Opening week of the 2021 Legislative Session
We open Bill Watch on the eve of the 60-day Florida legislative session with a $100 million commitment to combat sea-level rise from House Speaker Chris Sprowls, whose district is flood central – Pinellas and Pasco Counties on the Gulf Coast. Couple that with the Governor’s previous announcement that he’d like to spend $1 billion over the next four years on resiliency projects, and it certainly sounds like we might one day stop the most damaging flooding in Florida.
Speaker Sprowls held a news conference on Friday to detail what he calls a “suite of bills” that would:
- Give a property tax break to people who elevate their homes;
- Set-aside up to $100 million a year eventually for local governments to mitigate effects of rising sea levels; and
- Create a “Statewide Flooding and Sea Level Rise Resilience Plan” updated annually by the Department of Environmental Protection.
The proposed property tax break would come from exempting the value of any mitigation improvements made to a property and would require voter approval as a constitutional amendment next year. The Governor has talked about using the $100 million a year instead for debt service to issue bonds for resiliency projects. The money would come from real estate documentary stamp tax set-asides for land and water conservation. The Speaker’s proposals would likely fall under one omnibus bill.
After a weeklong break, Florida legislative committees are back at work today. Tomorrow morning, the full legislature meets to begin its annual 60-day session, starting with the Governor’s State of the State address at 11am. As we noted last week, the normal festivities and interaction will be dampened this year because of the coronavirus pandemic’s safety precautions.
Here is a master list of the legislative bills we’re following so far in the 60-day session (you can click the bill link to go directly to its details farther below). “New” and “Updated” bills are so noted. Updates within each bill are now noted in blue font:
Contingency Risk Multipliers
Residential Property Insurance
Offers of Judgment
Litigation Financing Consumer Protection New
Consumer Protection Updated
Citizens Property Insurance Corporation New
Insurance Policies
Credit for Reinsurance Updated
Civil Liability for COVID-19 Damages Updated
COVID-19-related Claims Against Health Care Providers Updated
Motor Vehicle Insurance (PIP) Updated
Demand Letters for PIP
Motor Vehicle Insurance Coverage Exclusions Updated
Hurricane Loss Mitigation Program
Resiliency
Telehealth Practice Standards
Telehealth
Construction Defects
Florida Building Code Updated
Contingency Risk Multipliers – SB 212 by Senator Jeff Brandes (R-Pinellas) is a renewed attempt to put the brakes on a growing abuse of attorney fee awards. The bill provides that for certain attorney fees awarded for claims arising under property insurance policies, a strong presumption is created that a lodestar fee (billable hours x reasonable hourly rate) is sufficient and reasonable; and providing that such presumption may be rebutted only under certain circumstances, specifically “in a rare and exceptional circumstance with evidence that competent counsel could not be retained in a reasonable manner.” The bill passed the House last session but got hung up in the Senate. The bill awaits its first hearing. There is no identical bill in the House. (Return to Top of Page)
Residential Property Insurance – Comparable in some aspects to SB 212 is SB 76, which focuses on attorney fees and roof replacements. Sponsored by the Chairman of the Senate Banking and Insurance Committee, Senator Jim Boyd (R-Bradenton), the bill would require a notice of intent 60 days before initiating a lawsuit. It creates a “strong presumption” for a lodestar fee (billable hours x reasonable hourly rate) but award attorney fees based on the relationship between the plaintiff demand and final judgment. If the claimant recovers at least 80%, full attorney fees would be awarded; less than 20%, then there would be no attorney fees. Judgments between 20% and 80% would merit the same proportional attorney fee. The bill also attempts to thwart neighborhood roofing canvassers trying to use insurance policies to cover normal wear-and-tear. It would require insurance companies to provide full replacement for roofs under 10 years old and establish a reimbursement schedule for older roofs based on age and type of roof to pay actual cash value. A claim would have to be filed within two years (instead of the current three) and insurance companies would have the right to request inspection and photographs prior to work commencing.
