Senate Bill 1242er

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  1

  2         An act relating to the regulation of insurance

  3         and investments in insurance products industry;

  4         amending s. 626.9911, F.S.; defining "viatical

  5         settlement purchaser," "viatical settlement

  6         purchase agreement," and "viatical settlement

  7         sales agent"; revising definitions of the terms

  8         "viatical settlement broker," "viatical

  9         settlement contract," "viatical settlement

10         provider," "related provider trust," and

11         "viator"; creating s. 626.99181, F.S.;

12         requiring disclosure of certain information

13         regarding viatical settlement broker fees;

14         amending s. 626.9919, F.S.; requiring viatical

15         settlement sales agents to give notice of

16         change of certain information; amending s.

17         626.992, F.S.; requiring viatical settlement

18         sales agents to be licensed by the Department

19         of Insurance; amending s. 626.9922, F.S.;

20         revising requirements for examination; amending

21         s. 626.99235, F.S.; revising requirements for

22         disclosure to viatical settlement purchasers

23         and providing for disclosure forms to be

24         adopted by the department; amending s.

25         626.9925; revising rulemaking authority of the

26         department; amending s. 626.9926, F.S.;

27         providing that viatical settlement purchase

28         agreement rates are not regulated; amending s.

29         626.9927, F.S.; including viatical settlement

30         purchase agreements; creating s. 626.99272,

31         F.S.; providing for cease and desist orders;


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  1         providing for administrative fines; creating s.

  2         626.99275, F.S.; prohibiting certain practices;

  3         creating s. 626.99277, F.S.; prohibiting false

  4         representations; amending s. 626.9929, F.S.;

  5         establishing a grace period for viatical

  6         settlement sales agents transacting business in

  7         this state; amending s. 626.993, F.S.;

  8         providing an exemption for nonresident viators

  9         with dependent children; providing for future

10         repeal of s. 626.993, F.S.; providing an

11         effective date.

12

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

14

15         Section 1.  Section 626.9911, Florida Statutes, 1998

16  Supplement, is amended to read:

17         626.9911  Definitions.--As used in this act, the term:

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

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

20  means an attorney, certified public accountant, financial

21  institution, or other person providing escrow services under

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

23  any person associated, affiliated, or under common control

24  with a viatical settlement provider or viatical settlement

25  broker.

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

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

28  on behalf of a viator and for a fee, commission, or other

29  valuable consideration, offers or attempts to negotiate

30  viatical settlement contracts between a viator resident in

31  this state and one or more viatical settlement providers.


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  1  Notwithstanding the manner in which the viatical settlement

  2  broker is compensated, a viatical settlement broker is deemed

  3  to represent only the viator and owes a fiduciary duty to the

  4  viator to act according to the viator's instructions and in

  5  the best interest of the viator.  The term does not include an

  6  attorney, licensed Certified Public Accountant, or investment

  7  adviser lawfully registered with the Department of Banking and

  8  Finance under chapter 517 financial planner, or person acting

  9  under a power of attorney from the viator, who is retained to

10  represent the viator and whose compensation is paid directly

11  solely by or at the direction and on behalf of the viator

12  without regard to whether a viatical settlement contract is

13  effected.

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

15  agreement settlement entered into between a viatical

16  settlement provider, or its related provider trust, and a

17  viator.  The agreement must establish the terms under which

18  the viatical settlement provider will pay compensation or

19  anything of value, which compensation or value is less than

20  the expected death benefit of the insurance policy or

21  certificate, in return for the viator's assignment, transfer,

22  sale, devise, or bequest of the death benefit or ownership of

23  all or a portion of the insurance policy or certificate of

24  insurance to the viatical settlement provider.  A viatical

25  settlement contract also includes a contract for a loan or

26  other financial transaction secured primarily by an individual

27  or group life insurance policy, other than a loan by a life

28  insurance company pursuant to the terms of the life insurance

29  contract, or a loan secured by the cash value of a policy.

