The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Banking and Insurance
BILL: CS/SB 1292
INTRODUCER: Banking and Insurance Committee and Senator Gruters
SUBJECT: Fraud Prevention
DATE: January 19, 2022
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Arnold Knudson BI Favorable
2. AEG
3. AP
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 1292 modifies provisions in several areas that are related to the prevention of various
forms of fraud. The bill:
Requires the electronic credentialing system administered by DHSMV to display driver
vehicle registration and insurance information, provide the driver notice of any lapse in
insurance coverage, and allow the driver to use the system to update policy information;
Requires DHSMV to provide recommendations on the means by which DHSMV, law
enforcement agencies, and other entities authorized by DHSMV may electronically verify a
driver’s compliance with ch. 324, F.S, the Financial Responsibility Law of 1955.
Requires a seller of a service contract with an automatic renewal provision to allow a
consumer to cancel the contract in the same manner, and by the same means, as the contract
was executed;
Subjects a public adjuster, public adjuster apprentice, or other person not otherwise exempt
from licensure as a public adjuster, to a fine not to exceed $20,000 per act for a violation of
prohibited acts under s. 626.854, F.S., during a state of emergency;
Authorizes DFS to impose a $2,000 per day administrative fine on an insurer that fails or
refuses to comply with s. 626.989, F.S., related to insurance fraud investigations, or s.
633.126, F.S., related to fraudulent insurance claims and crimes with respect to a fire and
explosion;
Authorizes the DFS Division of Investigative and Forensic Services (DIFS) to adopt rules to
administer s. 626.989, F.S. related to insurance fraud investigations, and s. 633.126, F.S.
related to fraudulent insurance claims and crimes with respect to a fire and explosion;
REVISED: BILL: CS/SB 1292 Page 2
Requires a motor vehicle service agreement company’s written advertisement to fully
disclose in at least 12-point, boldface font, the name, address, and Florida Company Code of
the motor vehicle service agreement company;
Requires a motor vehicle service agreement company’s radio or television advertisement to
fully disclose the full legal name of the licensed salesperson or the motor vehicle agreement
company;
Requires a motor vehicle service agreement company’s telephone solicitation fully identify
the soliciting licensed salesperson’s full legal name and license number at the beginning of
the telephone solicitation, and the salesperson’s telephone number when the telephone
solicitation ends;
Provides a technical change under s. 775.15, F.S., related to time limitations for prosecuting
criminal offenses, to allow separate prosecutions of workers’ compensation fraud under s.
440.105, F.S., and false and fraudulent insurance claims under s. 817.234, F.S., within 5
years of a violation of either section;
Authorizes an insurer damaged as a result of insurance fraud to recover reasonable
investigation and litigation expense, including attorney fees, at the trial and appellate court, if
the insurer had reported the possible fraudulent insurance act to DIFS and the possible
fraudulent insurance act was criminally adjudicated as guilty.
The bill takes effect upon becoming a law, except as otherwise provided.
II. Present Situation:
Electronic Credentialing System
The 2021 Legislature
1
created the electronic credentialing system within the DHSMV for
purposes of establishing a secure and uniform system for issuing an optional digital proof of
driver license or identification card.
2
The electronic credentialing system may not retain internet
protocol addresses, geolocation data, or other information that describes the location, computer,
computer system, or computer network from which a customer accesses the system.
3
Required Notification of New, Cancelled, Nonrenewed, and Lapsed Motor Vehicle
Insurance Coverages
Section 324.0221, F.S., requires insurers to report new, cancelled, or nonrenewed personal injury
protection or property damage insurance coverages to DHSMV within 10 days. Prior to notifying
DHSMV, the insurer must provide the named insured, or the first-named insured in the case of a
commercial fleet policy, with written notice that the cancellation or nonrenewal will be reported
to DHSMV. The notice must also inform the named insured that failure to maintain personal
injury protection and property damage insurance coverages on a motor vehicle when required by
law may result in the loss of registration and driving privileges in Florida and inform the named
insured of the amount of any reinstatement fees.
