Florida Senate - 2012                             CS for SB 1262
       
       
       
       By the Committee on Banking and Insurance; and Senator Oelrich
       
       
       
       
       597-02429-12                                          20121262c1
    1                        A bill to be entitled                      
    2         An act relating to warranty associations; amending s.
    3         634.011, F.S.; revising the definition of the term
    4         “motor vehicle service agreement”; amending s.
    5         634.121, F.S.; providing criteria for a motor vehicle
    6         service agreement company to effectuate refunds
    7         through the issuing salesperson or agent; requiring
    8         the salesperson, agent, or service agreement company
    9         to maintain a copy of certain documents; requiring a
   10         salesperson or agent to provide a copy of a document
   11         to the service agreement company if requested by the
   12         Department of Financial Services or the Office of
   13         Insurance Regulation; requiring the office to provide
   14         to the department findings that a salesperson or agent
   15         exhibits a pattern or practice of failing to
   16         effectuate refunds or to maintain and remit to the
   17         service agreement company the required documentation;
   18         amending s. 634.141, F.S.; authorizing rather than
   19         requiring the office to examine service agreement
   20         companies; limiting the examination period to the most
   21         recent 5 years; limiting the cost of certain
   22         examinations; removing the requirement that the
   23         Financial Services Commission establish rules for
   24         conducting examinations; removing the criteria for
   25         determining whether an examination is warranted;
   26         creating s. 634.2855, F.S.; authorizing a governmental
   27         entity, public agency, institution, person, firm, or
   28         legal entity to provide money to the department to
   29         pursue unauthorized entities operating as motor
   30         vehicle service agreement companies; providing
   31         requirements for the deposit of the money; providing
   32         that funds remaining at the end of any fiscal year
   33         shall be available for carrying out duties and
   34         responsibilities of the department or the office;
   35         amending s. 634.312, F.S.; authorizing a home warranty
   36         association to effectuate a refund through the issuing
   37         sales representative; amending s. 634.314, F.S.;
   38         authorizing rather than requiring the office to
   39         examine home warranty associations; limiting the
   40         examination period to the most recent 5 years;
   41         limiting the cost of certain examinations; removing
   42         the requirement that the commission establish rules
   43         for conducting examinations; removing the criteria for
   44         determining whether an examination is warranted;
   45         creating s. 634.3385, F.S.; authorizing a governmental
   46         entity, public agency, institution, person, firm, or
   47         legal entity to provide money to the department to
   48         pursue unauthorized entities operating as home
   49         warranty associations; providing that funds remaining
   50         at the end of any fiscal year shall be available for
   51         carrying out duties and responsibilities of the
   52         department or the office; amending s. 634.414, F.S.;
   53         authorizing service warranty associations to
   54         effectuate refunds through the issuing sales
   55         representative; authorizing a service warranty
   56         association to issue refunds by cash, check, store
   57         credit, gift card, or other similar means; amending s.
   58         634.416, F.S.; authorizing rather than requiring the
   59         office to examine service warranty associations;
   60         limiting the examination period to the most recent 5
   61         years; limiting the costs of certain examinations;
   62         removing the requirement that the commission establish
   63         rules for conducting examinations; removing the
   64         criteria for determining whether an examination is
   65         warranted; removing provisions relating to the rates
   66         charged to a service warranty association for
   67         examinations; removing the provision authorizing the
   68         office to waive the examination requirement upon
   69         receipt and review of the Form 10-K; creating s.
   70         634.4385, F.S.; authorizing a governmental entity,
   71         public agency, institution, person, firm, or legal
   72         entity to provide money to the department to pursue
   73         unauthorized entities operating as service warranty
   74         associations; providing that funds remaining at the
   75         end of any fiscal year shall be available for carrying
   76         out duties and responsibilities of the department or
   77         the office; providing an effective date.
   78  
   79  Be It Enacted by the Legislature of the State of Florida:
   80  
   81         Section 1. Subsection (8) of section 634.011, Florida
   82  Statutes, is amended to read:
   83         634.011 Definitions.—As used in this part, the term:
   84         (8) “Motor vehicle service agreement” or “service
   85  agreement” means any contract or agreement indemnifying the
   86  service agreement holder for the motor vehicle listed on the
   87  service agreement and arising out of the ownership, operation,
   88  and use of the motor vehicle against loss caused by failure of
   89  any mechanical or other component part, or any mechanical or
   90  other component part that does not function as it was originally
   91  intended; however, nothing in this part shall prohibit or affect
   92  the giving, free of charge, of the usual performance guarantees
   93  by manufacturers or dealers in connection with the sale of motor
   94  vehicles. Transactions exempt under s. 624.125 are expressly
   95  excluded from this definition and are exempt from the provisions
   96  of this part. Service agreements that are sold to persons other
   97  than consumers and that cover motor vehicles used for commercial
   98  purposes are excluded from this definition and are exempt from
   99  regulation under the Florida Insurance Code. The term “motor
  100  vehicle service agreement” includes any contract or agreement
  101  that provides:
  102         (a) For the coverage or protection defined in this
  103  subsection and which is issued or provided in conjunction with
  104  an additive product applied to the motor vehicle that is the
  105  subject of such contract or agreement;
  106         (b) For payment of vehicle protection expenses.
