Senate Bill 1232

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    Florida Senate - 2000                                  SB 1232

    By Senator Geller





    29-639-00

  1                      A bill to be entitled

  2         An act relating to viatical settlements;

  3         amending s. 626.9911, F.S.; modifying

  4         definitions; amending s. 626.9912, F.S.;

  5         prescribing information to be included in an

  6         application for a viatical settlement provider

  7         license; modifying prerequisites for licensure;

  8         amending s. 626.9921, F.S.; providing for

  9         approval and disapproval by the Department of

10         Insurance of viatical settlement purchase

11         agreement forms and other forms necessary to

12         effectuate a viatical settlement transaction;

13         requiring approval by the department of the

14         organizational documents of any trust to be

15         used by a viatical settlement provider;

16         amending s. 626.9922, F.S.; requiring licensees

17         to maintain books and contracts relating to

18         viatical settlement contracts or viatical

19         settlement purchase agreements at their home

20         office for a prescribed time; creating s.

21         626.99236, F.S.; providing for certain

22         disclosures to viatical settlement purchaser

23         after purchase of the agreement; amending s.

24         626.9924, F.S.; removing a requirement that a

25         viator acknowledge the existence of a

26         catastrophic or life-threatening illness;

27         requiring a provider to notify an insurer of a

28         policy that is to be transferred that the

29         policy has or will become the subject of a

30         viatical agreement; requiring notice to the

31         insured if the owner of an insurance policy is

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  1         not the insured; creating s. 626.99245, F.S.;

  2         providing for the application of other states'

  3         laws under certain circumstances; amending s.

  4         626.9925, F.S.; authorizing the department to

  5         adopt rules; creating s. 626.99285, F.S.;

  6         expanding statutory authority of the department

  7         to regulate viatical settlements; providing an

  8         effective date.

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

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12         Section 1.  Subsections (6), (7), (8), and (10) of

13  section 626.9911, Florida Statutes, are amended and subsection

14  (12) is added to that section to read:

15         626.9911  Definitions.--As used in this act, the term:

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

17  in this state, from this state, or with a resident of this

18  state, effectuates a viatical settlement contract.  The term

19  does not include:

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

21  association, credit union, or other licensed lending

22  institution that takes an assignment of a life insurance

23  policy as collateral for a loan;

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

25  a life insurance policy that provides accelerated benefits to

26  terminally ill policyholders or certificateholders; or

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

28  one viatical settlement contract with a viator in 1 calendar

29  year, unless such natural person has previously been licensed

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

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

  2  provider trust."

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

  4  state, enters into a viatical settlement purchase agreement

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

  6  Florida, which has enacted statutes or promulgated regulations

  7  governing viatical settlement purchase agreements. Such

  8  viatical settlement purchase agreements shall be governed in

  9  the effectuation of that viatical settlement purchase

10  agreement, under the statutes and regulations governing

11  viatical settlement purchase agreements in the purchaser's

12  state of residence.

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

14  state, enters into a viatical settlement contract with a

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

16  has enacted statutes or promulgated regulations governing

17  viatical settlement contracts. Such viatical settlement

18  contracts shall be governed in the effectuation of that

19  viatical settlement contract, under the statutes and

20  regulations governing viatical settlement contracts in the

21  viator's state of residence.

22         (e)(g)  A viator in this state.

23         (f)(h)  A viatical settlement purchaser.

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

25  policy or a certificateholder under a group policy insuring

26  the life of an individual with a catastrophic or

27  life-threatening illness or condition who enters or seeks to

28  enter into a viatical settlement contract. This term does not

29  include a viatical settlement purchaser or a viatical

30  settlement provider or any person acquiring a policy or

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

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

  2  agent.

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

  4  by a viatical settlement provider for the sole purpose of

  5  entering into or owning viatical settlement contracts. This

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

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

  8  with a viator viatical settlement purchaser.  A related

  9  provider trust shall be subject to all provisions of this act

10  that apply to the viatical settlement provider who established

11  the related provider trust, except s. 626.9912, which shall

12  not be applicable. A viatical settlement provider may

13  establish no more than one related provider trust, and the

14  sole trustee of such related provider trust shall be the

15  viatical settlement provider licensed under s. 626.9912. The

16  name of the licensed viatical settlement provider shall be

17  included within the name of the related provider trust.

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

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

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

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

22  144(a) of the Federal Securities Act, or a special purpose

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

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

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

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

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

28  the purpose of deriving an economic benefit. The above

29  references to Rule 501, Regulation D and Rule 144(a) of the

30  Federal Securities Act are used strictly for defining purposes

31  and shall not be interpreted in any other manner.

