Florida Senate - 2012                      CS for CS for SB 1262
       
       
       
       By the Committees on Budget Subcommittee on General Government
       Appropriations; and Banking and Insurance; and Senator Oelrich
       
       
       
       601-04291-12                                          20121262c2
    1                        A bill to be entitled                      
    2         An act relating to warranty associations; amending s.
    3         634.011, F.S.; revising the definition of the term
    4         “motor vehicle service agreement”; amending s.
    5         634.121, F.S.; providing criteria for a motor vehicle
    6         service agreement company to effectuate refunds
    7         through the issuing salesperson or agent; requiring
    8         the salesperson, agent, or service agreement company
    9         to maintain a copy of certain documents; requiring a
   10         salesperson or agent to provide a copy of a document
   11         to the service agreement company if requested by the
   12         Department of Financial Services or the Office of
   13         Insurance Regulation; requiring the office to provide
   14         to the department findings that a salesperson or agent
   15         exhibits a pattern or practice of failing to
   16         effectuate refunds or to maintain and remit to the
   17         service agreement company the required documentation;
   18         amending s. 634.141, F.S.; authorizing rather than
   19         requiring the office to examine service agreement
   20         companies; limiting the examination period to the most
   21         recent 5 years; limiting the cost of certain
   22         examinations; creating s. 634.2855, F.S.; authorizing
   23         a governmental entity, public agency, institution,
   24         person, firm, or legal entity to provide money to the
   25         department to pursue unauthorized entities operating
   26         as motor vehicle service agreement companies;
   27         providing requirements for the deposit of the money;
   28         providing that funds remaining at the end of any
   29         fiscal year shall be available for carrying out duties
   30         and responsibilities of the department or the office;
   31         amending s. 634.312, F.S.; authorizing a home warranty
   32         association to effectuate a refund through the issuing
   33         sales representative; amending s. 634.314, F.S.;
   34         authorizing rather than requiring the office to
   35         examine home warranty associations; limiting the
   36         examination period to the most recent 5 years;
   37         limiting the cost of certain examinations; removing
   38         the requirement that the commission establish rules
   39         for conducting examinations; removing the criteria for
   40         determining whether an examination is warranted;
   41         creating s. 634.3385, F.S.; authorizing a governmental
   42         entity, public agency, institution, person, firm, or
   43         legal entity to provide money to the department to
   44         pursue unauthorized entities operating as home
   45         warranty associations; providing that funds remaining
   46         at the end of any fiscal year shall be available for
   47         carrying out duties and responsibilities of the
   48         department or the office; amending s. 634.414, F.S.;
   49         authorizing service warranty associations to
   50         effectuate refunds through the issuing sales
   51         representative; authorizing a service warranty
   52         association to issue refunds by cash, check, store
   53         credit, gift card, or other similar means; amending s.
   54         634.416, F.S.; authorizing rather than requiring the
   55         office to examine service warranty associations;
   56         limiting the examination period to the most recent 5
   57         years; limiting the costs of certain examinations;
   58         removing the requirement that the commission establish
   59         rules for conducting examinations; removing the
   60         criteria for determining whether an examination is
   61         warranted; removing provisions relating to the rates
   62         charged a to service warranty association for
   63         examinations; creating s. 634.4385, F.S.; authorizing
   64         a governmental entity, public agency, institution,
   65         person, firm, or legal entity to provide money to the
   66         department to pursue unauthorized entities operating
   67         as service warranty associations; providing that funds
   68         remaining at the end of any fiscal year shall be
   69         available for carrying out duties and responsibilities
   70         of the department or the office; providing an
   71         effective date.
   72  
   73  Be It Enacted by the Legislature of the State of Florida:
   74  
   75         Section 1. Subsection (8) of section 634.011, Florida
   76  Statutes, is amended to read:
   77         634.011 Definitions.—As used in this part, the term:
   78         (8) “Motor vehicle service agreement” or “service
   79  agreement” means any contract or agreement indemnifying the
   80  service agreement holder for the motor vehicle listed on the
   81  service agreement and arising out of the ownership, operation,
   82  and use of the motor vehicle against loss caused by failure of
   83  any mechanical or other component part, or any mechanical or
   84  other component part that does not function as it was originally
   85  intended; however, nothing in this part shall prohibit or affect
   86  the giving, free of charge, of the usual performance guarantees
   87  by manufacturers or dealers in connection with the sale of motor
   88  vehicles. Transactions exempt under s. 624.125 are expressly
   89  excluded from this definition and are exempt from the provisions
   90  of this part. Service agreements that are sold to persons other
   91  than consumers and that cover motor vehicles used for commercial
   92  purposes are excluded from this definition and are exempt from
   93  regulation under the Florida Insurance Code. The term “motor
   94  vehicle service agreement” includes any contract or agreement
   95  that provides:
   96         (a) For the coverage or protection defined in this
   97  subsection and which is issued or provided in conjunction with
   98  an additive product applied to the motor vehicle that is the
   99  subject of such contract or agreement;
  100         (b) For payment of vehicle protection expenses.
