House Bill hb1101

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    Florida House of Representatives - 2001                HB 1101

        By Representative Gannon






  1                      A bill to be entitled

  2         An act relating to insurer rehabilitation and

  3         liquidation; amending s. 631.001, F.S.;

  4         providing interpretation, construction, and

  5         purposes; providing a short title; amending s.

  6         631.011, F.S.; providing additional

  7         definitions; creating s. 631.025, F.S.;

  8         specifying application to certain persons and

  9         entities; creating s. 631.113, F.S.; providing

10         for tolling certain time limitations in certain

11         actions; amending s. 631.041, F.S.; entitling

12         the estate of an insurer to actual damages and

13         additional sanctions for certain injuries;

14         limiting application of certain time

15         restrictions; amending s. 631.141, F.S.;

16         vesting the Department of Insurance with

17         certain rights as receiver; amending s.

18         631.154, F.S.; including certain costs and

19         expenses of the department in costs and

20         expenses entitled to be recovered by the

21         receiver under certain circumstances; creating

22         s. 631.156, F.S.; providing for investigations

23         by the department preliminary or incidental to

24         receivership proceedings; providing department

25         powers; prohibiting hindering or withholding

26         information from the department in such

27         investigations; authorizing the department to

28         provide certain information in such

29         investigations; granting the department certain

30         discretionary powers; creating s. 631.157,

31         F.S.; imposing liability on certain persons or

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  1         entities for certain actions; specifying

  2         amounts of damages; providing construction;

  3         providing costs and expenses entitled to be

  4         recovered by the receiver under certain

  5         circumstances; providing a time certain for

  6         bringing certain actions; creating s. 631.3995,

  7         F.S.; providing procedures and requirements for

  8         closing an estate; providing for deposit of

  9         certain assets into the Closed Estate Fund

10         Trust Account; providing for uses of such

11         account; providing for reopening certain

12         proceedings; amending s. 631.54, F.S.; revising

13         a definition; creating s. 817.2341, F.S.;

14         providing criminal penalties for certain

15         activities; amending ss. 626.9541 and 631.041,

16         F.S.; correcting cross references; providing an

17         effective date.

18

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

20

21         Section 1.  Section 631.001, Florida Statutes, is

22  amended to read:

23         (Substantial rewording of section.

24         See s. 631.001, F.S., for present text.)

25         631.001  Interpretation; construction; purpose.--

26         (1)  The underlying purposes and policies of the

27  provisions of this part, which are integral elements of the

28  regulation of the business of insurance and are of vital

29  public interest and concern, are to:

30         (a)  Protect the interests of insureds, claimants,

31  creditors, and the public.

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  1         (b)  Provide a comprehensive scheme for the

  2  receivership of insurers.

  3         (c)  Maximize the uniformity of the insurer

  4  receivership laws in all states.

  5         (d)  Make more efficient the administration of insurer

  6  receiverships on an interstate and international basis.

  7         (e)  Provide prompt correct measures for any

  8  potentially dangerous condition in an insurer.

  9         (f)  Implement improved methods for rehabilitating

10  insurers, which methods involve the cooperation and management

11  expertise of the insurance industry.

12         (g)  Enhance the efficiency and economy of liquidation

13  through clarification and specification of the law to minimize

14  legal uncertainty and litigation.

15         (h)  Lessen the problems of interstate rehabilitation

16  and liquidation of an entity subject to the provisions of this

17  part by facilitating cooperation between states in the

18  liquidation process and by extension of the scope of personal

19  jurisdiction over debtors of the insurer outside this state.

20         (i)  Establish a system which equitably apportions any

21  unavoidable loss.

22         (j)  Maximize recovery of assets for the benefit of the

23  insurer, its policyholders, its creditors, and its estate

24  without diminution of value occasioned by the expenses of

25  collection and recovery, by shifting such expenses to the

26  parties holding such assets.

27         (2)  It is the intent of the Legislature that this part

28  be interpreted wherever possible to make uniform the law of

29  those states which in substance and effect enact the National

30  Association of Insurance Commissioners Insurers Rehabilitation

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  1  and Liquidation Model Act or the Uniform Insurers Liquidation

  2  Act.

  3         (3)  This part shall not be interpreted to limit the

  4  powers granted the department by laws or rules other than

  5  under this part; nor to prevent the department in its capacity

  6  as administrator, conservator, rehabilitator, receiver,

  7  liquidator, or similar capacity from pursuing claims for

  8  damages or other recoveries on behalf of the insurer, its

  9  policyholders, its creditors, and its estate; nor to allow any

10  prior wrongful or negligent actions of company management, or

11  any alleged negligent or erroneous action by the department in

12  its regulatory capacity, to be asserted as a defense to a

13  claim by the department in its representative capacity, under

14  a theory of estoppel, comparative fault, intervening cause,

15  proximate cause, or otherwise.