SB 76 passed the Senate Banking and Insurance Committee on a 9-3 vote February 2 and now goes to the Judiciary Committee. Read more about that meeting here. Senator Brandes noted that 93% of claims come in after the first year of the event, with most fraud occurring in later years, with Senator Boyd saying that “two years is plenty of time to file a claim.” Both pointed to Texas and two other states that experienced these same problems and passed similar legislation to solve them. Under federal law, Boyd noted, contingency fee multipliers are awarded only in “rare and exceptional circumstances” when the lodestar fee would not have been “adequate to attract competent counsel.” Boyd said the Florida Supreme Court has not adopted the federal standard and has held there is no “rare and exceptional” circumstances requirement before a court can apply a contingency fee multiplier. “Reforming the multiplier will help consumers,” he said.
The Office of Insurance Regulation made a presentation in January showing that homeowners insurance companies will likely double their losses from 2019 to 2020. The combined ratios are above 100 for the third year in a row, with net underwriting losses in each of the past five years.
A comparable bill in the House, HB 305 by Rep. Bob Rommel (R-Collier) revises definitions of supplemental and reopened claims. It awaits its first hearing. (Return to Top of Page)
Offers of Judgment – SB 686 by Senator Jeff Brandes (R-Pinellas) would allow parties in a lawsuit to make an exclusive offer of judgment identifying the total amount of indemnity or damages and stipulating attorney fees and costs would be determined at a later date by the parties or the court. A party serving the offer would not be required to stipulate an amount offered for attorney fees and costs; the other party would have 30 days to challenge the validity of the offer. The bill had its first hearing on February 15 before the Senate Judiciary Committee, which Senator Brandes chairs. There was lengthy debate on an amendment to clarify language, but the bill ultimately passed on a 6-4 vote. Committee staff prepared this updated bill analysis afterward. The bill now goes before the Banking and Insurance Committee. There is no House companion bill. (Return to Top of Page)
(NEW) Litigation Financing Consumer Protection – SB 1750 is a second attempt by Senator Doug Broxson (R-Pensacola) to create a regulatory framework for litigation financiers who provide capital to firms who take cases on contingency, similar to a “factoring” company that buys receivables and pays an upfront, discounted fee for the right to assume the receivable at full value. A similar House bill, HB 1293 by Rep. Toby Overdorf (R-Stuart) was also filed last week; both await committee assignments. Senator Broxson’s bill last year never got a hearing; its counterpart in the House passed all three of its committees but was never heard by the full House and the Senate. (Return to Top of Page)
Consumer Protection – HB 717 by Rep. Chuck Clemons (R-Dixie & Gilchrist) attempts to go to the heart of insurance fraud in Florida – unlicensed and unregulated contractors. The bill prohibits unlicensed activity by an adjusting firm; prohibits a person from providing claims adjusting services unless the person meets specified requirements; and prohibits licensed contractors & subcontractors from engaging in certain activities unless licensed & compliant as public adjusters. The bill also provides disclosure requirements that insurance coverage must meet before being eligible for export under Surplus Lines Law; prohibits foreign venue clauses in property insurance policies; and provides penalties for a licensed bail bond agent or a temporary bail bond agent who knowingly engages in certain activities.
The bill also address life & health insurance lines. It authorizes regulators to disapprove use of insurance agency names containing words “Medicare” or “Medicaid” and prohibits life insurers from writing new policies of industrial life insurance beginning on a certain date. The bill is awaiting its first hearing. While not identical, a similar bill SB 1598 by Senator Joe Gruters (R-Sarasota) was filed last week in the Senate.
