Florida Senate - 2013                          SENATOR AMENDMENT
       Bill No. CS/CS/HB 635, 1st Eng.
       
       
       
       
       
       
                                Barcode 507846                          
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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                 Floor: WD/2R          .                                
             04/26/2013 12:30 PM       .                                
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       Senator Brandes moved the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Between lines 2034 and 2035
    4  insert:
    5         Section 52. Effective July 1, 2013, subsections (2) and (3)
    6  of section 631.57, Florida Statutes, are amended to read:
    7         631.57 Powers and duties of the association.—
    8         (2) The association may:
    9         (a) Employ or retain such persons as are necessary to
   10  handle claims and perform other duties of the association;
   11         (b) Borrow funds necessary to effect the purposes of this
   12  part in accord with the plan of operation, including borrowing
   13  necessary to ensure that its cash flow needs are timely met to
   14  pay covered claims when regular and emergency assessments are
   15  levied on policyholders under subsection (3);
   16         (c) Sue or be sued, provided that service of process is
   17  shall be made upon the person registered with the department as
   18  agent for the receipt of service of process; and
   19         (d) Negotiate and become a party to such contracts as are
   20  necessary to carry out the purpose of this part. Additionally,
   21  The association may also enter into such contracts with a
   22  municipality, a county, or a legal entity created pursuant to s.
   23  163.01(7)(g) as are necessary in order for the municipality,
   24  county, or legal entity to issue bonds under s. 631.695. In
   25  connection with the issuance of any such bonds and the entering
   26  into of any such necessary contracts, the association may agree
   27  to such terms and conditions as the association deems necessary
   28  and proper.
   29         (3)(a) To the extent necessary to secure the funds for the
   30  respective accounts paying for the payment of covered claims, to
   31  pay the reasonable costs to administer such accounts the same,
   32  and to the extent necessary to secure the funds for the account
   33  specified in s. 631.55(2)(b) or to retire indebtedness,
   34  including, without limitation, the principal, redemption
   35  premium, if any, and interest on, and related costs of issuance
   36  of, bonds issued under s. 631.695 and the funding of any
   37  reserves and other payments required under the bond resolution
   38  or trust indenture pursuant to which such bonds have been
   39  issued, the office, upon certification of the board of
   40  directors, shall levy regular assessments in the proportion that
   41  each insurer’s net direct written premiums in this state in the
   42  classes protected by the account bears to the total of the said
   43  net direct written premiums received in this state by all such
   44  insurers for the preceding calendar year for the kinds of
   45  insurance included within such account. Regular assessments
   46  shall be remitted to and administered by the board of directors
   47  in the manner specified by the approved plan. Each insurer so
   48  assessed has shall have at least 30 days’ written notice as to
   49  the date the assessment is due and payable. Every assessment
   50  shall be made as a uniform percentage applicable to the net
   51  direct written premiums of each insurer in the kinds of
   52  insurance included within the account in which the assessment is
   53  made. The regular assessments levied against an any insurer may
   54  shall not exceed in any one year exceed more than 2 percent of
   55  that insurer’s net direct written premiums in this state for the
   56  kinds of insurance included within such account during the
   57  calendar year next preceding the date of such assessments. The
   58  Legislature finds and declares that regular assessments paid by
   59  an insurer or insurer group as a result of a levy by the office
   60  constitute advances of funds from the insurer to the
   61  association. An insurer may fully recoup regular assessments
   62  levied against prior year premiums by applying a separate
   63  recoupment factor to the premium of policies of the same kind or
   64  line as were considered by the office in determining the
   65  assessment liability of the insurer or insurer group.
   66         (b) In lieu of collecting the regular assessment under
   67  paragraph (a) from insurers, the association may certify all or
   68  part of the assessment to be collected by member insurers and
   69  collected from policyholders upon issuance or renewal of
   70  policies. If the association elects to direct insurers to
   71  collect the assessment directly from policyholders, the office
   72  shall issue an order specifying the date that the board requires
   73  the insurers to begin collecting the assessment, which must be
   74  at least 90 days after the date that the board certifies the
   75  assessment. The order must specify a uniform percentage
   76  determined by the board, and verified by the office, of the
   77  direct written premium for all lines of business in the
   78  applicable accounts. The assessment certified in any one
   79  calendar year may not exceed 2 percent of the premium. The
   80  insurers shall collect such assessments without being affected
   81  by any credit, limitation, exemption, or deferment. Assessments
   82  collected under this paragraph shall be transferred regularly to
   83  the association as set forth in the order levying the
   84  assessment.
   85         (c)(b) If sufficient funds from regular and emergency such
   86  assessments, together with funds previously raised, are not
   87  available in any one year in the respective account to make all
   88  the payments or reimbursements then owing to insurers, insureds,
   89  or claimants, the funds available shall be prorated and the
   90  unpaid portion shall be paid as soon thereafter as funds become
   91  available.
