The proposed amendment is intended to promote clarity and efficiency in the mediation of property insurance claims. Rule 69J-166.002, F.A.C., governs the mediation of commercial residential property insurance claims. Rule 69J-166.031, F.A.C., ...

 

DEPARTMENT OF FINANCIAL SERVICES

Division of Consumer Services

RULE NOS.:RULE TITLES:

69J-166.002Mediation of Commercial Residential Property Insurance Claims

69J-166.031Mediation of Residential Property Insurance Claims

PURPOSE AND EFFECT: The proposed amendment is intended to promote clarity and efficiency in the mediation of property insurance claims. Rule 69J-166.002, F.A.C., governs the mediation of commercial residential property insurance claims. Rule 69J-166.031, F.A.C., governs the mediation of residential property insurance claims. Both rules are being amended to do the following:

• Cross reference the new rule for approval of mediators for the program.

• Clarify that an insurer must make a claim determination before submitting a claim to mediation.

• Change the start date for the 21 days to resolve a claim before a mediation conference is held.

• Identify the website at which the mediation request form may be obtained.

• Specify that a mediation conference will be held within 15 miles of the insured property unless agreed otherwise by the parties.

• Provide various additional clarifications and minor revisions.

SUMMARY: New Rule Chapter 69B-250 for certification of mediators is referenced. Insurers must make a claim determination before submitting a claim to mediation. The twenty-one (21) day period to resolve a claim prior to mediation begins with the receipt of the request for mediation by the Department of Financial Services. A website is provided to obtain a mediation request form. The description “a reasonable proximity” is replaced with “15 driving miles” of the insured property as a description of the permissible location of a mediation in absence of agreement of the parties, and unless the Administrator provides a location.

SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS AND LEGISLATIVE RATIFICATION: The Agency has determined that this will not have an adverse impact on small business or likely increase directly or indirectly regulatory costs in excess of $200,000 in the aggregate within one year after the implementation of the rule. A SERC has not been prepared by the Agency.

The Agency has determined that the proposed rule is not expected to require legislative ratification based on the statement of estimated regulatory costs or if no SERC is required, the information expressly relied upon and described herein: The agency has performed an analysis of reasonably anticipated costs associated with the rule and found no significant impact on persons subject to the rule.

Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.

RULEMAKING AUTHORITY: 624.308(1), 626.9611, 627.7015(4) FS.

LAW IMPLEMENTED: 624.307(1), (2), (4), (5), 626.9541(1)(a), (e), (i), (u), 626.9561, 626.9581(1), 626.9641(1)(g), 627.7015 FS.

IF REQUESTED WITHIN 21 DAYS OF THE DATE OF THIS NOTICE, A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW (IF NOT REQUESTED, THIS HEARING WILL NOT BE HELD):

DATE AND TIME: January 7, 2016, 9:30 a.m.

PLACE: Room 139 Larson Building, 200 East Gaines Street, Tallahassee, Florida

Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 5 days before the workshop/meeting by contacting: Tasha Carter, telephone: [phone], email: [e-mail]. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).

THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Tasha Carter, Director, Division of Consumer Services, Department of Financial Services, address: 200 E. Gaines Street, Room 518A, Larson Building, Tallahassee, FL 32399-0321, telephone: [phone], email: [e-mail]

 

THE FULL TEXT OF THE PROPOSED RULE IS:

 

Chapter 69J-166, F.A.C.:  Property Insurance Claims

69J-166.002 Mediation of Commercial Residential Property Insurance Claims.

(1) No change.

(2) Definitions. The following definitions shall apply for purposes of this rule:

(a) No change.

(b) “Mediator” means an individual selected by the Department pursuant to Rule Chapter 69B-250, F.A.C. paragraph (7)(a) below.

(c) through (j) No change.

(3) No change.

(4) Claim Settlement.

(a) Notification of the right to mediate.