  107         1.a. “Vehicle protection expenses” means a preestablished
  108  flat amount payable for the loss of or damage to a vehicle or
  109  expenses incurred by the service agreement holder for loss or
  110  damage to a covered vehicle, including, but not limited to,
  111  applicable deductibles under a motor vehicle insurance policy;
  112  temporary vehicle rental expenses; expenses for a replacement
  113  vehicle that is at least the same year, make, and model of the
  114  stolen motor vehicle; sales taxes or registration fees for a
  115  replacement vehicle that is at least the same year, make, and
  116  model of the stolen vehicle; or other incidental expenses
  117  specified in the agreement.
  118         b. “Vehicle protection product” means a product or system
  119  installed or applied to a motor vehicle or designed to prevent
  120  the theft of the motor vehicle or assist in the recovery of the
  121  stolen motor vehicle.
  122         2. Vehicle protection expenses shall be payable in the
  123  event of loss or damage to the vehicle as a result of the
  124  failure of the vehicle protection product to prevent the theft
  125  of the motor vehicle or to assist in the recovery of the stolen
  126  motor vehicle. Vehicle protection expenses covered under the
  127  agreement shall be clearly stated in the service agreement form,
  128  unless the agreement provides for the payment of a
  129  preestablished flat amount, in which case the service agreement
  130  form shall clearly identify such amount.
  131         3. Motor vehicle service agreements providing for the
  132  payment of vehicle protection expenses shall either:
  133         a. Reimburse a service agreement holder for the following
  134  expenses, at a minimum: deductibles applicable to comprehensive
  135  coverage under the service agreement holder’s motor vehicle
  136  insurance policy; temporary vehicle rental expenses; sales taxes
  137  and registration fees on a replacement vehicle that is at least
  138  the same year, make, and model of the stolen motor vehicle; and
  139  the difference between the benefits paid to the service
  140  agreement holder for the stolen vehicle under the service
  141  agreement holder’s comprehensive coverage and the actual cost of
  142  a replacement vehicle that is at least the same year, make, and
  143  model of the stolen motor vehicle; or
  144         b. Pay a preestablished flat amount to the service
  145  agreement holder.
  146  
  147  Payments shall not duplicate any benefits or expenses paid to
  148  the service agreement holder by the insurer providing
  149  comprehensive coverage under a motor vehicle insurance policy
  150  covering the stolen motor vehicle; however, the payment of
  151  vehicle protection expenses at a preestablished flat amount of
  152  $5,000 or less does not duplicate any benefits or expenses
  153  payable under any comprehensive motor vehicle insurance policy;
  154  or
  155         (c)1. For the payment for paintless dent-removal services
  156  provided by a company whose primary business is providing such
  157  services.
  158         2. “Paintless dent-removal” means the process of removing
  159  dents, dings, and creases, including hail damage, from a vehicle
  160  without affecting the existing paint finish, but does not
  161  include services that involve the replacement of vehicle body
  162  panels or sanding, bonding, or painting.
  163         Section 2. Paragraph (b) of subsection (3) of section
  164  634.121, Florida Statutes, is amended, and paragraphs (c), (d),
  165  and (e) are added to that subsection, to read:
  166         634.121 Forms, required procedures, provisions.—
  167         (3)
  168         (b) After the service agreement has been in effect for 60
  169  days, it may not be canceled by the insurer or service agreement
  170  company unless:
  171         1. There has been a material misrepresentation or fraud at
  172  the time of sale of the service agreement;
  173         2. The agreement holder has failed to maintain the motor
  174  vehicle as prescribed by the manufacturer;
  175         3. The odometer has been tampered with or disabled and the
  176  agreement holder has failed to repair the odometer; or
  177         4. For nonpayment of premium by the agreement holder, in
  178  which case the service agreement company shall provide the
  179  agreement holder notice of cancellation by certified mail.