The issue of homeowners (and auto) fraud and unlicensed activity was brought up in a presentation to the Senate Judiciary Committee on February 1. Read more about that here. (Return to Top of Page)
(NEW) Citizens Property Insurance Corporation – SB 1574 by Senator Jeff Brandes (R-Pinellas) seeks to bring a more market-oriented approach to the state’s taxpayer-backed insurer of last resort in the face of reverse migration of policies back into Citizens over the past two years. The bill would revise the method for determining the amounts of potential surcharges to be levied against policyholders under certain circumstances; specify a limit for agent commission rates; and provide that eligible surplus lines insurers may participate, in the same manner and on the same terms as an authorized insurer, in depopulation, take-out, or keep-out programs relating to policies removed from Citizens. It would also authorize information from underwriting files and confidential claims files to be released by the corporation to specified entities considering writing or underwriting risks insured by the corporation under certain circumstances. The bill was filed last week and is awaiting committee assignments. There is no identical House bill yet. (Return to Top of Page)
Insurance Policies – SB 742 seeks to fix a number of issues in insurance law and regulation. The bill, sponsored by Senator Keith Perry (R-Gainesville) would redefine “covered policy” under the Florida Hurricane Catastrophe Fund in relation to certain collateral protection insurance policies; specify when service of process is valid and binding upon insurers; specify the entities that must receive requests for loss run statements; limit loss run statement requests with respect to group health insurance policies to group policyholders; and authorize, rather than require, rate filings for certain residential property insurance to include certain rate factors. The bill is awaiting its first hearing. An identical House bill, HB 815 by Rep. Tommy Gregory (R-Bradenton) is awaiting its first hearing. (Return to Top of Page)
(NEW) Credit for Reinsurance – SB 728 by Senator Doug Broxson (R-Pensacola) and the identical bill HB 733 by Rep. Elizabeth Fetterhoff (R-DeLand) adopt provisions of the NAIC Credit for Reinsurance Model Law, which is based on negotiations between U.S, EU, and UK regulators. It eliminates additional collateral requirements for reinsurers if the reinsurer is domiciled in a “reciprocal jurisdiction.” Capital and surplus requirements and solvency or capital ratio requirements would be determined by administrative rule. The bill requires the assuming insurer to notify the Florida Office of Insurance Regulation (OIR) if it falls below minimum requirements and agree to be bound by the jurisdiction of Florida courts and pay all final judgments. There are also OIR reporting requirements. You can read the bill analysis here. The Senate bill is scheduled to be heard before the Judiciary Committee tomorrow at 1:30 pm, its second of three committee stops. The House bill is awaiting its first hearing in the Insurance & Banking Subcommittee. (Return to Top of Page)
Civil Liability for COVID-19 Damages ̶ HB 7 by Rep. Lawrence McClure (R-Plant City) and the identical SB 72 by Senator Jeff Brandes (R-Pinellas) are meant to provide businesses and institutions civil immunity from lawsuits so long as they acted in good faith to substantially comply in following coronavirus health precautions. The bills provide requirements for a civil action based on a COVID-19-related claim; provide that the plaintiff has the burden of proof in such action; and provide a statute of limitations, severability, and retroactive applicability. The bills also require a finding of gross negligence and apply a tougher clear and convincing evidence standard. The bills excludes healthcare providers, which are addressed instead in SB 74 (see next Bill Watch item).
The Senate bill is scheduled to be heard tomorrow at 1:30 pm before the Commerce and Tourism Committee.
The House bill now goes to the full House for a vote, possibly as soon as this week, although it’s no longer identical to the Senate version. It passed the Judiciary Committee February 16 on a 14-7 vote after heated debate at times over a series of amendments. Rep. McClure won approval of an amendment that clarifies that in cases where existing multiple health guidelines exist, a business would need show only that it substantially complied with one of them. Two other McClure amendments also passed, including one reducing the proposed statute of limitations to one year to file an action.
Six amendments filed by Democrats that opposed the bill were denied debate and all temporarily postponed on procedural grounds. Read more about that here. (Return to Top of Page)
COVID-19-related Claims Against Health Care Providers ̶ SB 74 by Senator Jeff Brandes (R-Pinellas) would do for healthcare workers and facilities what HB 7 (see above) does for businesses and organizations: protect them from liability lawsuits relating to the coronavirus so long as government-issued health standards were substantially and properly followed. The bill provides preliminary procedures for civil actions based on COVID-19-related claims; provides the standard of proof required at trial for such claims (gross negligence or intentional misconduct, instead of simply negligence); provides immunity from liability for COVID-19-related claims under certain circumstances, such as unavailability of personnel or supplies; and requires COVID-19-related claims to commence within a specified timeframe, among other things. The bill is scheduled to be heard this Wednesday at noon before the Health Policy Committee, its second of three committee stops.