   92         (c) The Legislature finds and declares that all assessments
   93  paid by an insurer or insurer group as a result of a levy by the
   94  office, including assessments levied pursuant to paragraph (a)
   95  and emergency assessments, constitute advances of funds from the
   96  insurer to the association. An insurer may fully recoup such
   97  advances by applying a separate recoupment factor to the premium
   98  of policies of the same kind or line as were considered by the
   99  office in determining the assessment liability of the insurer or
  100  insurer group.
  101         (d) No State funds may not of any kind shall be allocated
  102  or paid to the said association or any of its accounts.
  103         (e)1.a. In addition to regular assessments otherwise
  104  authorized under in paragraph (a), and to the extent necessary
  105  to secure the funds for the account specified in s. 631.55(2)(b)
  106  for the direct payment of covered claims of insurers rendered
  107  insolvent by the effects of a hurricane and to pay the
  108  reasonable costs to administer such claims, or to retire
  109  indebtedness, including, without limitation, the principal,
  110  redemption premium, if any, and interest on, and related costs
  111  of issuance of, bonds issued under s. 631.695 and the funding of
  112  any reserves and other payments required under the bond
  113  resolution or trust indenture pursuant to which such bonds have
  114  been issued, the office, upon certification of the board of
  115  directors, shall levy emergency assessments to be collected by
  116  member insurers and collected from policyholders upon issuance
  117  or renewal of policies upon insurers holding a certificate of
  118  authority. Pursuant to such levy, the office shall issue an
  119  order specifying the date the board requires the insurers to
  120  begin collecting the assessment, which must be at least 90 days
  121  after the date the office levies the assessment. The order must
  122  specify a uniform percentage determined by the board, and
  123  verified by the office, of the direct written premium for all
  124  lines of business in the applicable accounts. The assessment
  125  certified in any one calendar year may not exceed 2 percent of
  126  the premium. The insurers shall collect such assessments without
  127  being affected by any credit, limitation, exemption, or
  128  deferment. Assessments collected by insurers under this
  129  paragraph shall be transferred regularly to the association as
  130  set forth in the order levying the assessment.
  131         1. If, after consultation with its financial advisor, the
  132  board determines that it must immediately begin paying the
  133  covered claims of one or more insolvent insurers and financing
  134  is not reasonably available, it may certify the emergency
  135  assessment on insurers in the same manner as set forth in
  136  paragraph (a), except that an emergency assessment may be paid
  137  by the insurer in a single payment or, at the option of the
  138  association, in 12 monthly installments with the first
  139  installment being due and payable at the end of the month after
  140  the emergency assessment is levied and subsequent installments
  141  being due by the end of each succeeding month The emergency
  142  assessments payable under this paragraph by any insurer shall
  143  not exceed in any single year more than 2 percent of that
  144  insurer’s direct written premiums, net of refunds, in this state
  145  during the preceding calendar year for the kinds of insurance
  146  within the account specified in s. 631.55(2)(b).
  147         2.b.Any Emergency assessments authorized under this
  148  paragraph shall be levied by the office only upon insurers
  149  referred to in sub-subparagraph a., upon certification as to the
  150  need for such assessments by the board of directors. If In the
  151  event the board of directors participates in the issuance of
  152  bonds in accordance with s. 631.695, emergency assessments shall
  153  be levied in each year that bonds issued under s. 631.695 and
  154  secured by such emergency assessments are outstanding, in such
  155  amounts up to such 2 percent 2-percent limit as required in
  156  order to provide for the full and timely payment of the
  157  principal of, redemption premium, if any, and interest on, and
  158  related costs of issuance of, such bonds. The emergency
  159  assessments provided for in this paragraph are assigned and
  160  pledged to the municipality, county, or legal entity issuing
  161  bonds under s. 631.695 for the benefit of the holders of such
  162  bonds, in order to enable such municipality, county, or legal
  163  entity to provide for the payment of the principal of,
  164  redemption premium, if any, and interest on such bonds, the cost
  165  of issuance of such bonds, and the funding of any reserves and
  166  other payments required under the bond resolution or trust
  167  indenture pursuant to which such bonds have been issued, without
  168  the necessity for of any further action by the association, the
  169  office, or any other party. If To the extent bonds are issued
  170  under s. 631.695 and the association secures determines to
  171  secure such bonds by a pledge of revenues received from the
  172  emergency assessments, such bonds, upon such pledge of revenues,
  173  shall be secured by and payable from the proceeds of such
  174  emergency assessments, and the proceeds of emergency assessments
  175  levied under this paragraph shall be remitted directly to and
  176  administered by the trustee or custodian appointed for the
  177  payment of such bonds.
  178         c. Emergency assessments under this paragraph may be
  179  payable in a single payment or, at the option of the
  180  association, may be payable in 12 monthly installments with the
  181  first installment being due and payable at the end of the month
  182  after an emergency assessment is levied and subsequent
  183  installments being due not later than the end of each succeeding
  184  month.
  185         3.d. If emergency assessments are imposed, the report
  186  required by s. 631.695(7) must shall include an analysis of the
  187  revenues generated from the emergency assessments imposed under
  188  this paragraph.
