| 1 | A bill to be entitled |
| 2 | An act relating to insurer insolvency; amending s. |
| 3 | 631.181, F.S.; providing an exception to certain |
| 4 | requirements for a signed statement for certain claims; |
| 5 | providing requirements; amending s. 631.54, F.S.; revising |
| 6 | the definition of "covered claim"; amending s. 631.57, |
| 7 | F.S.; revising requirements and limitations for |
| 8 | obligations of the Florida Insurance Guaranty Association, |
| 9 | Inc., for covered claims; authorizing the association to |
| 10 | contract with counties and municipalities to issue revenue |
| 11 | bonds for certain purposes; authorizing the Department of |
| 12 | Financial Services to levy assessments and emergency |
| 13 | assessments on insurers under certain circumstances for |
| 14 | certain bond repayment purposes; providing requirements |
| 15 | for and limitations on such assessments; providing for |
| 16 | payment, collection, and distribution of such assessments; |
| 17 | requiring insurers to include an analysis of revenues from |
| 18 | such assessments in a required report; providing rate |
| 19 | filing requirements for insurers relating to such |
| 20 | assessments; providing for continuing annual assessments |
| 21 | under certain circumstances; specifying emergency |
| 22 | assessments as not premium and not subject to certain |
| 23 | taxes, fees, or commissions; specifying insurer liability |
| 24 | for emergency assessments; providing an exception; |
| 25 | creating s. 631.695, F.S.; providing legislative findings |
| 26 | and purposes; providing for issuance of revenue bonds |
| 27 | through counties and municipalities to fund assistance |
| 28 | programs for paying covered claims for hurricane damage; |
| 29 | providing procedures, requirements, and limitations for |
| 30 | counties, municipalities, and the Florida Insurance |
| 31 | Guaranty Association, Inc., relating to issuance and |
| 32 | validation of such bonds; prohibiting pledging the funds, |
| 33 | credit, property, and taxing power of the state, counties, |
| 34 | and municipalities for payment of bonds; specifying |
| 35 | authorized uses of bond proceeds; limiting the term of |
| 36 | bonds; specifying a state covenant to protect bondholders |
| 37 | from adverse actions relating to such bonds; specifying |
| 38 | exemptions for bonds, notes, and other obligations of |
| 39 | counties and municipalities from certain taxes or |
| 40 | assessments on property and revenues; authorizing counties |
| 41 | and municipalities to create a legal entity to exercise |
| 42 | certain powers; requiring the association to issue an |
| 43 | annual report on the status of certain uses of bond |
| 44 | proceeds; providing report requirements; requiring the |
| 45 | association to provide a copy of the report to the |
| 46 | Legislature and Chief Financial Officer; prohibiting |
| 47 | repeal of certain provisions relating to certain bonds |
| 48 | under certain circumstances; providing severability; |
| 49 | providing an effective date. |
| 50 |
|
| 51 | Be It Enacted by the Legislature of the State of Florida: |
| 52 |
|
| 53 | Section 1. Paragraph (f) is added to subsection (2) of |
| 54 | section 631.181, Florida Statutes, to read: |
| 55 | 631.181 Filing and proof of claim.-- |
| 56 | (2) |
| 57 | (f) The signed statement required by this section shall |
| 58 | not be required on claims for which adequate claims file |
| 59 | documentation exists within the records of the insolvent |
| 60 | insurer. Claims for payment of unearned premium shall not be |
| 61 | required to use the signed statement required by this section if |
| 62 | the receiver certifies to the guaranty fund that the records of |
| 63 | the insolvent insurer are sufficient to determine the amount of |
| 64 | unearned premium owed to each policyholder of the insurer and |
| 65 | such information is remitted to the guaranty fund by the |
| 66 | receiver in electronic or other mutually agreed-upon format. |
| 67 | Section 2. Subsection (3) of section 631.54, Florida |
| 68 | Statutes, is amended to read: |
| 69 | 631.54 Definitions.--As used in this part: |
| 70 | (3) "Covered claim" means an unpaid claim, including one |
| 71 | of unearned premiums, which arises out of, and is within the |
| 72 | coverage, and not in excess of, the applicable limits of an |
| 73 | insurance policy to which this part applies, issued by an |
| 74 | insurer, if such insurer becomes an insolvent insurer and the |
| 75 | claimant or insured is a resident of this state at the time of |
| 76 | the insured event or the property from which the claim arises is |
