Senate Bill sb1816

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    Florida Senate - 2001                                  SB 1816

    By Senator Klein





    28-1259-01

  1                      A bill to be entitled

  2         An act relating to insurance; amending s.

  3         631.001, F.S.; providing purpose and

  4         legislative intent with respect to part I of

  5         chapter 631, F.S., relating to the

  6         rehabilitation and liquidation of insolvent

  7         insurers; amending s. 631.011, F.S.; revising

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

  9         specifying persons and entities subject to part

10         I of chapter 631, F.S.; creating s. 631.113,

11         F.S.; providing for the tolling of any statute

12         of limitations for a specified period for

13         purposes of a claim on behalf of an insurer,

14         its policyholder, its creditors, or its estate;

15         providing certain limitations with respect to

16         such action during the time the insurer is

17         controlled by parties acting contrary to the

18         insurer's interest; amending s. 631.041, F.S.;

19         conforming provisions to changes made by the

20         act; providing for damages to be awarded

21         pursuant to any injury by a violation of a stay

22         against obtaining or enforcing a judgment;

23         providing for a statute of limitations or

24         defense of laches to be tolled following the

25         filing of a petition for conservation,

26         rehabilitation, or liquidation; amending s.

27         631.141, F.S.; providing powers of the

28         Department of Insurance when acting as a

29         receiver in a delinquency proceeding; amending

30         s. 631.154, F.S.; providing for the department

31         to recover certain costs and expenses when

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  1         acting as a receiver; creating s. 631.156,

  2         F.S.; specifying powers of the department in

  3         investigating the causes for an insurer's

  4         insolvency and in recovering assets;

  5         authorizing certain investigation

  6         notwithstanding the commingling of operations

  7         and assets; authorizing the department in its

  8         capacity as receiver to provide information to

  9         its Division of Insurance Fraud or any other

10         state or federal agency; providing for a

11         request for evidence to be reviewed by the

12         court; providing for an order of contempt for

13         failure to produce evidence or testimony;

14         creating s. 631.157, F.S.; providing for a

15         civil action by the department as receiver for

16         the benefit of an insurer's estate, creditors,

17         and policyholders; providing for damages;

18         specifying burden of proof in such action;

19         providing for the department to recover costs,

20         expenses, and attorney's fees; limiting the

21         period for bringing such action; creating s.

22         631.400, F.S.; providing for termination of

23         liquidation proceedings and the closing of an

24         insurer's estate; providing for the court to

25         discharge the department's liability and

26         responsibilities; amending s. 631.54, F.S.;

27         clarifying the exclusion of certain

28         contributions or indemnifications from a

29         covered claim; amending s. 626.9541, F.S.,

30         relating to unfair methods of competition and

31         unfair or deceptive acts or practices;

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  1         conforming provisions to changes made by the

  2         act; creating s. 817.2341, F.S.; specifying

  3         penalties for crimes by or affecting persons

  4         engaged in the administration of an insurer or

  5         entity organized under chapter 624 or chapter

  6         641, F.S.; providing an effective date.

  7

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

  9

10         Section 1.  Section 631.001, Florida Statutes, is

11  amended to read:

12         (Substantial rewording of section. See

13         s. 631.001, F.S., for present text.)

14         631.001  Interpretation, construction, and purpose.--

15         (1)  The purpose of this part, which is integral to

16  regulating the business of insurance and of vital public

17  interest and concern, is to:

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

19  creditors, and the public;

20         (b)  Provide a comprehensive scheme for the

21  receivership of insurers;

22         (c)  Maximize the uniformity of the insurer

23  receivership laws in all states;

24         (d)  Make more efficient the administration of insurer

25  receiverships on an interstate and international basis;

26         (e)  Provide prompt correct measures for any

27  potentially dangerous condition in an insurer;

28         (f)  Implement improved methods for rehabilitating

29  insurers, which methods involve the cooperation and management

30  expertise of the insurance industry;

31

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  1         (g)  Enhance the efficiency and economy of liquidation

  2  through clarification and specification of the law to minimize

  3  legal uncertainty and litigation;

  4         (h)  Lessen the problems of interstate rehabilitation

  5  and liquidation of an entity subject to this part by

  6  facilitating cooperation between states in the liquidation

  7  process and by extending the scope of personal jurisdiction

  8  over debtors of the insurer outside this state;

  9         (i)  Establish a system that equitably apportions any

10  unavoidable loss; and

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

12  insurer, its policyholders, creditors, and estate, without

13  diminution of value occasioned by the expenses of collection

14  and recovery, by shifting such expenses to the parties holding

15  such assets.

