Florida Senate - 2019 COMMITTEE AMENDMENT
Bill No. SB 122
Ì306982BÎ306982
LEGISLATIVE ACTION
Senate . House
Comm: RCS .
03/04/2019 .
.
.
.
—————————————————————————————————————————————————————————————————
—————————————————————————————————————————————————————————————————
The Committee on Banking and Insurance (Broxson) recommended the
following:
1 Senate Amendment (with title amendment)
2
3 Delete everything after the enacting clause
4 and insert:
5 Section 1. Section 501.172, Florida Statutes, is created to
6 read:
7 501.172 Agreements between service providers and
8 consumers.—
9 (1) DEFINITIONS.—As used in this section:
10 (a) "Consumer" means a person who has an interest in, or
11 who has a right to manage real or personal property, including
12 improvements upon such property, regardless of whether for
13 personal or business purposes, including an owner, a tenant, a
14 licensee, or a property manager.
15 (b) "Service provider" means a person who enters into an
16 agreement with a consumer for the stabilization, repair,
17 improvement, or remediation of real or personal property.
18 (2) LIMITATION ON AGREEMENTS BETWEEN SERVICE PROVIDERS AND
19 CONSUMERS UNDER URGENT OR EMERGENCY CIRCUMSTANCES.—
20 (a) If a consumer acts under urgent or emergency
21 circumstances to protect property from damage and enters into an
22 agreement with a service provider to stabilize, protect, repair,
23 or improve such property, the service provider may only contract
24 for, receive, or acquire in any manner from the consumer at such
25 time the right to payment for the work necessary to stabilize,
26 protect, and prevent additional damage to the property. Such
27 right to payment may include:
28 1. A post-loss assignment of benefits under a property
29 insurance policy or under the comprehensive or combined
30 additional coverage under a motor vehicle insurance policy for
31 coverage of windshield damage, executed pursuant to subsection
32 (3), except that notwithstanding s. 626.9373 and s. 627.428, any
33 right to attorney fees or costs against an insurer by any such
34 service provider shall be as provided in subsection (4). A
35 service provider may not receive from a consumer acting under
36 urgent or emergency circumstances an assignment of post-loss
37 benefits in excess of:
38 a. Under a property insurance policy, in excess of the
39 greater of $3,000 or 1 percent of the Coverage A limit under
40 such policy.
41 b. Under a motor vehicle insurance policy for comprehensive
42 or combined additional coverage for windshield damage, in excess
43 of $500.
44 2. An acknowledgement of the rights that may exist, if any,
45 under chapter 713 to make a claim upon the property.
46 (b) An agreement between a consumer and a service provider
47 that provides greater rights to the service provider under such
48 urgent or emergency circumstances, including alleged rights to
49 do further repairs, remediation, or improvements or an
50 assignment of rights, benefits, causes of action, or other
51 contractual rights in violation of this subsection is void.
52 (3) REQUIREMENTS FOR AGREEMENTS CONTAINING A POST-LOSS
53 ASSIGNMENT OF BENEFITS.—In all circumstances, an agreement
54 entered into by a consumer and a service provider after a loss
55 or damage has occurred to the consumer's property which contains
56 a post-loss assignment of benefits to the service provider or
57 some third person is only valid if:
58 (a) The consumer or service provider provides a copy of the
59 agreement to the consumer's insurer, sent to the location
60 designated for receipt of such agreements if specified in the
61 insurance policy, within 3 business days after the agreement's
62 execution;
63 (b) The agreement contains a provision allowing the
64 consumer to rescind the agreement in a writing signed by the
65 assignor, if the consumer provides written notice of the
66 rescission to the service provider within 14 days of the
67 execution of the agreement or at least 30 days after the
68 execution of the agreement if the service provider has not begun
69 substantial work on the property;
70 (c) The agreement does not impose any fee or penalty for
71 rescinding the agreement, for check processing, for not using a
72 specified service provider for permanent repairs, or for
73 mortgage processing;
74 (d) The agreement does not prevent or inhibit an insurer
75 from communicating with the consumer at any time;
76 (e) The agreement, if made under a motor vehicle insurance
77 policy for comprehensive or combined additional coverage for
78 windshield damage, does not assign the right to more than $500
79 in post-loss benefits;
80 (f) The agreement does not transfer or create any authority
81 to adjust, negotiate, or settle any portion of a claim to a
82 person or an entity who is not authorized to adjust, negotiate,
83 or settle a claim on behalf of the insured or claimant under
84 part VI of chapter 626;
85 (g) The agreement does not transfer to the assignee any
86 greater right to attorney fees and costs from the insurer than
87 the right to attorney fees and costs as provided for in
88 subsection (4); and
89 (h) The agreement relates only to work performed or to be
90 performed by the service provider.
