Florida Senate - 2009                                    SB 1524
       
       
       
       By Senator Storms
       
       
       
       
       10-00508B-09                                          20091524__
    1                        A bill to be entitled                      
    2         An act relating to insurance; amending s. 626.9541,
    3         F.S.; prohibiting any insurer charging premiums for
    4         motor vehicle insurance from using a rate, rating
    5         schedule, rating manual, or an underwriting rule that
    6         is not contained in a rating manual and is determined
    7         in whole or in part on the basis of certain
    8         characteristics of an insured; including the refusal
    9         to insure or continue to insure any individual or risk
   10         because of educational level, trade, business,
   11         occupation, profession, credit report, credit score,
   12         or certain forms of lawful employment among the list
   13         of activities constituting unfair methods of
   14         competition and unfair or deceptive acts; amending s.
   15         626.9741, F.S.; prohibiting the use by insurers of
   16         credit reports and credit scores in making rating
   17         determinations; defining the terms “credit report” and
   18         “credit score”; deleting provisions limiting and
   19         regulating the use of credit score by insurers when
   20         making rating determinations; deleting the definition
   21         of “adverse decision” and “tier”; deleting provisions
   22         authorizing the Financial Services Commission to adopt
   23         rules; providing an effective date.
   24         
   25  Be It Enacted by the Legislature of the State of Florida:
   26         
   27         Section 1. Paragraphs (o) and (x) of subsection (1) of
   28  section 626.9541, Florida Statutes, are amended to read:
   29         626.9541 Unfair methods of competition and unfair or
   30  deceptive acts or practices defined.—
   31         (1) UNFAIR METHODS OF COMPETITION AND UNFAIR OR DECEPTIVE
   32  ACTS.—The following are defined as unfair methods of competition
   33  and unfair or deceptive acts or practices:
   34         (o) Illegal dealings in premiums; excess or reduced charges
   35  for insurance.—
   36         1. Knowingly collecting any sum as a premium or charge for
   37  insurance, which is not then provided, or is not in due course
   38  to be provided, subject to acceptance of the risk by the
   39  insurer, by an insurance policy issued by an insurer as
   40  permitted by this code.
   41         2. Knowingly collecting as a premium or charge for
   42  insurance any sum in excess of or less than the premium or
   43  charge applicable to such insurance, in accordance with the
   44  applicable classifications and rates as filed with and approved
   45  by the office, and as specified in the policy; or, in cases when
   46  classifications, premiums, or rates are not required by this
   47  code to be so filed and approved, premiums and charges collected
   48  from a Florida resident in excess of or less than those
   49  specified in the policy and as fixed by the insurer. This
   50  provision shall not be deemed to prohibit the charging and
   51  collection, by surplus lines agents licensed under part VIII of
   52  this chapter, of the amount of applicable state and federal
   53  taxes, or fees as authorized by s. 626.916(4), in addition to
   54  the premium required by the insurer or the charging and
   55  collection, by licensed agents, of the exact amount of any
   56  discount or other such fee charged by a credit card facility in
   57  connection with the use of a credit card, as authorized by
   58  subparagraph (q)3., in addition to the premium required by the
   59  insurer. This subparagraph shall not be construed to prohibit
   60  collection of a premium for a universal life or a variable or
   61  indeterminate value insurance policy made in accordance with the
   62  terms of the contract.
   63         3.a. Imposing or requesting an additional premium for a
   64  policy of motor vehicle liability, personal injury protection,
   65  medical payment, or collision insurance or any combination
   66  thereof or refusing to renew the policy solely because the
   67  insured was involved in a motor vehicle accident unless the
   68  insurer's file contains information from which the insurer in
   69  good faith determines that the insured was substantially at
   70  fault in the accident.
