The Florida Senate

631.157  Civil action by the receiver.--

(1)  Any person who is engaged in the business of insurance, is or acts as an officer, director, agent, or employee of any person engaged in the business of insurance, or is involved in a transaction relating to the conduct of affairs of such a business, other than as an insured or beneficiary under a policy of insurance, and who willfully obtains or uses, as defined in s. 812.012(3), any funds, assets, or property, including, but not limited to, moneys, funds, premiums, credits, or other property of an insurer, shall be liable to the department as receiver for the use and benefit of an insolvent insurer's estate, claimants, creditors, and policyholders, as follows:

(a)  If the funds, assets, or property obtained or used did not jeopardize the safety and soundness of an insurer and was not a significant cause of such insurer being placed in receivership, the person shall be liable only for the full amount of any funds, assets, or property obtained or used, plus prejudgment interest provided by law.

(b)  If the funds, assets, or property obtained or used jeopardized the safety and soundness of an insurer or was a significant cause of the insurer being placed in receivership, the person shall be liable for triple the full amount of any funds, assets, or property obtained or used, plus prejudgment interest provided by law on the original amount.

(2)(a)  Any person who:

1.  Is engaged in the business of insurance, is or acts as an officer, director, agent, or employee of any person engaged in the business of insurance, or is involved in a transaction relating to the conduct of affairs of such a business, other than as an insured or beneficiary under a policy of insurance;

2.  Has actual knowledge or such constructive knowledge as should have been obtained through reasonable inquiry by a person in that position; and

3.  Misreports a material fact in any book, report, or statement of an insurer

with the intent to deceive the insurer, including any officer, employee, or agent of the insurer, the department, or any agent or examiner appointed by the department to examine the affairs of the person or insurer, concerning the financial condition or solvency of such business is liable to the department as receiver for the use and benefit of the insolvent insurer's estate, creditors, and policyholders, as provided in paragraph (b).

(b)1.  If the misreporting did not jeopardize the safety and soundness of an insurer and was not a significant cause of the insurer being placed in receivership, the person shall be liable only for the full amount of any asset misreported.

2.  If the misreporting jeopardized the safety and soundness of an insurer or was a significant cause of the insurer being placed in receivership, the person shall be liable for triple the full amount of any asset misreported.

(3)  If the asset or property that has been obtained or used was reported to the department as being available to the insurer as an admitted asset and such asset is unavailable to the receiver for payment of the obligations of the insurer at the time a receivership proceeding is instituted, the obtaining or using shall be presumed to have jeopardized the safety and soundness of the insurer and to have been a significant cause of the insurer's being placed in conservation, rehabilitation, or liquidation, with the burden of proof on the defendants to show otherwise.

(4)  If the receiver is successful in establishing a claim under this section, the receiver shall be entitled to recover all of its costs; investigative and other expenses, which shall include the department's in-house staff and staff attorney's expenses, costs, and salaries, expended in the prosecution of the action; and reasonable attorney's fees. The receiver shall be exempt from the provisions of s. 57.111

(5)  An action under this section may be brought at any time before the expiration of 4 years after the entry of the initial order of rehabilitation or liquidation under this part but shall be filed before the time the receivership proceeding is closed or dismissed.

History.--s. 12, ch. 2002-25.