16         (4)  This part shall be liberally construed to effect

17  the purposes stated in subsection (1) and shall specifically

18  authorize the department in its capacity as administrator,

19  conservator, rehabilitator, receiver, liquidator, or similar

20  capacity to pursue any actions for damages or other recoveries

21  on behalf of the insurer, its policyholders, its creditors,

22  and its estate.

23         (5)  This part may be cited as the "Insurers

24  Rehabilitation and Liquidation Act."

25         Section 2.  Section 631.011, Florida Statutes, is

26  amended to read:

27         631.011  Definitions.--For the purpose of this part,

28  the term:

29         (1)  "Affiliate" means any entity which exercises

30  control over or is controlled by the insurer, directly or

31  indirectly through:

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  1         (a)  Equity ownership of voting securities;

  2         (b)  Common managerial control; or

  3         (c)  Collusive participation by the management of the

  4  insurer and affiliate in the management of the insurer or the

  5  affiliate.

  6         (2)  "Ancillary state" means, any state other than a

  7  domiciliary state.

  8         (3)  "Assets," as used in subsections (8)-(10), means

  9  only allowed assets as defined in chapter 625. However, after

10  entry of an order of conservation, rehabilitation, or

11  liquidation, for the purpose of collection or marshaling by

12  the department under this part, the term "assets" shall be

13  construed liberally and shall include, but not be limited to,

14  "property" of the insurer as defined in this section, funds

15  improperly removed or diverted either directly or indirectly

16  from the insolvent insurer, and any property into which those

17  funds may have been converted even if such property would not

18  otherwise be considered property of the insolvent insurer.

19         (4)  "Bona fide holder for value" means a holder who,

20  while not possessing information that would lead a reasonable

21  person in the holder's position to believe that the insurer is

22  financially impaired, and while unaware of the imminence or

23  pendency of any receivership proceeding against the insurer,

24  has, in the exercise of reasonable business judgment,

25  exchanged his or her own funds, assets, or property for funds,

26  assets, or property of the insurer having an equivalent market

27  value.

28         (5)(4)  "Court" refers to the circuit court in which

29  the receivership proceeding is pending.

30         (6)(5)  "Delinquency proceeding" means any proceeding

31  commenced against an insurer pursuant to this chapter for the

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  1  purpose of liquidating, rehabilitating, reorganizing, or

  2  conserving such insurer.

  3         (7)(6)  "Domiciliary state" means the state in which an

  4  insurer is incorporated or organized or, in the case of an

  5  insurer incorporated or organized in a foreign country, the

  6  state in which such insurer, having become authorized to do

  7  business in such state, has, at the commencement of a

  8  delinquency proceeding, the largest amount of its assets held

  9  in trust and assets held on deposit for the benefit of its

10  policyholders or policyholders and creditors in the United

11  States; and any such insurer is deemed to be domiciled in such

12  state.

13         (8)  "Fair consideration" means that consideration

14  which is given for property or assets of an insurer when, in

15  exchange for the property or assets and in good faith,

16  property is conveyed, services are rendered, or an enforceable

17  obligation not invalidated by the receivership proceedings is

18  created, having a value to the insurer of not less than the

19  value of the property or assets given in exchange.

20         (9)(7)  "Foreign country" means territory not in any

21  state.

22         (10)(8)  "General assets" means all property, real,

23  personal, or otherwise, not specifically mortgaged, pledged,

24  deposited, or otherwise encumbered for the security or benefit

25  of specified persons or a limited class or classes of persons,

26  and as to such specifically encumbered property the term

27  includes all such property or its proceeds in excess of the

28  amount necessary to discharge the sum or sums secured thereby.

29  Assets held in trust and assets held on deposit for the

30  security or benefit of all policyholders or all policyholders

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  1  and creditors in the United States shall be deemed general

  2  assets.

  3         (11)  "Good faith," as applied to a transferee or

  4  transferor under this part, means honesty in fact and

  5  intention and includes the exercise of reasonable business

  6  judgment, together with the absence of information that would

  7  lead a reasonable person in the same position to know that the

  8  insurer is financially impaired or insolvent and together with

  9  the absence of knowledge regarding the imminence or pendency

10  of any receivership proceeding against the insurer.