1
Chapter 2021-235, L.O.F.
2
Section 322.032(2)(a), F.S.
3
Section 322.032(2)(b), F.S. BILL: CS/SB 1292 Page 3
Service Contracts with Automatic Renewal Provisions
Florida law governs the automatic renewal provisions of service contracts such that a service
contract may automatically renew at the end of its term without any additional action required by
either party under certain circumstances.
If the automatic renewal provision renews a service contract for more than one month and caused
the service contract to be in effect for more than six months after the service contract was
executed, the seller must clearly and conspicuously disclose the automatic renewal provision to
the consumer. Renewal is effective unless the consumer and the consumer does not give notice to
the seller of intent to terminate the service contract.
4
However, in the case of a service contract
with a term of 12 months that automatically renews for more than one month, the seller must
provide written or electronic notification to consumers no more than 60 and no less than 30 days
prior to the cancellation deadline pursuant to the automatic renewal provision.
5
Violations of the disclosure and notice requirements void an automatic renewal provision,
rendering it unenforceable,
6
unless the seller demonstrates:
It has established and implemented written procedures to comply with, and enforce, the
requirements as part of their routine business practice;
The failure to comply was the result of error; and
It has provided, as part of its routine business practice, a refund or credit for the unearned
portion of the renewed contract, starting from the date the seller is notified of the error.
7
State and federal financial institutions or any subsidiary or affiliate thereof, health studios,
8
licensed insurers, warranty associations,
9
health care service organizations
10
and programs,
11
electric utilities,
12
and private companies providing certain municipal services
13
are expressly
exempt.
Department of Financial Services
The Department of Financial Services (DFS) is statutorily responsible for:
4
Section 501.165(2)(a), F.S.
5
Section 501.165(2)(b), F.S.
6
Section 501.165(2)(e), F.S.
7
Section 501.165(2)(b), F.S.
8
Pursuant to s. 501.0125(1), F.S., any person who is engaged in the sale of services for instruction, training, or assistance in a
program of physical exercise or in the sale of services for the right or privilege to use equipment or facilities in furtherance of
a program of physical exercise. The term does not include an individual acting as a personal trainer.
9
Chapter 634, F.S., includes motor vehicle service agreement companies, home warranty associations, and service warranty
associations.
10
Chapter 641, F.S., includes health maintenance organizations, prepaid health clinics, and health care services.
11
Chapter 636, F.S., includes prepaid limited health service organizations and discount plan organizations.
12
Pursuant to s. 366.02(2), F.S., any municipal electric utility, investor-owner electric utility, or rural electric cooperative
which owns, maintains, or operates an electric generation, transmission, or distribution system within the state.
13
Pursuant to s. 180.05, F.S., any company or corporation duly authorized under the laws of the state to construct or operate
water works systems, sewerage systems, sewage treatment works, garbage collection, and garbage disposal plants. BILL: CS/SB 1292 Page 4
Carrying out the state’s accounting and auditing functions, including preparing the state’s
Comprehensive Annual Financial Report; monitoring state contracts; and making payment
for state expenditures;
Implementing state fire prevention and control measures, including the investigation of arson
and other suspicious fires; training and certification of firefighter candidates; and regulation
of explosive storage and use;
Operating the state’s risk management program and securing insurance and reinsurance for
covered state liabilities;
Managing the state Treasury and directing safekeeping and the investment of all state funds;
Managing the deferred compensation program for state employees;
Investigating fraud, including insurance fraud, public assistance fraud, and false claims
against the state;
Regulating cemeteries and funeral homes;
Licensing and oversight of insurance agents and agencies;
Ensuring that Florida employers provide workers’ compensation coverage for their
employees in a cost effective manner;
Assisting consumers in the resolution of issues pertaining to insurance and funeral services;
and
Collecting and returning unclaimed property belonging to Florida residents.
