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1.     RESIDENTIAL PROPERTY INSURANCE/CONTINGENCY RISK MULTIPLIER SB 76/HB 305 SB 76 by Senator Boyd passed off the full Senate floor this week 27-13. The bill revises the statutes that govern property insurance policies including attorney fees, roof coverage provisions, notice periods for bringing claims, alternative dispute resolution, lawsuits involving property insurance policies, consolidation of legal actions, and assignment agreements. Additionally, the bill establishes a third-degree felony for knowingly aiding or abetting an unlicensed person who transacts or engages in insurance activities without a license.  The bill eliminates the attorney fee multiplier unless it is a rare and exceptional case.  The bill amends the roof coverage provisions through the use of a roof surface reimbursement schedule to limit coverage in a personal lines residential property insurance policy. The roof surface reimbursement schedule must provide for full replacement coverage for any roof surfaces type less than 10 years old. For roofs 10 years old or older the reimbursement schedule is as follows:·        70 percent for a metal roof type;·        40 percent for a concrete tile and clay tile roof type;·        40 percent for a wood shake and wood shingle roof type;·        25 percent for all other roof types.

Additionally, the bill allows an insurer to offer a state value sublimit on roof coverage. The bill also amends current law to require that a claim, supplemental claim, or reopened claim under a property insurance policy must be provided to the insurer within 2 years of the date of loss. Other provisions in the bill include:·        Allowing an insurer to require mediation as a 1st party claimant or a 3rd party assignee.·        Creating a “Texas” style 1st party attorney fee reform.·        Requiring the consolidation of multiple residential actions involving the same property.·        Modifying the AOB law to conform with the new “Texas” attorney fee model.·        Requesting the Florida Supreme Court to require plaintiff and defense lawyers to disclose their attorneys fees. The House version of this bill, HB 305 by Representative Rommel, passed its second of three committees, the House Civil Justice and Property Rights committee this week. The bill makes several changes including the following: ·        Residential Property Insurance Claims for Roof Damage – The bill establishes that a contractor or unlicensed person acting on behalf of the contractor may not solicit or incentivize the filing of a roof damage insurance claim by a residential property owner or interpret policy provisions. It also establishes that a public adjuster, a public adjuster apprentice, or unlicensed persons acting on their behalf may not incentivize the filing of a roof damage insurance claim by a residential property insurance owner.

·        Clarifies that OIR has the authority to examine MGAs, including affiliates of insurers, as it examines insurers, even if the MGA represents a single domestic insurer. It requires that each insurer paying an affiliate produce information about fees paid to the affiliate upon request by OIR. It also requires that all MGAs execute contracts with the insurers they do business with even if they are affiliates of the insurers.·        Establishes that each insurer or insurer group doing business in Florida shall file specific data regarding litigation of personal and commercial residential property insurance claims on a quarterly basis.·        The bill makes several changes to the operations of, and requirements for, Citizens, the state-run property insurer: 

  • Revising the eligibility for residential property owners to obtain coverage from Citizens so that they are not eligible for Citizens’ coverage if they can obtain coverage from private insurers that is less than 20 percent greater than the premium for comparable coverage from Citizens 
  • Establishing that if Citizens does not buy reinsurance to cover its projected 100-year probable maximum loss, it must still include the cost of such reinsurance in its rate calculations.
  • Establishing that no employees of Citizens may receive salaries in excess of 150 percent of the salary received by the head of OIR, with certain exceptions.

·        The bill changes the notice of claim deadlines in the Insurance Code so that notice of any property insurance claim must be provided to a property insurer within two years of the date of loss.·        The bill creates new statutory requirements for residential or commercial property suits that are not brought by an assignee, including a ten-day presuit notice and demand, after a determination of coverage, before bringing suit against an insurer. An insurer served with this notice must respond in writing within ten days by either making a settlement offer or requiring participation in an appraisal or alternative dispute resolution proceeding as provided for in the policy.