11         (12)(9)  "Impairment of capital" means that the minimum

12  surplus required to be maintained in s. 624.408 has been

13  dissipated and the insurer is not possessed of assets at least

14  equal to all its liabilities together with its total issued

15  and outstanding capital stock, if a stock insurer, or the

16  minimum surplus or net trust fund required by s. 624.407, if a

17  mutual, reciprocal, or business trust insurer.

18         (13)(10)  "Impairment of surplus" means that the

19  surplus of a stock insurer, the additional surplus of a mutual

20  or reciprocal insurer, or the additional net trust fund of a

21  business trust insurer does not comply with the requirements

22  of s. 624.408.

23         (14)(11)  "Insolvency" means that all the assets of the

24  insurer, if made immediately available, would not be

25  sufficient to discharge all its liabilities or that the

26  insurer is unable to pay its debts as they become due in the

27  usual course of business. When the context of any provision of

28  this code so indicates, insolvency also includes and is

29  defined as "impairment of surplus," as defined in subsection

30  (13)(9), and "impairment of capital," as defined in subsection

31  (12)(8).

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  1         (15)(12)  "Insurer," in addition to persons so defined

  2  under s. 624.03, also includes persons purporting to be

  3  insurers or organizing, or holding themselves out as

  4  organizing, in this state for the purpose of becoming insurers

  5  and all insurers who have insureds resident in this state.

  6         (16)(13)  "Liabilities," as used in subsections (12)

  7  and (14) (8)-(10), means all liabilities, including those

  8  specifically required in s. 625.041.

  9         (17)(14)  "Person" includes natural persons,

10  corporations, partnerships, trusts, estates, and sole

11  proprietorships.

12         (18)  "Property," when applied to an insolvent entity,

13  includes all right, title, and interest of the insolvent

14  entity whether legal or equitable, tangible or intangible, or

15  choate or inchoate, and includes choses in action, contract

16  rights, and any other interest recognized under the laws of

17  this state.  When an order of conservation, rehabilitation, or

18  liquidation is entered, such property also includes

19  entitlements that existed prior to the entry of the order and

20  those that may arise by operation of the provisions of this

21  chapter or other provisions of law allowing the department to

22  avoid prior transfers or otherwise bring property into the

23  receivership estate, whether or not such entitlements could

24  have been asserted by the insolvent entity prior to the order.

25  The term "property" also includes all records and data,

26  however stored, including, but not limited to, claims and

27  claim files, application files, litigation files, premium

28  records, rate books, underwriting manuals, personnel records,

29  financial records, or other information relating to an

30  insolvent insurer within the possession, custody, or control

31  of a managing general agent, third-party administrator,

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  1  management company, accountant, attorney, affiliate, or other

  2  person.

  3         (19)(15)  "Receiver" means a receiver, liquidator,

  4  rehabilitator, or conservator, as the context may require.

  5         (20)(16)  "Reciprocal state" means any state other than

  6  this state in which in substance and effect the provisions of

  7  the Insurers Rehabilitation and Liquidation Act are in force,

  8  including the provisions requiring that the commissioner of

  9  insurance or equivalent insurance supervisory official be the

10  receiver of a delinquent insurer.

11         (21)(17)  "Secured claim" means any claim secured by

12  mortgage, trust deed, pledge, deposit as security, escrow, or

13  otherwise but does not include a special deposit claim, a

14  claim against general assets, or a claim based on mere

15  possession.  The term also includes a claim which more than 4

16  months before the commencement of a delinquency proceeding in

17  the state of the insurer's domicile has become a lien upon

18  specific assets by reason of judicial process.

19         (22)  "Single business enterprise," for purposes of

20  this part, means an insurer that has operated together with

21  affiliated or related persons or entities so as to create a

22  structure of controls, debts, obligations, services, or

23  contracts flowing to and from the insurer in such a way that,

24  in the view of the department, efficient administration of the

25  receivership requires inclusion of the related entities.

26         (23)(18)  "Special deposit claim" means any claim

27  secured by a deposit made pursuant to statute for the security

28  or benefit of a limited class or classes of persons, but not

29  including any general assets.

30         (24)(19)  "State" is as defined in s. 624.08.