1. At the time a first-party claim which falls within the scope of this rule is filed by the policyholder, the insurer shall notify the policyholder of their right to participate in this program. An insurer is required to make the claim determination pursuant to Section 627.70131, F.S., before sending a notice of the right to mediate claims. An insurer is not required to send a notice of the right to mediate disputed claims when no payment has been made on a claim because the insurer concludes the amount of covered damages is less than the policyholder’s deductible.

2. Notification shall be in writing and shall be legible, conspicuous, printed in at least 12-point type, and printed in typeface no smaller than any other text contained in the notice. The first paragraph of the notice shall contain the following statement: “The Chief Financial Officer for the State of Florida has adopted a rule to facilitate the fair and timely handling of commercial residential property insurance claims. The rule gives you the right to attend a mediation conference with your insurer in order to settle any dispute you have with your insurer about your claim. An independent mediator, who has no connection with your insurer, will be in charge of the mediation conference. You can start the mediation process after receipt of this notice by calling the Department of Financial Services at [phone]. The parties will have 21 days from the date of the request is received by the Department notice to otherwise resolve the dispute before a mediation conference hearing can be scheduled.”

3. The notice shall also:

a. No Change.

b. State that the parties have 21 days from the date of the request is received by the Department notice within which to settle the claim before the Department will assign a mediator;

c. Include the insurer’s address and phone number for requesting additional information; and

d. State that the Administrator will select the mediator; .

e. Refer to the parties’ right to disqualify a mediator for good cause and paraphrase the definition of good cause as set forth in paragraph (7)(c) (e) of this rule; and .

f. No change.

4. No change.

(b) Request for Mediation.

1. By the Policyholder Insured. A policyholder An insured may request mediation by submitting a completed Form DFS-I1-1669, Commercial Residential Mediation Request Form (Revised 6/15), (Form DFS-I1-1669, Revised 2/09) which is hereby incorporated by reference, to the Department of Financial Services, Mediation Section, Bureau of Education, Advocacy, and Research, 200 East Gaines Street, Tallahassee, Florida 32399-4212. A copy of the request form can be obtained online at the following website:

http://www.myfloridacfo.com/Division/Consumers/Mediation/documents/DFS-I1-1669CommResMedRequest.pdf or by calling [phone]. If a policyholder an insured requests mediation prior to receipt of the notice of the right to mediation, the insurer shall be notified by the Department of the existence of the dispute 21 days prior to the Administrator processing the policyholder’s insured’s request for mediation. If an insurer receives a request for mediation, the insurer shall notify the Mediation Section within 3 business days 72 hours of receipt of the request by fax to [phone] or by email to Mediation [e-mail]. The Administrator shall notify the insurer within 3 business days 72 hours of receipt of requests filed with the Department. The policyholder insured should provide the following information, if known:

a. Name, address, e-mail address, and daytime telephone number of the policyholder insured and location of the property if different from the address given;

b. The claim and policy number for the policyholder insured;

c. through e. No change.

2. By an Insurer. An insurer may request mediation by submitting a completed Form DFS-I1-1669, Commercial Residential Mediation Request Form, as incorporated in Subparagraph 1. of this subsection, (Form DFS-I1-1669,Revised 2/09) to the Department of Financial Services, Mediation Section, Bureau of Education, Advocacy, and Research, 200 East Gaines Street, Tallahassee, Florida 32399-4212. A copy of the request form can be obtained online at the following website:

http://www.myfloridacfo.com/Division/Consumers/Mediation/documents/DFS-I1-1669CommResMedRequest.pdf or by calling [phone]. The insurer shall provide a copy of its written mediation request to the insured at the same time it submits the request to the Department. The written request should contain the information set forth in subparagraph (4)(b)1., if known. Mediation requests by insurers will be processed by the Administrator in the same manner as mediation requests by insureds.

(c) Upon receiving a request for mediation, and after the expiration of the 21 day resolution period, the Administrator shall randomly select from the Department’s list a mediator to conduct the mediation conference. The Administrator shall notify the mediator of his or her selection and indicate the names and addresses of the parties and their known representatives, their phone numbers (if known), the Department’s file number, the date of the request for mediation, and that the mediation is to occur within 21 45 days of assignment to the mediator request. The mediator will have three business days from the date of notification by the Administrator to accept or reject the selection. If the mediator rejects the selection or fails to accept the selection within three business days, or if the mediator is disqualified pursuant to paragraph (7)(c) (e), then the Administrator shall randomly select another mediator. For all mediation requests under this rule, the time limits in this section shall not be applicable for two years following the declaration of a disaster.

