Florida Senate - 2019                        COMMITTEE AMENDMENT
       Bill No. SB 122
       
       
       
       
       
       
                                Ì306982BÎ306982                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  03/04/2019           .                                
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       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.