Senate Bill 2076

CODING: Words stricken are deletions; words underlined are additions.



    Florida Senate - 1999                                  SB 2076

    By Senator Holzendorf





    2-1366-99                                               See HB

  1                      A bill to be entitled

  2         An act relating to the Florida Insurance

  3         Guaranty Association; amending s. 631.54, F.S.;

  4         excluding certain claims from the definition of

  5         "covered claim"; amending s. 631.57, F.S.;

  6         providing a limitation on payment of certain

  7         claims by the association under certain

  8         circumstances; providing construction;

  9         providing for a plan to allocate amounts

10         payable by the association under certain

11         circumstances; excluding certain claims as

12         covered claims under certain circumstances;

13         providing to the association a right to

14         intervene as a party; requiring the Insurance

15         Commissioner to disclose certain information

16         relating to transfers of certain liabilities

17         under certain circumstances; requiring the

18         commissioner to call a public hearing upon

19         request of the association; providing for the

20         association to participate in the hearing;

21         providing for cessation of the association's

22         obligation to defend an insured under certain

23         circumstances; amending s. 631.141, F.S.;

24         providing for early access disbursements from

25         certain assets after a final order of

26         liquidation; providing an effective date.

27

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

29

30         Section 1.  Subsection (3) of section 631.54, Florida

31  Statutes, is amended to read:

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    Florida Senate - 1999                                  SB 2076
    2-1366-99                                               See HB




  1         631.54  Definitions.--As used in this part:

  2         (3)  "Covered claim" means an unpaid claim, including

  3  one of unearned premiums, which arises out of, and is within

  4  the coverage, and not in excess of, the applicable limits of

  5  an insurance policy to which this part applies, issued by an

  6  insurer, if such insurer becomes an insolvent insurer after

  7  October 1, 1970, and the claimant or insured is a resident of

  8  this state at the time of the insured event or the property

  9  from which the claim arises is permanently located in this

10  state. "Covered claim" shall not include any amount due any

11  reinsurer, insurer, insurance pool, or underwriting

12  association, as subrogation recoveries or otherwise.  Member

13  insurers shall have no right of subrogation against the

14  insured of any insolvent member. "Covered claim" shall not

15  include any claim by an insured whose net worth exceeds $25

16  million on December 31 of the year next preceding the date the

17  insurer becomes an insolvent insurer, provided that an

18  insured's net worth on such date shall be deemed to include

19  the aggregate net worth of the insured and all of its

20  subsidiaries as calculated on a consolidated basis.

21         Section 2.  Paragraphs (a) and (b) of subsection (1)

22  and subsection (2) of section 631.57, Florida Statutes, are

23  amended, and paragraph (f) is added to subsection (3) of that

24  section, to read:

25         631.57  Powers and duties of the association.--

26         (1)  The association shall:

27         (a)1.  Be obligated to the extent of the covered claims

28  existing:

29         a.  Prior to adjudication of insolvency and arising

30  within 30 days after the determination of insolvency;

31

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    Florida Senate - 1999                                  SB 2076
    2-1366-99                                               See HB




  1         b.  Before the policy expiration date if less than 30

  2  days after the determination; or

  3         c.  Before the insured replaces the policy or causes

  4  its cancellation, if she or he does so within 30 days of the

  5  determination.

  6         2.  The obligation under subparagraph 1. shall include

  7  only that amount of each covered claim which is in excess of

  8  $100 and is less than $300,000, except with respect to

  9  policies covering condominium associations or homeowners'

10  associations, which associations have a responsibility to

11  provide insurance coverage on residential units within the

12  association, the obligation shall include that amount of each

13  covered property insurance claim which is less than $100,000

14  multiplied by the number of condominium units or other

15  residential units; however, as to homeowners' associations,

16  this subparagraph applies only to claims for damage or loss to

17  residential units and structures attached to residential

18  units.

19         3.  In no event shall the association be obligated to a

20  policyholder or claimant in an amount in excess of the

21  obligation of the insolvent insurer under the policy from

22  which the claim arises.

23         4.  Notwithstanding any other provisions of this

24  paragraph, except in the case of a claim for benefits under

25  workers' compensation coverage, any obligation of the

26  association to any person shall cease when $10,000,000 has

27  been paid in the aggregate by the association and any one or

28  more associations similar to the association of any other

29  state or any property or casualty security fund which obtains

30  contributions from insurers on a pre-insolvency basis, to or

31  on behalf of any insured and its affiliates on covered claims

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    Florida Senate - 1999                                  SB 2076
    2-1366-99                                               See HB




  1  or allowed claims arising under any policies of any one

  2  insolvent insurer. For purposes of this section, the term

  3  "affiliate" means a person who directly or indirectly, through

  4  one or more intermediaries, controls, is controlled by, or is

  5  under common control with another person. If the association

  6  determines that there may be more than one claimant having a

  7  covered claim or allowed claim against the association or any

  8  associations similar to the association or any property or

  9  casualty insurance security fund in other states, under the

10  policy or policies of any one insolvent insurer, the

11  association may establish a plan to allocate amounts payable

12  by the association in such manner as the association in its

13  discretion deems equitable.

