Florida Senate - 2019                        COMMITTEE AMENDMENT
       Bill No. CS for SB 122
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                   Comm: RS            .                                
                  03/20/2019           .                                

       The Committee on Judiciary (Broxson) recommended the following:
    1         Senate Amendment (with title amendment)
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Section 501.172, Florida Statutes, is created to
    6  read:
    7         501.172 Agreements between service providers and
    8  consumers.—
    9         (1)DEFINITIONS.As used in this section:
   10         (a)“Consumer” means a person who has an interest in, or
   11  who has a right to manage real or personal property, including
   12  improvements upon such property, regardless of whether for
   13  personal or business purposes, including an owner, a tenant, a
   14  licensee, or a property manager.
   15         (b)“Service provider” means a person who enters into an
   16  agreement with a consumer for the stabilization, repair,
   17  improvement, or remediation of real or personal property.
   20         (a)If a consumer acts under urgent or emergency
   21  circumstances to protect property from damage and enters into an
   22  agreement with a service provider to stabilize, protect, repair,
   23  or improve such property, the service provider may only contract
   24  for, receive, or acquire in any manner from the consumer at such
   25  time the right to payment for the work necessary to stabilize,
   26  protect, and prevent additional damage to the property. Such
   27  right to payment may include:
   28         1.A post-loss assignment of benefits under a property
   29  insurance policy or under the comprehensive or combined
   30  additional coverage under a motor vehicle insurance policy for
   31  coverage of windshield damage, executed pursuant to subsection
   32  (3), except that notwithstanding ss. 626.9373 and 627.428, any
   33  right to attorney fees or costs against an insurer by any such
   34  service provider shall be as provided in subsection (4). A
   35  service provider may not receive from a consumer acting under
   36  urgent or emergency circumstances an assignment of post-loss
   37  benefits:
   38         a.Under a property insurance policy, in excess of the
   39  greater of $3,000 or 1 percent of the Coverage A limit under
   40  such policy.
   41         b.Under a motor vehicle insurance policy for comprehensive
   42  or combined additional coverage for windshield damage, in excess
   43  of $500.
   44         2.An acknowledgment of the rights that may exist, if any,
   45  under chapter 713 to make a claim upon the property.
   46         (b)To the extent that an agreement between a consumer and
   47  a service provider purports to provide greater rights to the
   48  service provider under such urgent or emergency circumstances,
   49  including alleged rights to do further repairs, remediation, or
   50  improvements or an assignment of rights, benefits, causes of
   51  action, or other contractual rights in violation of this
   52  subsection, such purported assignment is void.
   54  ASSIGNMENT OF BENEFITS.—In all circumstances, an agreement
   55  entered into by a consumer and a service provider after a loss
   56  or damage has occurred to the consumer’s property which contains
   57  a post-loss assignment of insurance benefits under a property
   58  insurance policy or under the comprehensive or combined
   59  additional coverage under a motor vehicle insurance policy for
   60  coverage of windshield damage to the service provider or some
   61  third person, such purported assignment of benefits is valid
   62  only if:
   63         (a)The consumer or service provider provides a copy of the
   64  agreement to the consumer’s insurer, sent to the location
   65  designated for receipt of such agreements if specified in the
   66  insurance policy, within 3 business days after the agreement’s
   67  execution;
   68         (b)The agreement contains a provision allowing the
   69  consumer to rescind the agreement in a writing signed by the
   70  assignor if the consumer provides written notice of the
   71  rescission to the service provider within 14 days after the
   72  execution of the agreement or at least 30 days after the
   73  execution of the agreement if the service provider has not begun
   74  substantial work on the property; except that the service
   75  provider retains the right to payment under paragraph (2)(a) for
   76  services it performs under urgent or emergency circumstances
   77  before receiving such notice;
   78         (c)The agreement does not impose any fee or penalty for
   79  rescinding the agreement, for check processing, for not using a
   80  specified service provider for permanent repairs, or for
   81  mortgage processing;
   82         (d)The agreement does not prevent or inhibit an insurer
   83  from communicating with the consumer at any time;
   84         (e)The agreement, if made under a motor vehicle insurance
   85  policy for comprehensive or combined additional coverage for
   86  windshield damage, does not assign the right to more than $500
   87  in post-loss benefits;
   88         (f)The agreement does not transfer or create any authority
   89  to adjust, negotiate, or settle any portion of a claim to a
   90  person or an entity who is not authorized to adjust, negotiate,
   91  or settle a claim on behalf of the insured or claimant under
   92  part VI of chapter 626;
   93         (g)The agreement does not transfer to the assignee any
   94  greater right to attorney fees and costs from the insurer than
   95  the right to attorney fees and costs as provided for in
   96  subsection (4); and
   97         (h)The agreement relates only to work performed or to be
   98  performed by the service provider.
