Florida Senate - 2019                        COMMITTEE AMENDMENT
       Bill No. SB 122
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                   Comm: WD            .                                
                  03/04/2019           .                                

       The Committee on Banking and Insurance (Thurston) recommended
       the following:
    1         Senate Substitute for Amendment (306982) (with title
    2  amendment)
    4         Delete everything after the enacting clause
    5  and insert:
    6         Section 1. Section 501.172, Florida Statutes, is created to
    7  read:
    8         501.172 Agreements between service providers and
    9  consumers.—
   10         (1)DEFINITIONS.As used in this section, the term:
   11         (a)“Consumer” means a person who has an interest in or who
   12  has a right to manage real property, including improvements upon
   13  such property, regardless of whether for personal or business
   14  purposes. The term includes an owner, a tenant, a licensee, or a
   15  property manager.
   16         (b)“Service provider” means a person who enters into an
   17  agreement with a consumer for the stabilization, repair,
   18  improvement, or remediation of real property.
   21         (a)In all circumstances, an agreement entered into by a
   22  consumer and a service provider after a loss or damage has
   23  occurred to the consumer’s property which contains a post-loss
   24  assignment of benefits to the service provider is only valid if:
   25         1.The consumer or service provider provides a copy of the
   26  agreement to the consumer’s insurer within 5 business days after
   27  the agreement’s execution;
   28         2.The agreement contains a provision allowing the consumer
   29  to rescind the agreement in a writing signed by the consumer if
   30  the consumer provides written notice of the rescission to the
   31  service provider within 3 days after the execution of the
   32  agreement;
   33         3.The agreement does not impose any fee or penalty for
   34  rescinding the agreement, for check processing, for not using a
   35  specified service provider for permanent repairs, or for
   36  mortgage processing;
   37         4.The agreement does not prevent or inhibit an insurer
   38  from communicating with the consumer at any time;
   39         5.The agreement does not transfer or create any authority
   40  to adjust, negotiate, or settle any portion of a claim to a
   41  person or an entity who is not authorized to adjust, negotiate,
   42  or settle a claim on behalf of the insured or claimant under
   43  part VI of chapter 626. However, this subparagraph does not
   44  prevent the service provider from negotiating with the insurer
   45  on the limited issues of the scope of the work to be performed
   46  under the assignment and the pricing therefore;
   47         6.The agreement contains an acknowledgement of the rights
   48  that may exist, if any, under chapter 713 to make a claim upon
   49  the property;
   50         7.The agreement does not transfer to the service provider
   51  any greater right to attorney fees and costs from the insurer
   52  than the right to attorney fees and costs as provided for in
   53  subsection (3); and
   54         8.The agreement relates only to work performed or to be
   55  performed by the service provider.
   56         (b)Under an agreement to assign post-loss benefits, a
   57  service provider is bound by all post-loss obligations specified
   58  in the residential homeowner’s property insurance policy to the
   59  extent possible by the service provider and limited to the scope
   60  of the assignment. Notwithstanding any policy provision or law
   61  to the contrary, the obligation to submit to an examination
   62  under oath is limited to 1 examination under oath by the insurer
   63  or the insurer’s representative relating to an assignment
   64  agreement and services provided by the service provider. The
   65  examination under oath:
   66         1.Is limited to the person designated by the service
   67  provider as the person with the most knowledge of the assignment
   68  agreement and services provided pursuant to the assignment;
   69         2.Must occur in the county where the property for which
   70  the loss was assigned and the work performed or in the county
   71  where the service provider has offices or agents or in the
   72  county where the person designated by the service provider as
   73  the person with the most knowledge resides; and
   74         3.May not last more than 3 hours.
   75         (c)Upon a finding by the court that a service provider has
   76  not complied with its post-loss obligations pursuant to this
   77  section, the court may not award attorney fees to the service
   78  provider under s. 501.172 directly related to the service
   79  provider’s noncompliance with post-loss obligations.
   80         (3)ATTORNEY FEES.
   81         (a)In a civil action under a homeowner’s residential
   82  property insurance policy which is between an insurer and a
   83  service provider who obtains an assignment of post-loss
   84  benefits, the prevailing party has the right to attorney fees
   85  and costs from the:
   86         1.Insurer, if the service provider is the prevailing
   87  party.
   88         2.Service provider, if the insurer is the prevailing
   89  party. An insurer may not be found to be a prevailing party
   90  unless it serves an offer of judgment upon the service provider
   91  either 10 days after the suit commences or 45 days prior to
   92  trial, providing the service provider with 30 days to accept the
   93  offer and the recovery by the service provider is 25 percent
   94  less than the offer of judgment from the insurer.
   95         (b)The prevailing party is the party that prevails on the
   96  significant issues of the case. The court may determine that
   97  there is no prevailing party in a case. In determining if there
   98  is a prevailing party, the court shall consider:
   99         1.The issues litigated;
  100         2.The amount of the claims by the service provider versus
  101  the amount recovered;
  102         3.The existence of setoffs and counterclaims, if any; and
  103         4.The amounts offered by either party to resolve the
  104  issues before or during litigation.
  106  Notwithstanding any other law, the acceptance by a person of any
  107  assignment agreement constitutes a waiver by the service
  108  provider or transferee, and any subcontractor of the service
  109  provider or transferee, of any and all claims against all named
  110  insureds for payment arising from the specified loss, except
  111  that all named insureds remain responsible for the payment of
  112  any deductible amount provided for by the terms of the insurance
  113  policy and for the cost of any betterment ordered by all named
  114  insureds. This waiver remains in effect notwithstanding any
  115  subsequent determination that the assignment agreement is
  116  invalid or notwithstanding the rescission of the assignment
  117  agreement by all named insureds, except that the service
  118  provider is entitled to payment for the reasonable cost of any
  119  contracted work performed before the consumer rescinded the
  120  assignment agreement from the insured or insurance carrier.