91 (4) ATTORNEY FEES.—
92 (a) In a civil action under a property insurance policy or
93 under the comprehensive or combined additional coverage under a
94 motor vehicle insurance policy for coverage of windshield
95 damage, between an insurer and a service provider who obtains an
96 assignment of post-loss benefits, the prevailing party has the
97 right to attorney fees and costs from the:
98 1. Insurer, if the service provider is the prevailing
99 party.
100 2. Service provider, if the insurer is the prevailing
101 party.
102 (b) The prevailing party is the party which prevails on the
103 significant issues of the case. The court may determine that
104 there is no prevailing party in a case. In determining if there
105 is a prevailing party, the court must consider:
106 1. The issues litigated;
107 2. The amount of the claims by the service provider versus
108 the amount recovered;
109 3. The existence of setoffs and counterclaims, if any; and
110 4. The amounts offered by either party to resolve the
111 issues prior to or during litigation.
112 (5) LIMITATION ON RECOVERY FROM ASSIGNOR.—An assignee
113 service provider and any subcontractor of the service provider
114 that accepts an assignment of post-loss benefits waives any and
115 all claims against a consumer, except as provided herein. The
116 consumer remains responsible for the payment of any deductible
117 amount provided for by the terms of the insurance policy, and
118 for the cost of any betterment ordered by the consumer. This
119 subsection does not prohibit the assignee from collecting or
120 attempting to collect money from, maintaining an action at law
121 against, or claiming a lien on the property of a consumer or
122 reporting a consumer to a credit agency for payment of the
123 amount of the insurance deductible, or any amount attributable
124 to betterment ordered by the consumer. This waiver is effective
125 notwithstanding any subsequent determination that the assignment
126 agreement is invalid or the rescission of the assignment
127 agreement by the consumer.
128 (6) ACTIONS BASED UPON THE SAME CLAIM AND PARTY PREVIOUSLY
129 VOLUNTARILY DISMISSED.—If a service provider assignee commences
130 an action in any court of this state based upon or including the
131 same claim against the same adverse party that such assignee has
132 previously voluntarily dismissed in a court of this state the
133 court may, as it deems proper, order the assignee to pay the
134 attorney fees and costs of the adverse party of the action
135 previously voluntarily dismissed. Upon the issuance of such
136 order, the court shall stay the proceedings in the subsequent
137 action until the assignee has complied with the order.
138 (7) APPLICATION.—This section does not apply to a power of
139 attorney granted to a management company, family member,
140 guardian, or similarly situated person which complies with
141 chapter 709 and which may include, as part of the authority
142 granted, the authority to act in place of a principal as it
143 relates to a property insurance or motor vehicle insurance
144 claim, if such power of attorney is not provided to a service
145 provider or any person with a personal or financial interest in
146 the service provider.
147 (8) LEGISLATIVE FINDINGS AND INTENT.—
148 (a) The Legislature recognizes that the provisions of s.
149 626.9373 and s. 627.428 are intended to level the economic
150 playing field between the economically-advantaged insurance
151 company and the individual consumer. The award of attorney fees
152 to the individual consumer under these statutes makes the
153 consumer financially whole and discourages insurance companies
154 from contesting valid claims.
155 (b) The increased use of post-loss assignment of benefits
156 by service providers, however, has led to a dramatic increase in
157 assignment of benefits litigation. The Legislature recognizes
158 that additional costs incurred by insurance companies, in
159 contesting assignment of benefits-related litigation or paying
160 inflated claims for insurance proceeds, are factored into the
161 rates charged for property insurance and motor vehicle
162 insurance.
163 (c) By explicitly providing that notwithstanding s.