| 77 | permanently located in this state. For entities other than |
| 78 | individuals, the residence of a claimant, insured, or |
| 79 | policyholder is the state in which the entity's principal place |
| 80 | of business is located at the time of the insured event. |
| 81 | "Covered claim" shall not include: |
| 82 | (a) Any amount due any reinsurer, insurer, insurance pool, |
| 83 | or underwriting association, sought directly or indirectly |
| 84 | through a third party, as subrogation, contribution, |
| 85 | indemnification, or otherwise; or |
| 86 | (b) Any claim that would otherwise be a covered claim |
| 87 | under this part that has been rejected by any other state |
| 88 | guaranty fund on the grounds that an insured's net worth is |
| 89 | greater than that allowed under that state's guaranty law. |
| 90 | Member insurers shall have no right of subrogation, |
| 91 | contribution, indemnification, or otherwise, sought directly or |
| 92 | indirectly through a third party, against the insured of any |
| 93 | insolvent member. |
| 94 | Section 3. Paragraph (a) of subsection (1), paragraph (d) |
| 95 | of subsection (2), and paragraph (a) of subsection (3) of |
| 96 | section 631.57, Florida Statutes, are amended, and paragraph (e) |
| 97 | is added to subsection (3) of that section, to read: |
| 98 | 631.57 Powers and duties of the association.-- |
| 99 | (1) The association shall: |
| 100 | (a)1. Be obligated to the extent of the covered claims |
| 101 | existing: |
| 102 | a. Prior to adjudication of insolvency and arising within |
| 103 | 30 days after the determination of insolvency; |
| 104 | b. Before the policy expiration date if less than 30 days |
| 105 | after the determination; or |
| 106 | c. Before the insured replaces the policy or causes its |
| 107 | cancellation, if she or he does so within 30 days of the |
| 108 | determination. |
| 109 | 2.a. The obligation under subparagraph 1. shall include |
| 110 | only that amount of each covered claim which is in excess of |
| 111 | $100 and is less than $300,000, except with respect to policies |
| 112 | covering condominium associations or homeowners' associations, |
| 113 | which associations have a responsibility to provide insurance |
| 114 | coverage on residential units within the association, the |
| 115 | obligation shall include that amount of each covered property |
| 116 | insurance claim which is less than $100,000 multiplied by the |
| 117 | number of condominium units or other residential units; however, |
| 118 | as to homeowners' associations, this sub-subparagraph |
| 119 | subparagraph applies only to claims for damage or loss to |
| 120 | residential units and structures attached to residential units. |
| 121 | b. Notwithstanding sub-subparagraph a., the association |
| 122 | has no obligation to pay covered claims that are to be paid from |
| 123 | the proceeds of bonds issued under s. 631.695. However, the |
| 124 | association shall assign and pledge the first available moneys |
| 125 | from all or part of the assessments to be made under paragraph |
| 126 | (3)(a) to or on behalf of the issuer of such bonds for the |
| 127 | benefit of the holders of such bonds. The association shall |
| 128 | administer any such covered claims and present valid covered |
| 129 | claims for payment in accordance with the provisions of the |
| 130 | assistance program in connection with which such bonds have been |
| 131 | issued. |
| 132 | 3. In no event shall the association be obligated to a |
| 133 | policyholder or claimant in an amount in excess of the |
| 134 | obligation of the insolvent insurer under the policy from which |
| 135 | the claim arises. |
| 136 | (2) The association may: |
| 137 | (d) Negotiate and become a party to such contracts as are |
| 138 | necessary to carry out the purpose of this part. Additionally, |
| 139 | the association may enter into such contracts with a |
| 140 | municipality, a county, or a legal entity created pursuant to s. |
| 141 | 163.01(7)(g) as are necessary in order for the municipality, |
| 142 | county, or legal entity to issue bonds under s. 631.695. In |
| 143 | connection with the issuance of any such bonds and the entering |
| 144 | into of any such necessary contracts, the association may agree |
| 145 | to such terms and conditions as the association deems necessary |
| 146 | and proper. |
| 147 | (3)(a) To the extent necessary to secure the funds for the |
| 148 | respective accounts for the payment of covered claims, and also |
| 149 | to pay the reasonable costs to administer the same, and to |
| 150 | secure the funds for the account specified in s. 631.55(2)(c), |