  189         4.e. If emergency assessments are imposed, the references
  190  in sub-subparagraph (1)(a)3.b. and s. 631.695(2) and (7) to
  191  regular assessments levied under paragraph (a) must shall
  192  include emergency assessments imposed under this paragraph.
  193         5.2. If the board of directors participates in the issuance
  194  of bonds in accordance with s. 631.695, an emergency annual
  195  assessment under this paragraph must shall continue while the
  196  bonds issued with respect to which the assessment was imposed
  197  are outstanding, including any bonds the proceeds of which were
  198  used to refund bonds issued pursuant to s. 631.695, unless
  199  adequate provision has been made for the payment of the bonds in
  200  the documents authorizing the issuance of such bonds.
  201         6.3. Emergency assessments under this paragraph are not
  202  premium and are not subject to the premium tax, to any fees, or
  203  to any commissions. An insurer is liable for all emergency
  204  assessments that the insurer collects and shall treat the
  205  failure of an insured to pay an emergency assessment as a
  206  failure to pay the premium. An insurer is not liable for
  207  uncollectible emergency assessments.
  208         (f) The recoupment factor applied to policies in accordance
  209  with paragraph (a) or subparagraph (e)1. paragraph (c) shall be
  210  selected by the insurer or insurer group so as to provide for
  211  the probable recoupment of both assessments levied pursuant to
  212  paragraph (a) and emergency assessments over a period of 12
  213  months, unless the insurer or insurer group, at its option,
  214  elects to recoup the assessment over a longer period. The
  215  recoupment factor applies shall apply to all policies of the
  216  same kind or line as were considered by the office in
  217  determining the assessment liability of the insurer or insurer
  218  group issued or renewed during a 12-month period.
  219         1. If the insurer or insurer group does not collect the
  220  full amount of the assessment during one 12-month period, the
  221  insurer or insurer group may apply recalculated recoupment
  222  factors to policies issued or renewed during one or more
  223  succeeding 12-month periods.
  224         2. If, at the end of a 12-month period, the insurer or
  225  insurer group has collected from the combined kinds or lines of
  226  policies subject to assessment more than the total amount of the
  227  assessment paid by the insurer or insurer group, the excess
  228  amount shall be disbursed as follows:
  229         a.1. If the excess amount does not exceed 15 percent of the
  230  total assessment paid by the insurer or insurer group, the
  231  excess amount shall be remitted to the association within 60
  232  days after the end of the 12-month period in which the excess
  233  recoupment charges were collected.
  234         b.2. If the excess amount exceeds 15 percent of the total
  235  assessment paid by the insurer or insurer group, the excess
  236  amount shall be returned to the insurer’s or insurer group’s
  237  current policyholders by refunds or premium credits. The
  238  association shall use any remitted excess recoupment amounts to
  239  reduce future assessments.
  240         3.(g) Amounts recouped pursuant to this paragraph
  241  subsection for assessments levied under paragraph (a) due to
  242  insolvencies on or after July 1, 2010, are considered premium
  243  solely for premium tax purposes and are not subject to fees or
  244  commissions. However, insurers shall treat the failure of an
  245  insured to pay a recoupment charge as a failure to pay the
  246  premium.
  247         4.(h) At least 15 days before applying the recoupment
  248  factor to any policies, the insurer or insurer group shall file
  249  with the office a statement for informational purposes only
  250  setting forth the amount of the recoupment factor and an
  251  explanation of how the recoupment factor will be applied. Such
  252  statement must shall include documentation of the assessment
  253  paid by the insurer or insurer group and the arithmetic
  254  calculations supporting the recoupment factor. The insurer or
  255  insurer group may use the recoupment factor at any time after
  256  the expiration of the 15-day period. The insurer or insurer
  257  group need submit only one informational statement for all lines
  258  of business using the same recoupment factor.
  259         5.(i)Within No later than 90 days after the insurer or
  260  insurer group has completed the recoupment process, the insurer
  261  or insurer group shall file with the office, for information
  262  purposes only, a final accounting report documenting the
  263  recoupment. The report must shall provide the amounts of
  264  assessments paid by the insurer or insurer group, the amounts
  265  and percentages recouped by year from each affected line of
  266  business, and the direct written premium subject to recoupment
  267  by year. The insurer or insurer group need submit only one
  268  report for all lines of business using the same recoupment
  269  factor.
  270         Section 53. The amendments to s. 631.57 made by this act
  271  are applicable to any assessment certified and levied after July
  272  1, 2013, regardless of when the insolvency or insolvencies
  273  occurred.
  274  
  275  ================= T I T L E  A M E N D M E N T ================
  276         And the title is amended as follows:
  277         Between lines 225 and 226
  278  insert:
  279         amending s. 631.57, F.S.; revising the duties of the
  280         Florida Insurance Guaranty Association; authorizing
  281         the association to certify regular assessments to be
  282         collected by member insurers and collected from
  283         policyholders under certain circumstances; authorizing
  284         the association to levy emergency assessments to be
  285         collected by member insurers and collected from
  286         policyholders under certain circumstances; making
  287         technical and grammatical corrections; providing for
  288         applicability;