30         (6)  "Viatical settlement provider" means a person

31  who, in this state, or from this state, or with a resident of


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  1  this state, effectuates enters into a viatical settlement

  2  contract with a viator.  The term does not include:

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

  4  association, credit union, or other licensed lending

  5  institution that takes an assignment of a life insurance

  6  policy as collateral for a loan;

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

  8  a life insurance policy that provides accelerated benefits to

  9  terminally ill policyholders or certificate holders; or

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

11  one viatical settlement contract with a viator in 1 calendar

12  year, unless such natural person has previously been licensed

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

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

15  provider trust."

16         (e)  A viatical settlement provider, who from this

17  state, enters into a viatical settlement purchase agreement

18  with a purchaser who is resident of a state, other than

19  Florida, which has enacted statutes or promulgated regulations

20  governing viatical settlement purchase agreements. Such

21  viatical settlement purchase agreements shall be governed in

22  the effectuation of that viatical settlement purchase

23  agreement, under the statutes and regulations governing

24  viatical settlement purchase agreements in the purchaser's

25  state of residence.

26         (f)  A viatical settlement provider who, from this

27  state, enters into a viatical settlement contract with a

28  viator who is resident of a state, other than Florida, which

29  has enacted statutes or promulgated regulations governing

30  viatical settlement contracts. Such viatical settlement

31  contracts shall be governed in the effectuation of that


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  1  viatical settlement contract, under the statutes and

  2  regulations governing viatical settlement contracts in the

  3  viator's state of residence.

  4         (g)  A viator in this state.

  5         (h)  A viatical settlement purchaser.

  6         (7)  "Viator" means the owner of a life insurance

  7  policy or a certificateholder under a group policy insuring

  8  the life of an individual with a natural person who has a

  9  catastrophic or life-threatening illness or condition and who

10  enters or seeks to enter into a viatical settlement contract

11  has the right to assign, transfer, sell, devise, or bequeath

12  the benefits of his or her life insurance policy. This term

13  does not include a viatical settlement purchaser or a viatical

14  settlement provider or any person acquiring a policy or

15  interest in a policy from a viatical settlement provider, nor

16  does it include an independent third-party trustee or escrow

17  agent.

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

19  by a viatical settlement provider for the sole purpose of

20  entering into or owning viatical settlement contracts. This

21  term does not include an independent third-party trustee or

22  escrow agent or a trust that does not enter into agreements

23  with a viatical settlement purchaser.  A related provider

24  trust shall be subject to all provisions of this act that

25  apply to the viatical settlement provider who established the

26  related provider trust, except s. 626.9912, which shall not be

27  applicable. A viatical settlement provider may establish no

28  more than one related provider trust, and the sole trustee of

29  such related provider trust shall be the viatical settlement

30  provider licensed under s. 626.9912. The name of the licensed

31


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  1  viatical settlement provider shall be included within the name

  2  of the related provider trust.

  3         (9)  "Viatical settlement purchase agreement" means a

  4  contract or agreement, entered into by a viatical settlement

  5  purchaser, to which the viator is not a party, to purchase a

  6  life insurance policy or an interest in a life insurance

  7  policy, which is entered into for the purpose of deriving an

  8  economic benefit.

  9         (10)  "Viatical settlement purchaser" means a person,

10  other than a licensee under this part, an accredited investor

11  as defined in Rule 501, Regulation D of the Securities Act

12  Rules, or a qualified institutional buyer as defined by Rule

13  144(a) of the Federal Securities Act, or a special purpose

14  entity which is created solely to act as a financing source

15  for the viatical settlement provider, who gives a sum of money

16  as consideration for a life insurance policy or an interest in

17  the death benefits of a life insurance policy which has been

18  or will be the subject of a viatical settlement contract, for

19  the purpose of deriving an economic benefit. The above

20  reference to Rule 501, Regulation D and Rule 144(a) of the

21  Federal Securities Act are used strictly for defining purposes

22  and shall not be interpreted in any other manner.

23         (11)  "Viatical settlement sales agent" means a person

24  other than a licensed viatical settlement provider who

25  arranges the purchase through a viatical settlement purchase

26  agreement of a life insurance policy or an interest in a life

27  insurance policy.

