Senate Bill 1234c1

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    Florida Senate - 1999                           CS for SB 1234

    By the Committee on Banking and Insurance; and Senator Latvala





    311-1927-99

  1                      A bill to be entitled

  2         An act relating to service warranties; amending

  3         s. 634.041, F.S.; modifying insurance

  4         requirements for service agreement companies;

  5         amending s. 634.121, F.S.; prescribing manner

  6         in which a service agreement must identify

  7         restrictions or limitations on benefits or the

  8         existence of a rental car provision; amending

  9         s. 634.312, F.S.; requiring home warranty

10         contracts to state that the warranty may not

11         provide listing period coverage free of charge;

12         amending s. 634.401, F.S.; redefining the term

13         "service warranty"; amending s. 634.406, F.S.;

14         providing for contractual liability

15         requirements for associations; providing an

16         effective date.

17

18  Be It Enacted by the Legislature of the State of Florida:

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20         Section 1.  Subsection (8) of section 634.041, Florida

21  Statutes, is amended to read:

22         634.041  Qualifications for license.--To qualify for

23  and hold a license to issue service agreements in this state,

24  a service agreement company must be in compliance with this

25  part, with applicable rules of the department, with related

26  sections of the Florida Insurance Code, and with its charter

27  powers and must comply with the following:

28         (8)(a)  A service agreement company must establish and

29  maintain an unearned premium reserve in accordance with the

30  following:

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    Florida Senate - 1999                           CS for SB 1234
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  1         1.  It must consist of unencumbered assets equal to a

  2  minimum of 50 percent of the unearned gross written premium on

  3  each service agreement and must amortize this reserve pro rata

  4  over the duration of the service agreement.  Such assets must

  5  be held in the form of cash or invested in securities for

  6  investment under ss. 625.301-625.340.

  7         2.  In addition to the net asset requirements set forth

  8  in subsection (6), a company utilizing the 50-percent reserve

  9  must not allow its ratio of gross written premium in force to

10  net assets to exceed 10 to 1.  For companies that have

11  utilized both contractual liability insurance and the

12  50-percent reserve, this ratio must be calculated based only

13  on that portion of gross written premium in force which is

14  covered by the 50-percent reserve.

15         3.  A company that uses an unearned premium reserve

16  must deposit with the department securities of the type

17  eligible for deposit by insurers under s. 625.52 equal to 15

18  percent of the unearned premium reserve.  This reserve deposit

19  may be included as an asset for calculating the requirement of

20  subparagraph 1.  A request for release of the reserve deposit

21  may be made quarterly only after the department has approved

22  the company's current quarterly or annual financial statement

23  and a statement sworn to by two officers of the company,

24  verifying that the release will not reduce the reserve deposit

25  to less than 15 percent of the unearned premium reserve.

26         (b)  A service agreement company does not have to

27  establish and maintain an unearned premium reserve if it

28  purchases and maintains contractual liability insurance in

29  accordance with the following:

30         1.  The insurance covers 100 percent of its claim

31  exposure and is obtained from an insurer approved by the

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    Florida Senate - 1999                           CS for SB 1234
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  1  department which holds a certificate of authority to do

  2  business within this state. All funds or premiums remitted to

  3  an insurer by a motor vehicle service agreement company under

  4  this part must remain in the care, custody, and control of the

  5  insurer and must be counted as an asset of the insurer. If a

  6  motor vehicle service agreement company chooses to comply with

  7  this paragraph, but also maintains a reserve to pay claims,

  8  the reserve may only be considered an asset of the covered

  9  motor vehicle service agreement company and may not be

10  simultaneously counted as an asset of any other entity.

11         2.  If the service agreement company does not meet its

12  contractual obligations, the contractual liability insurance

13  policy binds its issuer to pay or cause to be paid to the

14  service agreement holder all legitimate claims and

15  cancellation refunds for all service agreements issued by the

16  service agreement company while the policy was in effect.

17  This requirement also applies to those service agreements for

18  which no premium has been remitted to the insurer.

19         3.  If the issuer of the contractual liability policy

20  is fulfilling the service agreements covered by the

21  contractual liability policy and the service agreement holder

22  cancels the service agreement, the issuer must make a full

23  refund of unearned premium to the consumer, subject to the

24  cancellation fee provisions of s. 634.121(5).  The sales

25  representative and agent must refund to the contractual

26  liability policy issuer their unearned pro rata commission.

27         4.  The policy may not be canceled, terminated, or

28  nonrenewed by the insurer or the service agreement company

29  unless a 90-day written notice thereof has been given to the

30  department by the insurer before the date of the cancellation,

31  termination, or nonrenewal.

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    Florida Senate - 1999                           CS for SB 1234
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  1         5.  The service agreement company must provide the

  2  department with the claims statistics.

  3         Section 2.  Subsections (9) and (12) of section

  4  634.121, Florida Statutes, are amended to read:

  5         634.121  Filing of forms, required procedures,

  6  provisions.--

  7         (9)  Each service agreement form must contain in

  8  conspicuous, boldfaced type any statement or clause that

  9  places restrictions or limitations on the benefits offered or

10  disclose such restrictions or limitations in regular typeface

11  in a section of the service agreement containing a

12  conspicuous, boldfaced-type heading.

