Florida Senate - 2022                      CS for CS for SB 1430
       
       
        
       By the Committees on Appropriations; and Banking and Insurance;
       and Senator Burgess
       
       
       
       
       576-03556-22                                          20221430c2
    1                        A bill to be entitled                      
    2         An act relating to insolvent insurers; amending s.
    3         624.4073, F.S.; revising a prohibition against certain
    4         insolvent insurers’ former officers or directors
    5         serving as officers or directors of an insurer or
    6         having direct or indirect control over certain
    7         selection or appointment of officers or directors, to
    8         allow such activities unless the Office of Insurance
    9         Regulation enters a specified order; amending s.
   10         627.072, F.S.; providing required factors to be used
   11         in the determination and fixing of rates for premiums
   12         paid to insolvent insurers for specified coverages;
   13         amending s. 631.57, F.S.; authorizing insurers
   14         remitting assessments to the Florida Insurance
   15         Guaranty Association, Incorporated, to elect not to
   16         recoup advances; specifying requirements for insurers
   17         electing not to recoup; revising a requirement for
   18         information regarding assessment percentages which
   19         must be specified by the Office of Insurance
   20         Regulation in orders levying assessments; authorizing
   21         the association to request that orders levying
   22         assessments issued by the office authorize a certain
   23         installment frequency for the remittance of advance
   24         payments by insurers; revising the requirement that
   25         certain insurers make payments, rather than initial
   26         payments, on a certain basis; requiring insurers to
   27         make quarterly payments to the association under
   28         certain circumstances; revising insurer reconciliation
   29         reporting requirements; providing reconciliation
   30         requirements for surcharges collected from
   31         policyholders; requiring insurers to treat the failure
   32         of an insured to pay a surcharge, rather than a
   33         recoupment charge, as a failure to pay the premium;
   34         revising construction; amending s. 631.914, F.S.;
   35         revising provisions relating to insurers’ collection
   36         of surcharges and payments of assessments to the
   37         Florida Workers’ Compensation Insurance Guaranty
   38         Association, Incorporated; providing an effective
   39         date.
   40          
   41  Be It Enacted by the Legislature of the State of Florida:
   42  
   43         Section 1. Section 624.4073, Florida Statutes, is amended
   44  to read:
   45         624.4073 Officers and directors of insolvent insurers.—Any
   46  person who was an officer or director of an insurer doing
   47  business in this state and who served in that capacity within
   48  the 2-year period before the date the insurer became insolvent,
   49  for any insolvency that occurs on or after July 1, 2002, may not
   50  thereafter serve as an officer or director of an insurer
   51  authorized in this state or have direct or indirect control over
   52  the selection or appointment of an officer or director through
   53  contract, trust, or by operation of law, unless the office
   54  enters an order pursuant to s. 624.310 demonstrating that the
   55  officer or director demonstrates that his or her personal
   56  actions or omissions of the officer or director were not a
   57  significant contributing cause to the insolvency.
   58         Section 2. Subsection (1) of section 627.072, Florida
   59  Statutes, is amended to read:
   60         627.072 Making and use of rates.—
   61         (1) As to workers’ compensation and employer’s liability
   62  insurance, the following factors must shall be used in the
   63  determination and fixing of rates:
   64         (a) The past loss experience and prospective loss
   65  experience within and outside this state;
   66         (b) The impact resulting from the past loss experience and
   67  prospective loss experience for insurers whose data are missing
   68  from statewide experience due to insolvency. Prior reported data
   69  for such insurers and all other relevant information may be used
   70  to assess the impact on rates;
   71         (c) The conflagration and catastrophe hazards;
   72         (d)(c) A reasonable margin for underwriting profit and
   73  contingencies;
   74         (e)(d) Dividends, savings, or unabsorbed premium deposits
   75  allowed or returned by insurers to their policyholders, members,
   76  or subscribers;
   77         (f)(e) Investment income on unearned premium reserves and
   78  loss reserves;
   79         (g)(f) Past expenses and prospective expenses, both those
   80  countrywide and those specifically applicable to this state; and
   81         (h)(g) All other relevant factors, including judgment
   82  factors, within and outside this state.
   83         Section 3. Paragraphs (c) and (f) through (i) of subsection
   84  (3) of section 631.57, Florida Statutes, are amended to read:
   85         631.57 Powers and duties of the association.—
   86         (3)
   87         (c) The Legislature finds and declares that all assessments
   88  paid by an insurer or insurer group as a result of a levy by the
   89  office, including assessments levied pursuant to paragraph (a)
   90  and emergency assessments levied pursuant to paragraph (e),
   91  constitute advances of funds from the insurer to the
   92  association. An insurer may fully recoup such advances by
   93  applying the uniform assessment percentage levied by the office
   94  to all policies of the same kind or line as were considered by
   95  the office in determining the assessment liability of the
   96  insurer or insurer group as set forth in paragraph (f). An
   97  insurer remitting an assessment to the association as required
   98  by subparagraph (f)1. or subparagraph (f)2. may elect not to
   99  recoup advances.
