Senate Bill sb1680c1
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Florida Senate - 2003 CS for SB 1680
By the Committee on Banking and Insurance; and Senators Posey
and Fasano
311-2014-03
1 A bill to be entitled
2 An act relating to the unauthorized sale of
3 insurance; providing a short title; amending s.
4 624.155, F.S.; providing a civil remedy for
5 consumers against unauthorized insurers for
6 unpaid claims; amending s. 624.401, F.S.;
7 providing criminal penalties for an entity
8 transacting insurance without a certificate of
9 authority; providing an effective date.
10
11 Be It Enacted by the Legislature of the State of Florida:
12
13 Section 1. This act may be cited as the "Pete Orr
14 Insurance Anti-Fraud Act."
15 Section 2. Section 624.155, Florida Statutes, is
16 amended to read:
17 624.155 Civil remedy.--
18 (1) Any person may bring a civil action against an
19 insurer when such person is damaged:
20 (a) By a violation of any of the following provisions
21 by the insurer:
22 1. Section 626.9541(1)(i), (o), or (x);
23 2. Section 626.9551;
24 3. Section 626.9705;
25 4. Section 626.9706;
26 5. Section 626.9707; or
27 6. Section 627.7283.
28 (b) By the commission of any of the following acts by
29 the insurer:
30 1. Not attempting in good faith to settle claims when,
31 under all the circumstances, it could and should have done so,
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Florida Senate - 2003 CS for SB 1680
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1 had it acted fairly and honestly toward its insured and with
2 due regard for her or his interests;
3 2. Making claims payments to insureds or beneficiaries
4 not accompanied by a statement setting forth the coverage
5 under which payments are being made; or
6 3. Except as to liability coverages, failing to
7 promptly settle claims, when the obligation to settle a claim
8 has become reasonably clear, under one portion of the
9 insurance policy coverage in order to influence settlements
10 under other portions of the insurance policy coverage.
11
12 Notwithstanding the provisions of the above to the contrary, a
13 person pursuing a remedy under this section need not prove
14 that such act was committed or performed with such frequency
15 as to indicate a general business practice.
16 (2) Any party may bring a civil action against an
17 unauthorized insurer if such party is damaged by a violation
18 of s. 624.401 by the unauthorized insurer.
19 (3)(2)(a) As a condition precedent to bringing an
20 action under this section, the department and the authorized
21 insurer must have been given 60 days' written notice of the
22 violation. If the department returns a notice for lack of
23 specificity, the 60-day time period shall not begin until a
24 proper notice is filed.
25 (b) The notice shall be on a form provided by the
26 department and shall state with specificity the following
27 information, and such other information as the department may
28 require:
29 1. The statutory provision, including the specific
30 language of the statute, which the authorized insurer
31 allegedly violated.
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Florida Senate - 2003 CS for SB 1680
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1 2. The facts and circumstances giving rise to the
2 violation.
3 3. The name of any individual involved in the
4 violation.
5 4. Reference to specific policy language that is
6 relevant to the violation, if any. If the person bringing the
7 civil action is a third party claimant, she or he shall not be
8 required to reference the specific policy language if the
9 authorized insurer has not provided a copy of the policy to
10 the third party claimant pursuant to written request.
11 5. A statement that the notice is given in order to
12 perfect the right to pursue the civil remedy authorized by
13 this section.
14 (c) Within 20 days of receipt of the notice, the
15 department may return any notice that does not provide the
16 specific information required by this section, and the
17 department shall indicate the specific deficiencies contained
18 in the notice. A determination by the department to return a
19 notice for lack of specificity shall be exempt from the
20 requirements of chapter 120.
21 (d) No action shall lie if, within 60 days after
22 filing notice, the damages are paid or the circumstances
23 giving rise to the violation are corrected.
24 (e) The authorized insurer that is the recipient of a
25 notice filed pursuant to this section shall report to the
26 department on the disposition of the alleged violation.
27 (f) The applicable statute of limitations for an
28 action under this section shall be tolled for a period of 65
29 days by the mailing of the notice required by this subsection
30 or the mailing of a subsequent notice required by this
31 subsection.
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1 (4)(3) Upon adverse adjudication at trial or upon
2 appeal, the authorized insurer shall be liable for damages,
3 together with court costs and reasonable attorney's fees
4 incurred by the plaintiff.
5 (5)(4) No punitive damages shall be awarded under this
6 section unless the acts giving rise to the violation occur
7 with such frequency as to indicate a general business practice
8 and these acts are:
9 (a) Willful, wanton, and malicious;
10 (b) In reckless disregard for the rights of any
11 insured; or
12 (c) In reckless disregard for the rights of a
13 beneficiary under a life insurance contract.