| 151 | or to retire indebtedness, including, without limitation, the |
| 152 | principal, redemption premium, if any, and interest on, and |
| 153 | related costs of issuance of, bonds issued under s. 631.695, and |
| 154 | the funding of any reserves and other payments required under |
| 155 | the bond resolution or trust indenture pursuant to which such |
| 156 | bonds have been issued, the office, upon certification of the |
| 157 | board of directors, shall levy assessments in the proportion |
| 158 | that each insurer's net direct written premiums in this state in |
| 159 | the classes protected by the account bears to the total of said |
| 160 | net direct written premiums received in this state by all such |
| 161 | insurers for the preceding calendar year for the kinds of |
| 162 | insurance included within such account. Assessments shall be |
| 163 | remitted to and administered by the board of directors in the |
| 164 | manner specified by the approved plan. Each insurer so assessed |
| 165 | shall have at least 30 days' written notice as to the date the |
| 166 | assessment is due and payable. Every assessment shall be made as |
| 167 | a uniform percentage applicable to the net direct written |
| 168 | premiums of each insurer in the kinds of insurance included |
| 169 | within the account in which the assessment is made. The |
| 170 | assessments levied against any insurer shall not exceed in any |
| 171 | one year more than 2 percent of that insurer's net direct |
| 172 | written premiums in this state for the kinds of insurance |
| 173 | included within such account during the calendar year next |
| 174 | preceding the date of such assessments. |
| 175 | (e)1.a. In addition to assessments otherwise authorized in |
| 176 | paragraph (a) and to the extent necessary to secure the funds |
| 177 | for the account specified in s. 631.55(2)(c), or to retire |
| 178 | indebtedness, including, without limitation, the principal, |
| 179 | redemption premium, if any, and interest on, and related costs |
| 180 | of issuance of, bonds issued under s. 631.695, and the funding |
| 181 | of any reserves and other payments required under the bond |
| 182 | resolution or trust indenture pursuant to which such bonds have |
| 183 | been issued, the department, upon certification of the board of |
| 184 | directors, shall levy emergency assessments as provided in this |
| 185 | paragraph upon insurers holding a certificate of authority. The |
| 186 | emergency assessments payable under this paragraph by any |
| 187 | insurer shall not exceed in any single year more than 2 percent |
| 188 | of that insurer's direct written premiums, net of refunds, in |
| 189 | this state during the preceding calendar year for the kinds of |
| 190 | insurance within the account specified in s. 631.55(2)(c). |
| 191 | b. Any emergency assessments authorized under this |
| 192 | paragraph shall be levied by the department upon insurers |
| 193 | holding a certificate of authority, upon certification as to the |
| 194 | need for such assessments by the board of directors, in each |
| 195 | year that bonds issued under s. 631.695 and secured by such |
| 196 | emergency assessments are outstanding, in such amounts up to |
| 197 | such 2-percent limit as required in order to provide for the |
| 198 | full and timely payment of the principal of, redemption premium, |
| 199 | if any, and interest on, and related costs of issuance of, such |
| 200 | bonds. The emergency assessments provided for in this paragraph |
| 201 | are assigned and pledged to the municipality, county, or legal |
| 202 | entity issuing bonds under s. 631.695, for the benefit of the |
| 203 | holders of such bonds, in order to enable such municipality, |
| 204 | county, or legal entity to provide for the payment of the |
| 205 | principal of, redemption premium, if any, and interest on such |
| 206 | bonds, the cost of issuance of such bonds, and the funding of |
| 207 | any reserves and other payments required under the bond |
| 208 | resolution or trust indenture pursuant to which such bonds have |
| 209 | been issued, without the necessity of any further action by the |
| 210 | association, the department, or any other party. To the extent |
| 211 | that bonds are issued under s. 631.695 and the association |
| 212 | determines to secure such bonds by a pledge of revenues received |
| 213 | from the emergency assessments, such bonds, upon such pledge of |
| 214 | revenues, shall be secured by and payable from the proceeds of |
| 215 | such emergency assessments, and the proceeds of emergency |
| 216 | assessments levied under this paragraph shall be remitted |