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  1         Section 3.  Section 631.025, Florida Statutes, is

  2  created to read:

  3         631.025  Persons and entities subject to this

  4  part.--The receivership proceedings authorized by this part

  5  may be initiated against, and the receivership court may

  6  exercise jurisdiction over, any person who is an insurer and

  7  against any person whose inclusion is necessary for the

  8  purposes of this part whether or not said person would

  9  otherwise be an insurer, including, but not limited to, the

10  following:

11         (1)  A person who is transacting, or has transacted,

12  insurance business in or from this state, and against whom

13  claims arising from that business may exist now or in the

14  future.

15         (2)  A person who purports to transact an insurance

16  business in this state, and any person or entity who acts as

17  an insurer, transacts insurance, or otherwise engages in

18  insurance activities in or from this state, with or without a

19  certificate of authority or proper authority from the

20  department.

21         (3)  An insurer who has insureds resident in this

22  state.

23         (4)  All other persons organized or in the process of

24  organizing with the intent to transact an insurance business

25  in this state.

26         (5)  Affiliates, parent corporations, subsidiary

27  corporations, agents, managing general agents, brokers,

28  premium finance companies, insurers, insurance holding

29  companies, and all other risk-bearing or non-risk-bearing

30  entities engaged in any aspect of the business of insurance,

31  whether or not such entities are licensed to engage in the

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  1  business of insurance in this state, if such person or entity

  2  has done business with or is, at the time of the filing, doing

  3  business with an insurer against which a receivership

  4  proceeding has been or is being filed under this part.

  5         (6)  Any corporation that directly or indirectly owns

  6  10 percent or more of the stock of a Florida domestic insurer.

  7         (7)  Any entity forming part of a single business

  8  enterprise with the insurer.

  9         (8)  Any other person or entity that is made subject to

10  the provisions of this part.

11         Section 4.  Section 631.113, Florida Statutes, is

12  created to read:

13         631.113  Extension of time.--

14         (1)  The running of any statute of limitations as to

15  any claims brought by the administrator, conservator,

16  rehabilitator, receiver, or liquidator, or an official or

17  agency exercising powers pursuant to this chapter seeking

18  damages or other recoveries on behalf of an insurer, its

19  policyholders, its creditors, or its estate, shall be tolled

20  for a period of 4 years from the entry of an order placing the

21  administrator, conservator, rehabilitator, receiver,

22  liquidator, or similar official or agency over the insurer,

23  provided, if the delinquency proceedings brought pursuant to

24  this chapter against the insurer terminate in less than 4

25  years, such tolling shall cease at the time when the

26  proceedings are finally concluded, including all appeals

27  therefrom. Further, the right of action does not accrue and

28  the limitations period for any such action does not run during

29  the time when the insurer is controlled by parties acting

30  contrary to the company's interests or when the facts giving

31  rise to such claim are fraudulently concealed from regulatory

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  1  authorities or from any members of company management.  The

  2  provisions of chapter 95 shall be construed so as to be

  3  consistent with the provisions of this section.  The receiver

  4  may institute any action or proceeding on behalf of the estate

  5  of the insurer while any statute of limitation is tolled

  6  pursuant to this section.  The tolling shall be in addition to

  7  any other applicable tolling provision.

  8         (2)  For actions not covered by subsection (1), if any

  9  unexpired time period is fixed, by any agreement or in any

10  proceeding, for doing any act for the benefit of the estate,

11  the receiver shall have 180 days, or such longer period as the

12  receivership court may allow for good cause shown, from the

13  entry of the order of rehabilitation or liquidation to perform

14  the act.

15         Section 5.  Subsections (6) and (7) are added to

16  section 631.041, Florida Statutes, to read:

17         631.041  Automatic stay; relief from stay;

18  injunctions.--

19         (6)  The estate of an insurer that is injured by any

20  willful violation of a stay provided by this section shall be

21  entitled to actual damages, including costs and attorney's

22  fees, and, in appropriate circumstances, the receivership

23  court may impose additional sanctions.

24         (7)  No statute of limitations or defense of laches

25  shall run with respect to any action by or against an insurer

26  between the filing of a petition for conservation,

27  rehabilitation, or liquidation against an insurer and the

28  order granting or denying that petition.  If the petition is

29  denied, any action against the insurer that might have been

30  commenced when the petition was filed may be commenced for at

31  least 60 days after the order denying such relief.