  101         1.a. “Vehicle protection expenses” means a preestablished
  102  flat amount payable for the loss of or damage to a vehicle or
  103  expenses incurred by the service agreement holder for loss or
  104  damage to a covered vehicle, including, but not limited to,
  105  applicable deductibles under a motor vehicle insurance policy;
  106  temporary vehicle rental expenses; expenses for a replacement
  107  vehicle that is at least the same year, make, and model of the
  108  stolen motor vehicle; sales taxes or registration fees for a
  109  replacement vehicle that is at least the same year, make, and
  110  model of the stolen vehicle; or other incidental expenses
  111  specified in the agreement.
  112         b. “Vehicle protection product” means a product or system
  113  installed or applied to a motor vehicle or designed to prevent
  114  the theft of the motor vehicle or assist in the recovery of the
  115  stolen motor vehicle.
  116         2. Vehicle protection expenses shall be payable in the
  117  event of loss or damage to the vehicle as a result of the
  118  failure of the vehicle protection product to prevent the theft
  119  of the motor vehicle or to assist in the recovery of the stolen
  120  motor vehicle. Vehicle protection expenses covered under the
  121  agreement shall be clearly stated in the service agreement form,
  122  unless the agreement provides for the payment of a
  123  preestablished flat amount, in which case the service agreement
  124  form shall clearly identify such amount.
  125         3. Motor vehicle service agreements providing for the
  126  payment of vehicle protection expenses shall either:
  127         a. Reimburse a service agreement holder for the following
  128  expenses, at a minimum: deductibles applicable to comprehensive
  129  coverage under the service agreement holder’s motor vehicle
  130  insurance policy; temporary vehicle rental expenses; sales taxes
  131  and registration fees on a replacement vehicle that is at least
  132  the same year, make, and model of the stolen motor vehicle; and
  133  the difference between the benefits paid to the service
  134  agreement holder for the stolen vehicle under the service
  135  agreement holder’s comprehensive coverage and the actual cost of
  136  a replacement vehicle that is at least the same year, make, and
  137  model of the stolen motor vehicle; or
  138         b. Pay a preestablished flat amount to the service
  139  agreement holder.
  140  
  141  Payments shall not duplicate any benefits or expenses paid to
  142  the service agreement holder by the insurer providing
  143  comprehensive coverage under a motor vehicle insurance policy
  144  covering the stolen motor vehicle; however, the payment of
  145  vehicle protection expenses at a preestablished flat amount of
  146  $5,000 or less does not duplicate any benefits or expenses
  147  payable under any comprehensive motor vehicle insurance policy;
  148  or
  149         (c)1. For the payment for paintless dent-removal services
  150  provided by a company whose primary business is providing such
  151  services.
  152         2. “Paintless dent-removal” means the process of removing
  153  dents, dings, and creases, including hail damage, from a vehicle
  154  without affecting the existing paint finish, but does not
  155  include services that involve the replacement of vehicle body
  156  panels or sanding, bonding, or painting.
  157         Section 2. Paragraph (b) of subsection (3) of section
  158  634.121, Florida Statutes, is amended, and paragraphs (c), (d),
  159  and (e) are added to that subsection, to read:
  160         634.121 Forms, required procedures, provisions.—
  161         (3)
  162         (b) After the service agreement has been in effect for 60
  163  days, it may not be canceled by the insurer or service agreement
  164  company unless:
  165         1. There has been a material misrepresentation or fraud at
  166  the time of sale of the service agreement;
  167         2. The agreement holder has failed to maintain the motor
  168  vehicle as prescribed by the manufacturer;
  169         3. The odometer has been tampered with or disabled and the
  170  agreement holder has failed to repair the odometer; or
  171         4. For nonpayment of premium by the agreement holder, in
  172  which case the service agreement company shall provide the
  173  agreement holder notice of cancellation by certified mail.
