Senate Bill sb1662

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    Florida Senate - 2005                                  SB 1662

    By Senator Fasano





    11-825-05

  1                      A bill to be entitled

  2         An act relating to insurance; amending s.

  3         626.901, F.S.; revising an exception from the

  4         prohibition against representing or aiding

  5         unauthorized insurers; providing for immediate

  6         cease-and-desist orders for violations of the

  7         prohibition; providing legislative findings;

  8         authorizing investigations of activities that

  9         may constitute violations of the prohibition;

10         amending s. 626.902, F.S.; providing an

11         exception from penalty provisions for aiding an

12         unauthorized insurer; amending s. 626.908,

13         F.S.; providing conditions on defenses of

14         certain actions against unauthorized insurers

15         and persons representing or aiding them;

16         prescribing a time limit on motions to quash or

17         set aside service of process in actions against

18         such unauthorized insurers and other persons;

19         providing an effective date.

20  

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

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23         Section 1.  Subsection (4) of section 626.901, Florida

24  Statutes, is amended, and subsections (5) and (6) are added to

25  that section, to read:

26         626.901  Representing or aiding unauthorized insurer

27  prohibited.--

28         (4)  This section does not apply to:

29         (a)  Matters authorized to be done by the office under

30  the Unauthorized Insurers Process Law, ss. 626.904-626.912.

31  

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    Florida Senate - 2005                                  SB 1662
    11-825-05




 1         (b)  Surplus lines insurance when written pursuant to

 2  the Surplus Lines Law, ss. 626.913-626.937.

 3         (c)  Transactions as to which a certificate of

 4  authority is not required of an insurer, as stated in s.

 5  624.402.

 6         (d)  Independently procured coverage written pursuant

 7  to s. 626.938 which is not solicited, marketed, negotiated, or

 8  sold in this state.

 9         (5)  The office or department may, pursuant to s.

10  120.569 and in its discretion and without advance notice or

11  hearing, issue an immediate final order to cease and desist to

12  any person or entity that violates this section. The

13  Legislature finds that a violation of this section constitutes

14  an imminent and immediate threat to the health, safety, and

15  welfare of the residents of this state.

16         (6)  The office may investigate the accounts, records,

17  documents, and transactions pertaining to the activities of

18  any unauthorized insurer or person, as defined in s. 624.04,

19  which is or may be aiding or representing an unauthorized

20  insurer.

21         Section 2.  Subsection (3) is added to section 626.902,

22  Florida Statutes, to read:

23         626.902  Penalty for representing unauthorized

24  insurer.--

25         (3)  This section does not apply to matters authorized

26  by the office under the Unauthorized Insurers Process Law, ss.

27  626.904-626.912.

28         Section 3.  Subsections (1) and (3) of section 626.908,

29  Florida Statutes, are amended to read:

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    Florida Senate - 2005                                  SB 1662
    11-825-05




 1         626.908  Defense of action by unauthorized insurer or

 2  person representing or aiding such insurer; damages and

 3  attorney fee.--

 4         (1)  Before an unauthorized insurer or person

 5  representing or aiding such insurer files or causes to be

 6  filed any pleading in any action or proceeding instituted

 7  against it under s. ss. 626.906, s. and 626.907, or s. 626.909

 8  or a suit instituted by the office or the department enforcing

 9  agency action against unauthorized insurers under s. 120.69,

10  an unauthorized insurer or person representing or aiding such

11  insurer shall:

12         (a)  Procure a certificate of authority to transact

13  insurance in this state, or

14         (b)  Deposit with the clerk of the court in which such

15  action or proceeding is pending cash or securities or file

16  with such clerk a bond with good and sufficient sureties, to

17  be approved by the court, in an amount to be fixed by the

18  court sufficient to secure the payment of any final judgment

19  which may be rendered in such action.  The court may in its

20  discretion make an order dispensing with such deposit or bond

21  where the insurer makes a showing satisfactory to the court

22  that it maintains in a state of the United States funds or

23  securities, in trust or otherwise, sufficient and available to

24  satisfy any final judgment which may be entered in such action

25  or proceeding, and that the insurer or person representing or

26  aiding such insurer will pay any final judgment entered

27  therein without requiring suit to be brought on such judgment

28  in the state where such funds or securities are located, and

29  that if, nevertheless, such suit is brought on such final

30  judgment the insurer or person representing or aiding such

31  insurer shall waive all defenses thereto.

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    Florida Senate - 2005                                  SB 1662
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 1         (c)  Any proof, evidence, or testimony in support of

 2  such motion shall be taken in the jurisdiction of the court in

 3  which the action or proceeding is pending.

 4         (d)  If the unauthorized insurer or person representing

 5  or aiding such insurer seeks to take discovery or de bene esse

 6  depositions of witnesses beyond the jurisdiction of the court

 7  in which the action is pending, upon seasonable application by

 8  the plaintiff, the court by appropriate order shall require

 9  the unauthorized insurer or person representing or aiding such

10  insurer, before such depositions are taken, to make similar

11  deposit as described in paragraph (b), in sufficient amount to

12  pay the reasonable expenses of the plaintiff and his or her

13  attorney in attending the taking of such depositions,

14  including reasonable attorney's fees to be fixed by the court.

15         (3)  Nothing in subsection (1) is to be construed to

16  prevent an unauthorized insurer or person representing or

17  aiding such insurer from filing, within 30 days after service,

18  a motion to quash or to set aside the service of any process

19  made in the manner provided in s. 626.907 hereof on the ground

20  either:

21         (a)  That such unauthorized insurer or person

22  representing or aiding such insurer has not done any of the

23  acts enumerated in s. 626.906; or

24         (b)  That the person on whom service was made pursuant

25  to s. 626.907(2) was not doing any of the acts therein

26  enumerated.

27         Section 4.  This act shall take effect July 1, 2005.

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    Florida Senate - 2005                                  SB 1662
    11-825-05




 1            *****************************************

 2                          SENATE SUMMARY

 3    Provides that the exemption, for independently procured
      coverage, from the prohibition against representing or
 4    aiding unauthorized insurers applies only when that
      coverage is not solicited, marketed, negotiated, or sold
 5    in the state. Authorizes immediate cease-and-desist
      orders for violations of that prohibition and
 6    investigations of unauthorized insurers and persons
      aiding or representing them. Declares legislative
 7    findings to the effect that unlawfully aiding or
      representing such insurers is an imminent threat to the
 8    public health, welfare, and safety. Provides that the
      penalty for unlawfully aiding or representing
 9    unauthorized insurers does not apply with respect to
      actions that are permitted. Requires an unauthorized
10    insurer or person aiding or representing one to take
      certain actions before filing any pleading in an action
11    against the unauthorized insurer.

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