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

  2  other than a licensed viatical settlement provider who

  3  arranges the purchase through a viatical settlement purchase

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

  5  insurance policy.

  6         (12)  "Viated policy" means a life insurance policy, or

  7  a certificate under a group policy, which is the subject of a

  8  viatical settlement contract.

  9         Section 2.  Subsection (1), paragraph (f) of subsection

10  (3), subsection (4), and paragraph (b) of subsection (5) of

11  section 626.9912, Florida Statutes, are amended to read:

12         626.9912  Viatical settlement provider license

13  required; application for license.--

14         (1)  After July 1, 1996, A person may not perform the

15  functions of a viatical settlement provider as defined in this

16  act or enter into or solicit a viatical settlement contract

17  without first having obtained a license from the department.

18         (3)  In the application, the applicant must provide all

19  of the following:

20         (f)  All applications, viatical settlement contract

21  forms, viatical settlement purchase agreement forms rating

22  manuals, and other related forms proposed to be used by the

23  applicant.

24         (4)  The department may not issue a license to an

25  entity other than a natural person if it is not satisfied that

26  all officers, directors, employees, stockholders, and

27  partners, and any other persons who exercise or have the

28  ability to exercise effective control of the entity or who

29  have the ability to influence the transaction of business by

30  the entity meet the standards of this act and have not

31  violated any provision of this act or rules of the department

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  1  related to the business of viatical settlement contracts or

  2  viatical settlement purchase agreements.

  3         (5)  Upon the filing of a sworn application and the

  4  payment of the license fee, the department shall investigate

  5  each applicant and may issue the applicant a license if the

  6  department finds that the applicant:

  7         (b)  Is competent and trustworthy and intends to act in

  8  good faith in the business authorized by the license applied

  9  for; however, for purposes of this act, including this

10  paragraph, a person shall not be deemed to be incompetent and

11  untrustworthy solely for any felony committed more than 5

12  years before licensure if the person has had his or her civil

13  rights restored by the Governor and Cabinet with respect to

14  such felony.

15         Section 3.  Section 626.9921, Florida Statutes, is

16  amended to read:

17         626.9921  Filing of forms; required procedures;

18  approval.--

19         (1)  A viatical settlement contract form, a viatical

20  settlement purchase agreement, or any related form that is

21  necessary to effectuate a viatical settlement transaction may

22  be used in this state only after the viatical settlement

23  provider or any related provider trust has filed the form with

24  the department and only after the form has been approved by

25  the department.

26         (2)  The contract form or related form must be filed

27  with the department at least 60 days before its use.  A

28  contract form or related form is considered approved on the

29  60th day after its date of filing unless it has been

30  previously disapproved by the department. The department must

31  disapprove a viatical settlement contract form, viatical

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  1  settlement purchase agreement, or related form that is

  2  unreasonable, contrary to the public interest, discriminatory,

  3  or misleading or unfair to the viator or the purchaser.

  4         (3)  If a viatical settlement provider elects to use a

  5  related provider trust in accordance with this act, the

  6  viatical settlement provider shall file notice of its

  7  intention to use a related provider trust with the department,

  8  including a copy of the trust agreement of the related

  9  provider trust. The organizational documents of the trust must

10  be submitted to and approved by the department prior to the

11  transacting of business by the trust.

12         Section 4.  Subsection (2) of section 626.9922, Florida

13  Statutes, is amended to read:

14         626.9922  Examination.--

15         (2)  All accounts, books and records, documents, files,

16  contracts, and other information relating to all transactions

17  of viatical settlement contracts or viatical settlement

18  purchase agreements must be maintained by the licensee for a

19  period of at least 3 years after the death of the insured and

20  must be available to the department for inspection during

21  reasonable business hours. All such records must be maintained

22  at the licensee's home office.

23         Section 5.  Section 626.99236, Florida Statutes, is

24  created to read:

25         626.99236  Disclosures to viatical settlement

26  purchasers after the purchase.--The viatical settlement

27  provider, itself or through another person, shall provide in

28  writing the following disclosures to any investor within 45

29  days after the effectuation of the viatical settlement

30  purchase agreement:

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  1         (1)  The life expectancy used by the provider in

  2  determining the price paid to the viator.

  3         (2)  The name and address of the insurance company, the

  4  policy number, and the date of issue of the viated policy.

  5         (3)  The name, address, experience, and qualifications

  6  of the person issuing the life expectancy certification.

  7         (4)  The name and address of any person providing

  8  escrow services.

