INSURANCE GUARANTY ASSOCIATION ACT
631.90
Repealed. Laws 1997, ch. 97-262, § 30, eff.
631.901
"
631.902
Purpose of provisions
631.903
Construction; plan of operation
631.904
Definitions
631.905
Repealed. Laws 1997, ch. 97-262, § 30, eff.
631-91
Repealed. Laws 1997, ch.
97-262, § 30, eff.
631.911
Merger of state funds;
members; powers and duties
631.912
Members of the board of
directors; interim board
631.913
Obligation on covered
claims
631.914
Assessments of
insurers
631.915
Repealed. Laws 1997, ch.
97-262, § 30, eff.
631.916
Plan of operation;
amendments
631.917
Detection and
prevention of insolvencies
631.918
Immunity from
liability
631.919
Prohibited
inducements
631.92
Repealed. Laws 1997, ch.
97-262, § 30, eff.
631.921
Annual Report
631.922
Member's liability for
unpaid claims
631.923
Assignment of rights to
association; settlement of covered claims
631.924
Stay of proceedings;
default judgment
631.925
Repealed. Laws 1997, ch.
97-262, § 30, eff.
631.926
Attorney's
fees
631.927
Liability for certified
pulpwood dealers self-insurers fund claims
631.928
Establishment of
association's account
631.929
Rights to
remedies
631.93
Repealed. Laws 1997, ch.
97-262, § 30, eff.
631.931
Confidentiality of reports
631.932
Negotiations
631.935 to 631.995 Repealed. Laws 1997, ch.
97-262, § 30, eff.
631.996
Renumbered as §
631.928. Laws 1997, ch. 97-262, § 23
631.997
Renumbered as §
631.931. Laws 1997, ch. 97-262, § 25
631.998
Renumbered as §
631.932. Laws 1997, ch. 97-262, § 26
§ 631.90
Repealed. Laws 1997, ch. 97-262, § 30, eff.
§ 631.901
"
This part may be cited
as the "
History: Added by Laws 1997, c.
97-262, § 20, eff.
§ 631.902 Purpose of
provisions
The purposes of this
part are to:
(1)
Create a not-for-profit
Florida Workers' Compensation Insurance Guaranty Association, Incorporated, to
provide a mechanism for the payment of covered claims under chapter 440 to avoid
excessive delay in payment and to avoid financial loss to claimants because of
the insolvency of a member insurer.
(2)
Assist in the detection
and prevention of insurer insolvencies.
(3)
Allocate the cost of
such protection among the insurers.
(4)
Provide for the prompt
payment by the corporation of workers' compensation claims incurred by insolvent
insurers.
History: Added by Laws 1997, c.
97-262, § 20, eff.
§ 631.903
Construction; plan of operation
The statutes
controlling the corporation shall be construed liberally to achieve the purposes
stated in § 631.902. The
corporation shall perform its functions under a plan of operation established by
its board of directors and approved by the department.
History:
Added
by Laws 1997, c. 97-262, § 20, eff.
§ 631.904
Definitions
As used in this part,
the term:
(1)
"Corporation" means the
Florida Workers' Compensation Insurance Guaranty Association,
Incorporated.
(2)
"Covered claim" means
an unpaid claim, including a claim for return of unearned premiums, which arises
out of, is within the coverage of, and is not in excess of the applicable limits
of, an insurance policy to which this part applies, which policy was issued by
an insurer and which claim is made on behalf of a claimant or insured who was a
resident of this state at the time of the injury. The term “covered claim” does not
include any amount sought as a return of premium under any retrospective rating
plan; any amount due any
reinsurer, insurer, insurance pool, or underwriting association, as subrogation
recoveries or otherwise; or any return of premium resulting from a policy that
was not in force on the date of the final order of liquidation. Member insurers have no right of
subrogation against the insured of any insolvent insurer. This provision shall be applied
retroactively to cover claims of an insolvent self-insurance fund resulting from
accidents or losses incurred prior to
(3)
"Insolvency" means that
condition in which all of the assets of the insurer, if made immediately
available, would not be sufficient to discharge all of its liabilities or that
condition in which the insurer is unable to pay its debts as they become due in
the usual course of business. When
the context of any provision of this part so indicates, insolvency also includes
impairment of surplus or impairment of capital.