   71         b. An insurer which imposes and collects such a surcharge
   72  or which refuses to renew such policy shall, in conjunction with
   73  the notice of premium due or notice of nonrenewal, notify the
   74  named insured that he or she is entitled to reimbursement of
   75  such amount or renewal of the policy under the conditions listed
   76  below and will subsequently reimburse him or her or renew the
   77  policy, if the named insured demonstrates that the operator
   78  involved in the accident was:
   79         (I) Lawfully parked;
   80         (II) Reimbursed by, or on behalf of, a person responsible
   81  for the accident or has a judgment against such person;
   82         (III) Struck in the rear by another vehicle headed in the
   83  same direction and was not convicted of a moving traffic
   84  violation in connection with the accident;
   85         (IV) Hit by a “hit-and-run” driver, if the accident was
   86  reported to the proper authorities within 24 hours after
   87  discovering the accident;
   88         (V) Not convicted of a moving traffic violation in
   89  connection with the accident, but the operator of the other
   90  automobile involved in such accident was convicted of a moving
   91  traffic violation;
   92         (VI) Finally adjudicated not to be liable by a court of
   93  competent jurisdiction;
   94         (VII) In receipt of a traffic citation which was dismissed
   95  or nolle prossed; or
   96         (VIII) Not at fault as evidenced by a written statement
   97  from the insured establishing facts demonstrating lack of fault
   98  which are not rebutted by information in the insurer's file from
   99  which the insurer in good faith determines that the insured was
  100  substantially at fault.
  101         c. In addition to the other provisions of this
  102  subparagraph, an insurer may not fail to renew a policy if the
  103  insured has had only one accident in which he or she was at
  104  fault within the current 3-year period. However, an insurer may
  105  nonrenew a policy for reasons other than accidents in accordance
  106  with s. 627.728. This subparagraph does not prohibit nonrenewal
  107  of a policy under which the insured has had three or more
  108  accidents, regardless of fault, during the most recent 3-year
  109  period.
  110         4. Imposing or requesting an additional premium for, or
  111  refusing to renew, a policy for motor vehicle insurance solely
  112  because the insured committed a noncriminal traffic infraction
  113  as described in s. 318.14 unless the infraction is:
  114         a. A second infraction committed within an 18-month period,
  115  or a third or subsequent infraction committed within a 36-month
  116  period.
  117         b. A violation of s. 316.183, when such violation is a
  118  result of exceeding the lawful speed limit by more than 15 miles
  119  per hour.
  120         5. Upon the request of the insured, the insurer and
  121  licensed agent shall supply to the insured the complete proof of
  122  fault or other criteria which justifies the additional charge or
  123  cancellation.
  124         6. No insurer shall impose or request an additional premium
  125  for motor vehicle insurance, cancel or refuse to issue a policy,
  126  or refuse to renew a policy because the insured or the applicant
  127  is a handicapped or physically disabled person, so long as such
  128  handicap or physical disability does not substantially impair
  129  such person's mechanically assisted driving ability.
  130         7. No insurer may cancel or otherwise terminate any
  131  insurance contract or coverage, or require execution of a
  132  consent to rate endorsement, during the stated policy term for
  133  the purpose of offering to issue, or issuing, a similar or
  134  identical contract or coverage to the same insured with the same
  135  exposure at a higher premium rate or continuing an existing
  136  contract or coverage with the same exposure at an increased
  137  premium.
  138         8. No insurer may issue a nonrenewal notice on any
  139  insurance contract or coverage, or require execution of a
  140  consent to rate endorsement, for the purpose of offering to
  141  issue, or issuing, a similar or identical contract or coverage
  142  to the same insured at a higher premium rate or continuing an
  143  existing contract or coverage at an increased premium without
  144  meeting any applicable notice requirements.
  145         9. No insurer shall, with respect to premiums charged for
  146  motor vehicle insurance, unfairly discriminate solely on the
  147  basis of age, sex, marital status, or scholastic achievement.
  148         10.No insurer shall, with respect to premiums charged for
  149  motor vehicle insurance, use any rate, rating schedule, rating
  150  manual, or underwriting rule that is not contained in a rating
  151  manual and that is determined in whole or in part on the basis
  152  of any of the following as they relate to an insured:
  153         a.Educational level.
