Florida Senate - 2012                          SENATOR AMENDMENT
       Bill No. HB 307
       
       
       
       
       
       
                                Barcode 247306                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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                Floor: 2/AD/2R         .                                
             03/08/2012 07:17 PM       .                                
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       Senator Smith moved the following:
       
    1         Senate Substitute for Amendment (335992) (with title
    2  amendment)
    3  
    4         Delete lines 18 - 181
    5  and insert:
    6         Section 1. Effective January 1, 2013, subsection (9) of
    7  section 440.02, Florida Statutes, is amended to read:
    8         440.02 Definitions.—When used in this chapter, unless the
    9  context clearly requires otherwise, the following terms shall
   10  have the following meanings:
   11         (9) “Corporate officer” or “officer of a corporation” means
   12  any person who fills an office provided for in the corporate
   13  charter or articles of incorporation filed with the Division of
   14  Corporations of the Department of State or as permitted or
   15  required by chapter 607. As to persons engaged in the
   16  construction industry, The term “officer of a corporation”
   17  includes a member owning at least 10 percent of a limited
   18  liability company created and approved under chapter 608.
   19         Section 2. Paragraph (b) of subsection (15) of section
   20  440.02, Florida Statutes, is amended to read:
   21         440.02 Definitions.—When used in this chapter, unless the
   22  context clearly requires otherwise, the following terms shall
   23  have the following meanings:
   24         (15)
   25         (b) “Employee” includes any person who is an officer of a
   26  corporation and who performs services for remuneration for such
   27  corporation within this state, whether or not such services are
   28  continuous.
   29         1. Any officer of a corporation may elect to be exempt from
   30  this chapter by filing written notice of the election with the
   31  department as provided in s. 440.05.
   32         2. As to officers of a corporation who are engaged in the
   33  construction industry, no more than three officers of a
   34  corporation or of any group of affiliated corporations may elect
   35  to be exempt from this chapter by filing a written notice of the
   36  election with the department as provided in s. 440.05. Officers
   37  must be shareholders, each owning at least 10 percent of the
   38  stock of such corporation and listed as an officer of such
   39  corporation with the Division of Corporations of the Department
   40  of State, in order to elect exemptions under this chapter. For
   41  purposes of this subparagraph, the term “affiliated” means and
   42  includes one or more corporations or entities, any one of which
   43  is a corporation engaged in the construction industry, under the
   44  same or substantially the same control of a group of business
   45  entities which are connected or associated so that one entity
   46  controls or has the power to control each of the other business
   47  entities. The term “affiliated” includes, but is not limited to,
   48  the officers, directors, executives, shareholders active in
   49  management, employees, and agents of the affiliated corporation.
   50  The ownership by one business entity of a controlling interest
   51  in another business entity or a pooling of equipment or income
   52  among business entities shall be prima facie evidence that one
   53  business is affiliated with the other.
   54         3. An officer of a corporation who elects to be exempt from
   55  this chapter by filing a written notice of the election with the
   56  department as provided in s. 440.05 is not an employee.
   57  
   58  Services are presumed to have been rendered to the corporation
   59  if the officer is compensated by other than dividends upon
   60  shares of stock of the corporation which the officer owns.
