Amendment No. 2 - PCS for CS/CS/HB 895 (Commerce Committee, 2020)

Summary

Amendment No. 2 to PCS for CS/CS/HB 895 (2020), offered by Representative Santiago for the Commerce Committee, an amendment with title amendment. It removes lines 44-243 and inserts text on a notice to the department, which is to be on a form provided by the department and to state with specificity the statutory provision allegedly violated and the facts and circumstances giving rise to the violation. It provides that no action shall lie if, within 60 days after the insurer receives filing notice from the department, the damages are paid or the circumstances giving rise to the violation are corrected. The title amendment refers to pre-suit notice in motor vehicle personal injury protection claims.

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                                          COMMITTEE/SUBCOMMITTEE AMENDMENT
                                     Bill No. PCS for CS/CS/HB 895   (2020)
       Amendment No. 2




            COMMITTEE/SUBCOMMITTEE ACTION
       ADOPTED                         (Y/N)
       ADOPTED AS AMENDED              (Y/N)
       ADOPTED W/O OBJECTION           (Y/N)
       FAILED TO ADOPT                 (Y/N)
       WITHDRAWN                       (Y/N)
       OTHER


1      Committee/Subcommittee hearing bill:    Commerce Committee
2      Representative Santiago offered the following:
3
4           Amendment (with title amendment)
5           Remove lines 44-243 and insert:
6      the insurer under s. 624.422. The 60 days shall begin tolling
7      when the department receives an e-mail notice of receipt from
8      the insurer.
9           (b)    The notice shall be on a form provided by the
10     department and shall state with specificity the following
11     information, and such other information as the department may
12     require:
13          1.    The statutory provision, including the specific
14     language of the statute, which the authorized insurer allegedly
15     violated.


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16          2.    The facts and circumstances giving rise to the
17     violation.
18          3.    The name of any individual involved in the violation.
19          4.    Reference to specific policy language that is relevant
20     to the violation, if any. If the person bringing the civil
21     action is a third party claimant, she or he shall not be
22     required to reference the specific policy language if the
23     authorized insurer has not provided a copy of the policy to the
24     third party claimant pursuant to written request.
25          5.    A statement that the notice is given in order to
26     perfect the right to pursue the civil remedy authorized by this
27     section.
28          6. Proof of the insured's legal liability and damages which
29     have become clear with supporting documentation.
30          (c)1.   No action shall lie if, within 60 days after the
31     insurer receives filing notice from the department in accordance
32     with this subsection, the damages are paid or the circumstances
33     giving rise to the violation are corrected.
34          2.    A third-party claimant shall have no action under sub-
35     paragraph (1)(b)1. if:
36          a.    There is a single claimant in a liability claim and the
37     insurer offers the lesser of policy limits or the claimant's
38     demand prior to the end of the 60 days, including the period
39     prior to the 60 days; or


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       Amendment No. 2


40          b.    If there are two or more claimants in a liability claim
41     making claims arising out of a single occurrence which in total
42     exceed the available policy limits of one or more of the insured
43     parties who may be liable to the claimants, an insurer is not
44     liable beyond the available policy limits for failure to pay all
45     or any portion of the available policy limits to one or more of
46     the claimants, if within 90 days after receiving notice of the
47     second claim or during the 60 days the insurer files an
48     interpleader action under the Florida Rules of Civil Procedure.
49     The claimants are entitled to a prorated share of the policy
50     limits as determined by the trier of fact. An insurer's
51     interpleader action does not alter or amend the insurer's
52     obligation to defend its insured. Upon disbursement of
53     interplead funds, claimants who receive said funds shall execute
54     releases in favor of the insured party or parties.
55          (d)    The authorized insurer that is the recipient of a
56     notice filed pursuant to this section shall report to the
57     department on the disposition of the alleged violation.
58          (e)    The applicable statute of limitations for an action
59     under this section shall be tolled for a period of 60 65 days
60     after the insurer receives from the department by the mailing of
61     the notice required by this subsection or the mailing of a
62     subsequent notice required by this subsection.