28         Section 2.  Section 626.99181, Florida Statutes, is

29  created to read:

30         626.99181  Viatical settlement broker's

31  compensation.--A viatical settlement broker shall disclose to


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  1  a prospective viator the amount and method of calculating the

  2  broker's compensation. The term "compensation" includes

  3  anything of value paid or given to a viatical settlement

  4  broker for the placement of a policy.

  5         Section 3.  Section 626.9919, Florida Statutes, is

  6  amended to read:

  7         626.9919  Notice of change of address or name; viatical

  8  settlement provider licensees, and broker licensees, and

  9  viatical settlement sales agent licensees.--Each viatical

10  settlement provider licensee, and each viatical settlement

11  broker licensee, and viatical settlement sales agent licensee

12  must provide the department at least 30 days' advance notice

13  of any change in the licensee's name, residence address,

14  principal business address, or mailing address.

15         Section 4.  Section 626.992, Florida Statutes, is

16  amended to read:

17         626.992  Use of viatical settlement licensed brokers,

18  and providers, and viatical settlement sales agents

19  required.--

20         (1)  A licensed viatical settlement provider may not

21  use any person to perform the functions of a viatical

22  settlement broker as defined in this act unless such person

23  holds a current, valid license as a viatical settlement

24  broker.  Salaried individuals employed by viatical settlement

25  providers shall engage in viatical settlement broker

26  activities only when accompanied by a viatical settlement

27  broker who holds a current valid license issued under this

28  act. A viatical settlement provider may not use any person to

29  perform the functions of a viatical settlement sales agent

30  unless the person holds a current, valid license as provided

31  in subsection (4).


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  1         (2)  A licensed viatical settlement broker may not use

  2  any person to perform the functions of a viatical settlement

  3  provider as defined in this act unless such person holds a

  4  current, valid license as a viatical settlement provider.

  5         (3)  A viatical settlement sales agent may not use any

  6  person to perform the functions of a viatical settlement

  7  broker unless such person holds a current, valid license as a

  8  viatical settlement broker.

  9         (4)  A person may not perform the functions of a

10  viatical settlement sales agent unless licensed as a life

11  agent as defined in s. 626.051 and as provided in this

12  chapter.

13         Section 5.  Section 626.9922, Florida Statutes, is

14  amended to read:

15         626.9922  Examination.--

16         (1)  The department may examine the business and

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

18  department may order any licensee or applicant to produce any

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

20  or other information and may take statements under oath to

21  determine whether the licensee or applicant is in violation of

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

23  expenses incurred in conducting any examination or

24  investigation must be paid by the licensee or applicant.

25  Examinations and investigations must be conducted as provided

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

27  provisions of the insurance code.

28         (2)  All accounts, records, documents, files, and other

29  information relating to all transactions of viatical

30  settlement contracts or viatical settlement purchase

31  agreements must be maintained by the licensee for a period of


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  1  at least 3 years after the death of the insured viator and

  2  must be available to the department for inspection during

  3  reasonable business hours.

  4         Section 6.  Section 626.99235, Florida Statutes, 1998

  5  Settlement, is amended to read:

  6         626.99235  Disclosures to viatical settlement

  7  purchasers investors; misrepresentations.--

  8         (1)  No person shall misrepresent the nature of the

  9  return or the duration of time to obtain the return of any

10  investment related to one or more viatical settlements sold by

11  a viatical settlement provider or related provider trust.

12         (2)  The viatical settlement provider and the viatical

13  settlement sales agent, themselves itself or through another

14  person, shall provide in writing the following disclosures to

15  any viatical settlement purchaser investor or purchaser

16  investor prospect:

17         (a)  That the return represented as being available

18  under the viatical settlement purchase agreement investment is

19  directly tied to the projected life span or date of death of

20  one or more insureds. viators;

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

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

23  insured or insureds viator or viators whose life or lives are

24  tied to the return.