(5) No change.

(6) Mediation Costs. Pursuant to subsection Section 627.7015(3), F.S., the insurer shall bear all of the cost of conducting mediation conferences.

(a) through (d) No change.

(7) Mediators.

(a) Mediator Approval. The Bureau of Agent and Agency Licensing, Department of Financial Services, shall approve as mediators those persons who meet the qualifications set forth in Section 627.745(3)(b), F.S. Persons wishing to be approved as mediators shall submit their qualifications to the Bureau of Agent and Agency Licensing, Department of Financial Services, 200 East Gaines Street, Tallahassee, FL 32399-0319, on Form DI4-591, “Application for Appointment as a Mediator”, which is incorporated by reference in subsection 69B-211.002(30), F.A.C. For two years following the declaration of a disaster, this program may additionally utilize mediators selected from a panel of circuit court - civil certified mediators approved by the Florida Supreme Court pursuant to the Florida Rules of Certified and Court-Appointed Mediators.

(b) List of Approved Mediators. The Bureau of Agent & Agency Licensing, Department of Financial Services, shall maintain a list of all approved mediators, which list shall include the mediator’s name, address, telephone number, a listing of counties in which each mediator is willing to mediate, and date of entry to the list.

(c) through (d) renumbered (a) through (b)

(c)(e) Complaints; Discipline. At any time a party may move to disqualify a mediator for good cause. Good cause consists of a conflict of interest between a party and the mediator, that the mediator is unable to handle the conference competently, or other reasons that would reasonably be expected to impair the conference. Complaints concerning a mediator shall be written and submitted to the Department of Financial Services, Mediation Section, Bureau of Education, Advocacy and Education, 200 East Gaines Street, Tallahassee, Florida 32399-4212. The Department shall review the following grounds for discipline:

1. Alleged instances of dishonest, incompetent, fraudulent, or unethical behavior on the part of a mediator;

2. Instances in which the mediator allegedly failed to promptly and completely respond to requests from the Department and instances in which the actions or failure to act on the part of the mediator violate this rule, including the standards set forth in this subsection or are counter to the intent and purpose of this mediation program or this rule;

3. Administrative action by any other agency or body against the mediator, regardless of whether the agency or body’s regulation relates to mediation;

4. The mediator has been found guilty of or pled guilty or nolo contendere to a felony or a crime punishable by imprisonment of 1 year or more under the law of the United States of America or of any state thereof or under the law of any other country, without regard to whether a judgment of conviction has been entered by the court having jurisdiction of such cases.

If the Department determines that any of the above grounds exist, the Department shall institute proceedings in accordance with Chapter 120, F.S., to rescind the approval of the mediator to handle any mediation or arbitration program sponsored by the Department.

(8) Mediation Conference.

(a) Location.

1. The mediation conference shall be held at a reasonable location specified by the mediator within 15 driving  miles a reasonable proximity of the insured property, unless all parties agree otherwise, the Administrator assigns the location pursuant to this paragraph, or the mediation location is made available by the Administrator pursuant to paragraph 8(a)2 below. The mediation location shall provide a space with a door for private conversation as well as a separate space for caucusing. In times of declared disaster, the Administrator shall assign the mediation location and notify the mediator of same, if the Administrator determines such action is necessary to facilitate and expedite the mediation process.

2. through 5. No change.