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  1         Section 6.  Subsections (6), (7), (8), and (9) of

  2  section 631.141, Florida Statutes, are renumbered as

  3  subsections (7), (8), (9), and (10), respectively, and a new

  4  subsection (6) is added to said section to read:

  5         631.141  Conduct of delinquency proceeding; domestic

  6  and alien insurers.--

  7         (6)  The department as receiver is vested with and may

  8  assert all rights belonging to policyholders, creditors, and

  9  the estate as well as all rights of the entity or entities in

10  receivership, except to the extent that an individual claim is

11  personal and unique to that claimant and recovery thereon

12  could not inure to the benefit of the estate or to other

13  claimants.

14         Section 7.  Paragraph (d) of subsection (6) of section

15  631.154, Florida Statutes, is amended to read:

16         631.154  Funds or other property in the possession of

17  third person.--

18         (6)  Should the receiver be successful in establishing

19  its claim or any part thereof, the receiver shall be entitled

20  to recover judgment for the following:

21         (d)  All costs, investigative and other expenses, which

22  include the department's in-house staff and staff attorney's

23  expenses, costs, and salaries, expended in necessary to the

24  recovery of the property or funds, and reasonable attorney's

25  fees.

26         Section 8.  Section 631.156, Florida Statutes, is

27  created to read:

28         631.156  Investigation by the department.--

29         (1)  Preliminary or incidental to a petition for

30  receivership proceedings, the department may, and if appointed

31  receiver shall, undertake a full investigation to determine

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  1  the causes and reasons for the insolvency, the discovery and

  2  location of assets to be recovered, the recovery of such

  3  assets, whether the filing of false statements with the

  4  department contributed to the insolvency, and, in conjunction

  5  with the department's Division of Insurance Fraud or any other

  6  appropriate agency of state or federal government, whether any

  7  law of this state, any other state, or the Federal Government

  8  relating to the solvency of the insurer has been violated.  In

  9  the furtherance of such investigation, the department may:

10         (a)  Examine and review any and all documents that are

11  reasonably calculated to disclose or lead to the disclosure of

12  the causes and reasons for the insolvency, the discovery and

13  location of assets to be recovered, the recovery of such

14  assets, the truth or falsity of statements filed with the

15  department, and whether any law of this state, any other

16  state, or the Federal Government has been violated.

17         (b)  Take statements or depositions under oath of any

18  person whose testimony is reasonably calculated to disclose or

19  lead to the disclosure of the causes and reasons for the

20  insolvency, the discovery of and location of assets to be

21  recovered, the recovery of such assets, the truth or falsity

22  of statements filed with the department, and whether any law

23  of this state, any other state, or the Federal Government has

24  been violated.

25         (c)  Request the court having jurisdiction over the

26  receivership proceedings to issue any necessary subpoenas.

27         (d)  Examine and review the books, records, and

28  documents of any affiliate, controlling person, officer,

29  director, manager, trustee, agent, adjuster, employee, or

30  independent contractor of any insurer or affiliate and any

31  other person who possesses any executive authority over, or

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  1  who exercises or has exercised any control over, any segment

  2  of the affairs of the insurer or affiliate, to the extent such

  3  examination is reasonably calculated to disclose or lead to

  4  the disclosure of the causes and reasons for the insolvency,

  5  the discovery and location of assets to be recovered, the

  6  recovery of such assets, the truth or falsity of statements

  7  filed with the department, and whether any law of this state,

  8  any other state, or the Federal Government has been violated.

  9         (2)  The department shall not be hindered in its

10  investigation by virtue of the insurer's and the affiliates'

11  manner of doing business.  If the insurer and any of its

12  affiliates have, at any time prior to the institution of any

13  type of receivership proceedings, commingled their operations,

14  operated as an integrated entity whether or not adjudged a

15  single business enterprise for purposes of the Florida

16  Insurance Code, filed a combined financial statement with any

17  governmental authority or published a combined financial

18  statement to any investor or customer, had common officers,

19  directors, managers, trustees, agents, adjusters, employees,

20  independent contractors, accountants, auditors, attorneys, or

21  other significant personnel whether or not said persons are

22  controlling persons or affiliates as defined in the Florida

23  Insurance Code, or operated in fact as a combined or

24  integrated entity to any degree, such persons or entities are

25  prohibited from withholding from the department any books,

26  records, documents, or testimony that would otherwise be

27  privileged had the insurer and its affiliates conducted their

28  business as unrelated entities.

29         (3)  In its capacity as receiver, the department may

30  provide documents, books and records, other investigative

31  products, work product, and analysis, including copies of any

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  1  or all of the foregoing items, to the Division of Insurance

  2  Fraud or any other appropriate agency of state or federal

  3  government.  The sharing of information, investigative

  4  products, or analysis shall not waive any work product or

  5  other privilege that would otherwise apply under common law,

  6  chapter 119, or any other law.

