Florida Senate - 2017                                    SB 1038
       By Senator Hukill
       14-00744D-17                                          20171038__
    1                        A bill to be entitled                      
    2         An act relating to the assignment of property
    3         insurance benefits; creating s. 627.7152, F.S.;
    4         defining the term “assignment agreement”; prohibiting
    5         certain awards of attorney fees to certain persons or
    6         entities in suits based on claims arising under
    7         property insurance policies; providing that an
    8         assignment agreement is not valid unless specified
    9         conditions are met; prohibiting certain provisions in
   10         an assignment agreement; specifying requirements for
   11         an assignee or transferee; requiring an assignee to
   12         meet certain requirements as a condition precedent to
   13         filing suit under a policy; providing construction;
   14         providing applicability; providing an effective date.
   16  Be It Enacted by the Legislature of the State of Florida:
   18         Section 1. Section 627.7152, Florida Statutes, is created
   19  to read:
   20         627.7152 Assignment of property insurance post-loss
   21  benefits.—
   22         (1) As used in this section, the term “assignment
   23  agreement” means any instrument by which post-loss property
   24  insurance benefits for services to protect, repair, restore, or
   25  replace property, or to mitigate against further damage to
   26  property, are assigned, transferred, or conveyed, regardless of
   27  how named or styled.
   28         (2) Notwithstanding any other law, as to suits based on
   29  claims arising under property insurance policies, attorney fees
   30  may not be awarded under s. 627.428 or s. 626.9373 in favor of
   31  any person or entity seeking relief against the insurer pursuant
   32  to an assignment agreement.
   33         (3) An assignment agreement is not valid unless it meets
   34  all of the following requirements:
   35         (a)The assignment agreement is in writing and is executed
   36  by all named insureds;
   37         (b) The assignment agreement contains a provision that
   38  permits all named insureds to rescind the assignment agreement
   39  without any penalty or rescission or cancellation fee within 7
   40  business days after the date the assignment agreement is
   41  executed by all named insureds;
   42         (c) The assignment agreement contains a provision requiring
   43  the assignee or transferee to provide a copy of the executed
   44  assignment agreement to the insurer no later than 3 business
   45  days after the assignment agreement is executed by any named
   46  insured; and
   47         (d) The assignment agreement contains a written, itemized,
   48  per-unit cost estimate of the work to be performed by the
   49  assignee or transferee.
   50         (4) The following provisions may not be included in an
   51  assignment agreement and are deemed to be invalid and
   52  unenforceable against the property insurer or named insureds:
   53         (a) A penalty or fee for rescission of the assignment
   54  agreement pursuant to subsection (3);
   55         (b) A check or mortgage processing fee;
   56         (c) A penalty or fee for cancellation of the assignment
   57  agreement; or
   58         (d) An administrative fee.
   59         (5) As to claims arising under an assignment agreement, the
   60  failure to comply with any provision of this subsection creates
   61  a presumption that the insurer is prejudiced by such failure to
   62  comply and shifts the burden in any proceeding or suit to the
   63  party seeking benefits, rights, or proceeds from the insurer to
   64  demonstrate that the insurer was not prejudiced. The assignee or
   65  transferee must do all of the following:
   66         (a) Maintain records of all services provided under the
   67  assignment agreement;
   68         (b) Cooperate with the insurer in the investigation of a
   69  claim;
   70         (c) Provide the insurer with any and all records and
   71  documents requested related to services provided and permit the
   72  insurer to make copies;
   73         (d) Deliver a copy of the executed assignment agreement to
   74  the insurer no later than 3 business days after the assignment
   75  agreement is executed by all named insureds; and
   76         (e) Concurrently with any request for payment of benefits
   77  under the insurance policy, provide the insurer with a written,
   78  itemized, per-unit cost statement of services actually performed
   79  pursuant to the assignment agreement.
   80         (6)As to claims arising under an assignment agreement, an
   81  assignee must, as a condition precedent to filing a suit under
   82  the policy:
   83         (a) If required by the insurer, submit to examinations
   84  under oath and recorded statements conducted by the insurer or
   85  the insurer’s representative which are limited to matters
   86  related to the services provided, the costs of services, and the
   87  assignment or transfer; and
   88         (b) Participate in an appraisal or other alternative
   89  dispute resolution method in accordance with the terms of the
   90  policy.
   91         (7)An activity in compliance with subsections (5) and (6)
   92  does not constitute practice as a public adjuster pursuant to
   93  part VI of chapter 626.
   94         (8) Notwithstanding any other law, the acceptance by a
   95  person of any assignment agreement constitutes a waiver by the
   96  assignee or transferee, and any subcontractor of the assignee or
   97  transferee, of any and all claims against all named insureds for
   98  payment arising from the specified loss, except that all named
   99  insureds remain responsible for the payment of any deductible
  100  amount provided for by the terms of the insurance policy and for
  101  the cost of any betterment ordered by all named insureds. This
  102  waiver remains in effect notwithstanding any subsequent
  103  determination that the assignment agreement is invalid or the
  104  rescission of the assignment agreement by all named insureds.
  105         (9) This section does not permit an assignment agreement to
  106  modify or eliminate any term, condition, or defense relating to
  107  any managed repair arrangement provided for in the insurance
  108  policy to which the assignment agreement relates.
  109         (10) This section does not apply to:
  110         (a) An assignment, transfer, or conveyance granted to a
  111  subsequent purchaser of property who acquires an insurable
  112  interest in the property following a loss;
  113         (b) A power of attorney granted to a management company,
  114  family member, guardian, or similarly situated person which
  115  complies with chapter 709 and which may include, as part of the
  116  authority granted, the authority to act on behalf of a principal
  117  as it relates to a property insurance claim; or
  118         (c) Liability coverage under a property insurance policy.
  119         (11) This section applies to assignment agreements that are
  120  executed after July 1, 2017.
  121         Section 2. This act shall take effect July 1, 2017.