Public Act 0519 104TH GENERAL ASSEMBLY

HB5376 Enrolled LRB104 20354 BAB 33809 b

Public Act 104-0519

AN ACT concerning regulation.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Illinois Insurance Code is amended by changing Sections 801.1, 802.1, 803.1, 804.1, 805.1, 806.1, 807.1, 808.1, 810.1, 811.1, 813.1, 815.1, and 817.1 as follows:

(215 ILCS 5/801.1)

Sec. 801.1. Purpose. The purpose of this Article is to require insurers to make mine subsidence insurance coverage available for residences, living units and commercial buildings located in Illinois; to establish the Illinois Mine Subsidence Insurance Fund; to divide the Fund into separate residential and commercial sub-funds; and to make the Fund a taxable, private the reinsurer for the mine subsidence insurance made available under this Article.

(Source: P.A. 88-379.)

(215 ILCS 5/802.1)

Sec. 802.1. Definitions. As used in this Article:

(a) "Commercial building Building" means any building that is classified by the insurer as a commercial building and is , other than a residence, permanently affixed to realty located in Illinois, including basements, footings, foundations, septic systems and underground pipes directly servicing the building. "Commercial building" does not include any other improvements to real property, including, without limitation, but does not include sidewalks, driveways, parking lots, living units, land, landscaping, lawns, trees, plants, crops, or agricultural field drainage tile.

(b) "Commercial coverage Coverage" means mine subsidence insurance for a commercial building.

(b-5) "Director" means the then-appointed, then-acting, or then-interim Director of Insurance.

(c) "Insurer" or "insurers" "Insurers" means an insurance company or companies, farm mutuals, and reciprocals licensed and authorized to write Class 3 policies of insurance, as defined in this Code, within Illinois.

(d) "Living unit Unit" means shall mean that physical portion designated for separate ownership or exclusive occupancy for residential purposes, of a building or group of buildings, permanently affixed to realty located in Illinois, having elements which are owned or used in common, including a condominium unit, a cooperative unit or any other similar unit.

(e) "Living unit coverage Unit Coverage" means mine subsidence insurance for a living unit covering the losses described in Section 805.1(d).

(f) "Mine subsidence Subsidence" means lateral or vertical ground movement caused by a failure initiated at the mine level, of man-made underground mineral mines, including, but not limited to coal mines, clay mines, limestone mines, and fluorspar mines that directly damages residences, living units, or commercial buildings. "Mine subsidence Subsidence" does not include lateral or vertical ground movement caused by anything other than a failure initiated at the mine level of man-made underground mineral mines, including, but not limited to, surface mining, earthquake, landslide, volcanic eruption, soil conditions, soil erosion, soil freezing and thawing, improperly compacted soil, construction defects, roots of trees and shrubs or collapse of storm and sewer drains and rapid transit tunnels.

(g) "Mine Subsidence Insurance Fund" or "Fund" means the private fund established by this Article.

(h) "Policy" or "policies" means any contract or contracts of insurance providing the coverage of the Standard Fire Policy and Extended Coverage Endorsement, or substantial equivalent, on any residence, living unit, or commercial building. It does not include those insurance contracts that are referred to as marine or inland marine policies or that reinsure the liability of another, whether or not those insurance contracts are designated as reinsurance policies.

(i) "Premium" or "premiums" means the gross amount charged to policyholders for the mine subsidence insurance made available under this Article.

(j) "Rates" or "rate schedules" means the rates by which premiums shall be computed for the mine subsidence insurance made available under this Article.

(k) "Residence" means a building that is classified by the insurer as a residence and used principally for residential purposes up to and including a 4-family four family dwelling, permanently affixed to realty located in Illinois, including appurtenant structures, driveways, sidewalks, basements, footings, foundations, septic systems and underground pipes directly servicing the dwelling or building. "Residence" does not include any other improvements to real property, including, without limitation, but does not include living units, land, landscaping, lawns, trees, plants, crops or agricultural field drainage tile.

(l) "Residential coverage Coverage" means mine subsidence insurance for a residence.

(m) "Intergovernmental cooperative" means an intergovernmental cooperative organized pursuant to Article VII, Section 10 of the Illinois Constitution and Section 6 of the Intergovernmental Cooperation Act.

(Source: P.A. 90-499, eff. 8-19-97.)

(215 ILCS 5/803.1)

Sec. 803.1. Establishment of Fund.

