| (Editor's Note: To say the least, some of the changes that resulted from House Bill 601in 2008 caused hundreds, if not thousands, of hours of work for insurance agencies. During the 2009 legislative session, Senate Bill 714 was passed by an overwhelming majority of both houses of the legislature with only two dissenting votes. It seemed like a "slam dunk" to become law, until June 1, 2009, when Governor Crist vetoed the bill due to concerns about a non-insurance issue involving retrofitting condominiums with sprinkler systems. This means that nothing has changed as it relates to condominium insurance. The unpopular issues such as "additional named insured," mandatory unit owner coverage, force placed coverage, and "special assessment" all remain the law. Our earlier analysis of House Bill 601, which is still the law, is below.)
During the 2008 legislative session House Bill 601 was passed. This bill makes changes to parts of Chapter 718 of Florida Statutes dealing with condominium insurance. A summary of the changes is shown below.
Some of the language in the new legislation is troublesome to say the least, while other parts of the statutes are unclear. The effective date of the bill is 7/1/08 except where noted as 1/1/09 in the analysis below. Most legal and insurance professionals agree that an in-force policy is not affected by these changes, thus the changes will be effective at the first renewal date on or after 1/1/09. (Example: The condo master policy renews 4/1/09. Changes shown as effective 1/1/09 will not impact the association master policy until the 4/1/09 renewal date.)
Below are comments and observations about some of the changed statutes, as well as comments on issues which did not change yet are still important points.
- The insurance statutes deal only with residential condominiums as defined in Chapter 718. Insurance for non-residential condominiums (such as an office complex organized as a condominium) are not addressed in any statutes, thus the bylaws must be consulted to determine insurance responsibility.
- Association insurance must be based on the replacement cost of the property as determined by an "independent insurance appraisal" done at least every 36 months. Sources with the State of Florida advised FAIA that an "independent insurance appraisal" would include items such as cost estimator performed with insurance cost estimating software, an appraisal that shows a replacement cost (not just a market value), or a contractor's estimate. While the insurance must be "based on" the replacement cost, this does not appear to be a mandate that associations must insure to 100 percent of value. It is up to the association board to determine what "adequate insurance" is and the argument can easily be made that a board could decide to insure to 90 percent of replacement cost (as an example) and be in compliance with the statute. Finally, an initial appraisal that was completed 36 months earlier could be updated and this would comply with the statute.
- Associations are still permitted to self-insure, as long as Florida Statutes 624.460-624.488 are followed. The likelihood of an association being approved as such a self-insurer, however, is remote due to the intense financial requirements required in the statute.
- The "pooling" arrangement authorized in the 2007 legislative session is permitted, but only after onerous testing and approval by the Office of Insurance Regulation. It is FAIA's view that few, if any, such arrangements will meet the criteria specified in the statute. The statutory change applies to new pooling arrangements as well as existing arrangements when they renew on or after 7/1/08.
- The board may determine the deductible on the property, subject to revised language in the statute. In selecting a deductible the board must do so in a manner that is consistent with "...prevailing practice for communities of similar size and age, and having similar construction and facilities in the locale where the condominium property is situated." The deductible must be selected after considering the available funds on hand as well as the assessment authority of the board. The meeting where deductibles are discussed must be open to all unit owners and proper notice of the meeting shall be given to unit owners, per Florida Statutes.
- The association is still required to "...obtain and maintain adequate insurance..." for the condominium property. "Best efforts" and "adequate insurance" are not defined. D&O, workers' compensation, and flood insurance "may" be obtained; these coverages are not mandated in Chapter 718. (Insurance professionals would, of course, always recommend these coverages.)
- If there is a free-standing building in the association consisting of only one unit, the association may elect not to insure the building if the bylaws require the unit owner to insure it. For example, some condominium associations are composed of (for example) 50 single-family structures, yet the legal organization is a condominium. In such cases the statutes allow the association to forego a single master policy if unit owners are required to insure the building.
- Heating, ventilating, and air conditioning (HVAC) equipment is no longer on the list of excluded property under the association master insurance policy. This would include air handlers, heat pumps, thermostats, compressors, and duct work whether located within the units or not. This equipment is now covered by property losses on a primary basis by the association master policy. Note that the statute addresses only the responsibility to insure the HVAC equipment and does not address maintenance and repair responsibly. The responsibility to repair, replace, and maintain HVAC equipment is not addressed in the statutes or insurance policies; such maintenance and repair responsibility may be addressed in condominium bylaws and documents. FAIA has been asked, "How can an agency determine how much coverage is now needed on the master policy to account for this change?" The answer is, of course, the agency can't. The amount of increased coverage needed under the master policy is a decision left to the condominium association after consultation with an HVAC professional. (Effective 1/1/09.)