   99         (4)ATTORNEY FEES.
  100         (a)In a civil action under a property insurance policy or
  101  under the comprehensive or combined additional coverage under a
  102  motor vehicle insurance policy for coverage of windshield
  103  damage, between an insurer and a service provider who obtains an
  104  assignment of post-loss benefits, the prevailing party has the
  105  right to attorney fees and costs from the:
  106         1.Insurer, if the service provider is the prevailing
  107  party.
  108         2.Service provider, if the insurer is the prevailing
  109  party.
  110         (b)The prevailing party is the party which prevails on the
  111  significant issues of the case. The court may determine that
  112  there is no prevailing party in a case. In determining if there
  113  is a prevailing party, the court must consider:
  114         1.The issues litigated;
  115         2.The amount of the claims by the service provider versus
  116  the amount recovered;
  117         3.The existence of setoffs and counterclaims, if any; and
  118         4.The amounts offered by either party to resolve the
  119  issues prior to or during litigation.
  120         (5)LIMITATION ON RECOVERY FROM ASSIGNOR.—An assignee
  121  service provider that accepts an assignment of post-loss
  122  benefits waives any and all claims against a consumer, except as
  123  provided herein. The consumer remains responsible for the
  124  payment of any deductible amount provided for by the terms of
  125  the insurance policy, and for the cost of any betterment ordered
  126  by the consumer. This subsection does not prohibit the assignee
  127  from collecting or attempting to collect money from, maintaining
  128  an action at law against, or claiming a lien on the property of
  129  a consumer or reporting a consumer to a credit agency for
  130  payment of the amount of the insurance deductible, or any amount
  131  attributable to betterment ordered by the consumer. This waiver
  132  is effective notwithstanding any subsequent determination that
  133  the assignment agreement is invalid or the rescission of the
  134  assignment agreement by the consumer.
  136  VOLUNTARILY DISMISSED.—If a service provider assignee commences
  137  an action in any court of this state based upon or including the
  138  same claim against the same adverse party that such assignee has
  139  previously voluntarily dismissed in a court of this state, the
  140  court may, as it deems proper, order the assignee to pay the
  141  attorney fees and costs of the adverse party of the action
  142  previously voluntarily dismissed. Upon the issuance of such
  143  order, the court shall stay the proceedings in the subsequent
  144  action until the assignee has complied with the order.
  145         (7)APPLICATION.—This section does not apply to a power of
  146  attorney granted to a management company, family member,
  147  guardian, or similarly situated person which complies with
  148  chapter 709 and which may include, as part of the authority
  149  granted, the authority to act in place of a principal as it
  150  relates to a property insurance or motor vehicle insurance
  151  claim, if such power of attorney is not provided to a service
  152  provider or any person with a personal or financial interest in
  153  the service provider.
  154         Section 2. Section 626.9373, Florida Statutes, is amended
  155  to read:
  156         626.9373 Attorney Attorney’s fees.—
  157         (1) Upon the rendition of a judgment or decree by any court
  158  of this state against a surplus lines insurer in favor of any
  159  named or omnibus insured or the named beneficiary under a policy
  160  or contract executed by the insurer on or after the effective
  161  date of this act, the trial court or, if the insured or
  162  beneficiary prevails on appeal, the appellate court, shall
  163  adjudge or decree against the insurer in favor of the insured or
  164  beneficiary a reasonable sum as fees or compensation for the
  165  insured’s or beneficiary’s attorney prosecuting the lawsuit for
  166  which recovery is awarded.
  167         (2) If awarded, attorney attorney’s fees or compensation
  168  shall be included in the judgment or decree rendered in the
  169  case.
  170         (3)Attorney fees may not be awarded under this section to
  171  an assignee of post-loss benefits who is a service provider
  172  under s. 501.172.