(a) There is established a private fund to be known as the "Illinois Mine Subsidence Insurance Fund". The Fund shall operate pursuant to this Article. The Fund is authorized to transact business, provide services, enter into contracts, and sue or be sued in its own name.

(b) The Fund shall provide reinsurance for mine subsidence losses to all insurers writing mine subsidence insurance pursuant to this Article who have properly executed a reinsurance agreement with the Fund in a form filed with and approved by the Director.

(c) The moneys monies in the Fund shall be derived primarily from premiums for mine subsidence insurance ceded by insurers to the Fund collected on behalf of the Fund pursuant to this Article and , from investment income and from receipt of Federal or State funds. No insurer shall have any liability to the Fund or to any creditor of the Fund, except as may be set forth in this Article, in the Articles of Governance which may be adopted by the Fund, in a reinsurance agreement executed pursuant to Section 810.1, in the Plan of Operation established by the Fund, or in the rules and procedures adopted by the Fund as authorized by the reinsurance agreement.

(d) The Fund shall establish its rates, rating schedules, deductibles and retentions, minimum premiums, classifications, and the maximum amount of reinsurance available per residence, commercial building, and living unit for mine subsidence insurance which the Fund shall file with the Director. The Director shall have 30 days from the date of receipt to approve or disapprove a rate filing. If no action is taken by the Director within 30 days after filing, the filing , the rate is deemed to be approved. The Director may, in writing, extend the period for an additional 30 days if the Director determines that additional time is needed.

(e) The Fund shall establish its rates, rating schedules, deductibles and retentions, minimum premiums, classifications, and the maximum amount of reinsurance available per residence, commercial building, and living unit in such a manner as to satisfy all reasonably foreseeable claims and expenses the Fund is likely to incur. In establishing the mine subsidence insurance premium rates, the The Fund shall give due consideration to factors reasonably considered by an insurer when setting premium rates, including loss experience and relevant trends, premium and other income and reasonable reserves established for contingencies in establishing the mine subsidence rates.

(f) The Fund shall compile and publish an annual operating report.

(g) The Fund shall maintain or make available develop at least 2 consumer information publications to aid the public in understanding mine subsidence and mine subsidence insurance and shall establish a schedule for the distribution of the publications pursuant to the reinsurance agreement. Topics that shall be addressed shall include but are not limited to:

(1) Descriptive information about mine subsidence, and what benefits mine subsidence insurance provides to the property owner.

(2) Information that will be useful to a policyholder who has filed a mine subsidence claim, such as information that explains the claim investigation process and claim handling procedures.

(h) The Fund shall be empowered to sponsor, fund, or conduct research programs in an effort to improve the administration of the mine subsidence insurance program and help reduce and mitigate mine subsidence losses consistent with the public interest.

(i) The Fund may enter into reinsurance agreements with any intergovernmental cooperative that provides joint self-insurance for mine subsidence losses of its members. These reinsurance agreements shall be substantially similar to reinsurance agreements described in Section 810.1.

(Source: P.A. 95-92, eff. 1-1-08; 95-334, eff. 1-1-08.)

(215 ILCS 5/804.1)

Sec. 804.1. Management of the Fund.

(a) The Fund shall be governed managed by an 11-member 11 member Board of Directors, 6 of whom shall be designated as insurance industry-elected industry directors, 4 of whom shall be designated as public-appointed public directors, and one of whom shall be designated as an Illinois-licensed Illinois licensed insurance producer public-appointed director. The industry directors shall be elected to 3-year staggered terms annually in the manner provided in Articles of Governance adopted by the Fund. The public directors shall be appointed to 3-year staggered terms by the Director, and shall not be employees of or otherwise affiliated with the insurance industry. The Illinois-licensed Illinois licensed insurance producer shall be appointed to a 3-year term by the Director.

(b) Each member of the Board of Directors on the effective date of this amendatory Act of the 104th General Assembly shall continue to be a member of the Board of Directors until the conclusion of that Director's existing 3-year term or, in the case of an appointed director, until the Director makes an official appointment, whichever is later. The members of the Governing Committee of the Illinois Mine Subsidence Insurance Fund established by Article XXXVIII who are members of the Governing Committee as of December 31, 1993 shall become the members of the Board of Directors of the Fund established by this Article on the effective date of this Act, and shall continue to hold office until the next annual meeting of the Fund.

