Senate Bill 1242

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    Florida Senate - 1999                                  SB 1242

    By Senator Geller





    29-1194-99

  1                      A bill to be entitled

  2         An act relating to viatical settlement

  3         contracts; amending s. 626.9911, F.S.; adding

  4         and revising definitions; revising

  5         qualifications for licensure; creating s.

  6         626.99181, F.S.; limiting broker fees; amending

  7         s. 626.9922, F.S.; revising examination

  8         authority; amending s. 626.99235, F.S.;

  9         modifying disclosure requirements for persons

10         advertising or soliciting viatical settlement

11         contracts; amending s. 626.9924, F.S.; adding

12         requirements for entering viatical settlement

13         contracts; creating s. 626.99271, F.S.;

14         providing remedies in cases of unlawful sales;

15         creating s. 626.99272, F.S.; authorizing cease

16         and desist orders; providing for imposition and

17         collection of an administrative fine; creating

18         s. 626.99275, F.S.; proscribing certain

19         practices; creating s. 626.99277; proscribing

20         certain false representations; providing an

21         effective date.

22

23  Be It Enacted by the Legislature of the State of Florida:

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25         Section 1.  Section 626.9911, Florida Statutes, 1998

26  Supplement, is amended to read:

27         626.9911  Definitions.--As used in this act, the term:

28         (1)  "Department" means the Department of Insurance.

29         (2)  "Independent third-party trustee or escrow agent"

30  means an attorney, certified public accountant, financial

31  institution, or other person providing escrow services under

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  1  the authority of a regulatory body. The term does not include

  2  any person associated, affiliated, or under common control

  3  with a viatical settlement provider or viatical settlement

  4  broker.

  5         (3)  "Person" has the meaning specified in s. 1.01.

  6         (4)  "Viatical settlement broker" means a person who,

  7  for valuable consideration, offers or attempts to negotiate

  8  viatical settlement contracts between a viator resident in

  9  this state and one or more viatical settlement providers. The

10  term does not include an attorney, accountant, financial

11  planner, or person acting under a power of attorney from the

12  viator, who is retained to represent the viator and whose

13  compensation is paid solely by the viator without regard to

14  whether a viatical settlement contract is effected.

15         (5)  "Viatical settlement contract" means a written

16  settlement entered into between a viatical settlement

17  provider, or its related provider trust, and a viator.  The

18  agreement must establish the terms under which the viatical

19  settlement provider will pay compensation or anything of

20  value.

21         (6)  "Viatical settlement provider" means a person who,

22  in this state or from this state, enters into a viatical

23  settlement contract with a viator.  The term does not include:

24         (a)  Any bank, savings bank, savings and loan

25  association, credit union, or other licensed lending

26  institution that takes an assignment of a life insurance

27  policy as collateral for a loan;

28         (b)  A life and health insurer that has lawfully issued

29  a life insurance policy that provides accelerated benefits to

30  terminally ill policyholders or certificateholders; or

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  1         (c)  Any natural person who enters into no more than

  2  one viatical settlement contract with a viator in 1 calendar

  3  year, unless such natural person has previously been licensed

  4  under this act or is currently licensed under this act.

  5         (d)  A trust that meets the definition of a "related

  6  provider trust."

  7         (7)  "Viator" means the original owner of a life

  8  insurance policy insuring the life of an individual with a

  9  natural person who has a catastrophic, or life-threatening, or

10  chronic illness or condition and who is over the age of 55 and

11  who enters or seeks to enter into a viatical settlement

12  contract has the right to assign, transfer, sell, devise, or

13  bequeath the benefits of his or her life insurance policy.

14         (8)  "Related provider trust" means a trust established

15  by a viatical settlement provider for the sole purpose of

16  entering into or owning viatical settlement contracts. A

17  related provider trust shall be subject to all provisions of

18  this act that apply to the viatical settlement provider who

19  established the related provider trust, except s. 626.9912,

20  which shall not be applicable. A viatical settlement provider

21  may establish no more than one related provider trust, and the

22  sole trustee of such related provider trust shall be the

23  viatical settlement provider licensed under s. 626.9912. The

24  name of the licensed viatical settlement provider shall be

25  included within the name of the related provider trust.

26         (9)  "Insurance investment contract" means a contract

27  or agreement, to which the settlement insured is not a party,

28  to purchase a life insurance policy or an interest in a life

29  insurance policy, which is entered into for the purpose of

30  deriving an economic benefit.