  180  
  181  If the service agreement is canceled by the insurer or service
  182  agreement company, the return of premium must not be less than
  183  100 percent of the paid unearned pro rata premium, less any
  184  claims paid on the agreement. If, after 60 days, the service
  185  agreement is canceled by the service agreement holder, the
  186  insurer or service agreement company shall return directly to
  187  the agreement holder not less than 90 percent of the unearned
  188  pro rata premium, less any claims paid on the agreement. The
  189  service agreement company remains responsible for full refunds
  190  to the consumer on canceled service agreements. However, the
  191  salesperson and agent are responsible for the refund of the
  192  unearned pro rata commission. A service agreement company may
  193  effectuate refunds through the issuing salesperson or agent in
  194  accordance with paragraphs (c) and (d).
  195         (c) If the service agreement company effectuates refunds
  196  through the issuing salesperson or agent, the service agreement
  197  company must send the unearned pro rata premium refund due, less
  198  any unearned pro rata commission, to the salesperson or agent
  199  effectuating the refund. Upon receipt, the salesperson or agent
  200  must refund the unearned pro rata premium, including any
  201  unearned pro rata commission, and the sales tax refund owed to
  202  the service agreement holder.
  203         (d) The salesperson, agent, or service agreement company
  204  shall maintain a copy of one of the following documents, as
  205  applicable, demonstrating that the refund owed pursuant to
  206  paragraph (c) has been refunded:
  207         1. A copy of the front and back of the cancelled check for
  208  the applicable refund amount owed to the service agreement
  209  holder;
  210         2. A copy of the front of the check for the applicable
  211  refund amount owed to the service agreement holder and a copy of
  212  the statement from the bank account on which the check was drawn
  213  showing that the check was cashed;
  214         3. A copy of the front of the check issued by the service
  215  agreement company to the salesperson or agent in the amount of
  216  the service agreement company’s portion of the refund owed to
  217  the service agreement holder and a copy of the statement from
  218  the bank account on which the check was drawn showing that the
  219  check was cashed;
  220         4. A copy of a completed buyer’s order demonstrating that
  221  the applicable refund amount owed to the service agreement
  222  holder was credited toward the purchase or lease of another
  223  vehicle;
  224         5. Any document received from or sent to a lender, finance
  225  company, or creditor demonstrating that a loan or amount
  226  financed by the agreement holder was decreased by the amount of
  227  the applicable refund amount owed to the service agreement
  228  holder; or
  229         6. Any other evidence approved by the office in a written
  230  communication to a person licensed pursuant to this part
  231  demonstrating that the applicable refund amount due to the
  232  service agreement holder was properly made.
  233  
  234  A salesperson or agent effectuating a refund shall maintain a
  235  copy of the documentation required by this paragraph and shall
  236  provide a copy to the service agreement company within 45 days
  237  after a request is made by the department or the office to
  238  either the service agreement company or the salesperson.
  239         (e) If the office finds that a salesperson or agent
  240  exhibits a pattern or practice of failing to properly effectuate
  241  refunds owed or to maintain and remit to the service agreement
  242  company the documentation required by paragraph (d), the office
  243  shall notify the department of its finding.
  244         Section 3. Section 634.141, Florida Statutes, is amended to
  245  read:
  246         634.141 Examination of companies.—
  247         (1) Motor vehicle service agreement companies licensed
  248  under this part may be subject to periodic examination by the
  249  office in the same manner and subject to the same terms and
  250  conditions as apply applies to insurers under part II of chapter
  251  624. The office is not required to conduct periodic examinations
  252  pursuant to this section, but may examine a service agreement
  253  company at its discretion. An examination conducted pursuant to
  254  this section may cover a period of only the most recent 5 years.
  255  The costs of examinations conducted pursuant to ss.
  256  624.316(2)(e) and 624.3161(3) may not exceed 10 percent of the
  257  companies’ reported net income for the prior year. The
  258  commission may by rule establish provisions whereby a company
  259  may be exempted from examination.
  260         (2) The office shall determine whether to conduct an
  261  examination of a company by considering:
  262         (a) The amount of time that the company has been
  263  continuously licensed and operating under the same management
  264  and control.
  265         (b) The company’s history of compliance with applicable
  266  law.
  267         (c) The number of consumer complaints against the company.
  268         (d) The financial condition of the company, demonstrated by
  269  the financial reports submitted pursuant to s. 634.137.
