2.4 Build-Up Funds & Indemnity Agreements
Key Takeaways
- F.S. 648.29 caps build-up fund (BUF) contributions at a maximum of 40% of the premium collected per bond written.
- Build-up funds must be held in an individual trust account at a qualifying Florida bank or savings and loan association; received funds are deposited immediately and interest accrues to the agent.
- By March 1, each authorized bail insurer and MGA furnishes DFS a certified statement of each BUF account and balance; insurers also provide bank statements to agents and agencies.
- After contract termination and discharge of open bond liabilities, BUF funds are due within 6 months after final discharge of those liabilities.
- Third-party indemnity agreements and promissory notes must be executed in writing, outlining indemnitor liability for bond forfeitures and actual, reasonable apprehending and surrender expenses.
2.4 Build-Up Funds — F.S. 648.29
A build-up fund (BUF) is money posted by an agent or agency to indemnify an insurer for losses and agreed costs related to bonds written by that agent or agency. It remains the sole property of the agent or agency while the insurer holds it in a fiduciary capacity.
Account structure
All BUF pledged to an insurer must be held in an individual build-up trust account for the agent or agency at an FDIC- or FSLIC-approved bank or savings and loan association in Florida. The account is held jointly in the agent's or agency's and insurer's names, or in trust for the agent or agency by the insurer.
The account remains open to DFS inspection at all times. Accounting must identify the amounts collected on each bond.
Contribution ceiling and deposit
BUF may not exceed 40 percent of the premium, as established by the agent's contract with the insurer or MGA. Funds received must be deposited immediately into the BUF trust account.
Interest accrues to the bail bond agent. Do not add an “unless the contract says otherwise” exception absent from the statute.
Ownership and use
The insurer holds the BUF in a fiduciary capacity. It may use the fund to indemnify itself for losses and other agreed costs related to bonds executed by the agent. The fund remains the sole property of the agent or agency, subject to those authorized uses and open liabilities.
BUF is not the same as collateral provided by a principal or indemnitor:
| BUF | Collateral |
|---|---|
| Posted by agent or agency | Provided for a particular bond |
| Protects insurer against agent bond losses/agreed costs | Secures indemnity for the bond |
| Interest accrues to agent | Interest on qualifying account benefits collateral provider |
| Governed primarily by F.S. 648.29 | Governed primarily by F.S. 648.442/.571 |
Return after termination
After the agent's or agency's contract terminates and open bond liabilities on the written bonds are discharged, BUF is due no later than 6 months after final discharge of the open liabilities.
There is no separate blanket one-year return rule in F.S. 648.29. The final-discharge condition matters: termination alone does not start an unconditional six-month clock while covered bonds remain open.
Annual reporting and statements
By March 1 each year, each authorized bail insurer and MGA must furnish DFS a certified statement listing every BUF trust account and its balance.
Insurers must also provide copies of BUF account bank statements to their agents and agencies. Do not substitute the obsolete claim that subsection (3) requires a detailed annual agent accounting within 60 days after December 31.
Rule 69B-221.070 is the current administrative rule titled Build-up Funds; Reporting. Rule 69B-221.140 is not the current source to cite for these facts.
Indemnity agreements
An indemnity agreement is distinct from BUF. Under F.S. 648.442(10), when an indemnity agreement is required between a principal and the surety or its agent, it must include the statutory indemnification language. Other permissible collateral forms and the reasonable-relation standard appear in F.S. 648.442.
Exam traps
- 40 percent is a ceiling, not a required deduction.
- Received BUF goes into the account immediately.
- BUF interest belongs to the agent.
- March 1 reporting goes to DFS.
- Insurers provide bank statements to agents and agencies.
- Return is due within 6 months after final discharge of open bond liabilities.
- BUF and client collateral are not interchangeable.
Under F.S. 648.29, what is the maximum percentage of premium that an insurer or managing general agent (MGA) may collect from a bail bond agent for a build-up fund (BUF)?
Where must build-up funds (BUF) collected by an insurer or managing general agent be deposited and maintained under Florida law?
By what date must each authorized bail insurer and MGA furnish DFS the annual certified statement listing each build-up trust account and balance under F.S. 648.29(4)?