(4)
"Insolvent insurer"
means an insurer that was authorized to transact insurance in this state, either
at the time the policy was issued or when the insured event occurred, and
against which an order of liquidation with a finding of insolvency has been
entered by a court of competent jurisdiction if such order has become final by
the exhaustion of appellate review.
(5)
"Insurer" means an
insurance carrier or self-insurance fund authorized to insure under chapter
440. For purposes of this act,
"insurer" does not include a qualified local government self-insurance fund, as
defined in § 624.4622, or an individual self-insurer as defined in §
440.385.
(6)
"Self-insurance fund"
means a group of self-insurance fund authorized under § 624.4621, a commercial
self-insurance fund writing workers' compensation insurance authorized under §
624.462, or an assessable mutual insurer authorized under § 628.6011. For purposes of this act,
"self-insurance fund" does not include a qualified local government
self-insurance fund, as defined in § 624.4622, or an individual self-insurer as
defined in § 440.385.
History: Added by Laws 1997, c.
97-262, § 20, eff.
§§ 631.905, 631-91
Repealed. Laws 1997, ch.
97-262, § 30, eff.
§ 631.911
Merger of state funds; members; powers and
duties
(1)
(a) The Florida Self-Insurance Fund Guaranty
Association established in part V of chapter 631 and the workers' compensation
insurance account, which includes excess workers' compensation insurance,
established in § 631.55(2)(a) shall be merged in accordance with the plan of
operation adopted by the interim board of directors. The successor nonprofit corporation
shall be known as the "
(b)
Upon the effective date
of the merger:
1.
The Florida
Self-Insurance Fund Guaranty Association and the workers' compensation insurance
account within the Florida Insurance Guaranty Association cease to exist and are
succeeded by the Florida Workers' Compensation Insurance Guaranty
Association.
2.
Title to all assets of
any description, all real estate and other property, or any interest therein,
owned by each party to the merger is vested in the successor corporation without
reversion or impairment.
3.
The successor
corporation shall be responsible and liable for all the liabilities and
obligations of each party to the merger.
4.
Any claim existing or
action or proceeding pending by or against any party to the merger may be
continued as if the merger did not occur or the successor corporation may be
substituted in the proceeding for the corporation or account which ceased
existence.
5.
Neither the rights of
creditors nor any liens upon the property of any party to the merger shall be
impaired by such merger.
6.
Outstanding assessments
levied by the Florida Self-Insurance Guaranty Association or the Florida
Insurance Guaranty Association on behalf of the workers' compensation insurance
account remain in full force and effect and shall be paid when
due.
(2)
All insurers must be
members of the corporation as a condition of their authority to offer workers'
compensation coverage in this state.
An insurer must reimburse the corporation for all funds advanced to the
insurer and all claim payments the insurer makes on the insured's behalf if the
insurer, having been placed in rehabilitation receivership, is subsequently
rehabilitated.
(3)
The corporation shall
perform its functions under a plan of operation and shall exercise its powers
through a board of directors. Upon
adoption of a plan of operation for the corporation, the board shall manage the
Florida Workers' Compensation Insurance Guaranty Association
Account.
(4)
The corporation has all
powers granted or allowed to not-for-profit corporations under chapter 617, in
addition to other powers granted in this section.
History: Added by Laws 1997, c.
97-262, § 20, eff.
§ 631.912
Members of the board of directors; interim
board
(1)
The board of directors
of the corporation shall consist of 11 persons, 1 of whom is the Insurance
Consumer Advocate appointed under § 627.0613 or designee and 1 of whom is
designated by the Chief Financial Officer.
The department shall appoint to the board 6 persons selected by private
carriers from among the 20 workers' compensation insurers with the largest
amount of net direct written premiums as determined by the department, and 3
persons selected by the self-insurance funds. At least two of the private carriers
shall be foreign carriers authorized to do business in this state. The board shall elect a chairperson from
among its members. The Chief
Financial Officer may remove any board member for cause. Each board member shall serve for a
4-year term and may be reappointed.
A vacancy on the board shall be filled for the remaining period of the
term in the same manner by which the original appointment was
made.
