundraising |
| 285 | publications. |
| 286 | (4) BOARD OF DIRECTORS.-The board of directors of the |
| 287 | organization shall consist of the following nine members: |
| 288 | (a) The Chief Financial Officer, or designee, who shall |
| 289 | serve as chair. |
| 290 | (b) Two state attorneys, one of whom shall be appointed by |
| 291 | the Chief Financial Officer and one of whom shall be appointed |
| 292 | by the Attorney General. |
| 293 | (c) Two representatives of motor vehicle insurers |
| 294 | appointed by the Chief Financial Officer. |
| 295 | (d) Two representatives of local law enforcement agencies, |
| 296 | both of whom shall be appointed by the Chief Financial Officer. |
| 297 | (e) Two representatives of health care providers that |
| 298 | routinely provide services billed under motor vehicle insurance |
| 299 | policies, one of whom shall be appointed by the President of the |
| 300 | Florida Medical Association and one of whom shall be appointed |
| 301 | by the President of the Florida Chiropractic Society. |
| 302 |
|
| 303 | The officer who appointed a member of the board may remove that |
| 304 | member for cause. The term of office of an appointed member |
| 305 | expires at the same time as the term of the officer who |
| 306 | appointed him or her or at such earlier time as the person |
| 307 | ceases to be qualified. |
| 308 | (5) USE OF PROPERTY.-The department may authorize, without |
| 309 | charge, appropriate use of fixed property and facilities of the |
| 310 | division by the organization, subject to this subsection. |
| 311 | (a) The department may prescribe any condition with which |
| 312 | the organization must comply in order to use the division's |
| 313 | property or facilities. |
| 314 | (b) The department may not authorize the use of the |
| 315 | division's property or facilities if the organization does not |
| 316 | provide equal membership and employment opportunities to all |
| 317 | persons regardless of race, religion, sex, age, or national |
| 318 | origin. |
| 319 | (c) The department shall adopt rules prescribing the |
| 320 | procedures by which the organization is governed and any |
| 321 | condition with which the organization must comply in order to |
| 322 | use the division's property or facilities. |
| 323 | (6) CONTRIBUTIONS.-Any contributions made by an insurer to |
| 324 | the organization shall be allowed as appropriate business |
| 325 | expenses for all regulatory purposes. |
| 326 | (7) DEPOSITORY.-Any moneys received by the organization |
| 327 | may be held in a separate depository account in the name of the |
| 328 | organization and subject to the provisions of the contract with |
| 329 | the division. |
| 330 | (8) DIVISION'S RECEIPT OF PROCEEDS.-If the division |
| 331 | receives proceeds from the organization, those proceeds shall be |
| 332 | deposited into the Insurance Regulatory Trust Fund. |
| 333 | Section 6. Paragraph (a) of subsection (5) and subsections |
| 334 | (8) and (16) of section 627.736, Florida Statutes, are amended |
| 335 | to read: |
| 336 | 627.736 Required personal injury protection benefits; |
| 337 | exclusions; priority; claims.- |
| 338 | (5) CHARGES FOR TREATMENT OF INJURED PERSONS.- |
| 339 | (a)1. A claim for payment under a personal injury |
| 340 | protection insurance policy may be filed only by: |
| 341 | a. A sole proprietorship, group practice, partnership, or |
| 342 | corporation that is wholly owned by one or more physicians |
| 343 | licensed under chapter 458, chapter 459, chapter 460, chapter |
| 344 | 461, or chapter 466; |
| 345 | b. An entity that is owned, directly or indirectly, by an |
| 346 | entity licensed or registered by the state under chapter 395; |
| 347 | c. An entity owned by a corporation the stock of which is |
| 348 | publicly traded; or |
| 349 | d. A clinic licensed under part X of chapter 400 that |
| 350 | provides health care services by health care practitioners as |
| 351 | defined in s. 456.001(4), the medical director of which is |
| 352 | licensed under chapter 458 or chapter 459, and that holds |
| 353 | accreditation by the Joint Commission on Accreditation of |