  7         (4)  The department, as the court's receiver, is

  8  granted the discretion to determine what books, records,

  9  documents, or testimony would be reasonably calculated to

10  disclose or lead to the disclosure of the causes and reasons

11  for the insolvency, the discovery and location of assets to be

12  recovered, the recovery of the assets, the truth or falsity of

13  statements filed with the department, and whether any law of

14  this state or of the United States has been violated, subject

15  to the court's power to review such determination or appoint a

16  general master to review such determination.  A party

17  asserting that any documents requested by the department under

18  this section are not subject to review, or that any particular

19  testimony may not be obtained, shall present such contention

20  by written motion to the receivership court within 10 days

21  after receipt of the request and shall be fully responsible

22  for the loss of any evidence which occurs after the department

23  first informs said party of its request therefor.  The court

24  shall, as expeditiously as possible, determine whether the

25  department has abused its discretion in seeking such evidence

26  or testimony, with the objecting party having the burden of

27  proof.  A party who fails to produce the requested evidence or

28  testimony without filing a proper timely objection, or who

29  having unsuccessfully asserted such objection fails thereafter

30  to furnish the evidence or testimony within the time provided

31  by the court or the department, shall be subject to the

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  1  contempt powers of the court, in addition to any other

  2  applicable penalties which may be provided in the Florida

  3  Insurance Code or other law.

  4         Section 9.  Section 631.157, Florida Statutes, is

  5  created to read:

  6         631.157  Civil action by the receiver.--

  7         (1)  Any person who is engaged in the business of

  8  insurance or who acts as or is an officer, director, agent, or

  9  employee of any person engaged in the business of insurance,

10  or is involved, other than as an insured or beneficiary under

11  a policy of insurance, in a transaction relating to the

12  conduct of affairs of such a business, and who willfully

13  embezzles, abstracts, purloins, converts, or misappropriates

14  any asset or property, including, but not limited to, moneys,

15  funds, premiums, credits, or other property of an insurer,

16  shall be liable to the department as receiver for the use and

17  benefit of an insolvent insurer's estate, creditors, and

18  policyholders, as follows:

19         (a)  If such embezzlement, abstraction, purloining,

20  conversion, or misappropriation did not jeopardize the safety

21  and soundness of an insurer and was not a significant cause of

22  such insurer's being placed in conservation, rehabilitation,

23  or liquidation, such person shall be liable only for the full

24  amount of any asset embezzled, abstracted, purloined, or

25  misappropriated, plus prejudgment interest provided by law.

26         (b)  If such embezzlement, abstraction, purloining,

27  conversion, or misappropriation jeopardized the safety and

28  soundness of an insurer or was a significant cause of such

29  insurer's being placed in conservation, rehabilitation, or

30  liquidation, such person shall be liable for triple the full

31  amount of any asset embezzled, abstracted, purloined,

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  1  converted, or misappropriated, plus prejudgment interest

  2  provided by law on the original amount.

  3         (2)  Any person who is engaged in the business of

  4  insurance or who acts as or is an officer, director, agent, or

  5  employee of any person engaged in the business of insurance,

  6  or is involved, other than as an insured or beneficiary under

  7  a policy of insurance, in a transaction relating to the

  8  conduct of affairs of such a business, and who, while having

  9  actual knowledge or such constructive knowledge as should have

10  been obtained through reasonable inquiry by a person in such

11  position, knew of the falsity thereof, misreports, or makes

12  any false entry of material fact in any book, report, or

13  statement of an insurer to deceive such insurer, including any

14  officer, employee, or agent of such insurer, the department,

15  or any agent or examiner appointed by the department to

16  examine the affairs of such person or of the insurer,

17  concerning the financial condition or solvency of such

18  business, shall be liable to the department as receiver for

19  the use and benefit of an insolvent insurer's estate,

20  creditors, and policyholders, as follows:

21         (a)  If such misreporting did not jeopardize the safety

22  and soundness of an insurer and was not a significant cause of

23  such insurer's being placed in conservation, rehabilitation,

24  or liquidation, such person shall be liable only for the full

25  amount of any asset misreported.

26         (b)  If such misreporting jeopardized the safety and

27  soundness of an insurer or was a significant cause of such

28  insurer's being placed in conservation, rehabilitation, or

29  liquidation, such person shall be liable for triple the full

30  amount of any asset misreported.