14
The DFS is composed of the following divisions and office:
Accounting and Auditing;
Administration;
Consumer Services;
Funeral, Cemetery, and Consumer Services;
Insurance Agent and Agency Services;
Insurance Consumer Advocate
Investigative and Forensic Services;
Public Assistance Fraud;
Rehabilitation and Liquidation;
Risk Management;
State Fire Marshal;
Treasury;
Unclaimed Property; and
Workers’ Compensation.
15
DFS Division of Investigative and Forensic Services
The Division of Investigative and Forensic Services (DIFS) houses all law enforcement and
forensic components residing within DFS. The DIFS has broad authority to investigate a wide
range of fraudulent and criminal acts within and outside the state including, but not limited to,
insurance fraud; workers’ compensation fraud investigations; fire, arson, and explosives
14
Florida Department of Financial Services, Statement of Agency Organization and Operation,
https://www.myfloridacfo.com/sitePages/required/agencyorg.htm, (last visited January 10, 2022).
15
Section 20.121(2), F.S. BILL: CS/SB 1292 Page 5
investigations; and fire and explosive sample analysis.
16
The DIFS also refers any records
tending to show criminal violations to state or federal law enforcement or prosecutorial agencies,
and provides investigative to those agencies as required, when DIFS believes that a criminal law
of the state has been violated.
17
The division is composed of the following bureaus and office:
Forensic Services;
Fire, Arson, and Explosives Investigations;
Fiscal Integrity;
Insurance Fraud; and
Workers’ Compensation Fraud.
18
DFS Division of State Fire Marshal
The Division of State Fire Marshal (State Fire Marshal) works to reduce the loss of life and
property to fire and other disasters statewide through internal and external leadership, standards
and training, and prevention and education. The State Fire Marshal has the expressed authority to
enforce all laws and adopted rules related to:
The prevention of fire and explosion through the regulation of conditions which could cause
fire or explosion, the spread of fire, and panic resulting therefrom;
Installation and maintenance of fire alarm systems and fire protection systems, including fire
suppression systems, fire-extinguishing equipment, and fire sprinkler systems;
Servicing, repairing, recharging, testing, marking, inspecting, installing, maintaining, and
tagging of fire extinguishers, preengineered systems, and individually designed fire
protection systems;
The training and licensing of persons engaged in the business of servicing, repairing,
recharging, testing, marking, inspecting, installing, maintaining, and tagging of fire
extinguishers, preengineered systems, and individually designed fire protection systems;
The maintenance of fire cause and loss records; and
Suppression of arson and the investigation of the cause, origin, and circumstances of fire.
19
The State Fire Marshal is composed of the following bureaus:
Fire Prevention; and
Fire Standards and Training.
20
Authority of DFS to Compel Production of Records Related to Insurance Fraud and Arson
Investigations
Section 626.989, F.S., provides DFS and DIFS with several tools to compel production of
records for purposes of investigating insurance fraud. The DFS and DIFS may administer oaths
and affirmations, request the attendance of witnesses or proffering of matter, and collect
evidence, if, by its own inquiries or as the result of complaints, it has reason to believe that a
16
See supra note 11.
17
Section 20.121(2)(e), F.S.
18
Id.
19
Section 633.104(2), F.S.
20
See supra note 11. BILL: CS/SB 1292 Page 6
person has engaged in, or is engaging in, a fraudulent insurance act.
21
The DFS and DIFS may
request that an individual who refuses to comply with any such request be ordered by the circuit
court to provide the testimony or matter.
22
DIFS investigators also have the power to make
arrests and execute arrest and search warrants for criminal investigations established as a result
of investigations.
23
Under section 633.126, F.S., State Fire Marshal and DIFS investigators may request any
insurance company or its agent, adjuster, employee, or attorney, investigating a claim under an
insurance policy or contract with respect to a fire or explosion to release any information
whatsoever in the possession of the insurance company or its agent, adjuster, employee, or
attorney relative to a loss from that fire or explosion. A person who willfully refuses to release
any information requested by a State Fire Marshal or DISF investigator commits a first degree
misdemeanor.