  154         b.Trade, business, occupation, profession, or any lawful
  155  form of employment that does not directly involve the use of one
  156  or more vehicles specifically insured or identified in the
  157  insurance policy.
  158         c.Credit report or credit score as defined in s. 626.9741.
  159         11.10. Imposing or requesting an additional premium for
  160  motor vehicle comprehensive or uninsured motorist coverage
  161  solely because the insured was involved in a motor vehicle
  162  accident or was convicted of a moving traffic violation.
  163         12.11. No insurer shall cancel or issue a nonrenewal notice
  164  on any insurance policy or contract without complying with any
  165  applicable cancellation or nonrenewal provision required under
  166  the Florida Insurance Code.
  167         13.12. No insurer shall impose or request an additional
  168  premium, cancel a policy, or issue a nonrenewal notice on any
  169  insurance policy or contract because of any traffic infraction
  170  when adjudication has been withheld and no points have been
  171  assessed pursuant to s. 318.14(9) and (10). However, this
  172  subparagraph does not apply to traffic infractions involving
  173  accidents in which the insurer has incurred a loss due to the
  174  fault of the insured.
  175         (x) Refusal to insure.—In addition to other provisions of
  176  this code, the refusal to insure, or continue to insure, any
  177  individual or risk because of the individual's educational
  178  level, trade, business, occupation, profession, any form of
  179  lawful employment, or credit report or credit score as defined
  180  in s. 626.9741, or solely because of:
  181         1. Race, color, creed, marital status, gender sex, or
  182  national origin;
  183         2. The residence, age, or lawful occupation of the
  184  individual or the location of the risk, unless there is a
  185  reasonable relationship between the residence, age, or lawful
  186  occupation of the individual or the location of the risk and the
  187  coverage issued or to be issued;
  188         3. The insured's or applicant's failure to agree to place
  189  collateral business with any insurer, unless the coverage
  190  applied for would provide liability coverage which is excess
  191  over that provided in policies maintained on property or motor
  192  vehicles;
  193         4. The insured's or applicant's failure to purchase
  194  noninsurance services or commodities, including automobile
  195  services as defined in s. 624.124;
  196         5. The fact that the insured or applicant is a public
  197  official; or
  198         6. The fact that the insured or applicant had been
  199  previously refused insurance coverage by any insurer, when such
  200  refusal to insure or continue to insure for this reason occurs
  201  with such frequency as to indicate a general business practice.
  202         Section 2. Section 626.9741, Florida Statutes, is amended
  203  to read:
  204         626.9741 Use of credit reports and credit scores by
  205  insurers.—An insurer may not use credit reports or credit scores
  206  in making rating determinations. For purposes of this section,
  207  the term:
  208         (1)The purpose of this section is to regulate and limit
  209  the use of credit reports and credit scores by insurers for
  210  underwriting and rating purposes. This section applies only to
  211  personal lines motor vehicle insurance and personal lines
  212  residential insurance, which includes homeowners, mobile home
  213  owners' dwelling, tenants, condominium unit owners, cooperative
  214  unit owners, and similar types of insurance.
  215         (2)As used in this section, the term:
  216         (a)“Adverse decision” means a decision to refuse to issue
  217  or renew a policy of insurance; to issue a policy with
  218  exclusions or restrictions; to increase the rates or premium
  219  charged for a policy of insurance; to place an insured or
  220  applicant in a rating tier that does not have the lowest
  221  available rates for which that insured or applicant is otherwise
  222  eligible; or to place an applicant or insured with a company
  223  operating under common management, control, or ownership which
  224  does not offer the lowest rates available, within the affiliate
  225  group of insurance companies, for which that insured or
  226  applicant is otherwise eligible.
  227         (1)(b) “Credit report” means any written, oral, or other
  228  communication of any information by a consumer reporting agency,
  229  as defined in the federal Fair Credit Reporting Act, 15 U.S.C.