(c) No later than the date of the next annual meeting of the Fund following the effective date of this Act, the Director shall appoint 4 public directors, one for a one-year term, one for a two-year term and 2 for three-year terms. No later than the date of the next annual meeting of the Fund following the effective date of this amendatory Act of 1994, the Director shall appoint the Illinois licensed insurance producer for a 2-year term. Thereafter, all public directors and the licensed insurance producer shall be appointed for 3 year terms.

(c) The (d) As soon as practical after the effective date of this Act, the Fund shall adopt Articles of Governance, which shall be submitted to the Director for his review and approval. The Board of Directors of the Fund may amend the Articles of Governance, subject to review and approval by the Director.

(Source: P.A. 88-379; 88-667, eff. 9-16-94; 89-206, eff. 7-21-95.)

(215 ILCS 5/805.1)

Sec. 805.1. Mine Subsidence Coverage.

(a) Beginning January 1, 1994, every policy issued or renewed insuring a residence on a direct basis shall include, at a separately stated premium, residential coverage unless waived in writing by the insured. Beginning January 1, 1994, every policy issued or renewed insuring a commercial building on a direct basis shall include at a separately stated premium, commercial coverage unless waived in writing by the insured. Beginning January 1, 1994, every policy issued or renewed insuring a living unit on a direct basis shall include, at a separately stated premium, living unit coverage unless waived in writing by the insured.

(b) If the insured has previously waived mine subsidence coverage in writing, the insurer shall provide written notice of the availability of or agent need not offer mine subsidence coverage in conjunction with any renewal or supplementary policy in connection with a policy previously issued to such insured by the same insurer, but need not obtain an additional written waiver of mine subsidence coverage unless the insured subsequently makes a written request for mine subsidence coverage.

(c) The premium charged for residential, commercial or living unit coverage shall be the premium level set by the Fund. The loss covered shall be the loss in excess of any applicable the deductible or retention in established by the Fund and contained in a mine subsidence endorsement to the policy, subject to the limit of insurance for mine subsidence damage stated in the policy; however, for all policies issued or renewed on or after January 1, 2027, there shall be no deductible or retention applicable to mine subsidence damage. For all policies issued or renewed on or after the effective date of this amendatory Act of the 104th General Assembly January 1, 2008, the maximum amount of reinsured loss per residence, per commercial building, and per living unit shall be the amounts established by the Fund and approved by the Director. For all policies issued or renewed on or after January 1, 1996, the amount of reinsurance available from the Fund shall not be less than $200,000 per residence, $200,000 per commercial building, or $15,000 per living unit. The Fund may, from time to time, adjust the amount of reinsurance available as long as the minimum set by this Section is met.

(d) The residential and living unit coverage provided pursuant to this Article may also cover, as part of the cost of repairs of covered mine subsidence damage to a residence or living unit, the costs of debris removal, moving and storage of contents, and repair or replacement of landscaping, but only if made necessary by the repairs of covered mine subsidence damage to a residence or living unit and only when and to the extent such costs are actually incurred.

(e) (d) The residential and living unit coverage provided pursuant to this Article may also cover the additional living expenses reasonably and necessarily incurred by the owner of a residence who has been temporarily displaced as the direct result of damage to the residence or living unit caused by mine subsidence if the underlying policy also covers this type of loss, except provided however, that the additional living expenses loss covered under living unit coverage shall be limited to those additional living expenses incurred by an owner who has been temporarily displaced as the direct result of damage losses to improvements and betterments caused by mine subsidence , and reimbursement of additional living expenses and special assessments made against the insured on account of mine subsidence loss and shall be paid within, and not in addition to, the applicable limit for residential or living unit coverage.

(f) (e) The total amount of the loss reimbursable to an insurer shall be limited to the amount of insurance reinsured by the Fund in force at the time when the damage first becomes reasonably observable. All damage caused by a single mine subsidence event or several subsidence events which are continuous shall constitute one occurrence. As set forth in subsections (a) and (c) of this Section, a policy issued or renewed must provide coverage, unless waived in writing by the insured, and the insurer must continue to charge the premium level set for that coverage by the Fund. If mine subsidence coverage is in force when the mine subsidence damage first becomes reasonably observable, and the mine subsidence occurrence is still ongoing, then the insurer shall notify the insured making the mine subsidence claim that continuation of that coverage thereafter may not be necessary and is optional, but that continued coverage on the damaged residence, living unit, or commercial building shall terminate only upon written waiver by the insured. The notification shall be made within 60 days after the insurer receives written confirmation from the Fund that the cause of loss is active mine subsidence. The notification shall be in the form of a separate mailing to the insured from the insurer through via the United States Postal Service or other commercial mail delivery service and shall include notification to the insured that mine subsidence premiums paid for coverage on a damaged residence, living unit, or commercial building subsequent to the established date of loss shall be refunded to the insured within 60 days after the insured provides a signed waiver of mine subsidence coverage to the insurer. The notification shall be accompanied by a waiver of coverage form for the insured to sign and return to the insurer.