| 217 | directly to and administered by the trustee or custodian |
| 218 | appointed for such bonds. |
| 219 | c. Emergency assessments under this paragraph may be |
| 220 | payable in a single payment or, at the option of the |
| 221 | association, may be payable in 12 monthly installments with the |
| 222 | first installment being due and payable at the end of the month |
| 223 | after an emergency assessment is levied and subsequent |
| 224 | installments being due not later than the end of each succeeding |
| 225 | month. |
| 226 | d. If emergency assessments are imposed, the report |
| 227 | required by s. 631.695(7) shall include an analysis of the |
| 228 | revenues generated from the emergency assessments imposed under |
| 229 | this paragraph. |
| 230 | 2. In order to ensure that insurers paying emergency |
| 231 | assessments levied under this paragraph continue to charge rates |
| 232 | that are neither inadequate nor excessive, within 90 days after |
| 233 | being notified of such assessments, each insurer that is to be |
| 234 | assessed pursuant to this paragraph shall submit a rate filing |
| 235 | for coverage included within the account specified in s. |
| 236 | 631.55(2)(c) and for which rates are required to be filed under |
| 237 | s. 627.062. If the filing reflects a rate change that, as a |
| 238 | percentage, is equal to the difference between the rate of such |
| 239 | assessment and the rate of the previous year's assessment under |
| 240 | this paragraph, the filing shall consist of a certification so |
| 241 | stating and shall be deemed approved when made. Any rate change |
| 242 | of a different percentage shall be subject to the standards and |
| 243 | procedures of s. 627.062. |
| 244 | 3. An annual assessment under this paragraph shall |
| 245 | continue while the bonds issued with respect to which the |
| 246 | assessment was imposed are outstanding, including any bonds the |
| 247 | proceeds of which were used to refund bonds issued pursuant to |
| 248 | s. 631.695, unless adequate provision has been made for the |
| 249 | payment of the bonds in the documents authorizing the issuance |
| 250 | of such bonds. |
| 251 | 4. Emergency assessments under this paragraph are not |
| 252 | premium and are not subject to the premium tax, to any fees, or |
| 253 | to any commissions. An insurer is liable for all emergency |
| 254 | assessments that the insurer collects and shall treat the |
| 255 | failure of an insured to pay an emergency assessment as a |
| 256 | failure to pay the premium. An insurer is not liable for |
| 257 | uncollectible emergency assessments. |
| 258 | Section 4. Section 631.695, Florida Statutes, is created |
| 259 | to read: |
| 260 | 631.695 Revenue bond issuance through counties or |
| 261 | municipalities.-- |
| 262 | (1) The Legislature finds: |
| 263 | (a) The potential for widespread and massive damage to |
| 264 | persons and property caused by hurricanes making landfall in |
| 265 | this state can generate insurance claims of such a number as to |
| 266 | render numerous insurers operating within this state insolvent |
| 267 | and therefore unable to satisfy covered claims. |
| 268 | (b) The inability of insureds within this state to receive |
| 269 | payment of covered claims or to timely receive such payment |
| 270 | creates financial and other hardships for such insureds and |
| 271 | places undue burdens on the state, the affected units of local |
| 272 | government, and the community at large. |
| 273 | (c) In addition, the failure of insurers to pay covered |
| 274 | claims or to timely pay such claims due to the insolvency of |
| 275 | such insurers can undermine the public's confidence in insurers |
| 276 | operating within this state, thereby adversely affecting the |
| 277 | stability of the insurance industry in this state. |
| 278 | (d) The state has previously taken action to address these |
| 279 | problems by adopting the Florida Insurance Guaranty Association |
| 280 | Act, which, among other things, provides a mechanism for the |
| 281 | payment of covered claims under certain insurance policies to |
| 282 | avoid excessive delay in payment and to avoid financial loss to |
| 283 | claimants or policyholders because of the insolvency of an |
| 284 | insurer. |
| 285 | (e) In the wake of the unprecedented destruction caused by |
| 286 | various hurricanes that have made landfall in this state, the |
| 287 | resultant covered claims, and the number of insurers rendered |
| 288 | insolvent thereby, it is evident that alternative programs must |
| 289 | be developed to allow the Florida Insurance Guaranty |