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

26  settlement purchase agreement investment contract, that the

27  viatical settlement purchaser shall investor may be

28  responsible for the payment of insurance premiums on the life

29  of the insured, viator or late or surrender fees, or other

30  costs related to the life insurance policy on the life of the

31


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  1  insured or insureds viator or viators which may reduce the

  2  return.

  3         (d)  The amount of any trust fees, commissions,

  4  deductions, or other expenses, if any, to be charged to the

  5  viatical settlement purchaser investor.

  6         (e)  The name and address of the person responsible for

  7  tracking the insured.

  8         (f)  That group policies may contain limitations or

  9  caps in the conversion rights, that additional premiums may

10  have to be paid if the policy is converted, and that the party

11  responsible for the payment of such additional premiums shall

12  be identified.

13         (g)  That the life expectancy and rate of return are

14  only estimates and cannot be guaranteed.

15         (h)  That the purchase of a viatical settlement

16  contract should not be considered a liquid purchase, since it

17  is impossible to predict the exact timing of its maturity and

18  the funds may not be available until the death of the insured.

19         (i)  The name and address of the person with the

20  responsibility for paying the premium until the death of the

21  insured.

22

23  The written disclosure required under this subsection shall be

24  conspicuously displayed in any viatical settlement purchase

25  investment agreement, and in any solicitation material

26  furnished to the viatical settlement purchaser investor by

27  such viatical settlement provider, related provider trust, or

28  person, and shall be in contrasting color and in not less than

29  10-point type or no smaller than the largest type on the page

30  if larger than 10-point type. The department is authorized to

31  adopt by rule the disclosure form to be used. The disclosures


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  1  need not be furnished in an invitation to inquire, the

  2  objective of which is to create a desire to inquire further

  3  about entering into a viatical settlement purchase agreement.

  4  The invitation to inquire may not quote rates of return, may

  5  not include material attendant to the execution of any

  6  specific viatical settlement purchase agreement, and may not

  7  relate to any specific viator.

  8         Section 7.  Section 626.9925, Florida Statutes, is

  9  amended to read:

10         626.9925  Rules.--The department may adopt rules to

11  implement this act, including rules establishing standards for

12  evaluating advertising by licensees and rules providing for

13  the collection of data and recordkeeping requirements relating

14  to executed viatical settlement contracts and viatical

15  settlement purchase agreements.

16         Section 8.  Section 626.9926, Florida Statutes, is

17  amended to read:

18         626.9926  Rate regulation not authorized.--Nothing in

19  this act shall be construed to authorize the department to

20  directly or indirectly regulate the amount paid as

21  consideration for entry into a viatical settlement contract or

22  viatical settlement purchase agreement.

23         Section 9.  Subsection (1) of section 626.9927, Florida

24  Statutes, is amended to read:

25         626.9927  Unfair trade practices; cease and desist;

26  injunctions; civil remedy.--

27         (1)  A violation of this act is an unfair trade

28  practice under ss. 626.9521 and 626.9541 and is subject to the

29  penalties provided in the insurance code.  Part X of this

30  chapter applies to a licensee under this act or a transaction

31  subject to this act as if a viatical settlement contract and a


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  1  viatical settlement purchase agreement were an insurance

  2  policy.

  3         Section 10.  Section 626.99272, Florida Statutes, is

  4  created to read:

  5         626.99272  Cease and desist orders and fines.--

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

  7  upon a person that violates any provision of this part, any

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

  9  agreement entered into with the department.

10         (2)  When the department finds that such an action

11  presents an immediate danger to the public which requires an

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

13  desist order reciting with particularity the facts underlying

14  such findings.  The emergency cease and desist order is

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

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

17  department begins nonemergency cease and desist proceedings

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

19  remains effective, absent an order by an appellate court of

20  competent jurisdiction pursuant to ss. 120.68, until the

21  conclusion of proceedings under ss. 120.569 and 120.57.

22         (3)  The department may impose and collect an

23  administrative fine not to exceed $10,000 for each nonwillful

24  violation and $25,000 for each willful violation of any

25  provision of this part.