   61         Section 3. Subsections (3) and (6) of section 440.05,
   62  Florida Statutes, are amended to read:
   63         440.05 Election of exemption; revocation of election;
   64  notice; certification.—
   65         (3) Each officer of a corporation who is engaged in the
   66  construction industry and who elects an exemption from this
   67  chapter or who, after electing such exemption, revokes that
   68  exemption, must submit mail a written notice to such effect to
   69  the department on a form prescribed by the department. The
   70  notice of election to be exempt from the provisions of this
   71  chapter must be notarized and under oath. The notice of election
   72  to be exempt which is electronically submitted to the department
   73  by the officer of a corporation who is allowed to claim an
   74  exemption as provided by this chapter must list the name,
   75  federal tax identification number, date of birth, Florida driver
   76  license number or Florida identification card number social
   77  security number, all certified or registered licenses issued
   78  pursuant to chapter 489 held by the person seeking the
   79  exemption, a copy of relevant documentation as to employment
   80  status filed with the Internal Revenue Service as specified by
   81  the department, a copy of the relevant occupational license in
   82  the primary jurisdiction of the business, and the registration
   83  number of the corporation filed with the Division of
   84  Corporations of the Department of State, and the percentage of
   85  ownership along with a copy of the stock certificate evidencing
   86  the required ownership under this chapter. The notice of
   87  election to be exempt must identify each corporation that
   88  employs the person electing the exemption and must list the
   89  social security number or federal tax identification number of
   90  each such employer and the additional documentation required by
   91  this section. In addition, the notice of election to be exempt
   92  must provide that the officer electing an exemption is not
   93  entitled to benefits under this chapter, must provide that the
   94  election does not exceed exemption limits for officers provided
   95  in s. 440.02, and must certify that any employees of the
   96  corporation whose officer elects an exemption are covered by
   97  workers’ compensation insurance. Upon receipt of the notice of
   98  the election to be exempt, receipt of all application fees, and
   99  a determination by the department that the notice meets the
  100  requirements of this subsection, the department shall issue a
  101  certification of the election to the officer, unless the
  102  department determines that the information contained in the
  103  notice is invalid. The department shall revoke a certificate of
  104  election to be exempt from coverage upon a determination by the
  105  department that the person does not meet the requirements for
  106  exemption or that the information contained in the notice of
  107  election to be exempt is invalid. The certificate of election
  108  must list the name of the corporation listed in the request for
  109  exemption. A new certificate of election must be obtained each
  110  time the person is employed by a new or different corporation
  111  that is not listed on the certificate of election. A copy of the
  112  certificate of election must be sent to each workers’
  113  compensation carrier identified in the request for exemption.
  114  Upon filing a notice of revocation of election, an officer who
  115  is a subcontractor or an officer of a corporate subcontractor
  116  must notify her or his contractor. Upon revocation of a
  117  certificate of election of exemption by the department, the
  118  department shall notify the workers’ compensation carriers
  119  identified in the request for exemption.
  120         (6) A construction industry certificate of election to be
  121  exempt which is issued in accordance with this section shall be
  122  valid for 2 years after the effective date stated thereon. Both
  123  the effective date and the expiration date must be listed on the
  124  face of the certificate by the department. The construction
  125  industry certificate must expire at midnight, 2 years from its
  126  issue date, as noted on the face of the exemption certificate. A
  127  construction industry certificate of election to be exempt may
  128  be revoked before its expiration by the officer for whom it was
  129  issued or by the department for the reasons stated in this
  130  section. At least 60 days before prior to the expiration date of
  131  a construction industry certificate of exemption issued after
  132  December 1, 1998, the department shall send notice of the
  133  expiration date and an application for renewal to the
  134  certificateholder at the address on the certificate or to the e
  135  mail address on file with the department.
  136         Section 4. Effective January 1, 2013, subsection (6) of
  137  section 440.05, Florida Statutes, as amended by this act, is
  138  amended to read:
  139         440.05 Election of exemption; revocation of election;
  140  notice; certification.—
  141         (6) A construction industry certificate of election to be
  142  exempt which is issued on or after January 1, 2013, in
  143  accordance with this section is shall be valid for 2 years after
  144  the effective date stated thereon. Both the effective date and
  145  the expiration date must be listed on the face of the
  146  certificate by the department. The construction industry
  147  certificate must expire at midnight, 2 years from its issue
  148  date, as noted on the face of the exemption certificate. A
  149  construction industry certificate of election to be exempt may
  150  be revoked before its expiration by the officer for whom it was
  151  issued or by the department for the reasons stated in this
  152  section. At least 60 days before the expiration date of a
  153  construction industry certificate of exemption, the department
  154  shall send notice of the expiration date to the
  155  certificateholder at the address on the certificate or to the e
  156  mail address on file with the department.
  157         Section 5. Subsection (15) is added to section 440.107,
  158  Florida Statutes, to read:
  159         440.107 Department powers to enforce employer compliance
  160  with coverage requirements.—
  161         (15) A limited liability company that is not engaged in the
  162  construction industry and that meets the definition of
  163  “employment” at any time between January 1, 2013, and December
  164  31, 2013, may not be issued a penalty pursuant to this section
  165  for failing to secure the payment of workers’ compensation.
  166         Section 6. Section 627.215, Florida Statutes, is amended to
  167  read:
  168         627.215 Excessive profits for workers’ compensation,
  169  employer’s liability, commercial property, and commercial
  170  casualty insurance prohibited.—
  171         (1)(a) Each insurer group writing workers’ compensation and
  172  employer’s liability insurance as defined in s. 624.605(1)(c),
  173  commercial property insurance as defined in s. 627.0625,
  174  commercial umbrella liability insurance as defined in s.