13         (12)  If a service agreement contains a rental car

14  provision, it must disclose the terms and conditions of this

15  benefit in conspicuous, boldfaced type or disclose the terms

16  and conditions of this benefit in regular typeface in a

17  section of the service agreement containing a conspicuous,

18  boldfaced-type heading.

19         Section 3.  Subsection (6) is added to section 634.312,

20  Florida Statutes, to read:

21         634.312  Filing, approval of forms.--

22         (6)  All home warranty contracts must state in

23  conspicuous, boldfaced type that the home warranty may not

24  provide listing period coverage free of charge.

25         Section 4.  Subsection (14) of section 634.401, Florida

26  Statutes, is amended to read:

27         634.401  Definitions.--As used in this part, the term:

28         (14)  "Service warranty" means any warranty, guaranty,

29  extended warranty or extended guaranty, maintenance service

30  contract greater than 1 year or which does not meet the

31  exemption in paragraph (a), contract agreement, or other

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    Florida Senate - 1999                           CS for SB 1234
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  1  written promise to indemnify against the cost of repair or

  2  replacement of a consumer product in return for the payment of

  3  a segregated charge by the consumer; however:

  4         (a)  Maintenance service contracts written for 1 year

  5  or less which do not contain provisions for indemnification

  6  and which do not provide a discount to the consumer for any

  7  combination of parts and labor in excess of 20 percent during

  8  the effective period of the contract, motor vehicle service

  9  agreements, transactions exempt under s. 624.125, and home

10  warranties subject to regulation under parts I and II of this

11  chapter are excluded from this definition; and

12         (b)  The term "service warranty" does not include

13  service contracts between consumers and condominium

14  associations.

15         Section 5.  Subsection (3) of section 634.406, Florida

16  Statutes, is amended to read:

17         634.406  Financial requirements.--

18         (3)  An association will not be required to establish

19  an unearned premium reserve if it has purchased contractual

20  liability insurance which demonstrates to the satisfaction of

21  the department that 100 percent of its claim exposure is

22  covered by such policy.  The contractual liability insurance

23  shall be obtained from an insurer that holds a certificate of

24  authority to do business within the state or from an insurer

25  approved by the department as financially capable of meeting

26  the obligations incurred pursuant to the policy.  For the

27  purposes of this subsection, the contractual liability policy

28  shall contain the following provisions:

29         (a)  In the event that the service warranty association

30  does not fulfill its obligation under contracts issued in this

31  state for any reason, including insolvency, bankruptcy, or

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    Florida Senate - 1999                           CS for SB 1234
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  1  dissolution, the contractual liability insurer will pay losses

  2  and unearned premium refunds under such plans directly to the

  3  person making a claim under the contract.

  4         (b)  The insurer issuing the contractual liability

  5  policy shall assume full responsibility for the administration

  6  of claims in the event of the inability of the association to

  7  do so.

  8         (c)  The policy may not be canceled or not renewed by

  9  either the insurer or the association unless 60 days' written

10  notice thereof has been given to the department by the insurer

11  before the date of such cancellation or nonrenewal.

12         (d)  The contractual liability insurance policy shall

13  insure all service warranty contracts which were issued while

14  the policy was in effect whether or not the premium has been

15  remitted to the insurer.

16         (e)  In the event the issuer of the contractual

17  liability policy is fulfilling the service warranty covered by

18  policy and in the event the service warranty holder cancels

19  the service warranty, it is the responsibility of the

20  contractual liability policy issuer to effectuate a full

21  refund of unearned premium to the consumer. This refund shall

22  be subject to the cancellation fee provisions of s.

23  634.414(3).  The salesperson or agent shall refund to the

24  contractual liability policy issuer the unearned pro rata

25  commission.

26         (f)  An association may not utilize both the unearned

27  premium reserve and contractual liability insurance

28  simultaneously. However, an association shall be allowed to

29  have contractual liability coverage on service warranties

30  previously sold and sell new service warranties covered by the

31  unearned premium reserve, and the converse of this shall also

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    Florida Senate - 1999                           CS for SB 1234
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  1  be allowed. An association must be able to distinguish how

  2  each individual service warranty is covered.

  3         Section 6.  This act shall take effect July 1, 1999.

  4

  5          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  6                         Senate Bill 1234

  7

  8  1.    Clarifies that all funds or premiums remitted to a
          contractual liability insurer by a motor vehicle service
  9        agreement company must remain in the custody of the
          contractual liability insurer and be counted as an asset
10        of that insurer. If a motor vehicle service agreement
          company also maintains a reserve to pay claims, the
11        reserve may only be considered an asset of such service
          agreement company and may not be simultaneously counted
12        as an asset of any other entity.

13  2.    Removes the provision allowing a motor vehicle service
          agreement company to simultaneously use 50 percent
14        reserves and contractual liability insurance under
          certain conditions. Also, deletes the provision allowing
15        a motor vehicle service agreement company to maintain a
          ratio of unearned gross written premiums written to net
16        assets of no more than 10 to 1.

17  3.    Expands the definition of "service warranty" to include
          maintenance service contracts that are greater than 1
18        year or maintenance service contracts written for 1 year
          or less which provide consumer discounts for parts and
19        labor in excess of 20 percent.

20  4.    Disallows service warranty companies from purchasing
          contractual liability insurance from surplus lines
21        insurers.

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