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15 Any person who pursues a claim under this subsection shall
16 post in advance the costs of discovery. Such costs shall be
17 awarded to the authorized insurer if no punitive damages are
18 awarded to the plaintiff.
19 (6)(5) This section shall not be construed to
20 authorize a class action suit against an authorized insurer or
21 a civil action against the department, its employees, or the
22 Insurance Commissioner, or to create a cause of action when an
23 authorized a health insurer refuses to pay a claim for
24 reimbursement on the ground that the charge for a service was
25 unreasonably high or that the service provided was not
26 medically necessary.
27 (7)(6) In the absence of expressed language to the
28 contrary, this section shall not be construed to authorize a
29 civil action or create a cause of action against an authorized
30 insurer or its employees who, in good faith, release
31 information about an insured or an insurance policy to a law
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1 enforcement agency in furtherance of an investigation of a
2 criminal or fraudulent act relating to a motor vehicle theft
3 or a motor vehicle insurance claim.
4 (8)(7) The civil remedy specified in this section does
5 not preempt any other remedy or cause of action provided for
6 pursuant to any other statute or pursuant to the common law of
7 this state. Any person may obtain a judgment under either the
8 common-law remedy of bad faith or this statutory remedy, but
9 shall not be entitled to a judgment under both remedies. This
10 section shall not be construed to create a common-law cause of
11 action. The damages recoverable pursuant to this section
12 shall include those damages which are a reasonably foreseeable
13 result of a specified violation of this section by the
14 authorized insurer and may include an award or judgment in an
15 amount that exceeds the policy limits.
16 Section 3. Section 624.401, Florida Statutes, is
17 amended to read:
18 624.401 Certificate of authority required.--
19 (1) No person shall act as an insurer, and no insurer
20 or its agents, attorneys, subscribers, or representatives
21 shall directly or indirectly transact insurance, in this state
22 except as authorized by a subsisting certificate of authority
23 issued to the insurer by the department, except as to such
24 transactions as are expressly otherwise provided for in this
25 code.
26 (2) No insurer shall from offices or by personnel or
27 facilities located in this state solicit insurance
28 applications or otherwise transact insurance in another state
29 or country unless it holds a subsisting certificate of
30 authority issued to it by the department authorizing it to
31 transact the same kind or kinds of insurance in this state.
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1 (3) This state hereby preempts the field of regulating
2 insurers and their agents and representatives; and no county,
3 city, municipality, district, school district, or political
4 subdivision shall require of any insurer, agent, or
5 representative regulated under this code any authorization,
6 permit, or registration of any kind for conducting
7 transactions lawful under the authority granted by the state
8 under this code.
9 (4)(a) Any person who acts as an insurer, transacts
10 insurance, or otherwise engages in insurance activities in
11 this state without a certificate of authority in violation of
12 this section commits insurance fraud, punishable as provided
13 in paragraph (b) a felony of the third degree, punishable as
14 provided in s. 775.082, s. 775.083, or s. 775.084.
15 (b) If the amount of any insurance premium collected
16 with respect to any violation of this section:
17 1. Is less than $20,000, the offender commits a felony
18 of the third degree, punishable as provided in s. 775.082, s.
19 775.083, or s. 775.084, and the offender shall be sentenced to
20 a minimum term of imprisonment of 1 year.
21 2. Is $20,000 or more, but less than $100,000, the
22 offender commits a felony of the second degree, punishable as
23 provided in s. 775.082, s. 775.083, or s. 775.084, and the
24 offender shall be sentenced to a minimum term of imprisonment
25 of 18 months.
26 3. Is $100,000 or more, the offender commits a felony
27 of the first degree, punishable as provided in s. 775.082, s.
28 775.083, or s. 775.084, and the offender shall be sentenced to
29 a minimum term of imprisonment of 2 years.
30 Section 4. This act shall take effect July 1, 2003.
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Florida Senate - 2003 CS for SB 1680
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1 STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
COMMITTEE SUBSTITUTE FOR
2 Senate Bill 1680
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4 The committee substitute does the following:
5 - Deletes the provision authorizing a civil action by a
party damaged by a representative of an unauthorized
6 insurer.
7 - Deletes the section that provides that persons
representing unauthorized insurers shall be personally
8 liable for losses or claims not paid by unauthorized
insurers.
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- Deletes penalty provisions against insurance agents for
10 representing unauthorized insurers.
11 - Deletes the section pertaining to the reporting and
taxation of independently procured coverage applying to
12 unauthorized insurers.
13 - Deletes the provision which adds specified crimes to the
Offense Severity Ranking Chart law under the Criminal
14 Punishment Code.
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