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63          (f)    A notice required under this subsection may not be
64     filed within 60 days after appraisal is invoked by any party in
65     a residential property insurance claim.
66          (10)    The insured, claimant, or representative of the
67     insured or claimant has a duty to act in good faith in
68     furnishing information regarding the claim, in making demands of
69     the insurer, in setting deadlines, and in attempts to settle a
70     claim. This duty does not create a separate cause of action and
71     may only be used as a defense against damages awarded pursuant
72     to this subsection. It shall be a defense to a claim of bad
73     faith that the claimant, claimant's representative or the
74     insured failed to make good faith efforts to cooperate with the
75     insurer in the investigation of the claim.
76          Section 2.    Subsection (2) of section 624.422, Florida
77     Statutes, is amended to read:
78          624.422    Service of process; appointment of Chief Financial
79     Officer as process agent.—
80          (2)    Prior to its authorization to transact insurance in
81     this state, each insurer shall file with the department
82     designation of the name and address of the person to whom
83     process against it served upon the Chief Financial Officer is to
84     be forwarded. Each insurer shall also file with the department
85     designation of the name and e-mail address of the person to whom
86     the department shall forward civil remedy notices filed under s.


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87      624.155. The insurer may change a the designation at any time by
88      a new filing.
89           Section 3.    Subsection (10) of section 627.736, Florida
90      Statutes, is amended to read:
91           627.736    Required personal injury protection benefits;
92      exclusions; priority; claims.—
93           (10)    DEMAND LETTER.—
94           (a)    As a condition precedent to filing any action for
95      benefits or related relief under this section, written notice of
96      an intent to initiate litigation must be provided to the
97      insurer. Such notice may not be sent until the claim is overdue,
98      including any additional time the insurer has to pay the claim
99      pursuant to paragraph (4)(b).
100          (b)    The notice must state that it is a "demand letter
101     under s. 627.736" and state the following with specificity:
102          1.     The name of the insured on whose behalf upon which such
103     benefits are being sought and, if the claimant is not the
104     insured, the notice shall include, including a copy of the
105     assignment signed by the insured prior to the delivery of any
106     such treatment, service or accommodation, and giving rights to
107     the claimant to seek benefits if the claimant is not the
108     insured.
109          2.     The claim number and or policy number upon which such
110     claim was originally submitted to the insurer by either the
111     claimant or the insured.
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112          3.   Where To the extent applicable, the name of any medical
113     provider who rendered to an insured the treatment, services,
114     accommodations, or supplies that form the basis of such claim
115     against the insurer. The notice shall be accompanied by; and an
116     itemized statement identifying each treatment, service or
117     accommodation provided to the insured, and shall specify for
118     each such treatment, service or accommodation on a line item
119     basis as previously billed to the insurer specifying each exact
120     amount, the date of each treatment, service, or accommodation,
121     the CPT code, and the amount charged, and the amount paid type
122     of benefit claimed to be due. A completed form satisfying the
123     requirements of paragraph (5)(d) or the lost-wage statement
124     previously submitted, as applicable, shall be included with may
125     be used as the itemized statement. To the extent that the demand
126     involves an insurer's withdrawal of payment under paragraph
127     (7)(a) for future treatment not yet rendered, the claimant shall
128     attach a copy of the insurer's notice withdrawing such payment
129     and an itemized statement of the type, frequency, and duration
130     of future treatment claimed to be reasonable and medically
131     necessary.
132          4.   The identification of all line items that the claimant
133     contends to be in dispute because of an insurer's non-payment or
134     underpayment, the legal or factual basis for the claimant's
135     position that the insurer's underpayment payment or non-payment
136     is incorrect, the CPT code, and the amount that the clamant
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137     contends that the insurer is required to pay to fully resolve
138     the dispute, including the specific amount of the statutory
139     penalty, interest and postage to be paid pursuant to paragraphs
140     (d) and (e).
141          5.   To the extent that an insurer has denied a claim on the
142     basis that benefits are exhausted, the notice shall specify any
143     treatment, service or accommodation that claimant contends to
144     have been improperly paid, the amount of the asserted improper
145     payment, and the amount that the insurer is required to pay to
146     claimant to resolve the dispute.
