Senate Bill sb2038

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    Florida Senate - 2004                                  SB 2038

    By Senator Fasano





    11-1063A-04

  1                      A bill to be entitled

  2         An act relating to consumers' insurance rights;

  3         amending s. 20.121, F.S.; providing that an

  4         employee of the Division of Consumer Services

  5         of the Department of Financial Services be

  6         designated as primary contact for consumers on

  7         issues involving sinkholes; amending s.

  8         626.9541, F.S.; providing that, under certain

  9         circumstances mandating arbitration pursuant to

10         an insurance contract is an unfair claim

11         settlement practice; providing that the refusal

12         to insure based on certain prior water damage

13         and prior claims resulting from an act of God

14         are unfair or deceptive acts; amending s.

15         626.9641, F.S.; requiring that personal and

16         commercial residential insurers offer

17         comprehensive coverage to consumers; providing

18         rulemaking authority; creating s. 626.9742,

19         F.S.; requiring certain information to be

20         provided to consumers related to loss

21         underwriting; creating s. 625.9743, F.S.,

22         relating to claim settlement practices for

23         motor vehicle insurance; prescribing standards

24         to be followed by insurers; providing

25         rulemaking authority; creating s. 626.9744,

26         F.S., relating to claim settlement practices

27         for residential and commercial property

28         insurance; prescribing standards to be followed

29         by insurers; providing rulemaking authority;

30         amending s. 627.4133, F.S.; requiring notice to

31         a mortgage company for its failure to timely

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    Florida Senate - 2004                                  SB 2038
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 1         pay a homeowner's premium pursuant to an escrow

 2         agreement; providing that the mortgage company

 3         is responsible for any additional costs

 4         relating to policy lapse or reinstatement and

 5         for any loss to the insured property during the

 6         period of lapse; prohibiting cancellation or

 7         nonrenewal of property insurance as a result of

 8         claims for water damage under certain

 9         conditions; providing severability; providing

10         an effective date.

11  

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

13  

14         Section 1.  Paragraph (h) of subsection (2) of section

15  20.121, Florida Statutes, is amended to read:

16         20.121  Department of Financial Services.--There is

17  created a Department of Financial Services.

18         (2)  DIVISIONS.--The Department of Financial Services

19  shall consist of the following divisions:

20         (h)  The Division of Consumer Services, which shall

21  include a Bureau of Funeral and Cemetery Services.

22         1.  The Division of Consumer Services shall perform the

23  following functions concerning products or services regulated

24  by the Department of Financial Services or by either office of

25  the Financial Services Commission:

26         a.  Receive inquiries and complaints from consumers.;

27         b.  Prepare and disseminate such information as the

28  department deems appropriate to inform or assist consumers.;

29         c.  Provide direct assistance and advocacy for

30  consumers who request such assistance or advocacy.;

31  

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    Florida Senate - 2004                                  SB 2038
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 1         d.  With respect to apparent or potential violations of

 2  law or applicable rules by a person or entity licensed by the

 3  department or by either office of the commission, report such

 4  apparent or potential violation to the appropriate division of

 5  the department or office of the commission, which may take

 6  such further action as it deems appropriate.

 7         e.  Designate an employee of the division as primary

 8  contact for consumers on issues relating to sinkholes.

 9         2.  Any person licensed or issued a certificate of

10  authority by the department or by the Office of Insurance

11  Regulation shall respond, in writing, to the Division of

12  Consumer Services within 20 days after receipt of a written

13  request for information from the division concerning a

14  consumer complaint. The response must address the issues and

15  allegations raised in this complaint. The division may, in its

16  discretion, impose an administrative penalty for failure to

17  comply with this subparagraph in an amount up to $2,500 per

18  violation upon any entity licensed by the department or the

19  Office of Insurance Regulation and $250 for the first

20  violation, $500 for the second violation and up to $1,000 per

21  violation thereafter upon any individual licensed by the

22  department or the Office of Insurance Regulation.

23         3.  The department may adopt rules to implement the

24  provisions of this paragraph.

25         4.  The powers, duties, and responsibilities expressed

26  or granted in this paragraph shall not limit the powers,

27  duties, and responsibilities of the Department of Financial

28  Services, the Financial Services Commission, the Office of

29  Insurance Regulation, or the Office of Financial Regulation

30  set forth elsewhere in the Florida Statutes.