  100         1. Assessments levied under subparagraph (f)1. are paid
  101  before policy surcharges are collected and result in a
  102  receivable for policy surcharges collected in the future. This
  103  amount, to the extent it is likely that it will be realized,
  104  meets the definition of an admissible asset as specified in the
  105  National Association of Insurance Commissioners’ Statement of
  106  Statutory Accounting Principles No. 4. The asset must shall be
  107  established and recorded separately from the liability
  108  regardless of whether it is based on a retrospective or
  109  prospective premium-based assessment. If an insurer is unable to
  110  fully recoup the amount of the assessment because of a reduction
  111  in writings or withdrawal from the market, the amount recorded
  112  as an asset must shall be reduced to the amount reasonably
  113  expected to be recouped. If an insurer elects not to recoup, the
  114  amount recorded as an asset must be reduced to zero.
  115         2. Unless an insurer elects not to recoup, assessments
  116  levied under subparagraph (f)2. are paid after policy surcharges
  117  are collected so that the recognition of assets is based on
  118  actual premium written offset by the obligation to the
  119  association. If an insurer elects not to recoup, no asset shall
  120  be recorded.
  121         (f)1. The association, office, and insurers remitting
  122  assessments pursuant to paragraph (a) or paragraph (e) must
  123  comply with the following:
  124         a. In the order levying an assessment, the office shall
  125  specify the actual percentage amount to be advanced to the
  126  association and thereafter collected uniformly from all the
  127  policyholders of insurers subject to the assessment and the date
  128  on which the assessment year begins, which may not begin before
  129  90 days after the association board certifies such an
  130  assessment.
  131         b. Insurers shall make an initial payment to the
  132  association before the beginning of the assessment year on or
  133  before the date specified in the order of the office. Each
  134  insurer shall have at least 30 days’ written notice as to the
  135  date on which the initial assessment payment is due and payable.
  136  The association may request that the order issued by the office
  137  authorize insurers to remit the advance payments in four
  138  quarterly installments.
  139         c. Insurers that have written insurance in the calendar
  140  year before the year in which the assessment is certified by the
  141  board shall make payments an initial payment based on the direct
  142  written premium in this state for the classes protected by the
  143  account from the previous calendar year as set forth in the
  144  insurer’s annual statement, multiplied by the uniform percentage
  145  of premium specified in the order issued by the office. Insurers
  146  that have not written insurance in the previous calendar year in
  147  any of the lines under the account which are being assessed, but
  148  which are writing insurance as of, or after, the date the board
  149  certifies the assessment to the office, shall pay an amount
  150  based on a good faith estimate of the amount of direct written
  151  premium anticipated to be written in the subject lines of
  152  business for the assessment year, multiplied by the uniform
  153  percentage of premium specified in the order issued by the
  154  office.
  155         d. Insurers shall file one or more a reconciliation reports
  156  report with the association which indicate indicates the amount
  157  of the initial payment to the association before the assessment
  158  year, whether such amount was based on direct written premium
  159  contained in a previous calendar year annual statement or a good
  160  faith projection, the amount actually collected during the
  161  assessment year, and such other information contained on a form
  162  and schedule adopted by the association and provided to the
  163  insurers in advance. If the insurer collected from policyholders
  164  more surcharges than the amount initially paid, the insurer
  165  shall pay the excess amount to the association. If the insurer
  166  collected surcharges from policyholders in an amount that which
  167  is less than the amount initially paid to the association, the
  168  association shall credit the insurer that amount against future
  169  assessments. Such payment reconciliation report, and any payment
  170  of excess amounts collected from policyholders, shall be
  171  completed and remitted to the association within 90 days after
  172  the end of the assessment year. The association shall send a
  173  final reconciliation report on all insurers to the office within
  174  120 days after each assessment year.
  175         e. Insurers remitting reconciliation reports under this
  176  paragraph to the association are subject to s. 626.9541(1)(e).
  177         2. For assessments required under paragraph (a) or
  178  paragraph (e), the association may use a quarterly installment
  179  method instead of the method described in sub-subparagraphs 1.b.
  180  and c. or in combination thereof based on the association’s
  181  projected cash flow. If the association projects that it has
  182  cash on hand for the payment of anticipated claims in the
  183  applicable account for at least 6 months, the board may make an
  184  estimate of the assessment needed and may recommend to the
  185  office the assessment percentage that may be collected as a
  186  quarterly assessment. The office may, in the order levying the
  187  assessment on insurers, specify that the assessment is due and
  188  payable quarterly as the funds are collected from insureds
  189  throughout the assessment year, in which case the assessment
  190  shall be a uniform percentage of premium collected during the
  191  assessment year and shall be collected from all policyholders
  192  with policies in the classes protected by the account. All
  193  insurers shall collect the assessment without regard to whether
  194  the insurers reported premium in the year preceding the
  195  assessment. Insurers are not required to advance funds if the
  196  association and the office elect to use the quarterly
  197  installment option. All funds collected shall be retained by the
  198  association for the payment of current or future claims. This
  199  subparagraph does not alter the obligation of an insurer to
  200  remit assessments levied pursuant to this subsection to the
  201  association. Notwithstanding this subparagraph, an insurer may
  202  elect not to collect from policyholders, in which case such
  203  insurer must make quarterly payments to the association equal to
  204  the amount of premium written in the previous quarter for
  205  policies in the classes protected by the account multiplied by
  206  the uniform percentage of premium set forth in the order levying
  207  the assessment. Insurers shall file one or more reconciliation
  208  reports with the association which indicate the amount actually
  209  collected during the assessment year and such other information
  210  using a form and schedule adopted by the association and
  211  provided to the insurers in advance.