147          (c) If the claimant contends that the insured had an
148     emergency medical condition, the notice shall be accompanied by
149     documentation demonstrating that the insured to whom the
150     treatment, services or accommodation was provided sustained an
151     emergency medical condition.    The documentation shall be from a
152     provider identified in sub-paragraphs (1)(a)1. or (1)(a)2.
153          (d)(c)    Each notice required by this subsection must comply
154     with the requirements of paragraphs (b) and (c) and must be
155     delivered to the insurer by United States certified or
156     registered mail, return receipt requested. A notice that does
157     not comply with the requirements of paragraphs (b) and (c) shall
158     not trigger an insurer's obligations under (e). Such postal
159     costs shall be reimbursed by the insurer if requested by the
160     claimant in the notice, when the insurer pays the claim. Such
161     notice must be sent to the person and address specified by the
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162     insurer for the purposes of receiving notices under this
163     subsection. Each licensed insurer, whether domestic, foreign, or
164     alien, shall file with the office the name and address of the
165     designated person to whom notices must be sent which the office
166     shall make available on its Internet website. The name and
167     address on file with the office pursuant to s. 624.422 is deemed
168     the authorized representative to accept notice pursuant to this
169     subsection if no other designation has been made.
170          (e)(d)   If, within 30 days after receipt of notice by the
171     insurer, the overdue claim specified in a the notice that
172     complies with paragraphs (b) and (c) is paid by the insurer
173     together with applicable interest and a penalty of 10 percent of
174     the overdue amount paid by the insurer, subject to a maximum
175     penalty of $250, no action may be brought against the insurer.
176     If the demand involves an insurer's withdrawal of payment under
177     paragraph (7)(a) for future treatment not yet rendered, no
178     action may be brought against the insurer if, within 30 days
179     after its receipt of the notice, the insurer mails to the person
180     filing the notice a written statement of the insurer's agreement
181     to pay for such treatment in accordance with the notice and to
182     pay a penalty of 10 percent, subject to a maximum penalty of
183     $250, when it pays for such future treatment in accordance with
184     the requirements of this section. To the extent the insurer
185     determines not to pay any amount demanded, the penalty is not
186     payable in any subsequent action. For purposes of this
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187     subsection, payment or the insurer's agreement shall be treated
188     as being made on the date a draft or other valid instrument that
189     is equivalent to payment, or the insurer's written statement of
190     agreement, is placed in the United States mail in a properly
191     addressed, postpaid envelope, or if not so posted, on the date
192     of delivery. The insurer is not obligated to pay any attorney
193     fees if the insurer pays the claim or mails its agreement to pay
194     for future treatment within the time prescribed by this
195     subsection.
196          (f)(e)   The applicable statute of limitation for an action
197     under this section shall be tolled for 30 business days by the
198     mailing of a the notice required by this subsection.
199          (g)   No action shall be filed or prosecuted by or on behalf
200     of a claimant seeking benefits or related relief against an
201     insurer:
202          1. If a compliant notice is not sent to an insurer;
203          2. The insurer issued full payment to the claimant in
204     response to a notice within the time frame prescribed by
205     paragraph (e); or
206          3. Asserting a claim of non-payment or underpayment of
207     benefits not identified in the notice.
208
209     Any action filed or prosecuted by or on behalf of a claimant
210     seeking benefits or related relief under this section in
211     violation of this paragraph shall entitle an insurer to recover
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212     its reasonable legal fees, costs and disbursements related to
213     the defense of any such action against the claimant and its
214     counsel.
215
216           -----------------------------------------------------
217                       T I T L E    A M E N D M E N T
218          Remove lines 18-31 and insert:
219     with insurers' investigations; creating an affirmative defense
220     where the insured or claimant has acted in bad faith; amending
221     s. 624.422, F.S., requiring insurers to file with the department
222     certain contact information for service of process; amending s.
223     627.736, F.S.; specifying information required as part of a pre-
224     suit notice in motor vehicle personal injury protection claims;
225     requiring information relating to treatment and services
226     provided to claimants; requiring the identification of payments
227     in dispute; requiring claimants to comply with notice
228     requirements; prohibiting relief to claimants in certain
229     circumstances; awarding attorney's fees in certain
230     circumstances; providing an




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