26         Section 11.  Section 626.99275, Florida Statutes, is

27  created to read:

28         626.99275  Prohibited practices.--It is unlawful for

29  any person:

30         (1)  To knowingly enter into a viatical settlement

31  contract the subject of which is a life insurance policy that


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  1  was obtained by means of a false, deceptive, or misleading

  2  application for the life insurance policy.

  3         (2)  In the solicitation or sale of a viatical

  4  settlement purchase agreement:

  5         (a)  To employ any device, scheme, or artifice to

  6  defraud;

  7         (b)  To obtain money or property by means of an untrue

  8  statement of a material fact or by any omission to state a

  9  material fact necessary in order to make the statements made,

10  in light of the circumstances under which they were made, not

11  misleading; or

12         (c)  To engage in any transaction, practice, or course

13  of business which operates or would operate as a fraud or

14  deceit upon a person.

15         Section 12.  Section 626.99277, Florida Statutes, is

16  created to read:

17         626.99277  False representations; deceptive words.--

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

19  offer, or sale of a viatical settlement purchase agreement to

20  misrepresent that such an agreement has been guaranteed,

21  sponsored, recommended, or approved by the state, or any

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

23  agency or officer of the United States.

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

25  the sale of a viatical settlement purchase agreement to

26  directly or indirectly misrepresent that the person has been

27  sponsored, recommended, or approved, or that his or her

28  abilities or qualifications have in any respect been passed

29  upon, by this state or any other state, or any agency or

30  officer thereof, or by the United States or any agency or

31  officer thereof.


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

  2  of a viatical settlement purchase agreement to obtain money or

  3  property by:

  4         (a)  A misrepresentation that the viatical settlement

  5  purchase agreement purchased, offered, or sold is guaranteed,

  6  sponsored, recommended, or approved by this state or any other

  7  state, or any agency or officer thereof, or by the United

  8  States or any agency or officer thereof.

  9         (b)  A misrepresentation that the person is sponsored,

10  recommended, or approved, or that the person's abilities or

11  qualifications have in any respect been passed upon, by this

12  state or any other state, or any agency or officer thereof, or

13  by the United States or any agency or officer thereof.

14         (4)  Neither subsection (1) nor subsection (2) may be

15  construed to prohibit a statement that the person is licensed

16  or appointed under this part if such a statement is required

17  by this part or rules adopted under this part, if the

18  statement is true in fact, and if the effect of the statement

19  is not misrepresented.

20         (5)  A person may not represent that a viatical

21  settlement purchase agreement is guaranteed by any insurance

22  guaranty fund.

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

24  a viatical settlement purchase agreement is "guaranteed," that

25  the principal is "safe," or that the investment is free of

26  risk.

27         Section 13.  Section 626.9929, Florida Statutes, is

28  amended to read:

29         626.9929  Grace period.--A viatical settlement sales

30  agent provider or viatical settlement broker that was

31  transacting business in this state on June 30, 1999 1996, may


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  1  continue to transact such business, in the absence of any

  2  orders by the department to the contrary, until the department

  3  approves or disapproves the sales agent's provider's or

  4  broker's application for licensure if the sales agent provider

  5  or broker files with the department no later than November 1,

  6  1999, an application for licensure and all forms currently in

  7  use no later than November 1, 1996, and if the sales agent

  8  provider or broker complies with all other provisions of this

  9  act.

10         Section 14.  Section 626.993, Florida Statutes, is

11  amended to read:

12         626.993  Viators with dependent children.--

13         (1)  Before a viatical settlement provider may enter

14  into a viatical settlement with a viator, the viatical

15  settlement provider must ascertain if the viator has any

16  dependent children.  If the viator has any dependent children,

17  the viator may not viaticate more than 50 percent of the face

18  value of the policy.

19         (2)  A contract entered into with a viator who is a

20  resident of a state other than Florida which has not enacted

21  statutes or promulgated regulations governing viatical

22  settlement contracts is not subject to this section.

23         Section 15.  Section 626.993, Florida Statutes, as

24  amended by this act, is repealed June 1, 2000.

25         Section 16.  This act shall take effect upon becoming a

26  law.

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