American Insurance Ass'n v. Florida Department of Insurance

657 So. 2d 951, 1995 Fla. App. LEXIS 7542
CourtDistrict Court of Appeal of Florida
DecidedJuly 17, 1995
DocketNos. 94-1927; 94-1934; 94-2959 and 94-3244
StatusPublished

This text of 657 So. 2d 951 (American Insurance Ass'n v. Florida Department of Insurance) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
American Insurance Ass'n v. Florida Department of Insurance, 657 So. 2d 951, 1995 Fla. App. LEXIS 7542 (Fla. Ct. App. 1995).

Opinion

PER CURIAM.

We have for review consolidated appeals from an immediate final order (IFO) of the Florida Department of Insurance (the department), and from a final order of the Division of Administrative Hearings holding valid the department’s amendment to Florida Administrative Code Rule 4J-2.002. Because the IFO and the rule amendment improperly require the Florida Property and Casualty Joint Underwriting Association (FPCJUA) to provide windstorm coverage in geographic areas eligible for such coverage through the Florida Windstorm Underwriting Association (FWUA), and because the IFO and rule amendment improperly construe section 627.351(5)(a)l.g.(I), Florida Statutes (Supp.1994), to authorize blanket coverage through the FPCJUA for all risks within the risk classifications specified therein, we reverse both orders.

The department promulgated a post-Hurricane Andrew amendment to rule 4J-2.002. The rule codifies the department’s IFO. The amended rule provides in pertinent part as follows:

Adoption of Property and Casualty Risk Apportionment Plan.
(1) The Florida Property and Casualty Joint Underwriting Association Plan of Operation, as amended April, 1991, and Articles of the Association are hereby adopted as the Plan for property and casualty insurance risk apportionment in Florida and incorporated by reference.
(2) The Florida Property and Casualty Joint Underwriting Association (FPCJUA) Plan of Operation, as amended in April 1991, and as previously adopted by rule of the Department effective 8-13-89, shall be further modified as set out below in this rule.
[953]*953(3) Special Temporary Eligibility of Commercial Residential Risks.
(a) Subsection 627.351(5)(a)l.a., F.S., provides that as to insurance coverages required by law, a risk shall be deemed eligible for FPCJUA coverage if the insurance “is unavailable in the voluntary market....”
(b) Insurance is required by law (s. 718.111(11), F.S.), to be acquired and maintained by condominium associations regarding common elements of the association.
(c) The Legislature, in the 1993 Special Session “C” (November 1993), in section 14 of Chapter 93^410, Laws of Florida, found: That the market conditions which this subsection [FPCJUA, 627.351(5) ] is intended to remedy have arisen with respect to coverage for condominium associations, apartment buildings, common elements of homeowners associations and other commercial coverages of residences. Therefore, coverage under this subsection is hereby activated for condominium associations, apartment buildings, common elements of homeowners associations and other commercial coverages of residences.
(d) The “market conditions” referred to by the Legislature in the above quotation from Chapter 93-AUO, Laws of Florida, and which the Legislature found to exist, is the condition specified in 627.351(5), that is, a condition wherein “persons with risks ... who are in good faith entitled to, but are unable to, obtain such property or casualty insurance coverage, including excess coverage, through the voluntary market.”
(e) The finding of the Legislature, in activating the FPCJUA for commercial residential coverages because such coverages are not available through the voluntary market, does likewise thereby on a blanket basis establish satisfaction of the eligibility requirement for such commercial residential coverages.
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(Emphasis added.)

The FPCJUA is composed of property and casualty insurers who sell property and casualty insurance in Florida. The amended rule and IFO require the FPCJUA, by force of the above-emphasized language, to provide insurance for all condominiums regardless of “eligibility” — exhaustion of the voluntary insurance market. Section 627.351(5), upon which the amended rule and IFO are purportedly based, provides in pertinent part as follows:

PROPERTY AND CASUALTY INSURANCE RISK APPORTIONMENT. — The department shall adopt by rule a joint underwriting plan to equitably apportion among insurers authorized in this state to write property insurance as defined in s. 624.604 or casualty insurance as defined in s. 624.605, the underwriting of one or more classes of property insurance or casualty insurance, except for the types of insurance that are included within property insurance or casualty insurance for which an equitable apportionment plan, assigned risk plan, or joint underwriting plan is authorized under s. 627.311 or subsection (1), subsection (2), subsection (3), or subsection (4) of this section and except for risks eligible for flood insurance written through the federal flood insurance program to persons with risks eligible under subparagraph (a)l. and who are in good faith entitled to, but are unable to, obtain such property or casualty insurance coverage, including excess coverage, through the voluntary market. For purposes of this subsection, an adequate level of coverage means that coverage which is required by state law or by responsible or prudent business practices. The Joint Underwriting Association shall not be required to provide coverage for any type of risk for which there are no insurers providing similar coverage in this state. The department may designate one or more participating insurers who agree to provide policyholder and claims service, including the issuance of policies, on behalf of the participating insurers.
(a) The plan shall provide:
1. A means of establishing eligibility of a risk for obtaining insurance through the plan, which provides that:
a. A risk shall be eligible for such property insurance or casualty insurance [954]*954as is required by Florida law if the insurance is unavailable in the voluntary market, including the market assistance program and the surplus lines market.
b. A commercial risk not eligible under sub-subparagraph a. shall be eligible for property or casualty insurance if:
(I) The insurance is unavailable in the voluntary market, including the market assistance plan and the surplus lines market;
(II) Failure to secure the insurance would substantially impair the ability of the entity to conduct its affairs; and
(III) The risk is not determined by the Risk Underwriting Committee to be unin-surable.
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d.(l) In the event a risk is eligible under this paragraph and in the event the market assistance plan receives a minimum of 100 applications for coverage within a 3-month period, or 200 applications for coverage within a 1-year period or less, for a given class of risk contained in the classification system defined in the plan of operation of the Joint Underwriting Association, and unless the market assistance plan provides a quotation for at least 80 percent of such applicants, such classification shall immediately be eligible for coverage in the Joint Underwriting Association.
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g. (I)

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Related

American Ins. Ass'n v. Florida Dept. of Ins.
646 So. 2d 784 (District Court of Appeal of Florida, 1994)
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610 So. 2d 435 (Supreme Court of Florida, 1992)

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Bluebook (online)
657 So. 2d 951, 1995 Fla. App. LEXIS 7542, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-insurance-assn-v-florida-department-of-insurance-fladistctapp-1995.