31  

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 1         Section 2.  Paragraphs (i) and (x) of subsection (1) of

 2  section 626.9541, Florida Statutes, are amended to read:

 3         626.9541  Unfair methods of competition and unfair or

 4  deceptive acts or practices defined.--

 5         (1)  UNFAIR METHODS OF COMPETITION AND UNFAIR OR

 6  DECEPTIVE ACTS.--The following are defined as unfair methods

 7  of competition and unfair or deceptive acts or practices:

 8         (i)  Unfair claim settlement practices.--

 9         1.  Attempting to settle claims on the basis of an

10  application, when serving as a binder or intended to become a

11  part of the policy, or any other material document which was

12  altered without notice to, or knowledge or consent of, the

13  insured.;

14         2.  A material misrepresentation made to an insured or

15  any other person having an interest in the proceeds payable

16  under such contract or policy, for the purpose and with the

17  intent of effecting settlement of such claims, loss, or damage

18  under such contract or policy on less favorable terms than

19  those provided in, and contemplated by, such contract or

20  policy.; or

21         3.  Committing or performing with such frequency as to

22  indicate a general business practice any of the following:

23         a.  Failing to adopt and implement standards for the

24  proper investigation of claims;

25         b.  Misrepresenting pertinent facts or insurance policy

26  provisions relating to coverages at issue;

27         c.  Failing to acknowledge and act promptly upon

28  communications with respect to claims;

29         d.  Denying claims without conducting reasonable

30  investigations based upon available information;

31  

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 1         e.  Failing to affirm or deny full or partial coverage

 2  of claims, and, as to partial coverage, the dollar amount or

 3  extent of coverage, or failing to provide a written statement

 4  that the claim is being investigated, upon the written request

 5  of the insured within 30 days after proof-of-loss statements

 6  have been completed;

 7         f.  Failing to promptly provide a reasonable

 8  explanation in writing to the insured of the basis in the

 9  insurance policy, in relation to the facts or applicable law,

10  for denial of a claim or for the offer of a compromise

11  settlement;

12         g.  Failing to promptly notify the insured of any

13  additional information necessary for the processing of a

14  claim; or

15         h.  Failing to clearly explain the nature of the

16  requested information and the reasons why such information is

17  necessary.

18         4.  Mandating arbitration in an insurance contract or

19  policy with the intent of effecting settlement of claims,

20  losses, or damages under such contract unless the company

21  offers the consumer the ability to enter into a contract

22  without this provision.

23         (x)  Refusal to insure.--In addition to other

24  provisions of this code, the refusal to insure, or continue to

25  insure, any individual or risk solely because of:

26         1.  Race, color, creed, marital status, sex, or

27  national origin;

28         2.  The residence, age, or lawful occupation of the

29  individual or the location of the risk, unless there is a

30  reasonable relationship between the residence, age, or lawful

31  

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 1  occupation of the individual or the location of the risk and

 2  the coverage issued or to be issued;

 3         3.  The insured's or applicant's failure to agree to

 4  place collateral business with any insurer, unless the

 5  coverage applied for would provide liability coverage which is

 6  excess over that provided in policies maintained on property

 7  or motor vehicles;

 8         4.  The insured's or applicant's failure to purchase

 9  noninsurance services or commodities, including automobile

10  services as defined in s. 624.124;

11         5.  The fact that the insured or applicant is a public

12  official; or

13         6.  The fact that the insured or applicant had been

14  previously refused insurance coverage by any insurer, when

15  such refusal to insure or continue to insure for this reason

16  occurs with such frequency as to indicate a general business

17  practice;.

18         7.  The existence of any water damage loss at a private

19  residence which was subsequently repaired and which occurred

20  prior to the current or prospective ownership of the property;

21  or

22         8.  Prior claims resulting from an act of God.

23         Section 3.  Section 626.9641, Florida Statutes, is

24  amended to read:

25         626.9641  Policyholders, bill of rights.--

26         (1)  The principles expressed in the following

27  statements shall serve as standards to be followed by the

28  department, commission, and office in exercising their powers

29  and duties, in exercising administrative discretion, in

30  dispensing administrative interpretations of the law, and in

31  adopting rules:

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    Florida Senate - 2004                                  SB 2038
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 1         (a)  Policyholders shall have the right to competitive

 2  pricing practices and marketing methods that enable them to

 3  determine the best value among comparable policies.

 4         (b)  Policyholders shall have the right to obtain

 5  comprehensive coverage.

 6         (c)  Policyholders shall have the right to insurance

 7  advertising and other selling approaches that provide accurate

 8  and balanced information on the benefits and limitations of a

 9  policy.

10         (d)  Policyholders shall have a right to an insurance

11  company that is financially stable.

12         (e)  Policyholders shall have the right to be serviced

13  by a competent, honest insurance agent or broker.