| 354 | Healthcare Organizations, the Accreditation Association for |
| 355 | Ambulatory Health Care, the Accreditation Commission for Health |
| 356 | Care, the Commission on Accreditation of Rehabilitation |
| 357 | Facilities, or the National Committee for Quality Assurance. |
| 358 | 2.1. Any physician, hospital, clinic, or other person or |
| 359 | institution lawfully rendering treatment to an injured person |
| 360 | for a bodily injury covered by personal injury protection |
| 361 | insurance may charge the insurer and injured party only a |
| 362 | reasonable amount pursuant to this section for the services and |
| 363 | supplies rendered, and the insurer providing such coverage may |
| 364 | pay for such charges directly to such person or institution |
| 365 | lawfully rendering such treatment, if the insured receiving such |
| 366 | treatment or his or her guardian has countersigned the properly |
| 367 | completed invoice, bill, or claim form approved by the office |
| 368 | upon which such charges are to be paid for as having actually |
| 369 | been rendered, to the best knowledge of the insured or his or |
| 370 | her guardian. In no event, however, may such a charge be in |
| 371 | excess of the amount the person or institution customarily |
| 372 | charges for like services or supplies. With respect to a |
| 373 | determination of whether a charge for a particular service, |
| 374 | treatment, or otherwise is reasonable, consideration may be |
| 375 | given to evidence of usual and customary charges and payments |
| 376 | accepted by the provider involved in the dispute, and |
| 377 | reimbursement levels in the community and various federal and |
| 378 | state medical fee schedules applicable to automobile and other |
| 379 | insurance coverages, and other information relevant to the |
| 380 | reasonableness of the reimbursement for the service, treatment, |
| 381 | or supply. |
| 382 | 3.2. The insurer may limit reimbursement to 80 percent of |
| 383 | the following schedule of maximum charges: |
| 384 | a. For emergency transport and treatment by providers |
| 385 | licensed under chapter 401, 200 percent of Medicare. |
| 386 | b. For emergency services and care provided by a hospital |
| 387 | licensed under chapter 395, 75 percent of the hospital's usual |
| 388 | and customary charges. |
| 389 | c. For emergency services and care as defined by s. |
| 390 | 395.002(9) provided in a facility licensed under chapter 395 |
| 391 | rendered by a physician or dentist, and related hospital |
| 392 | inpatient services rendered by a physician or dentist, the usual |
| 393 | and customary charges in the community. |
| 394 | d. For hospital inpatient services, other than emergency |
| 395 | services and care, 200 percent of the Medicare Part A |
| 396 | prospective payment applicable to the specific hospital |
| 397 | providing the inpatient services. |
| 398 | e. For hospital outpatient services, other than emergency |
| 399 | services and care, 200 percent of the Medicare Part A Ambulatory |
| 400 | Payment Classification for the specific hospital providing the |
| 401 | outpatient services. |
| 402 | f. For all other medical services, supplies, and care, 200 |
| 403 | percent of the allowable amount under the participating |
| 404 | physicians schedule of Medicare Part B. However, if such |
| 405 | services, supplies, or care is not reimbursable under Medicare |
| 406 | Part B, the insurer may limit reimbursement to 80 percent of the |
| 407 | maximum reimbursable allowance under workers' compensation, as |
| 408 | determined under s. 440.13 and rules adopted thereunder which |
| 409 | are in effect at the time such services, supplies, or care is |
| 410 | provided. Services, supplies, or care that is not reimbursable |
| 411 | under Medicare or workers' compensation is not required to be |
| 412 | reimbursed by the insurer. |
| 413 | 4.3. For purposes of subparagraph 3. 2., the applicable |
| 414 | fee schedule or payment limitation under Medicare is the fee |
| 415 | schedule or payment limitation in effect at the time the |