  122  VOLUNTARILY DISMISSED.If a service provider commences an action
  123  in any court of this state based upon or including the same
  124  claim against the same adverse party which such service provider
  125  has previously voluntarily dismissed in a court of this state,
  126  the court may, as it deems proper, order the service provider to
  127  pay the attorney fees and costs of the adverse party of the
  128  action previously voluntarily dismissed. Upon the issuance of
  129  such order, the court shall stay the proceedings in the
  130  subsequent action until the service provider has complied with
  131  the order.
  132         (6)CONDITION ON ATTORNEY FEES.In any action at law
  133  brought by an assigned of a homeowner’s residential property
  134  insurance policy, the service provider is not entitled to
  135  attorney fees or costs unless one of the following events has
  136  occurred:
  137         (a)The period established in s. 627.70131 has elapsed;
  138         (b)The insurance carrier has denied coverage or payment
  139  for all or part of the claim; or
  140         (c)The insurance carrier has made a payment that is less
  141  than the amount sought by the consumer or service provider.
  142         (7)APPLICATION.This section does not apply to a power of
  143  attorney granted to a management company, family member,
  144  guardian, or similarly situated person which complies with
  145  chapter 709 and which may include, as part of the authority
  146  granted, the authority to act in place of a principal as it
  147  relates to a homeowner’s residential property insurance claim,
  148  if such power of attorney is not provided to a service provider
  149  or any person with a personal or financial interest in the
  150  service provider.
  151         Section 2. Section 626.9373, Florida Statutes, is amended
  152  to read:
  153         626.9373 Attorney Attorney’s fees.—
  154         (1) Upon the rendition of a judgment or decree by any court
  155  of this state against a surplus lines insurer in favor of any
  156  named or omnibus insured or the named beneficiary under a policy
  157  or contract executed by the insurer on or after the effective
  158  date of this act, the trial court or, if the insured or
  159  beneficiary prevails on appeal, the appellate court, shall
  160  adjudge or decree against the insurer in favor of the insured or
  161  beneficiary a reasonable sum as fees or compensation for the
  162  insured’s or beneficiary’s attorney prosecuting the lawsuit for
  163  which recovery is awarded.
  164         (2) If awarded, attorney attorney’s fees or compensation
  165  shall be included in the judgment or decree rendered in the
  166  case.
  167         (3)Attorney fees may not be awarded under this section to
  168  an assignee of post-loss benefits who is a service provider
  169  under s. 501.172.
  170         Section 3. Section 627.428, Florida Statutes, is amended to
  171  read:
  172         627.428 Attorney fees Attorney’s fee.—
  173         (1) Upon the rendition of a judgment or decree by any of
  174  the courts of this state against an insurer and in favor of any
  175  named or omnibus insured or the named beneficiary under a policy
  176  or contract executed by the insurer, the trial court or, in the
  177  event of an appeal in which the insured or beneficiary prevails,
  178  the appellate court shall adjudge or decree against the insurer
  179  and in favor of the insured or beneficiary a reasonable sum as
  180  fees or compensation for the insured’s or beneficiary’s attorney
  181  prosecuting the suit in which the recovery is had.
  182         (2) As to suits based on claims arising under life
  183  insurance policies or annuity contracts, no such attorney fees
  184  attorney’s fee shall be allowed if such suit was commenced prior
  185  to expiration of 60 days after proof of the claim was duly filed
  186  with the insurer.
  187         (3) When so awarded, compensation or fees of the attorney
  188  shall be included in the judgment or decree rendered in the
  189  case.
  190         (4)Attorney fees may not be awarded under this section to
  191  an assignee of post-loss benefits who is a service provider
  192  under s. 501.172.
  193         Section 4. This act applies to assignment agreements
  194  executed for losses that occur on or after July 1, 2019.
  195         Section 5. This act shall take effect July 1, 2019.
  197  ================= T I T L E  A M E N D M E N T ================
  198  And the title is amended as follows:
  199         Delete everything before the enacting clause
  200  and insert:
  201                        A bill to be entitled                      
  202         An act relating to agreements between service
  203         providers and consumers; creating s. 501.172, F.S.;
  204         defining terms; specifying requirements for certain
  205         agreements containing a post-loss assignment of
  206         benefits; specifying requirements and limitations for
  207         obligations to submit to examinations under oath;
  208         prohibiting a court from awarding attorney fees to the
  209         service provider under certain circumstances;
  210         specifying who is the prevailing party entitled to
  211         attorney fees under certain civil actions; providing
  212         factors a court must consider in determining who the
  213         prevailing party is under certain circumstances;
  214         providing construction relating to waiver and
  215         limitations on recovery; authorizing a court to order
  216         an assignee to pay attorney fees and costs under
  217         certain circumstances; requiring the court to stay
  218         proceedings under certain circumstances; providing
  219         that the service provider is not entitled to attorney
  220         fees or costs in certain actions except under certain
  221         circumstances; providing applicability; amending ss.
  222         626.9373 and 627.428, F.S.; providing that attorney
  223         fees under certain provisions of the Florida Insurance
  224         Code may not be awarded to an assignee of post-loss
  225         benefits who is a service provider; providing
  226         applicability; providing an effective date.