The House bill, HB 7005 by the House Health and Human Services Committee and Chair Colleen Burton (R-Lakeland) will be heard tomorrow at 4 pm by the House Pandemics & Public Emergencies Committee, its second of three stops. The bills have some key differences. The Senate bill covers lawsuits for injuries that occur up to a year after the end of a declared state or federal health emergency and is seen as broader in the types of liability claims that would be limited. The House bill reduces the statute of limitations on medical malpractice claims involving COVID from two years to one year; has an added good faith provision allowing judges to make the call whether defendants were immune from liability; and has a sunset provision one year and a day after becoming effective. Like HB 7 for regular businesses and organizations, this bill also requires a plaintiff – for non-medical negligence claims against healthcare providers – have a signed affidavit from a physician attesting COVID transmission came from the defendant. (Return to Top of Page)
Motor Vehicle Insurance (PIP) ̶ This is a perennial effort to do away with Personal Injury Protection (PIP) coverage under Florida’s No-Fault insurance law and replace it with bodily injury (BI) liability coverage. Similar bills failed the last several sessions. SB 54 by Senator Danny Burgess (R- Zephyrhills) would replace the current $10,000 in PIP which covers anyone’s medical bills in an accident and replace it with BI coverage for those other than the driver, with a minimum amount of $25,000 for one injury/death and $50,000 for two or more injuries/deaths. It passed the Banking and Insurance Committee on January 26 where a bad faith amendment was added that would establish standards for third-party claimants. A dispute between the Senate and House about such bad faith provisions sank last year’s effort.
This year’s House bill HB 719 by Rep. Erin Grall (R-Vero Beach) is similar to SB 54 but has no bad faith provision. It has a bunch of other measures, including revising garage liability insurance requirements, requirements on transportation network companies such as Uber and their drivers and vehicle owners, as well as financial responsibility requirements for owners or lessees of for-hire passenger transportation vehicles. The bill is awaiting its first hearing before the Civil Justice & Property Rights Subcommittee.
SB 54 went before the Senate Judiciary Committee on February 15 where these changes were made:
- Low-income motorists and students would be offered reduced coverage of $15,000 for one injury/death and $30,000 for two injuries/deaths.
- Insurance companies would be allowed to offer policies with deductibles up to $200 for windshield repairs, as a disincentive to some auto-glass businesses that offer free gift cards to motorists who agree to questionable repairs and replacements.
The committee passed the bill on a 7-2 vote. It awaits a hearing before the Rules Committee, its last stop before going to the Senate floor.
Last week, the Florida Office of Insurance Regulation issued a report at the request of the Commerce Committee, noting that auto premiums continue to increase across all coverages in Florida. The report includes additional information on the potential impact that changes to PIP could have on premiums. (Return to Top of Page)
Demand Letters for PIP ̶ HB 237 by Rep. Keith Truenow (R-Tavares) requires written notice of intent to initiate litigation for relief related to Personal Injury Protection (PIP) benefits. It also revises requirements for demand letter for PIP benefits and prohibits actions by & prosecutions on behalf of claimants unless certain requirements are met. The bill awaits its first hearing. There is no identical Senate bill. (Return to Top of Page)
Motor Vehicle Insurance Coverage Exclusions ̶ HB 273 by Rep. Scott Plakon (R-Longwood) creates a named driver exclusion. It provides private passenger motor vehicle policies may exclude identified individuals from specified coverages and provides exceptions. It is awaiting its first hearing. It has an identical Senate companion in SB 420 by Senator Hooper, which is scheduled to have its first hearing before the Banking and Insurance Committee on Wednesday at 9:30 am. (Return to Top of Page)
Hurricane Loss Mitigation Program – SB 168 by Senator Ed Hooper (R- Pinellas) continues a controversial program that while on its face appears to “harden” mobile homes from the threat of hurricanes, it has been questioned by many mitigation experts who have said the effectiveness of the $2 million annual program is doubtful. We will keep a close eye on this bill in hopes the legislature will ask for concrete data to show the results of this appropriation post Hurricane Irma. The bill unanimously passed the Senate Banking and Insurance Committee February 2 and awaits its next hearing before the Community Affairs Committee. A similar bill, HB 423, by Rep. Kaylee Tuck (R-Sebring) passed unanimously February 17 in the House Pandemics & Public Emergencies Committee and awaits its second hearing before the Insurance & Banking Subcommittee. (Return to Top of Page)