| 416 | services, supplies, or care was rendered and for the area in |
| 417 | which such services were rendered, except that it may not be |
| 418 | less than the allowable amount under the participating |
| 419 | physicians schedule of Medicare Part B for 2007 for medical |
| 420 | services, supplies, and care subject to Medicare Part B. |
| 421 | 5.4. Subparagraph 3. 2. does not allow the insurer to |
| 422 | apply any limitation on the number of treatments or other |
| 423 | utilization limits that apply under Medicare or workers' |
| 424 | compensation. An insurer that applies the allowable payment |
| 425 | limitations of subparagraph 3. 2. must reimburse a provider who |
| 426 | lawfully provided care or treatment under the scope of his or |
| 427 | her license, regardless of whether such provider would be |
| 428 | entitled to reimbursement under Medicare due to restrictions or |
| 429 | limitations on the types or discipline of health care providers |
| 430 | who may be reimbursed for particular procedures or procedure |
| 431 | codes. |
| 432 | 6.5. If an insurer limits payment as authorized by |
| 433 | subparagraph 3. 2., the person providing such services, |
| 434 | supplies, or care may not bill or attempt to collect from the |
| 435 | insured any amount in excess of such limits, except for amounts |
| 436 | that are not covered by the insured's personal injury protection |
| 437 | coverage due to the coinsurance amount or maximum policy limits. |
| 438 | (8) APPLICABILITY OF PROVISION REGULATING ATTORNEY |
| 439 | ATTORNEY'S FEES.- |
| 440 | (a) With respect to any dispute under the provisions of |
| 441 | ss. 627.730-627.7405 between the insured and the insurer, or |
| 442 | between an assignee of an insured's rights and the insurer, the |
| 443 | provisions of s. 627.428 shall apply, except as provided in |
| 444 | subsections (10) and (15). |
| 445 | (b) Attorney fees may not be awarded under this subsection |
| 446 | in regard to representation that was secured by an illegal |
| 447 | solicitation. |
| 448 | (c) Guidelines for determining a reasonable attorney fee |
| 449 | under this subsection include: |
| 450 | 1. The time and labor required; the novelty, complexity, |
| 451 | and difficulty of the questions involved; and the skill |
| 452 | requisite to perform the legal service properly. |
| 453 | 2. The likelihood that the acceptance of the particular |
| 454 | employment will preclude other employment by the attorney. |
| 455 | 3. The fee, or rate of fee, customarily charged in the |
| 456 | locality for legal services of a comparable or similar nature. |
| 457 | 4. The significance of, or amount involved in, the subject |
| 458 | matter of the representation; the responsibility involved in the |
| 459 | representation; and the results obtained. |
| 460 | 5. The time limitations imposed by the client or by the |
| 461 | circumstances and, as between attorney and client, any |
| 462 | additional or special time demands or requests of the attorney |
| 463 | by the client. |
| 464 | 6. The nature and length of the professional relationship |
| 465 | with the client. |
| 466 | 7. The experience, reputation, diligence, and ability of |
| 467 | the attorney or attorneys performing the service and the skill, |
| 468 | expertise, or efficiency reflected in the actual provision of |
| 469 | such services. |
| 470 | 8. Whether the fee is fixed or contingent and, if fixed as |
| 471 | to amount or rate, whether the client's ability to pay rested |
| 472 | significantly on the outcome of the representation. |
| 473 | (d) An attorney fee multiplier may only be awarded under |
| 474 | this subsection if the court makes findings of fact based upon |
| 475 | competent evidence in the record establishing that: |
| 476 | 1. The party requesting the multiplier would have faced |
| 477 | substantial difficulties finding competent counsel to pursue the |
| 478 | case in the relevant market but for the consideration of a fee |
| 479 | multiplier; |
| 480 | 2. Consideration of a fee multiplier was a necessary |
| 481 | incentive to obtain competent counsel to pursue the case; |