14         (f)  Policyholders shall have the right to a readable

15  policy.

16         (g)  Policyholders shall have the right to an insurance

17  company that provides an economic delivery of coverage and

18  that tries to prevent losses.

19         (h)  Policyholders shall have the right to a balanced

20  and positive regulation by the department, commission, and

21  office.

22         (2)  With respect to paragraph (1)(b), personal and

23  commercial residential insurers shall make comprehensive

24  coverage available to policyholders, and the commission may

25  adopt rules to determine what constitutes comprehensive

26  coverage for those lines of insurance.

27         (3)(2)  This section does shall not create be construed

28  as creating a civil cause of action by any individual

29  policyholder against any individual insurer.

30         Section 4.  Section 626.9742, Florida Statutes, is

31  created to read:

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 1         626.9742  Reporting by insurers related to loss

 2  underwriting.--When an insurer refuses to provide coverage to

 3  an applicant due to adverse underwriting information, the

 4  insurer shall:

 5         (1)  Provide to the applicant specific information

 6  regarding the reason or reasons for the refusal to insure; and

 7         (2)  When the reason for the refusal to insure is based

 8  on a loss underwriting history or report, upon request by the

 9  applicant, provide the applicant with a copy of the loss

10  underwriting history or report at no cost to the applicant.

11         Section 5.  Section 626.9743, Florida Statutes, is

12  created to read:

13         626.9743  Claim settlement practices relating to motor

14  vehicle insurance.--

15         (1)  This section shall apply to the adjustment and

16  settlement of both first-party and third-party personal and

17  commercial motor vehicle insurance claims.

18         (2)  An insurer may not, when liability and damages

19  owed under the policy are reasonably clear, recommend that a

20  third-party claimant make a claim under his or her own policy

21  solely to avoid paying the claim under the policy issued by

22  that insurer.

23         (3)  An insurer that elects to repair a motor vehicle

24  and designates a specific repair shop for vehicle repairs

25  shall cause the damaged vehicle to be restored to its physical

26  condition prior to the loss at no additional cost to the

27  insured or third-party claimant other than as stated in the

28  policy.

29         (4)  An insurer may not require the use of replacement

30  parts in the repair of a motor vehicle which are not at least

31  

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 1  equal in kind and quality to the original parts in terms of

 2  fit, quality, and performance.

 3         (5)  The department may adopt rules establishing

 4  requirements applicable to the adjustment and settlement of

 5  motor vehicle insurance claims. The rules may include, but

 6  need not be limited to:

 7         (a)  Descriptions of methods that may be used by

 8  insurers to adjust and settle motor vehicle total losses,

 9  including cash settlements or replacement motor vehicles.

10         (b)  Standards to require that a replacement motor

11  vehicle be comparable to the damaged motor vehicle, including

12  such factors as manufacturer, model type, model year, options,

13  mileage, and availability.

14         (c)  Descriptions of methods that may be used by

15  insurers to derive the cost of cash settlements for purposes

16  of adjusting and settling motor vehicle total losses,

17  including the consideration of cost of comparable motor

18  vehicles in the applicable area, the cost as determined by an

19  applicable source for motor vehicle valuation, and the cost as

20  determined by licensed dealer quotes in the applicable area.

21         (d)  Requirements that must be met by any source for

22  motor vehicle valuation used by insurers for purposes of

23  adjusting and settling motor vehicle total losses, including

24  the relative weight given to vehicle values determined by

25  geographic area, the number or percentage of vehicles and

26  model years included in the source, and the validity of values

27  determined by comparison to actual local vehicle values.

28         (e)  Standards for claim reductions based on charges

29  for betterment or depreciation or other charges.

30         (f)  Standards for the settlement of partial losses

31  based on written estimates obtained by insurers and claimants,

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 1  including options for cash settlements and agreements with

 2  repair shops.

 3         Section 6.  Section 626.9744, Florida Statutes, is

 4  created to read:

 5         626.9744  Claim settlement practices relating to

 6  property insurance.--Unless otherwise provided by the policy,

 7  when a homeowner's insurance policy provides for the

 8  adjustment and settlement of first-party losses based on

 9  repair or replacement cost, the following requirements apply:

10         (1)  When a loss requires repair or replacement of an

11  item or part, any consequential physical damage incurred in

12  making such repair or replacement which is covered and not

13  otherwise excluded by the policy shall be included in the

14  loss. The insured may not be required to pay for betterment

15  required by ordinance or code or any other cost except for the

16  applicable deductible, unless specifically excluded by the

17  policy.