(2)
Members of the board
may be reimbursed from the assets of the corporation for actual and reasonable
out-of-pocket expenses incurred by them as members of the board of directors;
however, members of the board may not otherwise be compensated by the
corporation for their services.
History: Added by Laws 1997, c.
97-262, § 20, eff.
§ 631-913
Obligation on covered claims
(1)
The corporation is
obligated to the extent of the full amount of the covered
claims:
(a)
Existing before the
adjudication of insolvency and arising within 30 days after the determination of
insolvency;
(b) Existing before the
policy expiration date if less than 30 days after the determination of
insolvency; or
(c)
Existing before the
insured replaces the policy or causes its cancellation, if the insured does so
within 30 days after the determination of insolvency.
Notwithstanding such criteria, the corporation's obligation for a covered claim for the return of unearned premium shall not exceed $50,000 per policy. In addition, the corporation is not obligated to a policyholder or claimant in an amount in excess of the obligation of the insolvent insurer under the policy from which the claim arises.
(2)
The corporation is
considered to be the insurer to the extent of its obligation on the covered
claims, and, to such extent, has all rights, duties, and obligations of the
insolvent insurer as if the insurer had not become insolvent. The corporation is not liable for any
penalties or interest.
(3)
The corporation
may:
(a)
Employ or retain such
persons as are necessary to handle claims and perform other duties of the
corporation.
(b)
Borrow funds necessary
to effect the purposes of this part in accordance with
the plan of operation.
(c)
Sue or be sued. Service of process in such legal actions
must be made upon the person registered with the department as agent for the
receipt of service of process.
(d) Enter into such contracts as are necessary to carry out the purpose of this part.
(4) The corporation
may assist and advise the department, when appropriate, concerning
rehabilitation, payment of claims, continuance of coverage, or the performance
of other contractual obligations of any impaired or insolvent insurer. The corporation may also assist and
advise departments of insurance of other states; other guaranty associations;
and conservators, rehabilitators, and receivers appointed or acting in regard to
any member insured wherever located, for the purpose of developing plans to
coordinate protection of policyholders.
Costs of such activities may be charged against the Florida Workers'
Compensation Insurance Guaranty Association Account at the discretion of the
board of directors, notwithstanding any other provision of this
act.
(4)
The corporation shall
have standing to appear before any court in this state which has jurisdiction
over an impaired or insolvent insurer to which the corporation is or may become
obligated under this act. Such
standing shall extend to all matters germane to the powers and duties of the
corporation, including but not limited to, proposals for reinsuring or
guaranteeing the covered policies of the impaired or insolvent insurer and the
determination of the covered policies and contractual
obligations.
(5)
State funds may not be
allocated or paid to the corporation.
History: Added by Laws 1997, c.
97-262, § 20, eff.
§ 631.914
Assessments of insurers
(1)(a) To the extent necessary to secure the
funds for the payment of covered claims, and also to pay the reasonable costs to
administer the same, the department, upon certification by the board, shall levy
assessments on each insurer in the proportion that the insurer's net direct
written premiums in this state bears to the total of said net direct written
premiums received in this state by all such workers' compensation insurers for
the preceding calendar year.
Assessments shall be remitted to and administered by the board of
directors in the manner specified by the approved plan of operation. The board shall give each insurer so
assessed at least 30 days' written notice of the date the assessment is due and
payable. Each assessment shall be a
uniform percentage applicable to the net direct written premiums of each insurer
writing workers' compensation insurance.
1.
Beginning
2.
Beginning
3. Beginning July 1, 2003, assessments levied against insurers and self-insurance funds pursuant to this paragraph are computed and levied on the basis of the full policy premium value on the net direct premiums written in the state for workers' compensation insurance during the calendar year next preceding the date of the assessment without taking into account any applicable discount or credit for deductibles. Insurers and self-insurance funds must report premiums in compliance with this subparagraph.
(b) Assessments shall be
included as an appropriate factor in the making of rates.
(c)
1. Effective July 1, 1999, if assessments
otherwise authorized in paragraph (a) are insufficient to make all payments on
reimbursements then owing to claimants in a calendar year, then upon
certification by the board, the department shall levy additional assessments of
up to 1.5 percent of the insurer's net direct written premiums in this state
during calendar year next preceding the date of such assessments against
insurers to secure the necessary funds.