  175  627.0625, or commercial casualty insurance as defined in s.
  176  627.0625 shall file with the office before prior to July 1 of
  177  each year, on a form prescribed by the commission, the following
  178  data for the component types of such insurance as provided in
  179  the form:
  180         1. Calendar-year earned premium.
  181         2. Accident-year incurred losses and loss adjustment
  182  expenses.
  183         3. The administrative and selling expenses incurred in this
  184  state or allocated to this state for the calendar year.
  185         4. Policyholder dividends applicable to the calendar year.
  186  
  187  This does not Nothing herein is intended to prohibit an insurer
  188  from filing on a calendar-year basis.
  189         (b) The data filed for the group shall be a consolidation
  190  of the data of the individual insurers of the group. However, an
  191  insurer may elect to either consolidate commercial umbrella
  192  liability insurance data with commercial casualty insurance data
  193  or to separately file data for commercial umbrella liability
  194  insurance. Each insurer shall elect its method of filing
  195  commercial umbrella liability insurance at the time of filing
  196  data for accident year 1987 and shall thereafter continue filing
  197  under the same method. In the case of commercial umbrella
  198  liability insurance data reported separately, a separate
  199  excessive profits test shall be applied and the test period
  200  shall be 10 years. In the case of workers’ compensation and
  201  employer’s liability insurance, the final report for the test
  202  period including accident years 1984, 1985, and 1986 must be
  203  filed prior to July 1, 1988. In the case of commercial property
  204  and commercial casualty insurance, the final report for the test
  205  period including accident years 1987, 1988, and 1989 must be
  206  filed prior to July 1, 1991.
  207         (2) Each insurer group writing workers’ compensation and
  208  employer’s liability insurance shall also file a schedule of
  209  Florida loss and loss adjustment experience for each of the 3
  210  years previous to the most recent accident year. The incurred
  211  losses and loss adjustment expenses shall be valued as of
  212  December 31 of the first year following the latest accident year
  213  to be reported, developed to an ultimate basis, and at two 12
  214  month intervals thereafter, each developed to an ultimate basis,
  215  so that a total of three evaluations will be provided for each
  216  accident year. The first year to be so reported shall be
  217  accident year 1984, so that the reporting of 3 accident years
  218  under this revised evaluation will not take place until accident
  219  years 1985 and 1986 have become available. For reporting
  220  purposes unrelated to determining excessive profits, the loss
  221  and loss adjustment experience of each accident year shall
  222  continue to be reported until each accident year has been
  223  reported at eight stages of development.
  224         (2)(3)(a) Each insurer group writing commercial property
  225  insurance or commercial casualty insurance shall also file a
  226  schedule of Florida loss and loss adjustment experience for each
  227  of the 3 years previous to the most recent accident year. The
  228  incurred losses and loss adjustment expenses shall be valued as
  229  of December 31 of the first year following the latest accident
  230  year, developed to an ultimate basis, and at two 12-month
  231  intervals thereafter, each developed to an ultimate basis, so
  232  that a total of 3 evaluations will be provided for each accident
  233  year. The first year to be so reported shall be accident year
  234  1987, which shall first be reported on or before July 1, 1989,
  235  and the reporting of 3 accident years will not take place until
  236  accident years 1988 and 1989 have become available. For medical
  237  malpractice insurance, the first year to be so reported shall be
  238  accident year 1990, which shall first be reported on or before
  239  July 1, 1992, and the reporting of 3 accident years for full
  240  inclusion of medical malpractice experience in commercial
  241  casualty insurance will not take place until accident years 1991
  242  and 1992 become available. Accordingly, no medical malpractice
  243  insured shall be eligible for refunds or credits until the
  244  reporting period ending with calendar-accident year 1992. For
  245  reporting purposes unrelated to determining excess profits, the
  246  loss and loss adjustment experience of each accident year shall
  247  continue to be reported until each accident year has been
  248  reported at eight stages of development.
