Exportation, Diligent Effort, & Disclosure

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How do I know if the coverage I am placing requires a diligent effort, disclosure, or both?

Refer to our Diligent Effort / Disclosure Matrix for guidance on the diligent effort or disclosure requirement for each line of coverage for both residential and nonresidential placements.
What is a Diligent Effort?

Diligent effort means seeking coverage from and having been rejected by at least three authorized insurers currently writing this type of coverage and documenting these rejections.

The only exception is in the case of a residential structure that has a dwelling replacement cost of $700,000 or more. In this case, you would only need to seek coverage from and be rejected by at least one authorized insurer currently writing the requested coverage and documenting the rejection.

Surplus lines agents must maintain, as part of each insured’s file, a copy of the retail or producing agent’s documentation of a diligent effort search, if applicable. It is the responsibility of the surplus lines agent to verify that the retail or producing agent has made a diligent effort to place the coverage with an authorized insurer. The surplus lines agent must be able to reasonably rely on the efforts made by the retail or producing agent by taking into account such factors as conducting a program to verify the diligent effort process meets the requirements outlined in F.S. 626.916.
When is a Diligent Effort required?

All personal lines coverages require a diligent effort and a Surplus Lines Disclosure Form.  Most commercial coverages no longer require a diligent effort but require the Surplus Lines Disclosure Form instead.  Wet marine, aviation, and transportation risks are exempt from both. To determine if a diligent effort is required, please review the Diligent Effort/Disclosure Matrix.

For more information, send an email to agent.services@fslso.com. 
When is a disclosure form or documented acknowledgment of disclosure required?

Effective January 1, 2022, per F.S. 626.916 (1)(e), no coverage shall be eligible for export unless the insured has signed or otherwise provided documented acknowledgment of a disclosure in substantially the following form: 

You are agreeing to place coverage in the surplus lines market. Coverage may be available in the admitted market. Persons insured by surplus lines carriers are not protected under the Florida Insurance Guaranty Act with respect to any right of recovery for the obligation of an insolvent unlicensed insurer. 

This requirement does not apply to wet marine, transportation, or aviation risks subject to F.S. 626.917. To help determine which form is required for each line of coverage, please review the  Diligent Effort/Disclosure Matrix.
Can I complete the diligent effort form in place of a signed disclosure?

No. Execution of a diligent effort search does not take the place of a disclosure statement signed by the named insured on exempt coverages. For coverages that are statutorily exempt from the diligent effort requirement, the retail or producing agent is required to keep a disclosure statement signed by the named insured.

Surplus lines agents are not required to keep a copy of the disclosure form; however, it would be beneficial to keep a copy if needed to resolve any dispute with the insured regarding the placement of the surplus lines coverage. Please note: the surplus lines agent is required to maintain a copy of the disclosure form if they are also acting as the retail/producing agent.  
Who must sign the disclosure form?
The disclosure form must be signed by the insured or a designee of the insured. Under Florida law, the producing agent is not required to sign the disclosure statement.
When does the surplus lines agent keep a copy of the disclosure form?
According to Florida law, obtaining and maintaining an accurate and complete surplus lines disclosure is the sole responsibility of the retail/producing agent, not the surplus lines agent. Surplus lines agents are only required to obtain and maintain a disclosure when acting in both a producing and surplus lines capacity.
When can I apply the one declination under F.S. 626.914(4)?
Here are some sample questions and answers that will help you understand the declination exemption under F.S. 626.914(4):

Q: If the total dwelling replacement cost of residential structures insured by one policy totals $700,000 or more, but not one individual structure has a dwelling replacement cost of $700,000 or more, would the exemption requiring only one declination apply?  (For example, if there were three separate condominium structures, each with a dwelling replacement cost of $400,000 covered under one policy for a total of $1.2 million.)

A: No. The exemption requiring only one declination will not apply if no single residential structure has a dwelling replacement cost of $700,000 or more. Even though one policy will be issued to cover all the buildings included in a single condominium association, an agent cannot use the aggregate replacement cost value of the buildings to reach the threshold. The language in the statute specifically refers to "the residential structure." The agent will only need one declination if any residential structure has a dwelling replacement cost of $700,000 or more, but the qualifying structure must be "residential." It must have dwelling units and cannot be solely a pool, commercial unit, or other common area.

Q: Does the one declination exemption apply if an individual coverage such as liability was written on a residential structure with a dwelling replacement cost of $700,000 or more?

 A: Yes. So long as the residential structure has a replacement cost of $700,000 or more, any coverage requiring a diligent effort would need only one declination. Section 626.914(4), Florida Statutes, does not limit the type of coverage sought to a property policy. It states explicitly: "diligent effort means seeking coverage from and having been rejected by at least one authorized insurer currently writing this type of coverage and documenting this rejection."
What coverages fall under the E&O category?

When professions require E&O coverage, many products include E&O in a package commonly referred to as a “professional liability” policy. On October 1, 2011, the Office of Insurance Regulation stated that professional liability could be considered E&O insurance. Thus, only a disclosure form is necessary when purchasing professional liability coverage.

*This does not include medical malpractice or professional liability for a licensed medical facility or personnel.
Do exempt coverages include any personal lines?
As of July 1, 2021, except for personal lines flood, no personal lines coverages are exempt from the diligent search requirement.
What are highly protected risks?
"Highly Protected Risk" refers to substantial commercial properties with extensive protection systems and superior construction. These risks involve sophisticated risk management and loss control, rating them using traditional manual rating is not feasible, given their large size and complexity.
Who do I contact if I have additional questions about Eligibility to Export/Diligent Effort?
If you have additional questions about Eligibility to Export/Diligent Effort, please contact Agent Services at 800-562-4496, option 1 or email agent.services@fslso.com.
Do policies covering amenities, such as a clubhouse belonging to a homeowner’s association (HOA) or condominium association, require a diligent effort?
Yes. This type of property is considered a commercial-residential risk, which requires a diligent effort search to be completed prior to exporting the risk to the surplus lines market pursuant to F.S. 626.916 (1)(a).