(b) Timing and Continuances. The mediation conference shall be held as scheduled by the mediator. Upon application by any party to the mediator for a continuance, the mediator shall, for good cause shown or if neither party objects, grant a continuance and shall notify all parties and the Administrator of the date and place of the rescheduled conference. Good cause includes severe illness, injury, or other emergency which could not be controlled by the party and could not reasonably be remedied by the party prior to the conference by providing a replacement representative or otherwise. Good cause shall also include the necessity of obtaining additional information, securing the attendance of a necessary professional, or the avoidance of significant financial hardship. If the insured demonstrates to the mediator the need for an expedited mediation conference due to an undue hardship, the conference shall be conducted at the earliest date convenient to all of the parties and the mediator. Undue hardship will be demonstrated when holding the conference on a non-expedited basis would interfere with or contradict the treatment of a severe illness or injury, substantially impair a party’s ability to assert their position at the conference, result in significant financial hardship, or other reasonably justified grounds.

(c) through (e) No change.

(f) Documentation Required.

1. and 2. No change.

a. and b. No change.

c. For claims where there is damage to the structure of the building or foundation, a written, expert analysis of the damage to the property consistent with the standards required in subsections Sections 607.0830(2) and 617.0830(2), F.S.

d. No Change.

(g) Disposition. Mediators shall report to the Department on the status of property insurance mediation conferences by submitting Form DFS-I5-1971, “Disposition of Property Insurance Mediation Conference (Revised 2/15) (rev. 10/08), which is hereby incorporated by reference, and available from the Department of Financial Services, Mediation Section, Bureau of Education, Advocacy and Research, 200 East Gaines Street, Tallahassee, Florida 32399-4212. If the claim is settled prior to the mediation conference being held, the insurer shall report the outcome of the issue to the mediator prior to the scheduled hearing and the mediator will submit Form DFS-I5-1971 confirming the settlement. A mediation conference will not be considered complete and the Administrator will not bill the insurer until this form is submitted.

(9) Disbursement of Costs.

(a) No change.

1. No change.

2. No change.

a. If the insured fails to appear at the conference, the conference shall be considered to have been held, and the insurer must make payment in accordance with paragraph (6)(d)(a) of this rule. If the insured wishes to schedule a new conference after failing to appear, the insured shall pay a sum equal to the fees  paid by the insurer for the first scheduled mediation. This sum shall be applied towards the second mediation with the insurer paying the balance of the cost of that second mediation. The mediator's fee shall be payable directly to the mediator and the administrative fee shall be paid to the Administrator.

b. No change.

(b) No change.

(c) If the mediator fails to appear at the conference, the mediator shall hold a second conference at no fee to the insured or the insurer. If it is determined that the parties settled the claim at the conference in which the mediator did not appear, the mediator would not be due payment from the insurer.

(10) Post-Mediation.

(a) At the conclusion of the mediation conference, the mediator will file with the Department Form DFS-I5-1971, the “Disposition of Property Insurance Mediation Conference, as adopted in subsection (8)(g) ” Form DFS-I5-1971, with the Department, indicating whether or not the parties reached a settlement. If the parties reached any settlement, then the mediator shall include a copy of the settlement agreement with Form DFS-I5-1971. In the event a settlement is reached, the insured shall have 3 business days from the date of the written settlement within which he or she may rescind the settlement provided that the insured has not cashed or deposited any check or draft disbursed to him or her for the disputed matters as a result of the conference. If a settlement agreement is reached and not rescinded, it shall act as a release of specific issues that were presented at the conference.

(b) No change.

(11) through (12) No change.

Rulemaking Authority 624.308(1), 626.9611, 627.7015(4) FS. Law Implemented 624.307(1), (2), (4), (5), 626.9541(1)(a), (e), (i), (u), 626.9561, 626.9581(1), 626.9641(1)(g), 627.7015 FS. History–New 8-30-09, Amended 1-6-14, __________.

 

69J-166.031 Mediation of Residential Property Insurance Claims.

(1) No change.

(2) Definitions. The following definitions shall apply for purposes of this rule:

(a) No change.

(b) “Mediator” means an individual selected by the Department pursuant to Rule Chapter 69B-250, F.A.C. paragraph (7)(a) below.

(c) through (h) No change.

(3) No change.

(4) Claim Settlement.

(a) Notification of the right to mediate.