4.     CITIZENS PROPERTY INSURANCE SB 1574SB 1574 by Senator Brandes passed its second of three committees, the Agriculture Appropriations Committee, with an amendment on March 16th and will be up next in Senate Appropriations Subcommittee on Agriculture, Environment, and General Government. The bill makes several changes to the statutes governing Citizens including:·        Requiring reasonable agent commission for policies placed in Citizens not to exceed the average of commissions paid in the preceding year by the 20 admitted insurers writing the greatest market share of property insurance in Florida. Given the recent Citizens Property Insurance Board discussion regarding the concept of removing all agent commissions to advance depopulation goals, Senator Brandes developed this language in response.·        Providing that eligible surplus lines insurers may participate in depopulation, take-out, or keep-out programs; and·        Authorizing information from underwriting files and confidential claims files to be released by Citizens to entities considering writing or underwriting risks insured by Citizens.·        Revising the method for determining the amounts of potential surcharges to be levied against policyholders;·        Removes all new business, 2nd homes, and any homes with dwelling values over 700,000 from the Citizens (glide path) premium cap. It has been a long-held belief by agent groups that commission levels should not be inserted into the statute in any context for various reasons, including the fact that what goes up can also go down. These groups are lobbying Citizens to not take any action to reduce agent commissions.

1.     PIP REPEAL SB 54/HB 719 SB 54 by Senator Burgess passed its third and final committee stop in week 2 and was set for the Senate floor on March 25th. However the bill was again TP’d on the Senate floor on April 1st and 7th, and has been now retained on the Special Order Calendar, until it may be heard on the next floor session.  The bill repeals the Florida Motor Vehicle No-Fault Law, which requires every owner and registrant of a motor vehicle in this state to maintain Personal Injury Protection coverage. Beginning January 1, 2022, the bill enacts financial responsibility requirements for liability for motor vehicle ownership or operation, as follows:·        For bodily injury (BI) or death of one person in any one crash, $25,000, and, subject to that limit for one person, $50,000 for BI or death of two or more people in any one crash.·        The bill sets a lower financial responsibility requirement of $15,000 for BI or death of one person, and $30,000 for BI or death of two or more persons, for persons having a household income of 200 percent or less of the federal poverty guidelines and for full time students attending a secondary or post-secondary school.·        The existing $10,000 financial responsibility requirement for property damage (PD) is retained. The bill increases required coverage amounts for garage liability and commercial motor vehicle insurance. It increases the cash deposit amount required for a certificate of self-insurance establishing financial responsibility for owners and operators of motor vehicles that are not for hire vehicles.

The bill requires insurers to offer MedPay with limits of $5,000 or $10,000 to cover medical expenses of the insured. Insurers may also offer other policy limits that exceed $5,000. Insurers must offer a zero-deductible option for MedPay, and may also offer deductibles of up to $500. Insurers must reserve $5,000 of MedPay benefits for 30 days to pay physicians or dentists who provide emergency services and care or who provide hospital inpatient care. The repeal of the No-Fault Law eliminates the limitations on recovering pain and suffering damages from PIP insureds, which currently require bodily injury that causes death or significant and permanent injury. Under the bill, the legal liability of an uninsured motorist insurer includes damages in tort for pain, suffering, disability or physical impairment, disfigurement, mental anguish, inconvenience, and the loss of past and future capacity for the enjoyment of life. The bill creates a new framework to govern all third-party claims against motor vehicle insurers for bad faith failure to settle. The bill requires the third-party claimant in a bad faith failure to settle action to show the insurer violated its duty of good faith to the insured and in bad faith failed to settle the claim. The bill requires motor vehicle insurers to follow claims handling best practices standards based on long-established good faith duties related to claim handling, claim investigation, defense of the insured, and settlement negotiations. 