  230  ss. 1681 et seq., bearing on a consumer's credit worthiness,
  231  credit standing, or credit capacity, which is used or expected
  232  to be used or collected as a factor to establish a person's
  233  eligibility for credit or insurance, or any other purpose
  234  authorized pursuant to the applicable provision of such federal
  235  act. A credit score alone, as calculated by a credit reporting
  236  agency or by or for the insurer, may not be considered a credit
  237  report.
  238         (2)(c) “Credit score” means a score, grade, or value that
  239  is derived by using any or all data from a credit report in any
  240  type of model, method, or program, whether electronically, in an
  241  algorithm, computer software or program, or any other process,
  242  for the purpose of grading or ranking credit report data.
  243         (d)“Tier” means a category within a single insurer into
  244  which insureds with substantially similar risk, exposure, or
  245  expense factors are placed for purposes of determining rate or
  246  premium.
  247         (3)An insurer must inform an applicant or insured, in the
  248  same medium as the application is taken, that a credit report or
  249  score is being requested for underwriting or rating purposes. An
  250  insurer that makes an adverse decision based, in whole or in
  251  part, upon a credit report must provide at no charge, a copy of
  252  the credit report to the applicant or insured or provide the
  253  applicant or insured with the name, address, and telephone
  254  number of the consumer reporting agency from which the insured
  255  or applicant may obtain the credit report. The insurer must
  256  provide notification to the consumer explaining the reasons for
  257  the adverse decision. The reasons must be provided in
  258  sufficiently clear and specific language so that a person can
  259  identify the basis for the insurer's adverse decision. Such
  260  notification shall include a description of the four primary
  261  reasons, or such fewer number as existed, which were the primary
  262  influences of the adverse decision. The use of generalized terms
  263  such as “poor credit history,” “poor credit rating,” or “poor
  264  insurance score” does not meet the explanation requirements of
  265  this subsection. A credit score may not be used in underwriting
  266  or rating insurance unless the scoring process produces
  267  information in sufficient detail to permit compliance with the
  268  requirements of this subsection. It shall not be deemed an
  269  adverse decision if, due to the insured's credit report or
  270  credit score, the insured continues to receive a less favorable
  271  rate or placement in a less favorable tier or company at the
  272  time of renewal except for renewals or reunderwriting required
  273  by this section.
  274         (4)(a)An insurer may not request a credit report or score
  275  based upon the race, color, religion, marital status, age,
  276  gender, income, national origin, or place of residence of the
  277  applicant or insured.
  278         (b)An insurer may not make an adverse decision solely
  279  because of information contained in a credit report or score
  280  without consideration of any other underwriting or rating
  281  factor.
  282         (c)An insurer may not make an adverse decision or use a
  283  credit score that could lead to such a decision if based, in
  284  whole or in part, on:
  285         1.The absence of, or an insufficient, credit history, in
  286  which instance the insurer shall:
  287         a.Treat the consumer as otherwise approved by the Office
  288  of Insurance Regulation if the insurer presents information that
  289  such an absence or inability is related to the risk for the
  290  insurer;
  291         b.Treat the consumer as if the applicant or insured had
  292  neutral credit information, as defined by the insurer;
  293         c.Exclude the use of credit information as a factor and
  294  use only other underwriting criteria;
  295         2.Collection accounts with a medical industry code, if so
  296  identified on the consumer's credit report;
  297         3.Place of residence; or
  298         4.Any other circumstance that the Financial Services
  299  Commission determines, by rule, lacks sufficient statistical
  300  correlation and actuarial justification as a predictor of
  301  insurance risk.
  302         (d)An insurer may use the number of credit inquiries
  303  requested or made regarding the applicant or insured except for:
  304         1.Credit inquiries not initiated by the consumer or
  305  inquiries requested by the consumer for his or her own credit
  306  information.
  307         2.Inquiries relating to insurance coverage, if so
  308  identified on a consumer's credit report.