(g) (f) No insurer shall be required to offer mine subsidence coverage in excess of the reinsured limits as established from time to time by the Fund and approved by the Director.

(Source: P.A. 98-1007, eff. 1-1-15.)

(215 ILCS 5/806.1)

Sec. 806.1. Division of Fund Into Separate Residential and Commercial Sub-funds.

(a) Effective January 1, 1994, the Fund shall establish 2 separate sub-funds, a Residential Fund to provide reinsurance for mine subsidence losses arising from residential and living unit coverage and a Commercial Fund to provide reinsurance for mine subsidence losses arising from commercial coverage. The assets and liabilities of the Fund shall be allocated to the 2 two sub-funds in such manner as determined by the Board of Directors, with the approval of the Director. The 2 two sub-funds shall continue to be governed managed by the Board of Directors. Beginning January 1, 1994, all premiums received by the Fund for residential coverage or living unit coverage shall be credited to the Residential Fund, all losses and expenses for residential coverage or living unit coverage shall be charged to the Residential Fund. All premiums received by the Fund for commercial coverage shall be credited to the Commercial Fund, and all losses and expenses for commercial coverage shall be charged to the Commercial Fund. The Fund's overhead expenses shall be allocated between the Residential Fund and the Commercial Fund on the basis of annual written premium credited to each sub-fund. The assets and liabilities of the Residential and Commercial Funds shall be accounted for separately. The assets of the Residential Fund shall not be used to reimburse insurers for losses for Commercial Coverage and the assets of the Commercial Fund shall not be used to reimburse insurers for losses for residential coverage or living unit coverage.

(b) No insurer shall be required to pay any claim for any loss reinsured under this Article except to the extent that the amount available in the Residential Fund or the Commercial Fund, as the case may be, is sufficient to reimburse the insurer for such payment.

(Source: P.A. 88-379; 89-206, eff. 7-21-95.)

(215 ILCS 5/807.1)

Sec. 807.1. Exemption of Certain Counties by the Director. The Director shall exempt from the obligations of subsection (a) of Section 805.1 every policy insuring residences, living units or commercial buildings located in any county of 1,000,000 or more inhabitants or any county contiguous to any such county, and, upon request of the Fund, may exempt every policy insuring residences, living units or commercial buildings located in any other specified county of this State, from the provisions of subsection (a) of Section 805.1 of this Article. However, in any county exempted by this Section from the obligations of subsection (a) of Section 805.1, an insurer shall make available mine subsidence coverage upon request by a policyholder. The Fund shall maintain and make available to insurers a list of the exempt and non-exempt counties as described in this Section.

(Source: P.A. 91-357, eff. 7-29-99.)

(215 ILCS 5/808.1)

Sec. 808.1. Right of Insurers to Refuse to Provide Mine Subsidence Coverage. An insurer may refuse to provide mine subsidence coverage on a residence, living unit, or commercial building evidencing unrepaired mine subsidence damage until such damage has been repaired.

(Source: P.A. 88-379.)

(215 ILCS 5/810.1)