The bill establishes that it is a condition precedent to bringing a third-party action for bad faith failure to settle that the claimant serve a detailed demand for settlement within the insured’s policy limits. The third-party bad faith claimant may condition the demand for settlement on taking a 2-hour examination under oath (EUO) of the insured, limited to discovering possible sources of recovery. The claimant may withdraw the demand for settlement after the EUO. If the insured refuses to submit to the EUO, the insurer may tender policy limits without obtaining a release of the insured, and if the insurer does so, it no longer has a duty to defend the insured, and may not be held liable if there is an excess judgment against the insured. The bill provides a safe harbor to the insurer in a third-party bad faith failure to settle action providing that an insurer is not liable for bad faith if it tenders (offers to pay) policy limits in exchange for a release of its insured from further liability within 60 days after receiving a demand for settlement from a single claimant. Where there are multiple claimants, the insurer is not liable for bad faith if it initiates an interpleader action within 60 days after receiving the competing demands. The bill requires the trier of fact, when determining if an insurer in bad faith failed to settle, to consider certain actions of the insurer such as compliance with best practices along with certain actions of the insured and claimant. The bill also prohibits punitive damages in a third-party bad faith failure to settle action. The bill provides that if a motor vehicle insurer fails to timely provide information related to liability insurance coverage, the claimant may file an action to enforce the section, and is entitled to an award of reasonable attorney fees and costs to be paid by the insurer.

The bill authorizes the exclusion of a specifically named individual from specified insurance coverages under a private passenger motor vehicle policy, with the written consent of the policyholder. The bill also allows an insurer that offers comprehensive coverage to offer a separate windshield deductible of up to $200, provided the insured is given an actuarially sound discount for electing the deductible and provided that a no deductible option is offered. The bill also prohibits auto repair shops from coercing consumers, paying referral fees, or giving rebates or gifts related to a windshield claim. Senator Burgess has filed 5 amendments to be heard on the floor, the amendments make the following changes to the original bill:·        Bad faith is revised as followsa)      Defines “bad faith failure to settle” to include failure to meet the duty of good faith, which is the proximate cause of the insurer’s failure to settle when it could have done so under the common law standard. b)      Creates a provision requiring the insurer to give fair consideration to settlement offers under certain circumstances; requires the insurer to continue to make settlement offers (if an excess judgment is likely) through the end of trial. c)      Removes the EUO provision that carriers were concerned about and replaces it with a financial affidavit. d)      Revises the 60-day safe harbor to apply, in the case of a single claim arising out of a single occurrence, to bad faith failure to settle claims if the insurer complies with the duties to evaluate the claim fairly, to inform its insured of certain matters, and to settle where a reasonably prudent person would settle and continue to offer limits in settlement throughout the bodily injury trial if an excess verdict is likely. 

e)      Creates a new 60-day safe harbor for multiple claimant scenarios if the insurer globally tenders limits to known claimants upon receipt of notice of loss and if it complies with the duty to try to minimize the magnitude of an excess judgment against its insured. f)       Revises the burden of proof to require the claimant to prove by a preponderance of the evidence that the insurer violated the best practices provisions. If so, a rebuttable presumption is created that the insurer’s failure to comply constitutes the proximate cause of its bad faith failure to settle the claim. This can be rebutted by the insurer providing, also by a preponderance, that the violation of best practices was not the proximate cause of the excess judgment, or that the insurer met the requirements of the safe harbor. g)      Removes interpleader and restates common law as to multiple claimants. h)      Requires 5 year retention of written and verbal communications.  ·        Glass: Strikes glass language auto repair, inducement and deductible provisions in 2 sections of the bill.  ·        Med Pay: Revises med pay and financial responsibility language. Removes “reasonable” charges and clinics as well as limits coverage to named insured, resident relative and permissive drivers; “deems” $5,000 of MedPay coverage unless insured affirmatively opts out.·        BI: Strikes the bodily injury limits section including the lower limits based on federal poverty level. ·        BI: Inserts a new section of bodily injury limits which is being called “No Pay, No Play” and limits to economic damages only when the injured party fails to meet financial responsibility requirements for more than 30 days. Damages are capped at $25K for BI and property damage capped at $10K for property damage. Exclusions apply when injury caused as a result of a DUI driver, intentional acts, hit and run or driver fleeing a felony. 

HB 719 by Representative Grall passed its first of three committee stops in week 2 and still awaits a hearing in its second stop the House Insurance and Banking subcommittee. The bill is similar to the Senate version but does not contain the same bad faith reform provisions, does not allow for the lower limits based on income level, and does not include the Senate provisions relating to windshield deductible.  While momentum has been lost on these PIP bills, it does not mean that the bills are dead.