(2) To assure that insurers paying
assessments levied under this paragraph continue to charge rates that are
neither inadequate nor excessive, each insurer that is to be assessed pursuant
to this paragraph, or a licensed rating organization to which the insurer
subscribes, may make, within 90 days after being notified of such assessments, a
rate filing for workers' compensation coverage pursuant to §§ 627.072 and
627.091. If the filing reflects a
percentage rate change equal to the difference between the rate of such
assessment and the rate of the previous year's assessment under this paragraph,
the filing shall consist of a certification so stating and shall be deemed
approved when made. Any rate change
of a different percentage shall be subject to the standards and procedures of §§
627.072 and 627.091.
(2)(a) The board may exempt any insurer from an
assessment if, in the opinion of the department, an assessment would result in
such insurer's financial statement reflecting an amount of capital or surplus
less than the minimum amount required by any jurisdiction in which the insurer
is authorized to transact insurance.
(b)
The board may
temporarily defer, in whole or in part, assessments against an insurer if, in
the opinion of the department, payment of the assessment would endanger the
ability of the insurer to fulfill its contractual obligations. In the case of a self-insurance fund,
the trustees of the fund determined to be endangered must immediately levy an
assessment upon the members of that self-insurance fund in an amount sufficient
to pay the assessments to the corporation.
(c)
The board may allow an
insurer to pay an assessment on a quarterly basis.
History: Added by Laws 1997, c.
97-262, § 20, eff.
§ 631.915
Repealed. Laws 1997, ch. 97-262, § 30, eff.
§ 631.916 Plan
of operation; amendments
The board of
directors shall prepare and submit to the department a plan of operation and any
amendments to the plan which are necessary or suitable to assure the fair,
reasonable, and equitable administration of the corporation. The plan of operation and any amendments
to the plan shall become effective unless disapproved in writing by the
department within 30 days after receipt.
If the corporation fails to submit a plan of operation within 90 days
after the appointment of the new board, the department shall implement a plan of
operation which will be effective until the board submits a plan of
operation. The plan of operation
prepared by the board is subject to periodic review by the department. All member insurers shall comply with
the approved plan of operation. The
plan of operation must, in addition to the requirements enumerated elsewhere in
this part:
(1)
Establish procedures
for handling the assets of the corporation.
(2)
Establish regular
places and times for meetings of the board of directors.
(3)
Establish procedures
for keeping records of all financial transactions of the corporation, its
agents, and the board of directors.
(4)
Establish procedures
for levying and collecting assessments and deficiency
surcharges.
(5)
Establish procedures to
allow injured workers to make claims and to adjust and pay such
claims.
(6)
Establish additional
provisions necessary or proper for executing the powers and duties of the
association.
History: Added by Laws 1997, c.
97-262, § 20, eff.
§ 631.917
Detection and prevention of insolvencies
To aid in the detection
and prevention of insolvencies or impairments:
(1)(a) The board may make reasonable and lawful
investigation into the practices of any third-party administrator or service
company for a self-insurance fund declared insolvent by the
court.
(b)
If the results of an
investigation reasonably lead to a finding that certain actions taken or not
taken by those handling, processing, or preparing covered claims for payment or
other benefit pursuant to any workers' compensation insurance policy,
contributed to the insolvency of an insurer, such information may, in the
discretion of the board, be provided to the department or office in an expedited
manner.
(2)
The board of directors
may make reports and recommendations to the department or office upon any matter
germane to the solvency, liquidation, rehabilitation, or conservation of any
member insurer or germane to the solvency of any insurer seeking to do insurance
business in this state.
(3)
The board of directors,
in its discretion, may notify the office of any information indicating that any
member insurer may be in an impaired or insolvent insurer.
(4)
The board of directors,
in its discretion, may request that the office order an examination of any
member insurer which the board in good faith believes may be an impaired or
insolvent insurer. Within 30 days
after receipt of such a request, the office shall begin such an
examination. The examination may be
conducted as a National Association of Insurance Commissioners examination or
may be conducted by such persons as the office designates. The cost of such examination shall be
paid by the corporation and the examination report shall be treated in a manner
similar to other examination reports pursuant to § 624.319. In no event may such examination report
be released to the board of directors before its release to the public, but this
requirement does not preclude the office from complying with § 631.398(2). The office shall notify the board of
directors when the examination is completed. The request for an examination shall be
kept on file by the office.