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  1         (3)  If the asset or property which has been

  2  misreported, embezzled, abstracted, purloined, converted, or

  3  misappropriated was reported to the department as being

  4  available to the insurer as an admitted asset and such asset

  5  is unavailable to the receiver for payment of the obligations

  6  of the insurer at the time when a receivership proceeding is

  7  instituted, the misreporting, embezzlement, abstraction,

  8  purloining, conversion, or misappropriation shall be presumed

  9  to have jeopardized the safety and soundness of the insurer

10  and to have been a significant cause of such insurer's being

11  placed in conservation, rehabilitation, or liquidation, with

12  the burden of proof on the defendants to show otherwise.

13         (4)  If the receiver is successful in establishing a

14  claim under this section, the receiver shall be entitled to

15  recover all of its costs, investigative and other expenses,

16  which shall include the department's in-house staff and staff

17  attorney's expenses, costs, and salaries, expended in the

18  prosecution of the action, and reasonable attorney's fees.

19  The receiver shall be exempt from the provisions of s. 57.111.

20         (5)  An action under this section may be brought at any

21  time before the expiration of 4 years after the entry of the

22  initial order of rehabilitation or liquidation under this part

23  but shall be filed before the time the receivership proceeding

24  is closed or dismissed.

25         Section 10.  Section 631.3995, Florida Statutes, is

26  created to read:

27         631.3995  Closing of estate; Closed Estate Fund Trust

28  Account.--

29         (1)  When all assets justifying the expense of

30  collection and distribution have been marshaled and

31  distributed under this part, the department shall petition the

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  1  court to terminate the liquidation proceedings and to close

  2  the estate. The court may grant such other relief as may be

  3  appropriate, including, but not limited to, a full discharge

  4  of all liability and responsibility of the liquidator, the

  5  reservation of assets for administrative expenses incurred in

  6  the closing of the estate, and any other actions the

  7  department feels necessary or appropriate for closing the

  8  estate.

  9         (2)  Any remaining reserved assets that are provided

10  for in subsection (1) and that may not be practicably or

11  economically distributed to claimants shall be deposited into

12  a segregated account to be known as the Closed Estate Fund

13  Trust Account, if created by law.  The department may use

14  moneys held in the account for paying the administrative

15  expenses of companies subject to this part that lack

16  sufficient assets to allow the department to perform its

17  duties and obligations under this part. An annual audit of the

18  Closed Estate Fund Trust Account shall be performed regardless

19  of its balance.

20         (3)  The department may petition the court to reopen

21  the proceedings for good cause shown, including the marshaling

22  of additional assets, and the court may enter such other

23  orders as may be deemed appropriate.

24         Section 11.  Subsection (3) of section 631.54, Florida

25  Statutes, is amended to read:

26         631.54  Definitions.--As used in this part:

27         (3)  "Covered claim" means an unpaid claim, including

28  one of unearned premiums, which arises out of, and is within

29  the coverage, and not in excess of, the applicable limits of

30  an insurance policy to which this part applies, issued by an

31  insurer, if such insurer becomes an insolvent insurer after

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  1  October 1, 1970, and the claimant or insured is a resident of

  2  this state at the time of the insured event or the property

  3  from which the claim arises is permanently located in this

  4  state. "Covered claim" shall not include any amount due any

  5  reinsurer, insurer, insurance pool, or underwriting

  6  association, as subrogation, contribution, indemnification,

  7  recoveries or otherwise.  Member insurers shall have no right

  8  of subrogation against the insured of any insolvent member.

  9         Section 12.  Section 817.2341, Florida Statutes, is

10  created to read:

11         817.2341  Crimes by or affecting persons engaged in the

12  administration of any insurer or entity organized pursuant to

13  chapter 624 or chapter 641.--

14         (1)(a)  Any person who makes a false entry of a

15  material fact in any book, report, or statement relating to a

16  transaction of an insurer or entity organized pursuant to

17  chapter 624 or chapter 641, intending thereby to deceive any

18  person about the financial condition or solvency of such

19  insurer or entity, commits a felony of the third degree,

20  punishable as provided in s. 775.082, s. 775.083, or s.

21  775.084.

22         (b)  If such false entry of a material fact is made

23  with the intent to deceive any person as to the impairment of

24  capital, as defined in s. 631.011(12), of such insurer or

25  entity or is the significant cause of such insurer or entity

26  being placed in conservation, rehabilitation, or liquidation

27  by a court, the offense is a felony of the first degree,

28  punishable as provided in s. 775.082, s. 775.083, or s.