Sec. 810.1. Reinsurance Agreements. To obtain reinsurance from the Fund for mine subsidence coverage offered under this Article, an insurer All insurers shall execute and return to the Fund, prior to receipt by the insurer of any mine subsidence claim for which reinsurance is sought, enter into a reinsurance agreement with the Fund in a form updated from time to time by the Board of Directors and . The reinsurance agreement shall be filed with and approved by the Director. The agreement, which may include a specific effective date and expiration date, shall provide that each insurer shall cede 100% of any mine subsidence insurance written up to the limits then established and in effect pursuant to subsection (c) of contained in Section 805.1(c) to the Fund and, in consideration of the ceding commission retained by the insurer, agrees to distribute informational publications provided by the Fund on a schedule set by the Fund, undertake adjustment of losses, payment of taxes, and all other expenses of the insurer necessary for sale of policies and administration of the mine subsidence insurance coverage. The Fund shall agree to reimburse the insurer for all amounts reasonably and properly paid to policyholders from claims resulting from mine subsidence and for expenses specified in the reinsurance agreement. In addition, the reinsurance agreement may contain, and may authorize the Fund to establish and promulgate deductibles. The reinsurance agreement may also contain reasonable provisions, rules, and procedures related to underwriting standards; language that insurers must include or not include in mine subsidence coverage forms used by insurers; remitting of premiums to the Fund; rules and procedures covering insurer documentation of losses; insurer reporting of premiums, claims, loss payments, and reports of litigation, premiums and loss payments; loss payment review by the Fund; determinations of whether claimed damage was caused by mine subsidence, when mine subsidence damage was first reasonably observable, and whether movement was continuous; handling and adjustment of claims for damage caused by mine subsidence; control and direction of litigation or arbitration involving whether claimed damage was caused by mine subsidence, when mine subsidence damage was first reasonably observable, or whether movement was continuous or that may affect the interests of the Fund; subrogation; remitting of premiums to the Fund; underwriting; and cause and origin investigations; and procedures for resolving disputes between the insurers and the Fund.

(Source: P.A. 90-655, eff. 7-30-98; 91-357, eff. 7-29-99.)

(215 ILCS 5/811.1)

Sec. 811.1. Distribution of Premiums. The Fund is authorized to establish, by way of the reinsurance agreement, Plan of Operation, or operating rules and procedures, the proportion of total mine subsidence insurance premiums collected by each insurer which shall be retained by the insurer as a ceding commission, subject to review of the Director. The remainder of such premiums shall be remitted by the insurer to the Fund at times to be determined by the Fund. The ceding commission rate for residential mine subsidence coverage and commercial mine subsidence coverage may differ, but the commission rates commission shall be uniform in all reinsurance agreements entered into pursuant to Section 810.1 of this Article and shall be based on reasonable administrative costs to the insurers, including agents' commissions.

(Source: P.A. 88-379.)

(215 ILCS 5/813.1)

Sec. 813.1. Reporting Requirements. Every insurer must report, at times designated by the Fund, such information as is reasonably required by the Fund to conduct its affairs, including, without limitation, information regarding losses incurred and paid, premiums written and collected, and exposures insured. Insurers must cooperate with the Fund's periodic examination and audit of the insurer's mine subsidence insurance books and records and with reasonable data requests necessary to evaluate and price the exposure establish claim reserves, and reimburse insurers for losses paid to insureds.

(Source: P.A. 88-379.)

(215 ILCS 5/815.1)

Sec. 815.1. Subrogation.

(a) The insurer's residential coverage, living unit coverage, and commercial coverage forms shall include a provision stating that the policyholder shall do nothing after a loss to impair the policyholder's rights of recovery against third parties. An insurer issuing residential coverage, living unit coverage, or commercial coverage All insurers issuing mine subsidence policies shall retain the right of subrogation and do nothing after the loss to impair that right.

(b) The Fund, on its own behalf, may exercise the right of subrogation to the extent permitted by law.

(c) Upon request by the Fund, an insurer with a reinsured claim shall assign to the Fund any rights of subrogation it may have, whether or not the rights of subrogation transfer to the Fund by operation of law Every insurer shall include in its reports an itemized list of all losses in subrogation and shall remit to the Fund all monies, less expenses, recovered as the result of subrogation actions.

(Source: P.A. 88-379.)

(215 ILCS 5/817.1)

Sec. 817.1. Powers of Director. In addition to any powers conferred upon the Director him by this or any other law, the Director shall have the authority to regulate supervise the operations of the Fund as set forth in this Article and shall review the Fund's rates once every 3 three years. In addition, the Director or any person designated by the Director him has the power:

(a) to examine the operation of the Fund through free access to all books, records, files, papers and documents relating to its operation and may summon, qualify and examine as witnesses all persons having knowledge of such operation, including officers, agents or employees thereof;

(b) to do all things necessary to enable the State of Illinois and any insurer participating in any program approved by the Director to fully participate in any federal program which may be enacted for purposes similar to the purposes of this Article;

(c) to require such reports as the Director may deem necessary.

(Source: P.A. 90-655, eff. 7-30-98.)