  174  
  175  If the service agreement is canceled by the insurer or service
  176  agreement company, the return of premium must not be less than
  177  100 percent of the paid unearned pro rata premium, less any
  178  claims paid on the agreement. If, after 60 days, the service
  179  agreement is canceled by the service agreement holder, the
  180  insurer or service agreement company shall return directly to
  181  the agreement holder not less than 90 percent of the unearned
  182  pro rata premium, less any claims paid on the agreement. The
  183  service agreement company remains responsible for full refunds
  184  to the consumer on canceled service agreements. However, the
  185  salesperson and agent are responsible for the refund of the
  186  unearned pro rata commission. A service agreement company may
  187  effectuate refunds through the issuing salesperson or agent in
  188  accordance with paragraphs (c) and (d).
  189         (c) If the service agreement company effectuates refunds
  190  through the issuing salesperson or agent, the service agreement
  191  company must send the unearned pro rata premium refund due, less
  192  any unearned pro rata commission, to the salesperson or agent
  193  effectuating the refund. Upon receipt, the salesperson or agent
  194  must refund the unearned pro rata premium, including any
  195  unearned pro rata commission, and the sales tax refund owed to
  196  the service agreement holder.
  197         (d) The salesperson, agent, or service agreement company
  198  shall maintain a copy of one of the following documents, as
  199  applicable, demonstrating that the refund owed pursuant to
  200  paragraph (c) has been refunded:
  201         1. A copy of the front and back of the cancelled check for
  202  the applicable refund amount owed to the service agreement
  203  holder;
  204         2. A copy of the front of the check for the applicable
  205  refund amount owed to the service agreement holder and a copy of
  206  the statement from the bank account on which the check was drawn
  207  showing that the check was cashed;
  208         3. A copy of the front of the check issued by the service
  209  agreement company to the salesperson or agent in the amount of
  210  the service agreement company’s portion of the refund owed to
  211  the service agreement holder and a copy of the statement from
  212  the bank account on which the check was drawn showing that the
  213  check was cashed;
  214         4. A copy of a completed buyer’s order demonstrating that
  215  the applicable refund amount owed to the service agreement
  216  holder was credited toward the purchase or lease of another
  217  vehicle;
  218         5. Any document received from or sent to a lender, finance
  219  company, or creditor demonstrating that a loan or amount
  220  financed by the agreement holder was decreased by the amount of
  221  the applicable refund amount owed to the service agreement
  222  holder; or
  223         6. Any other evidence approved by the office in a written
  224  communication to a person licensed pursuant to this part
  225  demonstrating that the applicable refund amount due to the
  226  service agreement holder was properly made.
  227  
  228  A salesperson or agent effectuating a refund shall maintain a
  229  copy of the documentation required by this paragraph and shall
  230  provide a copy to the service agreement company within 45 days
  231  after a request is made by the department or the office to
  232  either the service agreement company or the salesperson.
  233         (e) If the office finds that a salesperson or agent
  234  exhibits a pattern or practice of failing to properly effectuate
  235  refunds owed or to maintain and remit to the service agreement
  236  company the documentation required by paragraph (d), the office
  237  shall notify the department of its finding.
  238         Section 3. Subsection (1) of section 634.141, Florida
  239  Statutes, is amended to read:
  240         634.141 Examination of companies.—
  241         (1) Motor vehicle service agreement companies licensed
  242  under this part may be subject to periodic examination by the
  243  office in the same manner and subject to the same terms and
  244  conditions as apply applies to insurers under part II of chapter
  245  624. The office is not required to conduct periodic examinations
  246  pursuant to this section, but may examine a service agreement
  247  company at its discretion. An examination conducted pursuant to
  248  this section may cover a period of only the most recent 5 years.
  249  The costs of examinations conducted pursuant to ss.
  250  624.316(2)(e) and 624.3161(3) may not exceed 10 percent of the
  251  companies’ reported net income for the prior year. The
  252  commission may by rule establish provisions whereby a company
  253  may be exempted from examination.
  254         Section 4. Section 634.2855, Florida Statutes, is created
  255  to read:
  256         634.2855 Unauthorized entities; gifts and grants.—A
  257  governmental unit, public agency, institution, person, firm, or
  258  legal entity may provide money to the department to enable the
  259  department to pursue unauthorized entities operating in
  260  violation of this part. The department may transfer funds to the
  261  office to investigate, discipline, sanction, and take all action
  262  consistent with this part relative to unauthorized entities. All
  263  donations or grants of moneys to the department shall be
  264  deposited into the Insurance Regulatory Trust Fund and shall be
  265  separately accounted for in accordance with this section. Moneys
  266  deposited into the Insurance Regulatory Trust Fund pursuant to
  267  this section may be appropriated by the Legislature, pursuant to
  268  chapter 216, for the purpose of enabling the department or the
  269  office to carry out the provisions of this section.