(5)
The board is authorized
to assist and aid the department or office, in any manner consistent with
existing laws and this chapter, in the department's or office’s investigation or
referral for prosecution of those whose action or inaction may have contributed
to the impairment or insolvency of the insurer.
(6)
The board may make
recommendations to the office for the detection and prevention of insurer
insolvencies.
History: Added by Laws 1997, c. 97-262, § 20,
eff.
§ 631.918
Immunity from liability
There is no liability on the part of, and a cause of action may not arise against, the corporation, its agents or employees, or members of the board of directors, the Chief Financial Office, or the department or office or their agents or employees, for any action taken by them in the performance of their powers and duties under this section, unless such action is found to be a violation of antitrust laws, was in bath faith, or was undertaken with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.
History: Added by Laws 1997, c. 97-262, § 20,
eff.
§ 631.919
Prohibited inducements
A person may not
make publish, disseminate, advertise, circulate, or place before the public, or
cause, directly or indirectly, to be made, published, disseminated, circulated,
or placed before the public, in any print, television, or broadcast media, or in
any circular, letter, pamphlet, or publication of any kind, a statement or
announcement that uses the existence of the Florida Workers' Compensation
Insurance Guaranty Association, Incorporated, to induce an employer to purchase
membership in or insurance from a member insurer.
History: Added by Laws 1997, c. 97-262, § 20,
eff.
§ 631.92
Repealed. Laws 1997, ch. 97-262, § 30, eff.
§ 631.921
Annual report
The corporation shall be subject to examination by the department. By March 1 of each year, the board of directors shall cause a financial report to be filed with the department for the immediately preceding calendar year in a form approved by the department.
History: Added by Laws 1997, c. 97-262, § 20,
eff.
§ 631.922
Member's liability for unpaid claims
This act may not be construed to reduce the liability of a member of an impaired self-insurance fund for the member's liability under § 624.4621 or 624.476.
History: Added by Laws 1997, c. 97-262, § 20,
eff.
§ 631.923
Assignment of rights to association; settlement of covered
claims
(1) Any person who recovers under this part is considered to have assigned his or her rights under the policy to the corporation to the extent of his or her recovery from the corporation. Every insured or claimant seeking the protection of this part shall cooperate with the corporation to the same extent as the insured or claimant would have been required to cooperate with the insolvent insurer. The corporation has no cause of action against the insured of the insolvent insurer for any sums the insured has paid out except such causes of action as the insolvent insurer would have had if the sums had been paid by the insolvent insurer.
(2) The receiver, liquidator, or statutory successor of an insolvent insurer is bound by settlements of covered claims by the corporation. The court having jurisdiction shall grant such claims priority equal to that to which the claimant would have been entitled, in the absence of this part, against the assets of the insolvent insurer. The expenses of the association or similar organization in handling claims must be accorded the same priority as the liquidator's expenses.
(3) The corporation shall periodically file with the receiver or liquidator of the insolvent insurer statements of the covered claims paid by the corporation and estimates of anticipated claims on the corporation, which shall preserve the rights of the corporation against the assets of the insolvent insurer.
(4) Any release of the corporation and its insured must clearly state whether or not any claim filed with the receiver in excess of the liability of the corporation under § 631.57 is waived.
History: Added by Laws 1997, c. 97-262, § 20,
eff.
§ 631.924 Stay
of proceedings; default judgment
All proceedings in which the insolvent insurer or self-insurance fund is a party or is obligated to defend a party in any court or before any quasi-judicial body or administrative board in this state must be stayed for 6 months, or such additional period from the date the insolvency is adjudicated, by a court of competent jurisdiction to allow proper defense by the association of all pending causes of action as to any covered claims. The stay may be extended for a period of time greater than 6 months upon proper application to a court of competent jurisdiction. The association, either on its own behalf or on behalf of the insured, may apply to have any judgment, order, decision, verdict or finding based on the default of the insolvent insurer or self-insurance fund or its failure to defend an insured set aside by the same court or administrator that made the judgment, order, decision, verdict or finding and may defend against the claim on the merits. If the association so requests, the stay of proceedings may be shortened or waived.