| 290 | Association, Inc., to more expeditiously and effectively provide |
| 291 | for the payment of covered claims. |
| 292 | (f) It is therefore determined to be in the best interests |
| 293 | of, and necessary for, the protection of the public health, |
| 294 | safety, and general welfare of the residents of this state, and |
| 295 | for the protection and preservation of the economic stability of |
| 296 | insurers operating in this state, and it is declared to be an |
| 297 | essential public purpose, to permit certain municipalities and |
| 298 | counties to take such actions as will provide relief to |
| 299 | claimants and policyholders having covered claims against |
| 300 | insolvent insurers operating in this state by expediting the |
| 301 | handling and payment of covered claims. |
| 302 | (g) To achieve the foregoing purposes, it is proper to |
| 303 | authorize municipalities and counties of this state |
| 304 | substantially affected by the landfall of a category 1 or |
| 305 | greater hurricane to issue bonds to assist the Florida Insurance |
| 306 | Guaranty Association, Inc., in expediting the handling and |
| 307 | payment of covered claims of insolvent insurers. |
| 308 | (h) In order to avoid the needless and indiscriminate |
| 309 | proliferation, duplication, and fragmentation of such assistance |
| 310 | programs, it is in the best interests of the residents of this |
| 311 | state to authorize municipalities and counties severely affected |
| 312 | by a category 1 or greater hurricane to provide for the payment |
| 313 | of covered claims beyond their territorial limits in the |
| 314 | implementation of such programs. |
| 315 | (i) It is a paramount public purpose for municipalities |
| 316 | and counties substantially affected by the landfall of a |
| 317 | category 1 or greater hurricane to be able to issue bonds for |
| 318 | the purposes described in this section. Such issuance shall |
| 319 | provide assistance to residents of those municipalities and |
| 320 | counties as well as to other residents of this state. |
| 321 | (2) The governing body of any municipality or county the |
| 322 | residents of which have been substantially affected by a |
| 323 | category 1 or greater hurricane may issue bonds to fund an |
| 324 | assistance program in conjunction with, and with the consent of, |
| 325 | the Florida Insurance Guaranty Association, Inc., for the |
| 326 | purpose of paying claimants' or policyholders' covered claims as |
| 327 | defined in s. 631.54 arising through the insolvency of an |
| 328 | insurer, which insolvency is determined by the Florida Insurance |
| 329 | Guaranty Association, Inc., to have been a result of a category |
| 330 | 1 or greater hurricane, regardless of whether such claimants or |
| 331 | policyholders are residents of such municipality or county or |
| 332 | the property to which such claim relates is located within or |
| 333 | outside the territorial jurisdiction of such municipality or |
| 334 | county. The power of a municipality or county to issue bonds as |
| 335 | described in this section is in addition to any powers granted |
| 336 | by law and may not be abrogated or restricted by any provisions |
| 337 | in such municipality's or county's charter. A municipality or |
| 338 | county issuing bonds for this purpose shall enter into such |
| 339 | contracts with the Florida Insurance Guaranty Association, Inc., |
| 340 | or any entity acting on behalf of the Florida Insurance Guaranty |
| 341 | Association, Inc., as are necessary to implement the assistance |
| 342 | program. Any bonds issued by a municipality or county or |
| 343 | combination thereof under this subsection shall be payable from |
| 344 | and secured by moneys received by or on behalf of the |
| 345 | municipality or county from assessments levied under s. |
| 346 | 631.57(3)(a) and assigned and pledged to or on behalf of the |
| 347 | municipality or county for the benefit of the holders of such |
| 348 | bonds in connection with such assistance program. The funds, |
| 349 | credit, property, and taxing power of the state or any |
| 350 | municipality or county shall not be pledged for the payment of |
| 351 | such bonds. |
| 352 | (3) Bonds may be validated by such municipality or county |
| 353 | pursuant to chapter 75. The proceeds of such bonds may be used |
| 354 | to pay covered claims of insolvent insurers; to refinance or |
| 355 | replace previously existing borrowings or financial |
| 356 | arrangements; to pay interest on bonds; to fund reserves for the |
| 357 | bonds; to pay expenses incident to the issuance or sale of any |