- The master policy now excludes: "...all personal property within the unit or limited common elements, and floor, wall, and ceiling coverings, electrical fixtures, appliances, water heaters, water filters, built-in cabinets and countertops, and window treatments, including curtains, drapes, blinds, hardware, and similar window treatment components, or replacements of any of the foregoing." (As discussed earlier, HVAC equipment is no longer excluded by the master policy) Items such as originally installed drywall, windows, interior non-load bearing walls, doors, toilets, bath tubs, sinks, closet rods, and sliding glass doors remain the primary insurance responsibility of the association. (Effective 1/1/09)
- The statute states that the unit owner policy shall include "special assessment" coverage of no less than $2,000. Florida Statute 718.103(24) defines special assessment as "...any assessment levied against a unit owner other than the assessment required by a budget adopted annually." This is a troublesome change since unit owners are often assessed for a variety of things such as routine roof replacement, building a new clubhouse, increased insurance expenses, legal fees, accounting fees, and the like. Was the intent of this change that assessments such as these be covered, or was the intent simply to say that the unit owner policy must include $2,000 of loss assessment coverage as defined in the typical HO-6 policy? On September 8, 2008, State Senator Dennis L. Jones sent a letter to Insurance Commissioner Kevin McCarty clarifying the intent of the legislature on this wording. That letter stated in part, "While the nature of the "special assessment" is undefined in the bill, it was the intent of the legislature that this term only apply to assessments for loss, as opposed to assessments for routine and upkeep, such as painting, repaving, or replacing outdated roofs, for example. It was not the intent of the sponsor to create new liability for assessments that were not triggered by loss." It is unlikely that carriers will include a new "special assessment" coverage and it appears that the legislature only intended to address "loss assessment" coverage that is routinely found in homeowners policies. Several carriers have indicated that they intend to issue HO-6 policies with $2,000 of loss assessment coverage, as opposed to the $1,000 basic limit included. This appears to meet the "intent" of the legislature. (Effective 1/1/09.)
- Improvements and alterations made by unit owners that benefit fewer than all residents (such as an enclosed balcony, Jacuzzi, new interior walls, or in-ground BBQ pit) shall be insured by the unit owner(s) benefiting from the improvements. Optionally, the association may elect to cover these items and pass that cost along to the unit owner(s) who benefit from the improvements or alterations. (Effective 1/1/09.)
- The association shall require the unit owners to produce evidence of hazard and liability insurance, but not more often than annually. This is, essentially, a mandate that unit owners must buy an HO-6 or other similar type policy. It is up to the association to enforce this requirement as there is no enforcement mechanism in the statute. There is no reference to how much coverage must be purchased; again the board will be the entity to determine what the unit owner must carry. While "hazard" is not defined in the statute, most insurance professionals feel that the term includes coverage for the peril of windstorm. Such being the case, the common understanding of the statute would lead to the conclusion that if a unit owner decided to buy an HO-6 policy with the peril of windstorm excluded, the mandate for coverage would not adequately be met. The "enforcer" for purchasing a policy including the peril of windstorm would be the association board. It's up to the board to determine what type coverage, if any, they decide to require of unit owners. If the unit owner fails to purchase such policy the board may do so and collect the premium in a manner specified in the assessment statute in Florida Statute 718.116. (Effective 1/1/09.)
- The unit owner policy must name the association as an additional named insured. Note the requirement is not simply for "additional insured" status (The HO 04 41 endorsement would serve that purpose, but is not utilized by HO-6 insurers that FAIA contacted, mainly because it provides liability coverage to the person/entity named); instead the requirement is for additional named insured status. This requirement is, to say the least, very troublesome. For example, if the HO-6 policy named "Joe Smith and ABC Condo Association" as named insureds, a claim check for a theft claim suffered by Joe would be payable to both Joe and the association. The association could claim "insured" status under Section II – Liability of Joe's policy for a slip and fall in the clubhouse. The association, as named insured on Joe's policy, could call Joe's agent and increase or decrease coverage. Carriers will likely refuse to issue a policy in such manner. On September 8, 2008, State Senator Dennis L. Jones sent a letter to Insurance Commissioner Kevin McCarty clarifying the intent of the legislature on this wording. That letter stated in part, "In this instance, the intent was only to apply to "Coverage A" or "Additions and Alterations Coverage" as opposed to liability, injury, or personal property coverage." While the letter helps clarify the intent, the problem remains of how, if at all, the typical unit owner policy can be structured to accomplish this intent. There is currently no industry standard Insurance Services Office (ISO) endorsement available to accomplish what the legislative intent was stated to be. For a detailed discussion of this issue, see our Education Library articled "Condominiums – Additional Named Insured Issue" by clicking here. (Effective 1/1/09.)
- Reconstruction work after a loss shall be undertaken by the association, except where noted in the statute. (Effective 1/1/09)
- The bonding requirement remains unchanged; the bond or insurance must be adequate to cover the maximum amount of funds in the custody of the association or management agent. Note that this bond/insurance requirement applies to both residential and non-residential condominium associations.
- All hazard insurance deductibles, uninsured losses, and other damages in excess of hazard insurance coverage under the hazard insurance policies maintained by the association are now a common expense of the condominium. This statute change is in reaction to a Declaratory Statement (referred to as "The Plaza East case") issued by the Department of Business and Professional Regulation (DBPR). In the case, Plaza East Condominium Association attempted to require a single unit owner to pay for damage confined to the common elements of their unit since the loss was below the association deductible. The DBPR ruled that such action was in conflict with Florida Statutes and the association could recoup the deductible only by assessing all unit owners. This statute change in effect "codifies" the DBPR ruling. The bylaws can, however, be amended to alter the way such losses are allocated. The result of this "opt out" option is that each of the 23,000+ condominium associations in Florida may now have their own way to address casualty losses that are not covered by insurance. For example, if the bylaws are properly amended, a unit owner could be required to pay for a major fire loss in their unit that was below (for example) the association $100,000 deductible. This would necessitate the unit owner having an adequate Coverage A limit on their HO-6 policy. It will make it even more difficult for a unit owner to decide on an appropriate amount of Coverage A since it will vary from association to association.
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