29  775.084.

30         (2)(a) Any person who knowingly makes a material false

31  statement or report to the department or any agent of the

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  1  department, or who knowingly and materially overvalues any

  2  property in any document or report prepared to be presented to

  3  the department or any agent of the department, commits a

  4  felony of the third degree, punishable as provided in s.

  5  775.082, s. 775.083, or s. 775.084.

  6         (b)  If such material false statement or report or such

  7  material overvaluation is made with the intent to deceive any

  8  person as to the impairment of capital, as defined in s.

  9  631.011(12), of an insurer or entity organized pursuant to

10  chapter 624 or chapter 641, or is the significant cause of

11  such insurer or entity being placed in conservation,

12  rehabilitation, or liquidation by a court, the offense is a

13  felony of the first degree, punishable as provided in s.

14  775.082, s. 775.083, or s. 775.084.

15         Section 13.  Paragraph (w) of subsection (1) of section

16  626.9541, Florida Statutes, is amended to read:

17         626.9541  Unfair methods of competition and unfair or

18  deceptive acts or practices defined.--

19         (1)  UNFAIR METHODS OF COMPETITION AND UNFAIR OR

20  DECEPTIVE ACTS.--The following are defined as unfair methods

21  of competition and unfair or deceptive acts or practices:

22         (w)  Soliciting or accepting new or renewal insurance

23  risks by insolvent or impaired insurer prohibited; penalty.--

24         1.  Whether or not delinquency proceedings as to the

25  insurer have been or are to be initiated, but while such

26  insolvency or impairment exists, no director or officer of an

27  insurer, except with the written permission of the Department

28  of Insurance, shall authorize or permit the insurer to solicit

29  or accept new or renewal insurance risks in this state after

30  such director or officer knew, or reasonably should have

31  known, that the insurer was insolvent or impaired. "Impaired"

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  1  includes impairment for capital or surplus, as defined in s.

  2  631.011(12)(9) and (13)(10).

  3         2.  Any such director or officer, upon conviction of a

  4  violation of this paragraph, is guilty of a felony of the

  5  third degree, punishable as provided in s. 775.082, s.

  6  775.083, or s. 775.084.

  7         Section 14.  Paragraph (d) of subsection (1) of section

  8  631.041, Florida Statutes, is amended to read:

  9         631.041  Automatic stay; relief from stay;

10  injunctions.--

11         (1)  An application or petition under s. 631.031

12  operates as a matter of law as an automatic stay applicable to

13  all persons and entities, other than the receiver, which shall

14  be permanent and survive the entry of an order of

15  conservation, rehabilitation, or liquidation, and which shall

16  prohibit:

17         (d)  Any act to create, perfect, or enforce a lien

18  against property of the insurer, except that a secured claim

19  as defined in s. 631.011(21)(17) may proceed under s. 631.191

20  after the order of liquidation is entered;

21         Section 15.  This act shall take effect July 1, 2001.

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  1            *****************************************

  2                          HOUSE SUMMARY

  3
      Creates the "Insurers Rehabilitation and Liquidation
  4    Act." Specifies application of receivership proceedings
      to specified persons and entities. Provides for tolling
  5    time limitations in receivership actions. Entitles the
      estate of an insurer injured by willful violations of
  6    stays to actual damages and additional sanctions. Vests
      the Department of Insurance with rights as receiver in
  7    receivership proceedings. Includes the department's
      in-house staff and staff attorney's expenses, costs, and
  8    salaries in costs and expenses entitled to be recovered
      by a receiver who is successful in establishing a claim.
  9    Provides for investigations by the department preliminary
      or incidental to receivership proceedings, prohibits
10    hindering or withholding information from the department
      in such investigations, authorizes the department to
11    provide information in such investigations, and grants
      the department discretionary powers in determining
12    information necessary to such investigations. Imposes
      liability on persons or entities engaged in insurance
13    business for willfully embezzling, abstracting,
      purloining, converting, or misappropriating assets or
14    property and specifies amounts of damages. Provides
      procedures and requirements for closing an estate,
15    provides for depositing estate assets into the Closed
      Estate Fund Trust Account, and provides for uses of such
16    account. Provides criminal penalties for making false
      entries of a material fact in books, reports, or
17    statements relating to insurer transactions or knowingly
      making a material false statement or report to the
18    Department of Insurance or knowingly and materially
      overvaluing property in a document or report provided to
19    the department. See bill for details.

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