18         (2)  When a loss requires repair or replacement of

19  portions of a home, the repair or replacement shall include

20  adjoining areas to the extent necessary to achieve a

21  reasonably uniform appearance. The commission may adopt rules

22  governing the determination of the area to which the

23  uniform-appearance requirement applies.

24         Section 7.  Paragraph (b) of subsection (2) of section

25  627.4133, Florida Statutes, is amended, and subsection (4) is

26  added to that section, to read:

27         627.4133  Notice of cancellation, nonrenewal, or

28  renewal premium.--

29         (2)  With respect to any personal lines or commercial

30  residential property insurance policy, including, but not

31  limited to, any homeowner's, mobile home owner's, farmowner's,

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 1  condominium association, condominium unit owner's, apartment

 2  building, or other policy covering a residential structure or

 3  its contents:

 4         (b)  The insurer shall give the named insured written

 5  notice of nonrenewal, cancellation, or termination at least 90

 6  days prior to the effective date of the nonrenewal,

 7  cancellation, or termination. The notice must include the

 8  reason or reasons for the nonrenewal, cancellation, or

 9  termination, except that:

10         1.  When cancellation is for nonpayment of premium, at

11  least 10 days' written notice of cancellation accompanied by

12  the reason therefor shall be given. However:

13         a.  When a residential property insurance premium

14  payment is the responsibility of a mortgage company pursuant

15  to an escrow agreement and the mortgage company does not pay

16  the premium in a timely manner, the insurer shall mail a

17  notice to the mortgage company, with a copy to the insured,

18  notifying the mortgage company that the policy has lapsed.  It

19  is the responsibility of the mortgage company to make the

20  required premium payment, and the insurer shall reinstate the

21  policy upon receipt of the required premium.

22         b.  During any period of time in which property

23  insurance coverage has lapsed due to failure of a mortgage

24  company to remit escrowed premiums, any loss to the insured

25  property is the responsibility of the mortgage company.

26         c.  All additional costs or fees to reinstate insurance

27  coverage as the result of a failure of a mortgage company to

28  remit escrowed premiums are the sole responsibility of the

29  mortgage company and may not be passed on to the insured

30  mortgagor.

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 1         2.  When such cancellation or termination occurs during

 2  the first 90 days during which the insurance is in force and

 3  the insurance is canceled or terminated for reasons other than

 4  nonpayment of premium, at least 20 days' written notice of

 5  cancellation or termination accompanied by the reason therefor

 6  shall be given except where there has been a material

 7  misstatement or misrepresentation or failure to comply with

 8  the underwriting requirements established by the insurer.

 9  

10  After the policy has been in effect for 90 days, the policy

11  shall not be canceled by the insurer except when there has

12  been a material misstatement, a nonpayment of premium, a

13  failure to comply with underwriting requirements established

14  by the insurer within 90 days of the date of effectuation of

15  coverage, or a substantial change in the risk covered by the

16  policy or when the cancellation is for all insureds under such

17  policies for a given class of insureds. This paragraph does

18  not apply to individually rated risks having a policy term of

19  less than 90 days.

20         (4)  Claims on property insurance policies which are

21  the result of water damage may not be used as a cause for

22  cancellation or nonrenewal unless the insurer can demonstrate,

23  by claims frequency or otherwise, that the insured has failed

24  to take action reasonably necessary as requested by the

25  insurer to prevent recurrence of damages to the insured

26  property.

27         Section 8.  If any provision of this act or its

28  application to any person or circumstance is held invalid, the

29  invalidity does not affect other provisions or applications of

30  the act which can be given effect without the invalid

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 1  provision or application, and to this end the provisions of

 2  this act are declared severable.

 3         Section 9.  This act shall take effect July 1, 2004.

 4  

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

 6                          SENATE SUMMARY

 7    Requires the Division of Consumer Services of the
      Department of Financial Services to designate an employee
 8    as the primary contact for consumers with respect to
      issues involving sinkholes. Declares mandatory
 9    arbitration under an insurance contract an unfair claim
      settlement practice and declares refusal to insure based
10    on previous water damage that has been repaired or on
      claims resulting from acts of God unfair and deceptive.
11    Requires residential insurers to make comprehensive
      coverage available. Requires insurers to share adverse
12    underwriting information with an applicant when insurance
      is refused based on that information. Prescribes
13    practices to be followed by insurers with respect to
      settlement of claims under motor vehicle and property
14    insurance. Prescribes responsibility of a mortgagee that
      has failed to pay escrowed property insurance premium.
15    Limits the ability of an insurer to cancel insurance due
      to claims for water damage.
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