626.908 Defense of action by unauthorized insurer or person representing or aiding such insurer; damages and attorney fee.
626.908 Defense of action by unauthorized insurer or person representing or aiding such insurer; damages and attorney fee.
(1) Before an unauthorized insurer or person representing or aiding such insurer files or causes to be filed any pleading in any action or proceeding instituted against it under s. 626.906, s. 626.907, or s. 626.909 or a suit instituted by the office or the department enforcing agency action against unauthorized insurers under s. 120.69, an unauthorized insurer or person representing or aiding such insurer shall:
(a) Procure a certificate of authority to transact insurance in this state, or
(b) Deposit with the clerk of the court in which such action or proceeding is pending cash or securities or file with such clerk a bond with good and sufficient sureties, to be approved by the court, in an amount to be fixed by the court sufficient to secure the payment of any final judgment which may be rendered in such action. The court may in its discretion make an order dispensing with such deposit or bond where the insurer makes a showing satisfactory to the court that it maintains in a state of the United States funds or securities, in trust or otherwise, sufficient and available to satisfy any final judgment which may be entered in such action or proceeding, and that the insurer or person representing or aiding such insurer will pay any final judgment entered therein without requiring suit to be brought on such judgment in the state where such funds or securities are located, and that if, nevertheless, such suit is brought on such final judgment the insurer or person representing or aiding such insurer shall waive all defenses thereto.
(c) Any proof, evidence, or testimony in support of such motion shall be taken in the jurisdiction of the court in which the action or proceeding is pending.
(d) If the unauthorized insurer or person representing or aiding such insurer seeks to take discovery or de bene esse depositions of witnesses beyond the jurisdiction of the court in which the action is pending, upon seasonable application by the plaintiff, the court by appropriate order shall require the unauthorized insurer or person representing or aiding such insurer, before such depositions are taken, to make similar deposit as described in paragraph (b), in sufficient amount to pay the reasonable expenses of the plaintiff and his or her attorney in attending the taking of such depositions, including reasonable attorney’s fees to be fixed by the court.
(2) The court in any action or proceeding in which service is made in the manner provided in s. 626.907 may, in its discretion, order such postponement as may be necessary to afford the defendant reasonable opportunity to comply with the provisions of subsection (1) and to defend such action.
(3) Nothing in subsection (1) is to be construed to prevent an unauthorized insurer or person representing or aiding such insurer from filing, within 30 days after service, a motion to quash or to set aside the service of any process made in the manner provided in s. 626.907 hereof on the ground either:
(a) That such unauthorized insurer or person representing or aiding such insurer has not done any of the acts enumerated in s. 626.906; or
(b) That the person on whom service was made pursuant to s. 626.907(2) was not doing any of the acts therein enumerated.
History. s. 349, ch. 59-205; s. 2, ch. 81-318; ss. 318, 807, ch. 82-243; ss. 157, 206, 207, ch. 90-363; s. 4, ch. 91-429; s. 297, ch. 97-102; s. 3, ch. 2005-144.