  270  Notwithstanding s. 216.301 and pursuant to s. 216.351, any
  271  balance of moneys deposited into the Insurance Regulatory Trust
  272  Fund pursuant to this section remaining at the end of any fiscal
  273  year shall be available for carrying out the duties and
  274  responsibilities of the department or the office.
  275         Section 5. Subsection (5) of section 634.312, Florida
  276  Statutes, is amended to read:
  277         634.312 Forms; required provisions and procedures.—
  278         (5) Each home warranty contract shall contain a
  279  cancellation provision. Any home warranty agreement may be
  280  canceled by the purchaser within 10 days after purchase. The
  281  refund must be 100 percent of the gross premium paid, less any
  282  claims paid on the agreement. A reasonable administrative fee
  283  may be charged, not to exceed 5 percent of the gross premium
  284  paid by the warranty agreement holder. After the home warranty
  285  agreement has been in effect for 10 days, if the contract is
  286  canceled by the warranty holder, a return of premium shall be
  287  based upon 90 percent of unearned pro rata premium less any
  288  claims that have been paid. If the contract is canceled by the
  289  association for any reason other than for fraud or
  290  misrepresentation, a return of premium shall be based upon 100
  291  percent of unearned pro rata premium, less any claims paid on
  292  the agreement. A home warranty association may effectuate a
  293  refund through the issuing sales representative.
  294         Section 6. Section 634.314, Florida Statutes, is amended to
  295  read:
  296         634.314 Examination of associations.—
  297         (1) Home warranty associations licensed under this part may
  298  be subject to periodic examinations by the office, in the same
  299  manner and subject to the same terms and conditions as apply to
  300  insurers under part II of chapter 624 of the insurance code. The
  301  office is not required to conduct periodic examinations pursuant
  302  to this section, but may examine a home warranty company at its
  303  discretion. An examination conducted pursuant to this section
  304  may cover a period of only the most recent 5 years. The costs of
  305  examinations conducted pursuant to ss. 624.316(2)(e) and
  306  624.3161(3) may not exceed 10 percent of the companies’ reported
  307  net income for the prior year.
  308         (2) The office shall determine whether to conduct an
  309  examination of a home warranty association by considering:
  310         (a) The amount of time that the association has been
  311  continuously licensed and operating under the same management
  312  and control.
  313         (b) The association’s history of compliance with applicable
  314  law.
  315         (c) The number of consumer complaints against the
  316  association.
  317         (d) The financial condition of the association,
  318  demonstrated by the financial reports submitted pursuant to s.
  319  634.313.
  320         Section 7. Section 634.3385, Florida Statutes, is created
  321  to read:
  322         634.3385 Unauthorized entities; gifts and grants.—A
  323  governmental unit, public agency, institution, person, firm, or
  324  legal entity may provide money to the department to enable the
  325  department to pursue unauthorized entities operating in
  326  violation of this part. The department may transfer funds to the
  327  office to investigate, discipline, sanction, and take all action
  328  consistent with this part relative to unauthorized entities. All
  329  donations or grants of moneys to the department shall be
  330  deposited into the Insurance Regulatory Trust Fund and shall be
  331  separately accounted for in accordance with this section. Moneys
  332  deposited into the Insurance Regulatory Trust Fund pursuant to
  333  this section may be appropriated by the Legislature, pursuant to
  334  chapter 216, for the purpose of enabling the department or the
  335  office to carry out the provisions of this section.
  336  Notwithstanding s. 216.301 and pursuant to s. 216.351, any
  337  balance of moneys deposited into the Insurance Regulatory Trust
  338  Fund pursuant to this section remaining at the end of any fiscal
  339  year shall be available for carrying out the duties and
  340  responsibilities of the department or the office.
  341         Section 8. Section 634.414, Florida Statutes, is amended to
  342  read:
  343         634.414 Forms; required provisions.—
  344         (1) Each service warranty contract shall contain a
  345  cancellation provision. If the contract is canceled by the
  346  warranty holder, return of premium shall be based upon no less
  347  than 90 percent of unearned pro rata premium less any claims
  348  that have been paid or less the cost of repairs made on behalf
  349  of the warranty holder. If the contract is canceled by the
  350  association, return of premium shall be based upon 100 percent
  351  of unearned pro rata premium, less any claims paid or the cost
  352  of repairs made on behalf of the warranty holder. Service
  353  warranty associations may effectuate refunds through the issuing
  354  sales representative.