24
Regulation of Insurance Adjusters
Florida law requires all insurance adjusters to be licensed by DFS and appointed by the
appropriate entity or person
25
in order to adjust claims. General requirements for licensure
include submitting an application; paying required fees; satisfying pre-licensing examination
requirements, when applicable; complying with requirements as to knowledge, experience, or
instruction; and submitting fingerprints.
26
Under s. 626.864, F.S., there are both public adjusters and all-lines adjuster license types, with
all-lines appointments further divided into independent adjusters,
27
company employee
adjusters,
28
and public adjuster apprentices.
29
The same adjuster may not be concurrently
licensed as a public adjuster and an all-lines adjuster.
30
In the case of an all-lines adjuster, the
adjuster may be appointed as an independent adjuster, company employee adjuster, or public
adjuster apprentice, but not more than one concurrently.
31
A public adjuster is any person, other than a licensed attorney, who, for compensation, prepares,
completes, or files an insurance claim form for an insured or third-party claimant in negotiating
or settling an insurance claim on behalf of an insured or third party.
32
Public adjusters operate
independently and are not affiliated with any insurer.
21
Section 626.989(2), F.S.
22
Section 626.989(4)(a), F.S.
23
Section 626.989(7), F.S.
24
Section 633.126(9), F.S.
25
See s. 626.015(4), F.S., defining “appointment” as the authority given by an insurer or employer to a licensee to adjust
claims on behalf of an insurer or employer.
26
Section 626.171, F.S.
27
Section 626.855, F.S.
28
Section 626.856, F.S.
29
Section 626.8561, F.S.
30
Section 626.864(2), F.S.
31
Section 626.864(3), F.S
32
Section 626.854(1), F.S. BILL: CS/SB 1292 Page 7
An all-lines adjuster is any person who, for compensation, ascertains and determines the amount
of any claim, loss, or damage payable under an insurance contract or settles such claim, loss, or
damage on behalf of a public adjuster or insurer.
33
An independent adjuster is any person who is self-employed or employed by an independent
adjusting firm and who works for an insurer to ascertain and determine the amount of an
insurance claim, loss, or damage, or to settle an insurance claim under an insurance contract.
34
A company employee adjuster is any person employed in-house by an insurer, or a wholly
owned subsidiary of the insurer, who ascertains and determines the amount of an insurance
claim, loss, or damage, or settles such claim, loss or damage.
35
Discretion of DFS to Act Against Licensees
Section 626.621, F.S., grants the DFS discretion, under certain circumstances, to deny
applications for, revoke, or refuse to renew, the licenses or appointments of agents, adjusters,
customer representatives, service representatives, and managing general agents. Examples of
circumstances that can lead to such agency action include violation of the Florida Insurance
Code, violation of lawful orders or rules of the DFS, and engaging in unfair and deceptive trade
practices.
36
Discretion of DFS Act Against Public Adjusters
Section 626.854, F.S., grants the DFS discretion to discipline public adjusters who engage in
certain prohibited acts. In addition to denying, suspending, or revoking a license, the DFS may
subject public adjusters, public adjuster apprentices, and other persons not otherwise exempt
from licensure, to a fine not exceed $10,000 per prohibited act. Examples of prohibited acts
under s. 626.854, F.S., include unfair and deceptive insurance trade practices or offering
inducements in exchange for inspecting a residential property owner’s roof or making an
insurance claim for damage to a residential property owner’s roof.
Motor Service Agreement Company Advertisements
Motor vehicle service agreements provide vehicle owners with protection when the
manufacturer’s warranty expires. A motor vehicle service agreement indemnifies the vehicle
owner (or holder of the agreement) against loss caused by failure of any mechanical or other
component part, or any mechanical or other component part that does not function as it was
originally intended.
37
Motor vehicle service agreements can only be sold by a licensed and
appointed salesperson.
38
Salespersons are licensed in the same manner as insurance
representatives under ch. 626, F.S., with some exceptions to the requirements applied to
insurance representatives.