  309         3.Collection accounts with a medical industry code, if so
  310  identified on the consumer's credit report.
  311         4.Multiple lender inquiries, if coded by the consumer
  312  reporting agency on the consumer's credit report as being from
  313  the home mortgage industry and made within 30 days of one
  314  another, unless only one inquiry is considered.
  315         5.Multiple lender inquiries, if coded by the consumer
  316  reporting agency on the consumer's credit report as being from
  317  the automobile lending industry and made within 30 days of one
  318  another, unless only one inquiry is considered.
  319         (e)An insurer must, upon the request of an applicant or
  320  insured, provide a means of appeal for an applicant or insured
  321  whose credit report or credit score is unduly influenced by a
  322  dissolution of marriage, the death of a spouse, or temporary
  323  loss of employment. The insurer must complete its review within
  324  10 business days after the request by the applicant or insured
  325  and receipt of reasonable documentation requested by the
  326  insurer, and, if the insurer determines that the credit report
  327  or credit score was unduly influenced by any of such factors,
  328  the insurer shall treat the applicant or insured as if the
  329  applicant or insured had neutral credit information or shall
  330  exclude the credit information, as defined by the insurer,
  331  whichever is more favorable to the applicant or insured. An
  332  insurer shall not be considered out of compliance with its
  333  underwriting rules or rates or forms filed with the Office of
  334  Insurance Regulation or out of compliance with any other state
  335  law or rule as a result of granting any exceptions pursuant to
  336  this subsection.
  337         (5)A rate filing that uses credit reports or credit scores
  338  must comply with the requirements of s. 627.062 or s. 627.0651
  339  to ensure that rates are not excessive, inadequate, or unfairly
  340  discriminatory.
  341         (6)An insurer that requests or uses credit reports and
  342  credit scoring in its underwriting and rating methods shall
  343  maintain and adhere to established written procedures that
  344  reflect the restrictions set forth in the federal Fair Credit
  345  Reporting Act, this section, and all rules related thereto.
  346         (7)(a)An insurer shall establish procedures to review the
  347  credit history of an insured who was adversely affected by the
  348  use of the insured's credit history at the initial rating of the
  349  policy, or at a subsequent renewal thereof. This review must be
  350  performed at a minimum of once every 2 years or at the request
  351  of the insured, whichever is sooner, and the insurer shall
  352  adjust the premium of the insured to reflect any improvement in
  353  the credit history. The procedures must provide that, with
  354  respect to existing policyholders, the review of a credit report
  355  will not be used by the insurer to cancel, refuse to renew, or
  356  require a change in the method of payment or payment plan.
  357         (b)However, as an alternative to the requirements of
  358  paragraph (a), an insurer that used a credit report or credit
  359  score for an insured upon inception of a policy, who will not
  360  use a credit report or score for reunderwriting, shall
  361  reevaluate the insured within the first 3 years after inception,
  362  based on other allowable underwriting or rating factors,
  363  excluding credit information if the insurer does not increase
  364  the rates or premium charged to the insured based on the
  365  exclusion of credit reports or credit scores.
  366         (8)The commission may adopt rules to administer this
  367  section. The rules may include, but need not be limited to:
  368         (a)Information that must be included in filings to
  369  demonstrate compliance with subsection (3).
  370         (b)Statistical detail that insurers using credit reports
  371  or scores under subsection (5) must retain and report annually
  372  to the Office of Insurance Regulation.
  373         (c)Standards that ensure that rates or premiums associated
  374  with the use of a credit report or score are not unfairly
  375  discriminatory, based upon race, color, religion, marital
  376  status, age, gender, income, national origin, or place of
  377  residence.
  378         (d)Standards for review of models, methods, programs, or
  379  any other process by which to grade or rank credit report data
  380  and which may produce credit scores in order to ensure that the
  381  insurer demonstrates that such grading, ranking, or scoring is
  382  valid in predicting insurance risk of an applicant or insured.
  383         Section 3. This act shall take effect July 1, 2009.