| 358 | bond issued under this section, including costs of validating, |
| 359 | printing, and delivering the bonds, costs of printing the |
| 360 | official statement, costs of publishing notices of sale of the |
| 361 | bonds, costs of obtaining credit enhancement or liquidity |
| 362 | support, and related administrative expenses; or for such other |
| 363 | purposes related to the financial obligations of the fund as the |
| 364 | association may determine. The term of the bonds may not exceed |
| 365 | 30 years. |
| 366 | (4) The state covenants with holders of bonds of the |
| 367 | assistance program that the state will not take any action that |
| 368 | will have a material adverse effect on such holders and will not |
| 369 | repeal or abrogate the power of the board of directors of the |
| 370 | association to direct the Office of Insurance Regulation to levy |
| 371 | the assessments and to collect the proceeds of the revenues |
| 372 | pledged to the payment of such bonds as long as any such bonds |
| 373 | remain outstanding unless adequate provision has been made for |
| 374 | the payment of such bonds in the documents authorizing the |
| 375 | issuance of such bonds. |
| 376 | (5) The accomplishment of the authorized purposes of such |
| 377 | municipality or county under this section is in all respects for |
| 378 | the benefit of the people of the state, for the increase of |
| 379 | their commerce and prosperity, and for the improvement of their |
| 380 | health and living conditions. Such municipality or county, in |
| 381 | performing essential governmental functions in accomplishing its |
| 382 | purposes, is not required to pay any taxes or assessments of any |
| 383 | kind whatsoever upon any property acquired or used by the county |
| 384 | or municipality for such purposes or upon any revenues at any |
| 385 | time received by the county or municipality. The bonds, notes, |
| 386 | and other obligations of such municipality or county, and the |
| 387 | transfer of and income from such bonds, notes, and other |
| 388 | obligations, including any profits made on the sale of such |
| 389 | bonds, notes, and other obligations, are exempt from taxation of |
| 390 | any kind by the state or by any political subdivision or other |
| 391 | agency or instrumentality of the state. The exemption granted in |
| 392 | this subsection is not applicable to any tax imposed by chapter |
| 393 | 220 on interest, income, or profits on debt obligations owned by |
| 394 | corporations. |
| 395 | (6) Two or more municipalities or counties the residents |
| 396 | of which have been substantially affected by a category 1 or |
| 397 | greater hurricane may create a legal entity pursuant to s. |
| 398 | 163.01(7)(g) to exercise the powers described in this section as |
| 399 | well as those powers granted in s. 163.01(7)(g). Reference in |
| 400 | this section to a municipality or county includes such legal |
| 401 | entity. |
| 402 | (7) The association shall issue an annual report on the |
| 403 | status of the use of bond proceeds as related to insolvencies |
| 404 | caused by hurricanes. The report must contain the number and |
| 405 | amount of claims paid. The association shall also include an |
| 406 | analysis of the revenue generated from the assessment levied |
| 407 | under s. 631.57(3)(a) to pay such bonds. The association shall |
| 408 | submit a copy of the report to the President of the Senate, the |
| 409 | Speaker of the House of Representatives, and the Chief Financial |
| 410 | Officer within 90 days after the end of each calendar year in |
| 411 | which bonds were outstanding. |
| 412 | Section 5. No provision of s. 631.57 or s. 631.695, |
| 413 | Florida Statutes, shall be repealed until such time as the |
| 414 | principal, redemption premium, if any, and interest on all bonds |
| 415 | issued under s. 631.695, Florida Statutes, payable and secured |
| 416 | from assessments levied under s. 631.57(3)(a), Florida Statutes, |
| 417 | have been paid in full or adequate provision for such payment |
| 418 | has been made in accordance with the bond resolution or trust |
| 419 | indenture pursuant to which such bonds were issued. |
| 420 | Section 6. If any provision of this act or the application |
| 421 | thereof to any person or circumstance is held invalid, the |
| 422 | invalidity shall not affect other provisions or applications of |
| 423 | the act which can be given effect without the invalid provision |
| 424 | or application, and to this end the provisions of this act are |
| 425 | declared severable. |
| 426 | Section 7. This act shall take effect upon becoming a law. |