39
33
Section 626.8548, F.S.
34
Section 626.855, F.S.
35
Section 626.856, F.S.
36
Chapters 624-632, 634, 635, 636, 641, 642, 648, and 651 constitute the “Florida Insurance Code.”
37
Section 634.011(8), F.S.
38
Section 634.031, F.S.
39
Section 634.171, F.S. BILL: CS/SB 1292 Page 8
It is a second degree misdemeanor for a motor vehicle service agreement company or
salesperson to issue or cause to be issued an advertisement that:
Does not fully disclose in boldfaced type the name, address, and license number of the
service agreement company;
In any respect is in violation of or does not comply with the Motor Vehicle Service
Agreement Companies law, applicable provision of the Florida Insurance Code, or applicable
rule of the Financial Services Commission;
Is ambiguous, misleading, or deceptive; or
Is false, deceptive, or misleading with respect to:
o The service agreement company’s affiliation with a motor vehicle manufacturer;
o The service agreement company’s possession of information regarding a motor vehicle
owner’s current motor vehicle manufacturer’s original equipment warranty;
o The expiration of a motor vehicle owner’s current motor vehicle manufacturer’s original
equipment warranty; or
o Any requirement that the motor vehicle owner register for a new motor vehicle service
agreement with the company in order to maintain coverage under the current motor
vehicle service agreement or manufacturer’s original equipment warranty.
40
DFS also has the enforcement authority to deny, suspend, revoke, or refuse to renew or continue
the appointment or license of any motor vehicle service agreement company or salesperson that
violates these advertising disclosure requirements.
41
Time Limitations for Prosecuting Workers’ Compensation Fraud and False and
Fraudulent Insurance Claims
Under s. 775.15(11), F.S., a prosecution for workers’ compensation fraud under s. 440.105, F.S.,
and false and fraudulent insurance claims under s. 817.234, F.S., must be commenced within 5
years after the violation is committed. There is general confusion as to whether the intent of the
subsection is to tie the two violations together under a single prosecution within the 5-year time
limitation, or whether violations under either statute may be prosecuted separately within the 5-
year time limitation.
Attorney Fees for False and Fraudulent Insurance Claims
Under current law, an insurer damaged as a result of a false or fraudulent insurance claim can
bring a cause of action to recover compensatory damages plus all reasonable investigation and
litigation expenses, including attorneys’ fees, at the trial and appellate courts, after there has been
a criminal adjudication of guilt.
42
40
Section 634.095(3), F.S.
41
Section 634.095, F.S.
42
Section 817.234, F.S. BILL: CS/SB 1292 Page 9
III. Effect of Proposed Changes:
Section 1 creates s. 324.252, F.S., related to electronic insurance verification, to require the
electronic credentialing system administered by DHSMV to display driver vehicle registration
and insurance information, provide the driver with notification on any lapse in insurance
coverages, and allow the driver to update his or her policy information via the electronic
credentialing system.
The bill requires DHSMV to provide recommendations on the means by which DHSMV, law
enforcement agencies, and other entities authorized by DHSMV may electronically verify a
driver’s compliance with ch. 324, F.S, the Financial Responsibility Law of 1955.
Section 2 amends s. 501.165, F.S., related to automatic renewals of service contracts, to require a
service contract seller to allow a consumer to cancel a service contract with an automatic renewal
provision in the same manner, and by the same means, as the service contract was executed.
Section 3 amends s. 626.854(22), F.S., related to prohibited acts by public adjusters, to subject
public adjusters, public adjuster apprentices, and other persons not otherwise exempt from
licensure, to a fine not to exceed $20,000 per act for a violation of prohibited acts under the
subsection during a state of emergency declared either by executive order or proclamation of the
Governor.