1. At the time a first-party claim which falls within the scope of this rule is filed by the policyholder, the insurer shall notify the policyholder of their right to participate in this program. An insurer is required to make the claim determination or elect to repair pursuant to Section 627.70131, F.S., before sending a notice of the right to mediate claims. An insurer is not required to send a notice of the right to mediate claims when no payment has been made or no election to repair has been made for a covered loss because the insurer concludes the amount of covered loss is less than the policyholder’s deductible.

2. Notification shall be in writing and shall be legible, conspicuous, printed in at least 12-point type, and printed in typeface no smaller than any other text contained in the notice. The first paragraph of the notice shall contain the following statement: “The Chief Financial Officer for the State of Florida has adopted a rule to facilitate the fair and timely handling of residential property insurance claims. The rule gives you the right to attend a mediation conference with your insurer in order to settle any claim you have with your insurer. An independent mediator, who has no connection with your insurer, will be in charge of the mediation conference. You can start the mediation process after receipt of this notice by calling the Department of Financial Services at 1 [phone]. The parties will have 21 days from the date of the request is received by the Department notice to otherwise resolve the dispute before a mediation conference hearing can be scheduled.”

3. The notice shall also:

a. No change.

b. State that the parties have 21 days from the date of the request is received by the Department notice within which to settle the claim before the Department will assign a mediator;

c. Include the insurer’s address and phone number for requesting additional information; and

d. State that the Administrator will select the mediator; .

e. Refer to the parties’ right to disqualify a mediator for good cause and paraphrase the definition of good cause as set forth in paragraph (7)(c) (e) of this rule; and .

f. No change.

4. No change.

(b) Request for Mediation.

1. By the Policyholder Insured. A policyholder An insured may request mediation by contacting the Department at 1 [phone]; by faxing a request to the Department at [phone]; or by submitting a completed Form DFS-I0-2082, Personal Residential Mediation Request Form (Revised 02/15), which is hereby incorporated by reference, writing to the Department of Financial Services, Mediation Section, Bureau of Education, Advocacy, and Research, 200 East Gaines Street, Tallahassee, Florida 32399-4212. The form may be obtained online at the following website: http://www.myfloridacfo.com/Division/Consumers/Mediation/documents/DFS-I0-2082.pdf. If a policyholder an insured requests mediation prior to receipt of the notice of the right to mediation, the insurer shall be notified by the Department of the existence of the dispute 21 days prior to the Administrator processing the policyholder’s insured’s request for mediation. If an insurer receives a request for mediation, the insurer shall notify the Mediation Section within 2 business days 48 hours of receipt of the request by fax or email at [e-mail]. The Administrator shall notify the insurer within 3 business days 72 hours of receipt of requests filed with the Department. The policyholder insured shall provide the following information, if known:

a. Name, address, e-mail address, and daytime telephone number of the policyholder insured and location of the property if different from the address given;

b. The claim and policy number for the policyholder insured;

c. through e. No change.

2. By an Insurer. An insurer may request mediation in the same manner as a policyholder by faxing or emailing a written request to the Mediation Section. The insurer shall provide a copy of its written mediation request to the insured at the same time it submits the request to the Department. The written request shall contain the information set forth in subparagraph (4)(b)1., if known. Mediation requests by insurers will be processed by the Administrator in the same manner as mediation requests by insureds.

(c) Upon receiving a request for mediation, and after the expiration of the 21 day resolution period, the Administrator shall randomly select from the Department’s list a mediator to conduct the mediation conference. The Administrator shall notify the mediator of his or her selection and indicate the names and addresses of the parties and their known representatives, their phone numbers (if known), the Department’s file number, the date of the request for mediation, and that the mediation is to occur within 21 days of the date of assignment to the mediator 45 days of the request. The mediator will have three business days from the date of notification by the Administrator to accept or reject the selection. If the mediator rejects the selection or fails to accept the selection within three business days, or if the mediator is disqualified pursuant to paragraph (7)(c) (e), then the Administrator shall randomly select another mediator. For all mediation requests under this rule, the time limits in this section shall not be applicable for two years following the declaration of a disaster.