  9         (5)  The type of life insurance policy offered or sold,

10  including whole life, term life, and universal life, or a

11  group policy certificate and the current status or condition

12  of such  policy, together with any additional benefits

13  contained within the policy.

14         (6)  The frequency with which the provider will provide

15  the status of the health condition of the insured to a

16  purchaser.

17         Section 6.  Subsection (1) of section 626.9924, Florida

18  Statutes, is amended and new subsections (7) and (8) are added

19  to that section to read:

20         626.9924  Viatical settlement contracts; procedures;

21  rescission.--

22         (1)  A viatical settlement provider entering into a

23  viatical settlement contract with any viator must first obtain

24  a witnessed document in which the viator consents to the

25  viatical settlement contract, acknowledges the catastrophic or

26  life-threatening illness, represents that he or she has a full

27  and complete understanding of the viatical settlement contract

28  and the benefits of the life insurance policy, releases his or

29  her medical records, and acknowledges that he or she has

30  entered into the viatical settlement contract freely and

31  voluntarily.

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  1         (7)  Within 20 days after a viator executes documents

  2  necessary to transfer rights under an insurance policy, the

  3  provider must give notice to the insurer of the policy that

  4  the policy has or will become a viated policy.

  5         (8)  If the owner of the insurance policy is not the

  6  insured, the provider shall notify the insured that the policy

  7  has become the subject of a viatical settlement contract

  8  within 20 days after the transfer of rights under the

  9  contract.

10         Section 7.  Section 626.99245, Florida Statutes, is

11  created to read:

12         626.99245  Conflict of regulation of viaticals.--

13         (1)  A viatical settlement provider who, from this

14  state, enters into a viatical settlement purchase agreement

15  with a purchaser who is resident of a state other than

16  Florida, which state has enacted statutes or adopted

17  regulations governing viatical settlement purchase agreements,

18  shall be governed in the effectuation of that viatical

19  settlement purchase agreement by the statutes and regulations

20  of the purchaser's state of residence.

21         (2)  A viatical settlement provider who, from this

22  state, enters into a viatical settlement contract with a

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

24  state has enacted statutes or adopted regulations governing

25  viatical settlement contracts, shall be governed in the

26  effectuation of such viatical settlement contract by the

27  statutes and regulations of the viator's state of residence.

28         (3)  The burden of proof for any exception claimed

29  under this section rests with the licensee.

30         Section 8.  Section 626.9925, Florida Statutes, is

31  amended to read:

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  1         626.9925  Rules.--The department may adopt rules to

  2  administer implement this act, including rules establishing

  3  standards for evaluating advertising by licensees; and rules

  4  providing for the collection of data, for disclosures to

  5  viators or purchasers, and for the reporting of medical

  6  evaluations; and rules defining terms used in this act and

  7  prescribing recordkeeping requirements relating to executed

  8  viatical settlement contracts and viatical settlement purchase

  9  agreements.

10         Section 9.  Section 626.99285, Florida Statutes, is

11  created to read:

12         626.99285  Applicability of Florida Insurance Code.--In

13  addition to other applicable provisions cited in this chapter,

14  the department has the authority granted under ss. 624.310,

15  626.901 and 626.989 to regulate viatical settlement providers,

16  viatical settlement brokers, viatical settlement sales agents,

17  viatical settlement contracts, viatical settlement purchase

18  agreements, and viatical settlement transactions.

19         Section 10.  This act shall take effect July 1, 2000.

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  2                          SENATE SUMMARY

  3    Amends various provisions relating to the Viatical
      Settlement Act. Modifies definitions applicable to the
  4    act. Requires an applicant for a viatical settlement
      provider license to include specified information in the
  5    application form for the viatical settlement purchase
      agreement. Modifies conditions under which the Department
  6    of Insurance may approve or disapprove an application.
      Requires departmental approval of the organizational
  7    documents of any trust to be used by a viatical
      settlement provider. Requires licensees to maintain books
  8    and contracts relating to viatical settlement contracts
      or viatical settlement purchase agreements at their home
  9    office for a prescribed time. Requires certain
      disclosures to be given to purchasers of a viatical
10    settlement agreement after the purchase. Deletes the
      requirement that a viator acknowledge the existence of a
11    catastrophic or life-threatening illness. Requires a
      provider to notify an insurer of a policy that is to be
12    transferred that the policy has or will become a viatical
      policy. Requires notice to the insured if the owner of an
13    insurance policy in not the insured. Provides for the
      application of other states' laws under certain
14    circumstances. Authorizes the department to adopt rules.
      Expands the department's authority to regulate.
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