Section 4 amends s. 626.989, F.S., related to investigations by DFS or DIFS under Florida’s
Unfair Insurance Trade Practices statutes, to authorize DFS to impose an administrative fine of
not more than $2,000 per day on an insurer that fails or otherwise refuses to comply with this
section
The bill also grants DIFS rulemaking authority to administer this section, provided any rules may
not enlarge upon or extend the provisions of this section, identify specific factors that determines
the grade of penalty, and specify mitigating and aggravating factors for any violation.
Section 5 amends s. 633.126, F.S., related to investigations of fraudulent insurance claims and
crimes with respect to a fire or explosion, to authorize DFS to impose an administrative fine of
not more than $2,000 per day on an insurer that fails or otherwise refuses to comply with this
section.
The bill grants DIFS rulemaking authority to administer this section, provided any rules may not
enlarge upon or extend the provisions of this section, identify specific factors that determine the
grade of penalty, and specify mitigating and aggravating factors for any violation.
Section 6 amends s. 634.095, F.S., related to prohibited acts by motor vehicle service agreement
companies, to require a written advertisement fully disclose in at least 12-point, boldface font,
the name, address, and Florida Company Code of the motor vehicle service agreement company.
The bill requires a radio or television advertisement to fully disclose the full legal name of the
licensed salesperson or the motor vehicle agreement company.
BILL: CS/SB 1292 Page 10
The bill also requires a telephone solicitation fully identify the soliciting licensed salesperson’s
full legal names and license number at the beginning of the telephone solicitation, and the
salesperson’s telephone number when the telephone solicitation ends. The telephone number
may be the number on file with DFS or the number at which the salesperson may be contacted.
This section is effective January 1, 2023.
Section 7 amends s. 775.15, F.S., related to time limitations for prosecuting criminal offenses, to
provide a technical change allowing separate prosecutions of violations of s. 440.105, F.S., or s.
817.234, F.S., within 5 years of a violation of either section.
Section 8 amends s. 817.234, F.S., related to false and fraudulent insurance claims, to provide
that an insurer damaged as a result of insurance fraud may recover reasonable investigation and
litigation expense, including attorney fees, at the trial and appellate court, if the insurer had
reported the possible fraudulent insurance act to DIFS and the possible fraudulent insurance act
was criminally adjudicated as guilty.
Section 9 provides that except as otherwise expressly provided for in this act, this act is effective
July 1, 2022.
IV. Constitutional Issues:
A. Municipality/County Mandates Restrictions:
None.
B. Public Records/Open Meetings Issues:
None.
C. Trust Funds Restrictions:
None.
D. State Tax or Fee Increases:
None.
E. Other Constitutional Issues:
None.
V. Fiscal Impact Statement:
A. Tax/Fee Issues:
None. BILL: CS/SB 1292 Page 11
B. Private Sector Impact:
None.
C. Government Sector Impact:
None.
VI. Technical Deficiencies:
None.
VII. Related Issues:
None.
VIII. Statutes Affected:
This bill substantially amends the following sections of the Florida Statutes: 501.165, 626.854,
626.989, 633.126, 634.095, 775.15, and 817.234.
This bill creates section 324.252 of the Florida Statutes.
IX. Additional Information:
A. Committee Substitute – Statement of Changes:
(Summarizing differences between the Committee Substitute and the prior version of the bill.)
CS by Banking and Insurance on January 18, 2022:
The committee substitute:
Removes the provisions from Section 3 and 4 of the original bill that revised the
definition of an active investigation for purposes of specified public records
exemptions;
Creates s. 324.252, F.S., related to electronic insurance verification, to require the
electronic credentialing system administered by DHSMV to display driver vehicle
registration and insurance information, provide the driver with notification on any
lapse in personal injury or property damage insurance coverages, and allow the driver
to update his or her policy information via the electronic credentialing system; and
Requires DHSMV to provide recommendations on the means by which DHSMV, law
enforcement agencies, and other entities authorized by DHSMV may electronically
verify a driver’s compliance with ch. 324, F.S, the Financial Responsibility Law of
1955.
B. Amendments:
None.
This Senate Bill Analysis does not reflect the intent or official position of the bill’s introducer or the Florida Senate.