Resiliency ̶ SB 514 by Senator Ray Rodrigues (R-Lee) establishes the Statewide Office of Resiliency within the Governor’s Office. It also creates the Statewide Sea-Level Rise Task Force within the resiliency office and authorizes the Department of Environmental Protection to contract for specified services, upon request of the task force. It also requires the Environmental Regulation Commission to take certain action on the task force’s recommendations. This bill contains an appropriation of $500,000. A similar proposal passed the Senate in 2020 but failed to get through House committees. The bill passed the Senate Environment and Natural Resources Committee unanimously on February 15 and awaits its second stop before the Appropriations Subcommittee on Agriculture, Environment, and General Government. An identical House companion in HB 315 is awaiting its first hearing. (Return to Top of Page)
Telehealth Practice Standards – HB 247 by Rep. Tom Fabricio (R-Hialeah) and Rep. Mike Giallombardo (R-Cape Coral) revises the definition of “telehealth” and would allow providers to prescribe controlled substances during telehealth visits. It and an identical Senate bill, SB 660 by Senator Manny Diaz (R-Hialeah) await their first hearing. (Return to Top of Page)
Telehealth – SB 700 by Senator Ana Maria Rodriguez (R-Doral) would require the Agency for Health Care Administration to reimburse the use of telehealth services under certain circumstances and with certain limitations; authorize telehealth providers to prescribe specified controlled substances under certain circumstances; authorize out-of-state physician telehealth providers to engage in formal supervisory relationships with certain non-physician health care practitioners in this state; authorize registered pharmacy technicians to compound and dispense medicinal drugs under certain circumstances; and exempt certain registered pharmacy technicians from specified prohibitions. The bill passed unanimously on February 17 in the Senate Health Policy Committee. It now awaits a hearing in the Appropriations Subcommittee on Health and Human Services, its second of three stops. House bill HB 247 (above) is considered comparable for requiring similar AHCA reimbursement. (Return to Top of Page)
(NEW) Construction Defects – SB 270 by Senator Keith Perry (R-Gainesville) revises and expands the mandatory procedures governing how construction defects disputes are resolved. The bill would define the term “material violation” in a warranty and require that a person submit a construction defect claim to the warranty provider before bringing a cause of action; require that a claimant submit a construction defect claim to the warranty provider before serving a notice of claim; authorize a person served with a copy of a notice of claim to perform a reasonable inspection of the property subject to the claim; require, instead of authorize, a person served with a notice to serve a copy of the notice to specified persons under certain circumstances, among other changes. You can read the bill analysis here. The bill passed the Senate Judiciary Committee on February 15 on a 9-1 vote and awaits a hearing in the Community Affairs Committee, it’s second of three stops.
In the House, a similar bill, HB 21 by Rep. Alex Andrade (R-Pensacola) would also require a claimant to notify a mortgagee or assignee within a specified timeframe after settlement. You can read the bill analysis here. The bill narrowly passed the Civil Justice & Property Rights Subcommittee on a 10-8 vote on February 17 and now awaits a hearing in the Regulatory Reform Subcommittee, its second of three stops. (Return to Top of Page)
Florida Building Code – HB 401 by Rep. Elizabeth Fetterhoff (R-DeLand) exempts assisted living facilities from compliance with rules relating to lifeguard standards; authorizes substantially affected person to file petition with the Florida Building Commission to review local government regulations and provides requirements for such petition; provides requirements for the commission when considering petition; requires the commission to issue nonbinding advisory opinion within a specified timeframe; authorizes the commission to issue errata to code; prohibits local government from requiring certain contracts for issuance of building permit; and requires evaluation entities that meet certain criteria to comply with certain standards. The bill is scheduled to have its first hearing tomorrow at 1pm before the House Regulatory Reform Subcommittee. An identical Senate Bill SB 1146 by Senator Jason Brodeur (R-Lake Mary) is awaiting its first committee hearing. (Return to Top of Page)
LMA Newsletter of 3-1-21