  270         Section 4. Section 634.2855, Florida Statutes, is created
  271  to read:
  272         634.2855 Unauthorized entities; gifts and grants.—A
  273  governmental unit, public agency, institution, person, firm, or
  274  legal entity may provide money to the department to enable the
  275  department to pursue unauthorized entities operating in
  276  violation of this part. The department may transfer funds to the
  277  office to investigate, discipline, sanction, and take all action
  278  consistent with this part relative to unauthorized entities. All
  279  donations or grants of moneys to the department shall be
  280  deposited into the Insurance Regulatory Trust Fund and shall be
  281  separately accounted for in accordance with this section. Moneys
  282  deposited into the Insurance Regulatory Trust Fund pursuant to
  283  this section may be appropriated by the Legislature, pursuant to
  284  chapter 216, for the purpose of enabling the department or the
  285  office to carry out the provisions of this section.
  286  Notwithstanding s. 216.301 and pursuant to s. 216.351, any
  287  balance of moneys deposited into the Insurance Regulatory Trust
  288  Fund pursuant to this section remaining at the end of any fiscal
  289  year shall be available for carrying out the duties and
  290  responsibilities of the department or the office.
  291         Section 5. Subsection (5) of section 634.312, Florida
  292  Statutes, is amended to read:
  293         634.312 Forms; required provisions and procedures.—
  294         (5) Each home warranty contract shall contain a
  295  cancellation provision. Any home warranty agreement may be
  296  canceled by the purchaser within 10 days after purchase. The
  297  refund must be 100 percent of the gross premium paid, less any
  298  claims paid on the agreement. A reasonable administrative fee
  299  may be charged, not to exceed 5 percent of the gross premium
  300  paid by the warranty agreement holder. After the home warranty
  301  agreement has been in effect for 10 days, if the contract is
  302  canceled by the warranty holder, a return of premium shall be
  303  based upon 90 percent of unearned pro rata premium less any
  304  claims that have been paid. If the contract is canceled by the
  305  association for any reason other than for fraud or
  306  misrepresentation, a return of premium shall be based upon 100
  307  percent of unearned pro rata premium, less any claims paid on
  308  the agreement. A home warranty association may effectuate a
  309  refund through the issuing sales representative.
  310         Section 6. Section 634.314, Florida Statutes, is amended to
  311  read:
  312         634.314 Examination of associations.—
  313         (1) Home warranty associations licensed under this part may
  314  be subject to periodic examinations by the office, in the same
  315  manner and subject to the same terms and conditions as apply to
  316  insurers under part II of chapter 624 of the insurance code. The
  317  office is not required to conduct periodic examinations pursuant
  318  to this section, but may examine a home warranty company at its
  319  discretion. An examination conducted pursuant to this section
  320  may cover a period of only the most recent 5 years. The costs of
  321  examinations conducted pursuant to ss. 624.316(2)(e) and
  322  624.3161(3) may not exceed 10 percent of the companies’ reported
  323  net income for the prior year.
  324         (2) The office shall determine whether to conduct an
  325  examination of a home warranty association by considering:
  326         (a) The amount of time that the association has been
  327  continuously licensed and operating under the same management
  328  and control.
  329         (b) The association’s history of compliance with applicable
  330  law.
  331         (c) The number of consumer complaints against the
  332  association.
  333         (d) The financial condition of the association,
  334  demonstrated by the financial reports submitted pursuant to s.
  335  634.313.
  336         Section 7. Section 634.3385, Florida Statutes, is created
  337  to read:
  338         634.3385 Unauthorized entities; gifts and grants.—A
  339  governmental unit, public agency, institution, person, firm, or
  340  legal entity may provide money to the department to enable the
  341  department to pursue unauthorized entities operating in
  342  violation of this part. The department may transfer funds to the
  343  office to investigate, discipline, sanction, and take all action
  344  consistent with this part relative to unauthorized entities. All
  345  donations or grants of moneys to the department shall be
  346  deposited into the Insurance Regulatory Trust Fund and shall be
  347  separately accounted for in accordance with this section. Moneys
  348  deposited into the Insurance Regulatory Trust Fund pursuant to
  349  this section may be appropriated by the Legislature, pursuant to
  350  chapter 216, for the purpose of enabling the department or the
  351  office to carry out the provisions of this section.
  352  Notwithstanding s. 216.301 and pursuant to s. 216.351, any
  353  balance of moneys deposited into the Insurance Regulatory Trust
  354  Fund pursuant to this section remaining at the end of any fiscal
  355  year shall be available for carrying out the duties and
  356  responsibilities of the department or the office.