  212         (g) Insurers shall treat the failure of an insured to pay a
  213  surcharge recoupment charge as a failure to pay the premium.
  214         (h) Assessments levied under this subsection are levied
  215  upon insurers. This subsection does not create a cause of action
  216  by a policyholder with respect to the levying of, or a
  217  policyholder’s duty to pay, such assessments and related
  218  surcharges.
  219         (i) Assessments levied under this subsection are not
  220  premium and are not subject to the premium tax, to any fees, or
  221  to any commissions. An insurer is liable for any surcharges
  222  emergency assessments that the insurer collects and shall treat
  223  the failure of an insured to pay an emergency assessment as a
  224  failure to pay the premium. An insurer is not liable for
  225  uncollectible surcharges emergency assessments.
  226         Section 4. Paragraphs (c) and (d) of subsection (1) and
  227  paragraph (c) of subsection (4) of section 631.914, Florida
  228  Statutes, are amended to read:
  229         631.914 Assessments.—
  230         (1)
  231         (c) The office shall levy the uniform surcharge percentage
  232  on all policies of the same kind or line as were considered by
  233  the office in determining the assessment liability of the
  234  insurer. Member insurers shall collect policy surcharges at a
  235  uniform percentage rate on new and renewal policies issued and
  236  effective during the assessment year period of 12 months
  237  beginning on January 1, April 1, July 1, or October 1, whichever
  238  is the first day of the following calendar quarter as specified
  239  in an order issued by the office. The policy surcharge may not
  240  begin until 90 days after the board of directors certifies the
  241  assessment.
  242         (d) The association may use a pass-through an installment
  243  method to require the insurer to remit the policy surcharge as
  244  collected or may require the insurer to remit the assessment to
  245  the association before collecting the policy surcharge.
  246         1. If the association elects to use the pass-through
  247  installment method, the office may, in the order levying the
  248  assessment on insurers, specify that the policy surcharge is due
  249  and payable quarterly as collected throughout the assessment
  250  year. Insurers shall collect policy surcharges at a uniform
  251  percentage rate specified by order as described in paragraph
  252  (c). Insurers are not required to advance funds if the
  253  association and the office elect to use the pass-through
  254  installment option. Assessments levied under this subparagraph
  255  are paid after policy surcharges are collected, and the
  256  recognition of assets is based on actual policy surcharges
  257  collected offset by the obligation to the association.
  258         2. If the association elects to require insurers to remit
  259  the assessment before surcharging the policy, the following
  260  shall apply:
  261         a. On or before the date specified in the order of the
  262  office, insurers shall make an initial advance payment to the
  263  association of the percentage specified in the order multiplied
  264  by the insurer’s direct written premiums received in this state
  265  for the preceding calendar year for the kinds of insurance
  266  included within such account before the beginning of the
  267  assessment year. The board may authorize an insurer to pay an
  268  assessment in a single payment or on a quarterly basis, based on
  269  cash-flow needs.
  270         b. The levy order shall provide each insurer so assessed at
  271  least 30 days’ written notice of the date the initial assessment
  272  payment is due and payable by the insurer.
  273         c. Insurers shall collect policy surcharges at a uniform
  274  percentage rate specified by the order, as described in
  275  paragraph (c).
  276         d. Assessments levied under this subparagraph and paid by
  277  an insurer constitute advances of funds from the insurer to the
  278  association and result in a receivable for policy surcharges to
  279  be billed in the future. The amount of billed policy surcharges,
  280  to the extent it is likely that it will be realized, meets the
  281  definition of an admissible asset as specified in the National
  282  Association of Insurance Commissioners’ Statement of Statutory
  283  Accounting Principles No. 4. The asset shall be established and
  284  recorded separately from the liability. If an insurer is unable
  285  to fully recoup the amount of the assessment, the amount
  286  recorded as an asset shall be reduced to the amount reasonably
  287  expected to be recouped.
  288         3. Insurers must submit a reconciliation report to the
  289  association within 120 days after the end of the 12-month
  290  assessment year period and annually thereafter for a period of 2
  291  3 years. The report must indicate the amount of the initial
  292  payment or installment payments made to the association and the
  293  amount of policy surcharges collected for the assessment year.
  294  If the insurer’s reconciled obligation is more than the amount
  295  paid to the association, the insurer shall pay the excess policy
  296  surcharges collected to the association. If the insurer’s
  297  reconciled obligation is less than the initial amount paid to
  298  the association, the association shall return the overpayment to
  299  the insurer.
  300         (4)
  301         (c)The board may allow an insurer to pay an assessment on
  302  a quarterly basis.
  303         Section 5. This act shall take effect July 1, 2022.