SB509 H B&I AM 4-5
Delegate Hartman moves to amend the bill on page 2, by
striking everything after the enacting clause and inserting in lieu
thereof the following:
"That §33-22-2 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §38-10E-1
of said code be
amended and reenacted
, all to read as follows:
"CHAPTER 33. INSURANCE.
"
ARTICLE 22. FARMERS' MUTUAL FIRE INSURANCE COMPANIES.
"§33-22-2. Applicability of other provisions.
Each company to the same extent that provisions are applicable
to domestic mutual insurers shall be governed by and be subject to
the following provisions of this chapter, but only to the extent
these provisions are not inconsistent with the provisions of this
article: Article one (definitions); article two (Insurance
Commissioner); article four (general provisions), except that
section sixteen of said article may not be applicable thereto;
article seven (assets and liabilities); article eight-a (use of
clearing corporations and federal reserve book-entry system);
article ten (rehabilitation and liquidation), except that under the
provisions of section thirty-two of said article assessments may
not be levied against any former member of a farmers' mutual fire
insurance company who is no longer a member of the company at the
time the order to show cause was issued; article eleven (unfair
trade practices); article twelve (insurance producers and solicitors), except that the agent's license fee shall be $5;
section six-a, article seventeen (notice of noncoverage of flood
damages and the availability of flood insurance); section nine-b,
article seventeen (claims for total loss; debris removal proceeds);
article twenty-six (West Virginia Insurance Guaranty Association
Act); article twenty-seven (insurance holding company systems);
article thirty (mine subsidence insurance), except that under the
provisions of section six of said article a farmers' mutual
insurance company shall have the option of offering mine subsidence
coverage to all of its policyholders, but may not be required to do
so; article thirty-three (annual audited financial report); article
thirty-four (administrative supervision); article thirty-four-a
(standards and commissioner's authority for companies considered to
be in hazardous financial condition); article thirty-five (criminal
sanctions for failure to report impairment); article thirty-six
(business transacted with Producer-Controlled Property-Casualty
Insurer Act); article thirty-seven (managing general agents);
article thirty-nine (disclosure of material transactions); article
forty (risk-based capital for insurers); and article forty-one
(Insurance Fraud Prevention Act).
"CHAPTER 38. LIENS.
"ARTICLE 10E. LIEN ON INSURANCE PROCEEDS FOR DEBRIS REMOVAL.
"§38-10E-1. Debris removal; notice of insurance proceeds; lien of
municipality and county.
(a)(1) Notwithstanding any provision of this code to the contrary, the receipt by an insurance company of a claim under a
fire insurance policy for a total loss to real property creates a
statutory lien on the insurance proceeds payable for such claim in
favor of the municipality in which the property is situate or, if
the property is located outside a municipality, the county in which
the property is situate, in an amount equal to the greater of: (A)
$5,000; or (B) ten percent of the policy limits for loss to the
real property, including any coverage for debris removal:
Provided, That the amount of the lien may not exceed the policy
limits of coverage for the real property plus debris removal, if
any: Provided, however, That the lien created by this subsection
does not apply to proceeds payable under the policy for any losses
other than those to the real property insured, including loss of
personal property and payments for temporary housing and related
living expenses: Provided, further, That the lien amount imposed
against policies issued by farmers' mutual fire insurance
companies, governed by article twenty-two, chapter thirty-three of
this code, shall in no event exceed ten percent of the policy
limits for loss to the real property, including any coverage for
debris removal.
(2) The terms "municipality" and "treasurer" have the same
meanings ascribed to them in section two, article one, chapter
eight of this code.
(b) Within ten days of a determination by the insurer that a
covered claim constitutes a total loss, the insurance company shall
send certified letters to the insured and, as applicable, to the treasurer of the municipality in which the property is situate or,
if the property is situate outside a municipality, to the sheriff
of the county in which the property is situate, stating any amount
claimed; the limits and conditions of coverage; the location of the
property; the terms and limits of coverage designated by the
insurance policy for securing, cleanup and removal, if any; any
time limitations imposed on the insured for securing, cleanup and
removal; and the policyholder's name and mailing address.
(c)(1) The lien created pursuant to subsection (a) of this
section shall be discharged unless the municipality or county,
whichever is applicable, within thirty days of the receipt of the
letter sent in accordance with subsection (b) of this section,
perfects and preserves such lien by filing a notice thereof with
the clerk of the county commission of the county in which such
property is situate: Provided, That upon filing of a notice of
lien in accordance with this subdivision, the amount of the lien
created in subsection (a) shall thereafter be for the estimated
cost of cleanup contained in such notice of lien, subject to the
limitation stated in subsection (a) with respect to policies issued
by farmers' mutual insurance companies: Provided, however, That
the discharge of a lien based on the municipality's or county's
failure to file a notice pursuant to this subdivision does not
affect any other remedies the municipality or county may have with
respect to such property or the liability of the property owner.
(2) A notice of lien filed in accordance with this subsection
shall include a statement of the estimated cost to the municipality or county for the cleanup of the damaged property, removal of any
refuse, debris, remnants or remains of the building and
appurtenances, and securing the structure: Provided, That such
estimated cost may not exceed the amount of the lien created
pursuant to subsection (a) of this section.
(3) A notice of lien filed in accordance with this section
shall be notarized and shall be sufficient if in form and effect as
follows:
Notice of Lien for Debris Removal
To (name of insurance company):
You will please take notice that the undersigned, on behalf of
the (municipality or county) (of County, if a municipality), West
Virginia, has estimated that the cost of removing debris and
otherwise cleaning up (a certain building, other structure or
improvement) on real estate known as (an adequate and ascertainable
description of the real estate) would be (estimated cleanup cost).
You are further notified that, in order to secure the payment
of such sum
the amount allowed by the provisions of subsection (a),
section one, article ten-e, chapter thirty-eight of the West
Virginia Code,
the undersigned, on behalf of the (municipality or
county) and pursuant to the provisions of section one, article
ten-e, chapter thirty-eight of the West Virginia Code, claims a
lien in such amount upon the interest of (policyholder's name) in
a fire insurance policy (the policy number or other identifying
information) issued by (the insurance company's name and address).
(Signature of treasurer or municipal officer exercising the power and authority commonly exercised by a treasurer, or sheriff).
(Title)
(d) The clerk of the county commission shall, upon the filing
of such notice, index the same in a book in his or her office
called "Debris Removal Liens" as a lien against the insurance
proceeds in favor of the municipality or county and shall send a
copy of the notice to the insurer.
"