  357         Section 8. Section 634.414, Florida Statutes, is amended to
  358  read:
  359         634.414 Forms; required provisions.—
  360         (1) Each service warranty contract shall contain a
  361  cancellation provision. If the contract is canceled by the
  362  warranty holder, return of premium shall be based upon no less
  363  than 90 percent of unearned pro rata premium less any claims
  364  that have been paid or less the cost of repairs made on behalf
  365  of the warranty holder. If the contract is canceled by the
  366  association, return of premium shall be based upon 100 percent
  367  of unearned pro rata premium, less any claims paid or the cost
  368  of repairs made on behalf of the warranty holder. Service
  369  warranty associations may effectuate refunds through the issuing
  370  sales representative.
  371         (2) Refunds owed pursuant to this section may be made by
  372  cash, check, store credit, gift card, or other similar means.
  373  Upon request of the service warranty holder, the refund shall be
  374  remitted by check.
  375         (3)(2) By July 1, 2011, each service warranty contract sold
  376  in this state must be accompanied by a written disclosure to the
  377  consumer that the rate charged for the contract is not subject
  378  to regulation by the office. A service warranty association may
  379  comply with this requirement by including such disclosure in its
  380  service warranty contract form or in a separate written notice
  381  provided to the consumer at the time of sale.
  382         Section 9. Section 634.416, Florida Statutes, is amended to
  383  read:
  384         634.416 Examination of associations.—
  385         (1)(a) Service warranty associations licensed under this
  386  part may be subject to periodic examination by the office, in
  387  the same manner and subject to the same terms and conditions
  388  that apply to insurers under part II of chapter 624. The office
  389  is not required to conduct periodic examinations pursuant to
  390  this section, but may examine a service warranty company at its
  391  discretion. An examination conducted pursuant to this section
  392  may cover a period of only the most recent 5 years. The costs of
  393  examinations conducted pursuant to ss. 624.316(2)(e) and
  394  624.3161(3) may not exceed 10 percent of the companies’ reported
  395  net income for the prior year.
  396         (b) The office shall determine whether to conduct an
  397  examination of a service warranty association by considering:
  398         1. The amount of time that the association has been
  399  continuously licensed and operating under the same management
  400  and control.
  401         2. The association’s history of compliance with applicable
  402  law.
  403         3. The number of consumer complaints against the
  404  association.
  405         4. The financial condition of the association, demonstrated
  406  by the financial reports submitted pursuant to s. 634.313.
  407         (2) The rate charged a service warranty association by the
  408  office for examination may be adjusted to reflect the amount
  409  collected for the Form 10-K filing fee as provided in this
  410  section.
  411         (3) On or before May 1 of each year, an association may
  412  submit to the office the Form 10-K, as filed with the United
  413  States Securities and Exchange Commission pursuant to the
  414  Securities Exchange Act of 1934, as amended. Upon receipt and
  415  review of the most current Form 10-K, the office may waive the
  416  examination requirement; if the office determines not to waive
  417  the examination, such examination will be limited to that
  418  examination necessary to ensure compliance with this part. The
  419  Form 10-K shall be accompanied by a filing fee of $2,000 to be
  420  deposited into the Insurance Regulatory Trust Fund.
  421         (4) The office is not required to examine an association
  422  that has less than $20,000 in gross written premiums as
  423  reflected in its most recent annual statement. The office may
  424  examine such an association if it has reason to believe that the
  425  association may be in violation of this part or is otherwise in
  426  an unsound financial condition. If the office examines an
  427  association that has less than $20,000 in gross written
  428  premiums, the examination fee may not exceed 5 percent of the
  429  gross written premiums of the association.
  430         Section 10. Section 634.4385, Florida Statutes, is created
  431  to read:
  432         634.4385 Unauthorized entities; gifts and grants.—A
  433  governmental unit, public agency, institution, person, firm, or
  434  legal entity may provide money to the department to enable the
  435  department to pursue unauthorized entities operating in
  436  violation of this part. The department may transfer funds to the
  437  office to investigate, discipline, sanction, and take all action
  438  consistent with this part relative to unauthorized entities. All
  439  donations or grants of moneys to the department shall be
  440  deposited into the Insurance Regulatory Trust Fund and shall be
  441  separately accounted for in accordance with this section. Moneys
  442  deposited into the Insurance Regulatory Trust Fund pursuant to
  443  this section may be appropriated by the Legislature, pursuant to
  444  chapter 216, for the purpose of enabling the department or the
  445  office to carry out the provisions of this section.
  446  Notwithstanding s. 216.301 and pursuant to s. 216.351, any
  447  balance of moneys deposited into the Insurance Regulatory Trust
  448  Fund pursuant to this section remaining at the end of any fiscal
  449  year shall be available for carrying out the duties and
  450  responsibilities of the department or the office.
  451         Section 11. This act shall take effect July 1, 2012.