  249         (b) Each insurer group writing commercial umbrella
  250  liability insurance which elects to file separate data for such
  251  insurance shall also file a schedule of Florida loss and loss
  252  adjustment experience for each of the 10 years previous to the
  253  most recent accident year. The incurred losses and loss
  254  adjustment expenses shall be valued as of December 31 of the
  255  first year following the latest accident year, developed to an
  256  ultimate basis, and at nine 12-month intervals thereafter, each
  257  developed to an ultimate basis, so that a total of 10
  258  evaluations will be provided for each accident year. The first
  259  year to be so reported shall be accident year 1987, which shall
  260  first be reported on or before October 1, 1989, and the
  261  reporting of 10 accident years will not take place until
  262  accident year 1996 data is reported.
  263         (3)(4) Each insurer group’s underwriting gain or loss for
  264  each calendar-accident year shall be computed as follows: The
  265  sum of the accident-year incurred losses and loss adjustment
  266  expenses as of December 31 of the year, developed to an ultimate
  267  basis, plus the administrative and selling expenses incurred in
  268  the calendar year, plus policyholder dividends applicable to the
  269  calendar year, shall be subtracted from the calendar-year earned
  270  premium to determine the underwriting gain or loss.
  271         (4)(5) For the 3 most recent calendar-accident years for
  272  which data is to be filed under this section, the underwriting
  273  gain or loss shall be compared to the anticipated underwriting
  274  profit, except in the case of separately reported commercial
  275  umbrella liability insurance for which such comparison shall be
  276  made for the 10 most recent calendar-accident years.
  277         (6) For those insurer groups writing workers’ compensation
  278  and employer’s liability insurance during the years 1984, 1985,
  279  1986, 1987, and 1988, an excessive profit has been realized if
  280  underwriting gain is greater than the anticipated underwriting
  281  profit plus 5 percent of earned premiums for the 3 most recent
  282  calendar years for which data is to be filed under this section.
  283  Any excess profit of an insurance company offering workers’
  284  compensation or employer’s liability insurance during this
  285  period of time, shall be returned to policyholders in the form
  286  of a cash refund or a credit toward future purchase of
  287  insurance. The excessive amount shall be refunded on a pro rata
  288  basis in relation to the final compilation year earned premiums
  289  to the workers’ compensation policyholders of record of the
  290  insurer group on December 31 of the final compilation year.
  291         (5)(7)(a) Beginning with the July 1, 1991, report for
  292  workers’ compensation insurance, employer’s liability insurance,
  293  commercial property insurance, and commercial casualty
  294  insurance, an excessive profit has been realized if the net
  295  aggregate underwriting gain for all these lines combined is
  296  greater than the net aggregate anticipated underwriting profit
  297  for these lines plus 5 percent of earned premiums for the 3 most
  298  recent calendar years for which data is to be filed under this
  299  section. For calculation purposes commercial property insurance
  300  and commercial casualty insurance shall be broken down into
  301  sublines in order to ascertain the anticipated underwriting
  302  profit factor versus the actual underwriting gain for the given
  303  subline.
  304         (b) Beginning with the July 1, 1998, report for commercial
  305  umbrella liability insurance, if an insurer has elected to file
  306  data separately for such insurance, an excessive profit has been
  307  realized if the underwriting gain for such insurance is greater
  308  than the anticipated underwriting profit for such insurance plus
  309  5 percent of earned premiums for the 10 most recent calendar
  310  years for which data is to be filed under this section.
  311         (6)(8) As used in this section with respect to any 3-year
  312  period, or with respect to any 10-year period in the case of
  313  commercial umbrella liability insurance, “anticipated
  314  underwriting profit” means the sum of the dollar amounts
  315  obtained by multiplying, for each rate filing of the insurer
  316  group in effect during such period, the earned premiums
  317  applicable to such rate filing during such period by the
  318  percentage factor included in such rate filing for profit and
  319  contingencies, such percentage factor having been determined
  320  with due recognition to investment income from funds generated
  321  by Florida business, except that the anticipated underwriting
  322  profit for the purposes of this section shall be calculated
  323  using a profit and contingencies factor that is not less than
  324  zero. Separate calculations need not be made for consecutive
  325  rate filings containing the same percentage factor for profits
  326  and contingencies.
  327         (7)(9) If the insurer group has realized an excessive
  328  profit, the office shall order a return of the excessive amounts
  329  after affording the insurer group an opportunity for hearing and
  330  otherwise complying with the requirements of chapter 120. Such
  331  excessive amounts shall be refunded in all instances unless the
  332  insurer group affirmatively demonstrates to the office that the
  333  refund of the excessive amounts will render a member of the
  334  insurer group financially impaired or will render it insolvent
  335  under the provisions of the Florida Insurance Code.