164 626.9373 and s. 627.428, any right to attorney fees or costs
165 against an insurer by a service provider shall be as provided in
166 s. 501.172, the Legislature is addressing the dramatic increase
167 in assignment of benefits litigation by nonparties to property
168 insurance policies and motor vehicle insurance policies for
169 coverage of windshield damage and the associated increase in
170 insurance premiums that are experienced by consumers. The
171 Legislature is maintaining its public policy of making consumers
172 financially whole and reducing inequities between consumers and
173 their insurance companies, as such consumers have the right to
174 obtain attorney fees under s. 626.9373 and s. 627.428 in civil
175 actions they bring against their insurers.
176 Section 2. Section 626.9373, Florida Statutes, is amended
177 to read:
178 626.9373 Attorney Attorney’s fees.—
179 (1) Upon the rendition of a judgment or decree by any court
180 of this state against a surplus lines insurer in favor of any
181 named or omnibus insured or the named beneficiary under a policy
182 or contract executed by the insurer on or after the effective
183 date of this act, the trial court or, if the insured or
184 beneficiary prevails on appeal, the appellate court, shall
185 adjudge or decree against the insurer in favor of the insured or
186 beneficiary a reasonable sum as fees or compensation for the
187 insured’s or beneficiary’s attorney prosecuting the lawsuit for
188 which recovery is awarded.
189 (2) If awarded, attorney attorney’s fees or compensation
190 shall be included in the judgment or decree rendered in the
191 case.
192 (3) Attorney fees may not be awarded under this section to
193 an assignee of post-loss benefits who is a service provider
194 under s. 501.172.
195 Section 3. Section 627.428, Florida Statutes, is amended to
196 read:
197 627.428 Attorney fees Attorney’s fee.—
198 (1) Upon the rendition of a judgment or decree by any of
199 the courts of this state against an insurer and in favor of any
200 named or omnibus insured or the named beneficiary under a policy
201 or contract executed by the insurer, the trial court or, in the
202 event of an appeal in which the insured or beneficiary prevails,
203 the appellate court shall adjudge or decree against the insurer
204 and in favor of the insured or beneficiary a reasonable sum as
205 fees or compensation for the insured’s or beneficiary’s attorney
206 prosecuting the suit in which the recovery is had.
207 (2) As to suits based on claims arising under life
208 insurance policies or annuity contracts, no such attorney fees
209 attorney’s fee shall be allowed if such suit was commenced prior
210 to expiration of 60 days after proof of the claim was duly filed
211 with the insurer.
212 (3) When so awarded, compensation or fees of the attorney
213 shall be included in the judgment or decree rendered in the
214 case.
215 (4) Attorney fees may not be awarded under this section to
216 an assignee of post-loss benefits who is a service provider
217 under s. 501.172.
218 Section 4. The creation of s. 501.172, Florida Statutes,
219 and the amendments made to ss. 626.9373 and 627.428, Florida
220 Statutes, by this act apply to actions pending on or after July
221 1, 2019, to the extent that the act does not require the
222 invalidation of any provision of a contract executed before July
223 1, 2019.
224 Section 5. This act shall take effect July 1, 2019.
225
226 ================= T I T L E A M E N D M E N T ================
227 And the title is amended as follows:
228 Delete everything before the enacting clause
229 and insert:
230 A bill to be entitled
231 An act relating to agreements between service
232 providers and consumers; creating s. 501.172, F.S.;
233 defining terms; specifying limitations and authorized
234 provisions relating to a service provider’s right to
235 payment under certain agreements with consumers under
236 urgent or emergency circumstances; specifying
237 requirements, limitations, and prohibited provisions
238 for agreements containing a post-loss assignment of
239 benefits; providing that a prevailing party under
240 certain policies and coverages has the right to
241 attorney fees and costs; providing that a court need
242 not determine there is a prevailing party; providing
243 factors a court must consider in determining who the
244 prevailing party is under certain circumstances;
245 providing construction relating to waiver and
246 limitations on recovery; authorizing a court to order
247 an assignee to pay attorney fees and costs under
248 certain circumstances; requiring the court to stay
249 proceedings under certain circumstances; providing
250 applicability; providing legislative findings and
251 intent; amending ss. 626.9373 and 627.428, F.S.;
252 providing that attorney fees under certain provisions
253 of the Florida Insurance Code may not be awarded to an
254 assignee of post-loss benefits who is a service
255 provider; providing applicability; providing an
256 effective date.