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

17  be interpreted wherever possible in such a manner as to make

18  uniform the law of those states that in substance and effect

19  enact the National Association of Insurance Commissioners

20  Insurers Rehabilitation and Liquidation Model Act or the

21  Uniform Insurers Liquidation Act.

22         (3)  This part does not limit the powers granted to the

23  department by law or rules other than under this part; does

24  not prevent the department in its capacity as administrator,

25  conservator, rehabilitator, receiver, liquidator, or similar

26  capacity from pursuing claims for damages or other recoveries

27  on behalf of the insurer, its policyholders, creditors, and

28  estate; and does not allow any prior wrongful or negligent

29  actions of company management, or any alleged negligent or

30  erroneous action by the department in its regulatory capacity,

31  to be asserted as a defense to a claim by the department in

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  1  its representative capacity, under a theory of estoppel,

  2  comparative fault, intervening cause, proximate cause, or

  3  otherwise.

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

  5  the purposes stated in subsection (1), and specifically

  6  authorizes the department in its capacity as administrator,

  7  conservator, rehabilitator, receiver, liquidator, or similar

  8  capacity to pursue any action for damages or other recoveries

  9  on behalf of the insurer, its policyholders, creditors, and

10  estate.

11         (5)  This part shall be cited as the "Insurers

12  Rehabilitation and Liquidation Act."

13         Section 2.  Section 631.011, Florida Statutes, is

14  amended to read:

15         631.011  Definitions.--For the purpose of this part,

16  the term:

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

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

19  indirectly through:

20         (a)  Equity ownership of voting securities;

21         (b)  Common managerial control; or

22         (c)  Collusive participation by the management of the

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

24  affiliate.

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

26  domiciliary state.

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

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

29  the entry of an order of conservation, rehabilitation, or

30  liquidation, for the purpose of collection or marshalling by

31  the department under this part, the term is construed

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  1  liberally and includes, but is not limited to, property of the

  2  insurer as defined in this section, funds improperly removed

  3  or diverted either directly or indirectly from the insolvent

  4  insurer, and any property into which those funds may have been

  5  converted even if such property would not otherwise be

  6  considered property of the insolvent insurer.

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

  8  while not possessing information that would lead a reasonable

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

10  financially impaired, and while unaware of the imminence or

11  pendency of any receivership proceeding against the insurer,

12  has, in the exercise of reasonable business judgment,

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

14  assets, or property of the insurer which have an equivalent

15  market value.

16         (5)(4)  "Court" refers to the circuit court in which

17  the receivership proceeding is pending.

18         (6)(5)  "Delinquency proceeding" means any proceeding

19  commenced against an insurer pursuant to this chapter for the

20  purpose of liquidating, rehabilitating, reorganizing, or

21  conserving such insurer.

22         (7)(6)  "Domiciliary state" means the state in which an

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

24  insurer incorporated or organized in a foreign country, the

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

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

27  delinquency proceeding, the largest amount of its assets held

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

29  policyholders or policyholders and creditors in the United

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

31  state.

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  1         (8)  "Fair consideration" means the consideration that

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

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

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

  5  obligation not invalidated by the receivership proceedings is

  6  created, any of which have a value to the insurer of not less

  7  than the value of the property or assets given in exchange.

  8         (9)(7)  "Foreign country" means territory not in any

  9  state.

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

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

12  deposited, or otherwise encumbered for the security or benefit

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

14  and as to such specifically encumbered property the term

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

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

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

18  security or benefit of all policyholders or all policyholders

19  and creditors in the United States shall be deemed general

20  assets.

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

22  transferor under this part, means honesty in fact and

23  intention, and includes the exercise of reasonable business

24  judgment, together with the absence of information that would

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

26  insurer is financially impaired or insolvent and with the

27  absence of knowledge regarding the imminence or pendency of

28  any receivership proceeding against the insurer.

29         (12)(9)  "Impairment of capital" means that the minimum

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

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

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  1  equal to all its liabilities together with its total issued

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

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

  4  mutual, reciprocal, or business trust insurer.

  5         (13)(10)  "Impairment of surplus" means that the

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

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

  8  business trust insurer does not comply with the requirements

  9  of s. 624.408.

10         (14)(11)  "Insolvency" means that all the assets of the

11  insurer, if made immediately available, would not be

12  sufficient to discharge all its liabilities or that the

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

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

15  this code so indicates, insolvency also includes and is

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

17  (13) (9), and "impairment of capital," as defined in

18  subsection (12) (8).