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  1         (10)  "Insurance investment broker" means a person who

  2  solicits, negotiates, or advertises investment in insurance

  3  investment contracts.

  4         (11)  "Settlement insured" means the person whose life

  5  is insured by the policy that is subject to the viatical

  6  settlement contract.

  7         Section 2.  Section 626.99181, Florida Statutes, is

  8  created to read:

  9         Section 3.  626.99181  Viatical settlement broker

10  fees.--

11         (1)  A viatical settlement broker's fee may be based

12  only on a percentage of the compensation or value paid by a

13  viatical settlement provider to a viator under a viatical

14  settlement contract.

15         (2)  No person may receive any commission or

16  compensation of any kind for performing the functions of a

17  viatical settlement broker on a policy for which the person

18  has received a commission from the sale of the policy.

19         (3)  A viatical settlement broker shall disclose to a

20  prospective viator the limitations on the broker's fee imposed

21  by this section.

22         Section 4.  Subsection (3) is added to section 626.992,

23  Florida Statutes, to read:

24         626.992  Use of licensed brokers and providers

25  required.--

26         (3)  No individual whose license has been revoked or

27  suspended for any reason may be licensed as a viatical

28  settlement provider or broker, be employed by a viatical

29  settlement provider or broker, or solicit investment funds

30  from investors or potential investors during the period of

31  such revocation or suspension.

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  1         Section 5.  Subsection (1) of section 626.9922, Florida

  2  Statutes, is amended to read:

  3         626.9922  Examination.--

  4         (1)  The department may examine the business and

  5  affairs of any licensee or applicant for a license.  The

  6  department may order any licensee or applicant to produce any

  7  records, books, files, advertising and solicitation materials,

  8  or other information and may take statements under oath to

  9  determine whether the licensee or applicant is in violation of

10  the law or is acting contrary to the public interest.  The

11  expenses incurred in conducting any examination or

12  investigation must be paid by the licensee or applicant.

13  Examinations and investigations must be conducted as provided

14  in chapter 624, and licensees are subject to all applicable

15  provisions of the insurance code.

16         Section 6.  Section 626.99235, Florida Statutes, 1998

17  Supplement, is amended to read:

18         626.99235  Disclosures to investors;

19  misrepresentations.--

20         (1)  No person shall misrepresent or fail to clearly

21  and affirmatively disclose the nature of the return or the

22  duration of time to obtain the return of any investment

23  related to one or more viatical settlement contracts

24  settlements sold by a viatical settlement provider or related

25  provider trust.

26         (2)  Any The viatical settlement provider, and any

27  insurance investment broker, itself or through another person,

28  shall provide in writing the following disclosures to any

29  investor or investor prospect investing in any viatical

30  settlement contract:

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  1         (a)  That the return on available under the viatical

  2  investment contract is directly tied to the projected life

  3  span or date of death of one or more viators;

  4         (b)  If a return is represented, the disclosure shall

  5  indicate the projected life span or date of death of the

  6  viator or viators whose life or lives are tied to the return.

  7         (c)  If required by the terms of the viatical

  8  investment contract, that the investor may be responsible for

  9  the payment of insurance premiums on the life of the viator or

10  late or surrender fees or other costs related to the life

11  insurance coverage policy on the life of the viator or viators

12  which may reduce the return.

13         (d)  The amount of any trust fees or other expenses, if

14  any, to be charged to the investor.

15         (e)  The name and address of the person who is

16  responsible for paying the premium until the death of the

17  settlement insured.

18         (f)  That the life expectancy and rate of return are

19  only estimates and cannot be guaranteed.

20         (g)  The basis for the assumption of life expectancy

21  used in the solicitation or advertisement.

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23  The written disclosure required under this subsection must

24  shall be conspicuously displayed in any insurance investment

25  contract agreement, and any solicitation material furnished to

26  the investor or prospective investor by such provider, trust

27  or person, and must shall be in contrasting color and in not

28  less than 10-point type or no smaller than the largest type on

29  the page if larger than 10-point type.

30         Section 7.  Subsection (7) is added to section

31  626.9924, Florida Statutes, to read:

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  1         626.9924  Viatical settlement contracts; procedures;

  2  rescission.--

  3         (7)  Within 10 days after the execution of the viatical

  4  settlement contract, the escrow agent and provider must give

  5  notice to the insurer that the policy has become subject to a

  6  viatical settlement contract.