(5) No change.

(6) Mediation Costs. Pursuant to subsection Section 627.7015(3), F.S., the insurer shall bear all of the cost of conducting mediation conferences.

(a) through (d) No change.

(7) Mediators.

(a) Mediator Approval. The Bureau of Agent and Agency Licensing, Department of Financial Services, shall approve as mediators those persons who meet the qualifications set forth in Section 627.745(3)(b), F.S. Persons wishing to be approved as mediators shall submit their qualifications to the Bureau of Agent and Agency Licensing, Department of Financial Services, 200 East Gaines Street, Tallahassee, FL 32399-0319, on Form DI4-591, “Application for Appointment as a Mediator”, which is adopted and incorporated by reference in subsection 69B-211.002(30), F.A.C. For two years following the declaration of a disaster, this program may additionally utilize mediators selected from a panel of circuit court – civil certified mediators approved by the Florida Supreme Court pursuant to the Florida Rules of Certified and Court-Appointed Mediators, which are hereby incorporated into the rule by reference.

(b) List of Approved Mediators. The Bureau of Agent & Agency Licensing, Department of Financial Services, shall maintain a list of all approved mediators, which list shall include the mediator’s name, address, telephone number, a listing of counties in which each mediator is willing to mediate, and date of entry to the list.

(c) through (d) renumbered to (a) through (b) No change.

(c)(e) Complaints; Discipline. At any time a party may move to disqualify a mediator for good cause. Good cause consists of conflict of interest between a party and the mediator, that the mediator is unable to handle the conference competently, or other reasons which would reasonably be expected to impair the conference. Complaints concerning a mediator shall be written and submitted to the Department of Financial Services, Mediation Section, Bureau of Education, Advocacy and Research, 200 East Gaines Street, Tallahassee, Florida 32399-4212. The Department shall review the following grounds for discipline:

1. Alleged instances of dishonest, incompetent, fraudulent, or unethical behavior on the part of a mediator;

2. Instances in which the mediator allegedly failed to promptly and completely respond to requests from the Department and instances in which the actions or failure to act on the part of the mediator violate this rule including the standards set forth in this subsection or are counter to the intent and purpose of this mediation program or this rule;

3. Administrative action by any other agency or body against the mediator, regardless of whether the agency or body’s regulation relates to mediation;

4. The mediator has been found guilty of or pled guilty or nolo contendere to a felony or a crime punishable by imprisonment of 1 year or more under the law of the United States of America or of any state thereof or under the law of any other country, without regard to whether a judgment of conviction has been entered by the court having jurisdiction of such cases.

If the Department determines that any of the above grounds exist, the Department shall institute proceedings in accordance with Chapter 120, F.S., to rescind the approval of the mediator to handle any mediation or arbitration program sponsored by the Department.

(8) Mediation Conference.

(a) Location.

1. The mediation conference shall be held at a reasonable location specified by the mediator within 15 driving  miles a reasonable proximity of the insured property, unless all parties agree otherwise, the Administrator assigns the location pursuant to this paragraph, or the mediation location is made available by the Administrator pursuant to paragraph 8(a)2 below. The mediation location shall provide a space with a door for private conversation as well as a separate space for caucusing. In times of declared disaster, the Administrator shall assign the mediation location and notify the mediator of same, if the Administrator determines such action is necessary to facilitate and expedite the mediation process.

2. through 5. No change.

(b) Timing and Continuances. The mediation conference shall be held as scheduled by the mediator. Upon application by any party to the mediator for a continuance, the mediator shall, for good cause shown or if neither party objects, grant a continuance and shall notify all parties and the Administrator of the date and place of the rescheduled conference. Good cause includes severe illness, injury, or other emergency which could not be controlled by the party and could not reasonably be remedied by the party prior to the conference by providing a replacement representative or otherwise. Good cause include the necessity of obtaining additional information, securing the attendance of a necessary professional, or the avoidance of significant financial hardship. If the insured demonstrates to the mediator the need for an expedited mediation conference due to an undue hardship, the conference shall be conducted at the earliest date convenient to all of the parties and the mediator. Undue hardship will be demonstrated when holding the conference on a non-expedited basis would interfere with or contradict the treatment of a severe illness or injury, substantially impair a party’s ability to assert their position at the conference, result in significant financial hardship, or other reasonably justified grounds.