  355         (2) Refunds owed pursuant to this section may be made by
  356  cash, check, store credit, gift card, or other similar means.
  357  Upon request of the service warranty holder, the refund shall be
  358  remitted by check.
  359         (3)(2) By July 1, 2011, each service warranty contract sold
  360  in this state must be accompanied by a written disclosure to the
  361  consumer that the rate charged for the contract is not subject
  362  to regulation by the office. A service warranty association may
  363  comply with this requirement by including such disclosure in its
  364  service warranty contract form or in a separate written notice
  365  provided to the consumer at the time of sale.
  366         Section 9. Section 634.416, Florida Statutes, is amended to
  367  read:
  368         634.416 Examination of associations.—
  369         (1)(a) Service warranty associations licensed under this
  370  part may be subject to periodic examination by the office, in
  371  the same manner and subject to the same terms and conditions
  372  that apply to insurers under part II of chapter 624. The office
  373  is not required to conduct periodic examinations pursuant to
  374  this section, but may examine a service warranty company at its
  375  discretion. An examination conducted pursuant to this section
  376  may cover a period of only the most recent 5 years. The costs of
  377  examinations conducted pursuant to ss. 624.316(2)(e) and
  378  624.3161(3) may not exceed 10 percent of the companies’ reported
  379  net income for the prior year.
  380         (b) The office shall determine whether to conduct an
  381  examination of a service warranty association by considering:
  382         1. The amount of time that the association has been
  383  continuously licensed and operating under the same management
  384  and control.
  385         2. The association’s history of compliance with applicable
  386  law.
  387         3. The number of consumer complaints against the
  388  association.
  389         4. The financial condition of the association, demonstrated
  390  by the financial reports submitted pursuant to s. 634.313.
  391         (2) The rate charged a service warranty association by the
  392  office for examination may be adjusted to reflect the amount
  393  collected for the Form 10-K filing fee as provided in this
  394  section.
  395         (2)(3) On or before May 1 of each year, an association may
  396  submit to the office the Form 10-K, as filed with the United
  397  States Securities and Exchange Commission pursuant to the
  398  Securities Exchange Act of 1934, as amended. Upon receipt and
  399  review of the most current Form 10-K, the office may waive the
  400  examination requirement; if the office determines not to waive
  401  the examination, such examination will be limited to that
  402  examination necessary to ensure compliance with this part. The
  403  Form 10-K shall be accompanied by a filing fee of $2,000 to be
  404  deposited into the Insurance Regulatory Trust Fund.
  405         (3)(4)The office is not required to examine an association
  406  that has less than $20,000 in gross written premiums as
  407  reflected in its most recent annual statement. The office may
  408  examine such an association if it has reason to believe that the
  409  association may be in violation of this part or is otherwise in
  410  an unsound financial condition. If the office examines an
  411  association that has less than $20,000 in gross written
  412  premiums, the examination fee may not exceed 5 percent of the
  413  gross written premiums of the association.
  414         Section 10. Section 634.4385, Florida Statutes, is created
  415  to read:
  416         634.4385 Unauthorized entities; gifts and grants.—A
  417  governmental unit, public agency, institution, person, firm, or
  418  legal entity may provide money to the department to enable the
  419  department to pursue unauthorized entities operating in
  420  violation of this part. The department may transfer funds to the
  421  office to investigate, discipline, sanction, and take all action
  422  consistent with this part relative to unauthorized entities. All
  423  donations or grants of moneys to the department shall be
  424  deposited into the Insurance Regulatory Trust Fund and shall be
  425  separately accounted for in accordance with this section. Moneys
  426  deposited into the Insurance Regulatory Trust Fund pursuant to
  427  this section may be appropriated by the Legislature, pursuant to
  428  chapter 216, for the purpose of enabling the department or the
  429  office to carry out the provisions of this section.
  430  Notwithstanding s. 216.301 and pursuant to s. 216.351, any
  431  balance of moneys deposited into the Insurance Regulatory Trust
  432  Fund pursuant to this section remaining at the end of any fiscal
  433  year shall be available for carrying out the duties and
  434  responsibilities of the department or the office.
  435         Section 11. This act shall take effect July 1, 2012.