History: Added by Laws 1997, c. 97-262, § 20,
eff.
§ 631.925
Repealed. Laws 1997, ch. 97-262, § 30, eff.
§ 631.926
Attorney's fees
The provisions of § 627.428 providing for an attorney's fee are inapplicable to any claim presented to the corporation under this part, unless the corporation denies, by affirmative action other than delay, a covered claim or a portion thereof.
History: Added by Laws 1997, c. 97-262,
§ 20, eff.
§ 631.927
Liability for certified pulpwood dealers self-insurers fund
claims
Notwithstanding § 631.913, the corporation shall assume the liability for the payment of the workers' compensation indemnity and medical benefits that are due to claimants covered by the Certified Pulpwood Dealers Self-Insurers Fund. The corporation shall assess the former members of the Certified Pulpwood Dealers Self-Insurers Fund pursuant to the provisions of this act.
History: Added by Laws 1997, c. 97-262, §20,
eff.
§ 631.928
Establishment of association's account
Notwithstanding the provisions of § 215.3207, the Florida Workers' Compensation Insurance Guaranty Association Account is hereby created, to be managed by the Florida Workers' Compensation Insurance Guaranty Association. Funds shall be credited to the fund as provided in chapter 93-415, Laws of Florida, or similar legislation, to be used for the purposes set forth therein.
History: § 1, ch. 93-424; renumbered from § 631.996, Laws 1997 c. 97-262, § 23, eff.
§ 631.929
Rights to remedies
An injured worker who has a date of accident which occurred before January 1, 1994, and is not receiving benefits due under chapter 440 due to the insolvency of a self-insurance fund or its successors, regardless of the date declared insolvent by the court, may elect to seek medical care, treatment, and attendance, and compensation required under §§ 440.15 and 440.16 from the corporation and forego the remedy to seek benefits from his or her employer or the insolvent self-insurance fund. An employee who so elects may be required to obtain medical care, treatment, and attendance through a managed care plan comporting with the requirement of § 440.134 if the plan of operation so provides. An injured worker has 60 days to seek benefits from the corporation upon ratification by the corporation of his or her right to elect a remedy under this part. If the injured worker elects to pursue his or her remedy under the provisions of this part, the corporation may, with the agreement of the injured employee, pay a lump-sum payment in exchange for the corporation's and employer's release from liability for future medical and compensation expenses, as well as any other benefit provided under chapter 440. However, there shall be no entitlement to attorney's fees, penalties, interest or costs to be paid on any claim presented to the corporation under this part. This section shall not create any cause of action against any employer who purchased workers' compensation insurance coverage pursuant to § 440.38.
History: Added by Laws 1997, c.
97-262, § 24, eff
§ 631.93
Repealed. Laws 1997, ch. 97-262, § 30, eff.
§ 631.931
Confidentiality of reports
Reports and recommendations made by the Board of Directors of the Florida Workers' Compensation Insurance Guaranty Association under § 631.917 upon any matter germane to the solvency, liquidation, rehabilitation, or conservation of any member insurer are confidential and exempt from the provisions of § 119.07(1) and § 24(a), Art. I of the State Constitution until the termination of a delinquency proceeding.
History: § 1, ch.
93-423; § 389, ch. 96-406; renumbered from § 631.997,
§§ 25, 27, ch. 97-262, eff.
§ 631.932
Negotiations
Negotiations held between an insurer and the Florida Workers' Compensation Insurance Guaranty Association are exempt from the provisions of § 286.011 and § 24(b), Art. I of the State Constitution. Documents related to such negotiations that reveal identifiable payroll and loss and individual claim information are confidential and exempt from the provisions of § 119.07(1) and § 24(a), Art. I of the State Constitution.
History: § 2, ch.
93-423; § 390, ch. 96-406; renumbered from § 631.998,
§§ 26, 27, ch. 97-262, eff.
§§ 631.935 to 631.995 Repealed. Laws 1997, ch.
97-262, § 30, eff.
§ 631.996
Renumbered as § 631.928.
Laws 1997, ch. 97-262, § 23
§ 631.997
Renumbered as § 631.931.
Laws 1997, ch. 97-262, § 25
§ 631.998 Renumbered as § 631.932. Laws 1997, ch. 97-262, § 26