  336         (8)(10) Any excess profit of an insurance company as
  337  determined on July 1, 1991, and thereafter shall be returned to
  338  policyholders in the form of a cash refund or a credit toward
  339  the future purchase of insurance. The excessive amount shall be
  340  refunded on a pro rata basis in relation to the final
  341  compilation year earned premiums to the policyholders of record
  342  of the insurer group on December 31 of the final compilation
  343  year.
  344         (9)(11)(a) Cash refunds to policyholders may be rounded to
  345  the nearest dollar.
  346         (b) Data in required reports to the office may be rounded
  347  to the nearest dollar.
  348         (c) Rounding, if elected by the insurer, shall be applied
  349  consistently.
  350         (10)(12)(a) Refunds shall be completed in one of the
  351  following ways:
  352         1. If the insurer group elects to make a cash refund, the
  353  refund shall be completed within 60 days after of entry of a
  354  final order indicating that excessive profits have been
  355  realized.
  356         2. If the insurer group elects to make refunds in the form
  357  of a credit to renewal policies, such credits shall be applied
  358  to policy renewal premium notices which are forwarded to
  359  insureds more than 60 calendar days after entry of a final order
  360  indicating that excessive profits have been realized. If an
  361  insurer group has made this election but an insured thereafter
  362  cancels her or his policy or otherwise allows the policy to
  363  terminate, the insurer group shall make a cash refund within not
  364  later than 60 days after termination of such coverage.
  365         (b) Upon completion of the renewal credits or refund
  366  payments, the insurer group shall immediately certify to the
  367  office that the refunds have been made.
  368         (11)(13) Any refund or renewal credit made pursuant to this
  369  section shall be treated as a policyholder dividend applicable
  370  to the year immediately succeeding the compilation period giving
  371  rise to the refund or credit, for purposes of reporting under
  372  this section for subsequent years.
  373         (12)(14) The application of this law to commercial property
  374  and commercial casualty insurance, which includes commercial
  375  umbrella liability insurance, ceases on January 1, 1997.
  376         Section 7. Subsection (4) of section 628.6017, Florida
  377  Statutes, is amended to read:
  378         628.6017 Converting assessable mutual insurer.—
  379         (4) An assessable mutual insurer becoming a stock insurer
  380  or a nonassessable mutual insurer is shall not be subject to s.
  381  627.215 or s. 627.351(5) for 5 years following authorization of
  382  the conversion by the office. However, the converted stock
  383  insurer or nonassessable mutual insurer must shall file all
  384  necessary data required by s. 627.215. Such amounts otherwise
  385  subject to s. 627.215(8) must 627.215(10) shall be maintained as
  386  surplus as to policyholders and are not be available for
  387  dividends for a period of 5 years.
  388         Section 8. The recurring sum of $193,850 is appropriated
  389  from the Workers’ Compensation Administrative Trust Fund to the
  390  Department of Financial Services and four additional full-time
  391  equivalent positions are authorized for the purpose of
  392  implementing the provisions of this act.
  393         Section 9. Except as otherwise expressly provided in this
  394  act, this act shall take effect July 1, 2012.
  395  
  396  ================= T I T L E  A M E N D M E N T ================
  397         And the title is amended as follows:
  398         Delete lines 2 - 13
  399  and insert:
  400         An act relating to commercial insurance; amending s.
  401         44.02,F.S.; redefining the terms “corporate officer”
  402         and “employee” for purposes of workers’ compensation;
  403         amending s. 440.05, F.S.; revising requirements for
  404         submitting a notice of election of exemption; revising
  405         duties of the Department of Financial Services
  406         relating to the expiration of certificates of
  407         exemption; expanding applicability of requirements
  408         relating to certificates of exemption; amending s.
  409         440.107, F.S.; exempting certain limited liability
  410         companies from penalties for failure to secure the
  411         payment of workers’ compensation; amending s. 627.215,
  412         F.S.; removing workers’ compensation and employer’s
  413         liability insurance from those types of insurance that
  414         must report and refund excess profits; deleting
  415         obsolete provisions; amending s. 628.6017, F.S.;
  416         conforming a cross-reference; providing an
  417         appropriation to and authorizing additional positions
  418         within the Department of Financial Services;