19         (15)(12)  "Insurer," in addition to persons so defined

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

21  insurers or organizing, or holding themselves out as

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

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

24         (16)(13)  "Liabilities," as used in subsections (12)

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

26  specifically required in s. 625.041.

27         (17)(14)  "Person" includes natural persons,

28  corporations, partnerships, trusts, estates, and sole

29  proprietorships.

30         (18)  "Property" with respect to an insolvent entity

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

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  1  entity whether legal or equitable, tangible or intangible,

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

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

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

  5  liquidation is entered, the term also includes entitlements

  6  that existed prior to the entry of the order and those that

  7  may arise by operation of the provisions of this chapter or

  8  other provisions of law allowing the department to avoid prior

  9  transfers or otherwise bring property into the receivership

10  estate, whether or not such entitlements could have been

11  asserted by the insolvent entity prior to the order. The term

12  also includes all records and data, however stored, including,

13  but not limited to, claims and claim files, application files,

14  litigation files, premium records, rate books, underwriting

15  manuals, personnel records, financial records, or other

16  information relating to an insolvent insurer within the

17  possession, custody, or control of a managing general agent,

18  third-party administrator, management company, accountant,

19  attorney, affiliate, or other person.

20         (19)(15)  "Receiver" means a receiver, liquidator,

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

22         (20)(16)  "Reciprocal state" means any state other than

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

24  the Insurers Rehabilitation and Liquidation Act are in force,

25  including the provisions requiring that the commissioner of

26  insurance or equivalent insurance supervisory official be the

27  receiver of a delinquent insurer.

28         (21)(17)  "Secured claim" means any claim secured by

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

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

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

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

  2  months before the commencement of a delinquency proceeding in

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

  4  specific assets by reason of judicial process.

  5         (22)  "Single business enterprise" means an insurer

  6  that has operated, together with affiliated or related persons

  7  or entities, so as to create a structure of controls, debts,

  8  obligations, services, or contracts flowing to and from the

  9  insurer, in such a way that, in the view of the department,

10  efficient administration of the receivership requires

11  inclusion of the related persons or entities.

12         (23)(18)  "Special deposit claim" means any claim

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

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

15  including any general assets.

16         (24)(19)  "State" is as defined in s. 624.08.

17         Section 3.  Section 631.025, Florida Statutes, is

18  created to read:

19         631.025  Persons and entities subject to this

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

21  may be initiated against, and the receivership court may

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

23  any person whose inclusion is necessary for the purposes of

24  this part, regardless of whether that person would otherwise

25  be an insurer, including, but not limited to:

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

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

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

29  future.

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

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

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  1  an insurer, transacts insurance, or otherwise engages in

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

  3  certificate of authority or proper authority from the

  4  department.

  5         (3)  An insurer who has insureds residing in this

  6  state.

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

  8  organizing with the intent to transact an insurance business

  9  in this state.

10         (5)  Affiliates, parent corporations, subsidiary

11  corporations, agents, managing general agents, brokers,

12  premium finance companies, insurers, insurance holding

13  companies, and all other risk-bearing or nonrisk-bearing

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

15  regardless of whether such entities are licensed to engage in

16  the business of insurance in this state, if such person or

17  entity has done business with or is, at the time of the

18  filing, doing business with an insurer against which a

19  receivership proceeding has been or is being filed under this

20  part.

21         (6)  Any corporation that directly or indirectly owns

22  10 percent or more of the stock of a Florida domestic insurer.

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

24  enterprise with the insurer.

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

26  the provisions of this part.

27         Section 4.  Section 631.113, Florida Statutes, is

28  created to read:

29         631.113  Extension of time.--

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

31  any claims brought by the administrator, conservator,

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  1  rehabilitator, receiver, or liquidator or an official or

  2  agency exercising powers pursuant to this chapter seeking

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

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

  5  for 4 years after the date of entry of an order placing the

  6  administrator, conservator, rehabilitator, receiver,

  7  liquidator, or similar official or agency over the insurer.

  8  However, if the delinquency proceedings brought under this

  9  chapter against the insurer terminates in less than 4 years,

10  the tolling shall cease at the time when the proceedings are

11  finally concluded, including all appeals therefrom. Further,

12  the right of action does not accrue and the limitations period

13  for any such action does not run during the time when the

14  insurer is controlled by parties acting contrary to the

15  company's interests or when the facts giving rise to such

16  claim are fraudulently concealed from regulatory authorities

17  or from any members of company management. Chapter 95 shall be

18  construed so as to be consistent with this section. The

19  receiver may institute any action or proceeding on behalf of

20  the estate of the insurer while any statute of limitations is

21  tolled pursuant to this section. The tolling shall be in

22  addition to any other applicable tolling provision.