  173         Section 3. Section 627.428, Florida Statutes, is amended to
  174  read:
  175         627.428 Attorney fees Attorney’s fee.—
  176         (1) Upon the rendition of a judgment or decree by any of
  177  the courts of this state against an insurer and in favor of any
  178  named or omnibus insured or the named beneficiary under a policy
  179  or contract executed by the insurer, the trial court or, in the
  180  event of an appeal in which the insured or beneficiary prevails,
  181  the appellate court shall adjudge or decree against the insurer
  182  and in favor of the insured or beneficiary a reasonable sum as
  183  fees or compensation for the insured’s or beneficiary’s attorney
  184  prosecuting the suit in which the recovery is had.
  185         (2) As to suits based on claims arising under life
  186  insurance policies or annuity contracts, no such attorney fees
  187  attorney’s fee shall be allowed if such suit was commenced prior
  188  to expiration of 60 days after proof of the claim was duly filed
  189  with the insurer.
  190         (3) When so awarded, compensation or fees of the attorney
  191  shall be included in the judgment or decree rendered in the
  192  case.
  193         (4)Attorney fees may not be awarded under this section to
  194  an assignee of post-loss benefits who is a service provider
  195  under s. 501.172.
  196         Section 4. Section 501.172, Florida Statutes, as created by
  197  this act, and the amendments made by this act to ss. 626.9373
  198  and 627.428, Florida Statutes, apply to actions pending on or
  199  after July 1, 2019, to the extent that the act does not require
  200  the invalidation of any provision of a contract executed before
  201  July 1, 2019.
  202         Section 5. This act shall take effect July 1, 2019.
  204  ================= T I T L E  A M E N D M E N T ================
  205  And the title is amended as follows:
  206         Delete everything before the enacting clause
  207  and insert:
  208                        A bill to be entitled                      
  209         An act relating to agreements between service
  210         providers and consumers; creating s. 501.172, F.S.;
  211         defining terms; specifying limitations and authorized
  212         provisions relating to a service provider’s right to
  213         payment under certain agreements with consumers under
  214         urgent or emergency circumstances; specifying
  215         requirements, limitations, and prohibited provisions
  216         for agreements containing a post-loss assignment of
  217         benefits; providing that a prevailing party under
  218         certain policies and coverages has the right to
  219         attorney fees and costs; providing that a court need
  220         not determine that there is a prevailing party;
  221         providing factors a court must consider in determining
  222         who is the prevailing party, under certain
  223         circumstances; providing construction relating to
  224         waiver of claims and limitations on recovery;
  225         authorizing a court to order an assignee to pay
  226         attorney fees and costs under certain circumstances;
  227         requiring the court to stay proceedings under certain
  228         circumstances; providing applicability; amending ss.
  229         626.9373 and 627.428, F.S.; providing that attorney
  230         fees under certain provisions of the Florida Insurance
  231         Code may not be awarded to an assignee of post-loss
  232         benefits who is a service provider; providing
  233         applicability; providing an effective date.
  235         WHEREAS, the Legislature finds that provisions of law
  236  allowing insureds to recover attorney fees in litigation against
  237  their insurers are intended to level the economic playing field
  238  between the economically-advantaged insurance company and the
  239  individual consumer, and
  240         WHEREAS, the award of attorney fees to the individual
  241  consumer under such laws makes the consumer financially whole
  242  and discourages insurance companies from contesting valid
  243  claims, and
  244         WHEREAS, however, the Legislature finds that the increased
  245  use of post-loss assignment of benefits by service providers has
  246  led to a dramatic increase in assignment of benefits litigation,
  247  and
  248         WHEREAS, the Legislature recognizes that additional costs
  249  incurred by insurance companies in contesting assignment of
  250  benefits-related litigation or in paying inflated claims for
  251  insurance proceeds are factored into the rates charged for
  252  property insurance and motor vehicle insurance, and
  253         WHEREAS, the Legislature finds that by explicitly providing
  254  that any right to attorney fees or costs against an insurer by a
  255  service provider must be as provided in this act, the
  256  Legislature is addressing the dramatic increase in assignment of
  257  benefits litigation by nonparties to property insurance policies
  258  and motor vehicle insurance policies for coverage of windshield
  259  damage and the associated increase in insurance premiums that
  260  are experienced by consumers, and
  261         WHEREAS, the Legislature intends to maintain its public
  262  policy of making consumers financially whole and reducing
  263  inequities between consumers and their insurance companies, as
  264  such consumers have the right to obtain attorney fees in civil
  265  actions they bring against their insurers, NOW, THEREFORE,