Companion legislation has been introduced in the Florida House of Representatives and Senate to exempt surplus lines insurers from the provisions of Chapter 627, except when specifically stated otherwise, which contains Florida's rate and form filing statutes.  House Bill 853, introduced on February 12, 2009, and the identical Senate Bill 1894, introduced on February 19, 2009, seek to reverse the Florida Supreme Court’s holding in Essex Ins. Co. v. Zota, Case No. SC06-2031 (June 26, 2008) (“Zota”).
In Zota, the Florida Supreme Court stated that the exemption for surplus lines insurers provided in Florida Insurance Code Section 627.021(2)(e) only applies to rate filings as contained in part 1 of Chapter 627, whereas Florida’s form filing statutes are located in part 2 of Chapter 627.  In reaching this conclusion (which is contrary to standard practice) the Florida Supreme Court relied on a staff analysis of the legislative history of Section 627.021(2).  The Florida Supreme Court did not specifically hold that any provisions in part 2 of Chapter 627 apply to surplus lines insurers.  For more on Zota, see our earlier blog post here.  The issue, however, as to whether this statement was part of the holding or made in dicta became largely irrelevant once the Eleventh Circuit Court of Appeals in CNL Hotels & Resorts, Inc. v. Twin City Fire Ins. Co., D.C. Docket No. 06-00324-CV-ORL-31-UAM (11th Cir. Aug. 18, 2008) held that if an insurer plans to rely on exclusionary language contained in a policy form, the policy form must have been filed and approved Florida Office of Insurance Regulation.
This legislation would make clear that surplus lines insurers are exempt from all of Chapter 627, except as specifically provided, and not only part 1 of Chapter 627, thereby exempting surplus lines insurers from form filing requirements.  We will continue to follow this legislation and provide further updates on