(c) through (d) No change.

(e) Disposition. Mediators shall report to the Department on the status of property insurance mediation conferences by submitting Form DFS-I5-1971, “Disposition of Property Insurance Mediation Conference (Revised 2/15) ” (rev. 10/08), which is hereby adopted herein and incorporated by reference. If the claim is settled prior to the mediation conference being held, the insurer shall report the outcome of the issue to the mediator prior to the scheduled hearing and the mediator will submit Form DFS-I5-1971 confirming the settlement. A mediation conference will not be considered complete, and the Administrator will not bill the insurer, until this form is submitted.

(9) Disbursement of Costs.

(a) No change.

1. No change.

2. No change.

a. If the insured fails to appear at the conference, the conference shall be considered to have been held and the insurer must make payment in accordance with subsection paragraph (6)(a) of this rule. If the insured wishes to schedule a new conference after failing to appear, the total cost of mediation for the new conference will be borne by the insured. The new conference shall be rescheduled only upon the insured’s payment of the total cost of the mediation at the rate specified in subsection (6) of this rule.

b. If the insurer fails to appear at the conference, the insurer shall make payment for the conference in accordance with subsection paragraph (6)(a) of this rule. If the insurer fails to appear at the conference without good cause, the insurer shall pay the insured’s actual cash expenses incurred in attending the conference and shall pay a second total cost of mediation for the rescheduled conference. Good cause includes severe illness, injury, or other emergency which could not be controlled by the insurer and could not reasonably be remedied by the insurer prior to the conference by providing a replacement representative or otherwise. If an insurer fails to appear at conferences with such frequency as to evidence a general business practice of failure to appear, the Department will report the failure to appear to the Florida Office of Insurance Regulation as a potential violation of sub-subparagraph Section 626.9541(1)(i)3.c., F.S. The Florida Office of Insurance Regulation will take such administrative action pursuant to Section 624.15, F.S.

c. If the mediator fails to appear at the conference, the mediator shall hold a second conference at no fee to the insured or the insurer. If it is determined that the parties settled the claim at the conference in which the mediator did not appear, the mediator would not be due payment from the insurer.

(b) No change.

(10) Post-Mediation.

(a) At the conclusion of the mediation conference, the mediator will file Form DFS-I5-1971, with the Department the “Disposition of Property Insurance Mediation Conference, as adopted in subsection (8)(e)” Form DFS-I5-1971, with the Department, indicating whether or not the parties reached a settlement. If the parties reached any settlement, then the mediator shall include a copy of the settlement agreement with Form DFS-I5-1971. In the event a settlement is reached, the insured shall have 3 business days from the date of the written settlement within which he or she may rescind the settlement provided that the insured has not cashed or deposited any check or draft disbursed to him or her for the disputed matters as a result of the conference. If a settlement agreement is reached and not rescinded, it shall act as a release of specific issues that were presented at the conference.

(b) No change.

(11) through (12) No change.

Rulemaking Authority 624.308(1), 626.9611, 627.7015(4) FS. Law Implemented 624.307(1), (2), (4), (5), 626.9541(1)(a), (e), (i), (u), 626.9561, 626.9581(1), 626.9641(1)(g), 627.7015 FS. History–New 8-18-94, Amended 5-1-96, 4-6-00, Formerly 4-166.031, 69B-166.031, Amended 9-24-09, 1-6-14, __________.

 

NAME OF PERSON ORIGINATING PROPOSED RULE: Tasha Carter, Director, Division Consumer Services, Department of Financial Services

NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Jeff Atwater, Chief Financial Officer, Department of Financial Services

DATE PROPOSED RULE APPROVED BY AGENCY HEAD: 12/08/2015

DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAR: August 3, 2015