  7         Section 8.  Section 626.99271, Florida Statutes, is

  8  created to read:

  9         626.99271  Remedies available in cases of unlawful

10  sale.--A material violation of this part is grounds for

11  rescission of any insurance investment contract.

12         Section 9.  Section 626.99272, Florida Statutes, is

13  created to read:

14         626.99272  Cease and desist orders.--

15         (1)  The department may issue a cease and desist order

16  upon a person who violates any provision of this part, any

17  rule or order adopted by the department, or any written

18  agreement entered into with the department.

19         (2)  When the department finds that such action

20  presents an immediate danger to the public which requires an

21  immediate final order, it may issue an emergency cease and

22  desist order reciting with particularity the facts underlying

23  such findings. The emergency cease and desist order is

24  effective immediately upon service of a copy of the order on

25  the respondent and remains effective for 90 days. If the

26  department begins nonemergency cease and desist proceedings

27  under subsection (1), the emergency cease and desist order

28  remains effective until conclusion of the proceedings under

29  ss. 120.569 and 120.57.

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  1         (3)  The department may impose and collect an

  2  administrative fine not to exceed $50,000 per violation

  3  against any person found to have violated this section.

  4         Section 10.  Section 626.99275, Florida Statutes, is

  5  created to read:

  6         626.99275  Prohibited practices.--It is unlawful for

  7  any person to enter into a viatical settlement contract

  8  involving an insurance policy during its contestable period.

  9         Section 11.  Section 626.99277, Florida Statutes, is

10  created to read:

11         626.99277  False representations; deceptive words.--

12         (1)  It is unlawful for a person in the advertisement,

13  offer, or sale of an insurance investment contract to

14  misrepresent that such a contract has been guaranteed,

15  sponsored, recommended, or approved by the state or any agency

16  or officer of the state or by the United States or any agency

17  or officer of the United States.

18         (2)  It is unlawful for a person in conjunction with

19  the sale of an insurance investment contract to directly or

20  indirectly misrepresent that such person has been sponsored,

21  recommended, or approved, or that her or his abilities or

22  qualifications have in any respect been passed upon, by the

23  state or any agency or officer of the state or by the United

24  States or any agency or officer of the United States.

25         (3)  It is unlawful for a person in the offer or sale

26  of any insurance investment contract to obtain money or

27  property by a misrepresentation that:

28         (a)  The insurance investment contract purchased,

29  offered, or sold is guaranteed, sponsored, recommended, or

30  approved by the state or any agency or officer of the state or

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  1  by the United States or any agency or officer of the United

  2  States; or

  3         (b)  The person is sponsored, recommended, or approved,

  4  or that such person's abilities or qualifications have in any

  5  respect been passed upon, by the state or any agency or

  6  officer of the state or by the United States or any agency or

  7  officer of the United States.

  8         (4)  Subsection (1) and subsection (2) do not prohibit

  9  a statement that the person is licensed or appointed under

10  this part if such statement is required by the provisions of

11  this part or rules adopted thereunder, if such statement is

12  true in fact, and if the effect of such statement is not

13  misrepresented.

14         (5)  A person may not represent that an investment

15  contract is guaranteed by any insurance guaranty fund.

16         (6)  A person may not represent that the investment in

17  an investment contract is "guaranteed," or that the principal

18  is "safe," or that the investment is free of risk.

19         Section 12.  This act shall take effect upon becoming a

20  law.

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  2                          SENATE SUMMARY

  3    Amends various sections of the "Viatical Settlement Act."
      Revises definitions and qualifications for licensure as a
  4    viatical settlement provider or viatical settlement
      broker. Provides that a viatical settlement broker's fee
  5    may be based only on a percent of the compensation or
      value paid by a viatical settlement provider to a viator
  6    under a viatical settlement contract. Authorizes the
      Department of Insurance to order a licensee or applicant
  7    for license to produce advertizing and solicitation
      materials. Strengthens the disclosure requirements for
  8    persons advertising or soliciting viatical settlement
      contracts. Provides that within 10 days of the execution
  9    of the viatical settlement contract, the escrow agent and
      provider must give notice to the insurer that the policy
10    has become subject to a viatical settlement contract.
      Provides remedies in cases of unlawful sales. Authorizes
11    the department to issue cease and desist orders and to
      impose and collect an administrative fine not to exceed
12    $50,000 per violation. Prohibits certain practices and
      prescribes specified false representations.
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