| 482 | 3. The claim would not have been economically feasible if |
| 483 | brought on a noncontingent, fixed attorney fee basis; |
| 484 | 4. The attorney was unable to mitigate the risk of |
| 485 | nonpayment of attorney fees in any other way; and |
| 486 | 5. Use of a multiplier is justified based on factors such |
| 487 | as the amount of risk undertaken by the attorney at the outset |
| 488 | of the case, the results obtained, and the type of fee |
| 489 | arrangement between the attorney and client. |
| 490 | (e) Notwithstanding the limitations in paragraph (d), a |
| 491 | fee multiplier may be awarded under this subsection in a class |
| 492 | action case. |
| 493 | (16) SECURE ELECTRONIC DATA TRANSFER.-Any If all parties |
| 494 | mutually and expressly agree, a notice, documentation, |
| 495 | transmission, or communication of any kind required or |
| 496 | authorized under ss. 627.730-627.7405 may be transmitted |
| 497 | electronically if it is transmitted by secure electronic data |
| 498 | transfer that is consistent with chapter 668 and state and |
| 499 | federal privacy and security laws. |
| 500 | Section 7. Subsections (10) and (13) of section 817.234, |
| 501 | Florida Statutes, are amended, and subsection (12) of that |
| 502 | section is reenacted, to read: |
| 503 | 817.234 False and fraudulent insurance claims.- |
| 504 | (10)(a) Any person who owns a business entity eligible for |
| 505 | reimbursement under s. 627.736(1) and who is found guilty of |
| 506 | insurance fraud under this section shall lose his or her |
| 507 | occupational license for such entity for 5 years and may not |
| 508 | receive reimbursement for personal injury protection benefits |
| 509 | for 10 years. |
| 510 | (b) Any licensed health care practitioner found guilty of |
| 511 | insurance fraud under this section shall lose his or her license |
| 512 | to practice for 5 years and may not receive reimbursement for |
| 513 | personal injury protection benefits for 10 years. As used in |
| 514 | this section, the term "insurer" means any insurer, health |
| 515 | maintenance organization, self-insurer, self-insurance fund, or |
| 516 | other similar entity or person regulated under chapter 440 or |
| 517 | chapter 641 or by the Office of Insurance Regulation under the |
| 518 | Florida Insurance Code. |
| 519 | (12) In addition to any criminal liability, a person |
| 520 | convicted of violating any provision of this section for the |
| 521 | purpose of receiving insurance proceeds from a motor vehicle |
| 522 | insurance contract is subject to a civil penalty. |
| 523 | (a) Except for a violation of subsection (9), the civil |
| 524 | penalty shall be: |
| 525 | 1. A fine up to $5,000 for a first offense. |
| 526 | 2. A fine greater than $5,000, but not to exceed $10,000, |
| 527 | for a second offense. |
| 528 | 3. A fine greater than $10,000, but not to exceed $15,000, |
| 529 | for a third or subsequent offense. |
| 530 | (b) The civil penalty for a violation of subsection (9) |
| 531 | must be at least $15,000 but may not exceed $50,000. |
| 532 | (c) The civil penalty shall be paid to the Insurance |
| 533 | Regulatory Trust Fund within the Department of Financial |
| 534 | Services and used by the department for the investigation and |
| 535 | prosecution of insurance fraud. |
| 536 | (d) This subsection does not prohibit a state attorney |
| 537 | from entering into a written agreement in which the person |
| 538 | charged with the violation does not admit to or deny the charges |
| 539 | but consents to payment of the civil penalty. |
| 540 | (13) As used in this section, the term: |
| 541 | (a) "Insurer" means any insurer, health maintenance |
| 542 | organization, self-insurer, self-insurance fund, or similar |
| 543 | entity or person regulated under chapter 440 or chapter 641 or |
| 544 | by the Office of Insurance Regulation under the Florida |
| 545 | Insurance Code. |
| 546 | (b)(a) "Property" means property as defined in s. 812.012. |
| 547 | (c)(b) "Value" means value as defined in s. 812.012. |
| 548 | Section 8. This act shall take effect July 1, 2012. |