14         5.  Notwithstanding any other provision of this

15  paragraph, a covered claim shall not include a claim filed

16  with the association after the earlier of 18 months after the

17  date of the order of liquidation or the final dates et by the

18  court for the filing of claims against the liquidator,

19  receiver, or insolvent insurer.

20

21  The foregoing notwithstanding, the association shall have no

22  obligation to pay covered claims to be paid from the proceeds

23  of bonds issued under s. 166.111(2).  However, the association

24  shall cause assessments to be made under paragraph (3)(e) for

25  such covered claims, and such assessments shall be assigned

26  and pledged under paragraph (3)(e) to or on behalf of the

27  issuer of such bonds for the benefit of the holders of such

28  bonds.  The association shall administer any such covered

29  claims and present valid covered claims for payment in

30  accordance with the provisions of the assistance program in

31  connection with which such bonds have been issued.

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    Florida Senate - 1999                                  SB 2076
    2-1366-99                                               See HB




  1         (b)  Be deemed the insurer to the extent of its

  2  obligation on the covered claims, and, to such extent, shall

  3  have all rights, duties, and obligations of the insolvent

  4  insurer as if the insurer had not become insolvent.  In no

  5  event shall the association be liable for any penalties or

  6  interest.

  7         (2)  The association may:

  8         (a)  Employ or retain such persons as are necessary to

  9  handle claims and perform other duties of the association;

10         (b)  Borrow funds necessary to effect the purposes of

11  this part in accord with the plan of operation;

12         (c)  Sue or be sued, provided that service of process

13  shall be made upon the person registered with the department

14  as agent for the receipt of service of process, including the

15  power and right to intervene as a party before any court in

16  this state that has jurisdiction over an insolvent insurer;

17  and

18         (d)  Negotiate and become a party to such contracts as

19  are necessary to carry out the purpose of this part.  Without

20  limiting the generality of the foregoing, the association may

21  enter into such contracts with a municipality as are necessary

22  in order for the municipality to issue bonds under s.

23  166.111(2).  In connection with the issuance of such bonds and

24  the entering into of the necessary contracts, the association

25  may agree to such terms and conditions as it deems necessary

26  and proper; and.

27         (e)  Before approving any transaction or series of

28  transactions within the same insurance holding company system

29  permitting one or more insurance companies to transfer

30  substantially all existing insurance policy liabilities or a

31  class of such liabilities to another company which is not

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    Florida Senate - 1999                                  SB 2076
    2-1366-99                                               See HB




  1  expected to issue any new policies, the commissioner shall

  2  make a full, detailed disclosure, including, but not limited

  3  to, the mode of transfer, the loss reserve, and an asset

  4  analysis of the proposed transaction to the association for

  5  review. After receiving the specified information about the

  6  transaction, if the association requests a public hearing to

  7  ascertain whether the risk to the association will

  8  unreasonably increase as the result of the company assuming

  9  the existing liabilities becoming insolvent, the commissioner

10  shall promptly call such a hearing and permit the association,

11  members of the association, policyholders, and creditors to

12  fully participate in the hearing with the right to submit

13  evidence and to cross examine witnesses in order to properly

14  effectuate the purposes of this section.

15         (3)

16         (f)  Any obligation of the association to defend an

17  insured shall cease upon the association's payment, by

18  settlement releasing the insured or upon a judgment, of an

19  amount equal to the lesser of the association's covered claim

20  obligation limit or the applicable policy limit, or upon the

21  payment of $600,000 in fees and costs with respect to each

22  covered claim.

23         Section 3.  Subsection (10) is added to section

24  631.141, Florida Statutes, to read:

25         631.141  Conduct of delinquency proceeding; domestic

26  and alien insurers.--

27         (10)  Within 120 days after a final order of

28  liquidation of an insurer by a court of competent jurisdiction

29  of this state, the liquidator shall make application to the

30  court for approval of a proposal to make early access

31

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    Florida Senate - 1999                                  SB 2076
    2-1366-99                                               See HB




  1  disbursements out of marshaled assets to a guaranty

  2  association having obligations because of the insolvency.

  3         Section 4.  This act shall take effect October 1, 1999.

  4

  5            *****************************************

  6                       LEGISLATIVE SUMMARY

  7
      Revises provisions relating to the Florida Insurance
  8    Guaranty Association to exclude from the definition of
      "covered claims" a claim against an insolvent insured by
  9    an insured with a net worth greater than $25 million,
      limit payment of claims by the association after $10
10    million in claims have been paid by the association and
      allow the association to establish a plan to allocate
11    amounts payable by the association, and provide the
      association with a right to intervene as a party in
12    actions involving an insolvent insurer.  Requires the
      Insurance Commissioner to disclose information relating
13    to transfers of insurance policy liabilities, to call a
      public hearing relating to such transfer upon request of
14    the association, and to allow the association to
      participate in the hearing. Provides for cessation of the
15    association's obligation to defend an insured after a
      settlement, a judgment, or payment of $600,000 with
16    respect to each covered claim.  Provides for early access
      disbursements from assets of an insolvent insurer after a
17    final order of liquidation.

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