23         (2)  For actions not covered by subsection (1), where

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

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

26  the receiver has 180 days or a longer period allowed by the

27  receivership court for good cause shown, following the date of

28  the entry of the order of rehabilitation or liquidation to

29  perform the act.

30

31

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  1         Section 5.  Subsection (1) of section 631.041, Florida

  2  Statutes, is amended, and subsections (6) and (7) are added to

  3  that section, to read:

  4         631.041  Automatic stay; relief from stay;

  5  injunctions.--

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

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

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

  9  be permanent and survive the entry of an order of

10  conservation, rehabilitation, or liquidation, and which shall

11  prohibit:

12         (a)  The commencement or continuation of judicial,

13  administrative, or other action or proceeding against the

14  insurer or against its assets or any part thereof;

15         (b)  The enforcement of a judgment against the insurer

16  or an affiliate obtained either before or after the

17  commencement of the delinquency proceeding;

18         (c)  Any act to obtain possession of property of the

19  insurer;

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

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

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

23  s. 631.191 after the order of liquidation is entered;

24         (e)  Any act to collect, assess, or recover a claim

25  against the insurer, except claims as provided for under this

26  chapter;

27         (f)  The setoff or offset of any debt owing to the

28  insurer, except offsets as provided in s. 631.281.

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

30  willful violation of a stay provided by this section is

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

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  1  fees and, in appropriate circumstances, the receivership court

  2  may impose additional sanctions.

  3         (7)  A statute of limitations or defense of laches does

  4  not run with respect to any action by or against an insurer

  5  between the date of the filing of a petition for conservation,

  6  rehabilitation, or liquidation against an insurer and the

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

  8  denied, any action against the insurer which might have been

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

10  least 60 days after the order denying such relief.

11         Section 6.  Section 631.141, Florida Statutes, is

12  amended to read:

13         631.141  Conduct of delinquency proceeding; domestic

14  and alien insurers.--

15         (1)  Whenever under this chapter a receiver is to be

16  appointed in a delinquency proceeding for a domestic or alien

17  insurer, the court shall appoint the department as such

18  receiver. The court shall order the department forthwith to

19  take possession of the assets of the insurer and to administer

20  the same under the orders of the court.

21         (2)  As a domiciliary receiver, the department is

22  vested by operation of law with the title to all of the

23  property, contracts, and rights of action, and all of the

24  books and records, of the insurer, wherever located, as of the

25  date of entry of the order directing it to rehabilitate or

26  liquidate a domestic insurer or to liquidate the United States

27  branch of an alien insurer domiciled in this state; and it

28  shall have the right to recover the same and reduce the same

29  to possession; except that ancillary receivers in reciprocal

30  states shall have, as to assets located in their respective

31  states, the rights and powers which are herein prescribed for

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  1  ancillary receivers appointed in this state as to assets

  2  located in this state.

  3         (3)  The filing or recording of the order directing

  4  possession to be taken, or a certified copy thereof, in any

  5  office where instruments affecting title to property are

  6  required to be filed or recorded imparts the same notice as

  7  would be imparted by a deed, bill of sale, or other evidence

  8  of title duly filed or recorded.

  9         (4)  The department as domiciliary receiver is

10  responsible for the proper administration of all assets coming

11  into its possession or control.  The court may at any time

12  require a bond from it or its agents if deemed desirable for

13  the protection of such assets.

14         (5)  Upon taking possession of the assets of an

15  insurer, the domiciliary receiver shall, subject to the

16  direction of the court, immediately proceed to conduct the

17  business of the insurer or to take such steps as are

18  authorized by this chapter for the purpose of rehabilitating,

19  liquidating, or conserving the affairs or assets of the

20  insurer.

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

22  assert, all rights belonging to policyholders, creditors, and

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

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

25  personal and unique to that claimant and recovery thereon

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

27  claimants.

28         (7)(6)  In connection with a delinquency proceeding,

29  the department may appoint one or more special agents to act

30  for it, and it may employ such counsel, clerks, and assistants

31  as it deems necessary.  The compensation of the special

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  1  agents, counsel, clerks, or assistants and all expenses of

  2  taking possession of the insurer and of conducting the

  3  proceeding shall be fixed by the receiver, subject to the

  4  approval of the court, and shall be paid out of the funds or

  5  assets of the insurer.  Within the limits of duties imposed

  6  upon them, special agents shall possess all the powers given

  7  to and, in the exercise of those powers, shall be subject to

  8  all duties imposed upon the receiver with respect to such

  9  proceeding.

10         (8)(7)  The department as domiciliary receiver may take

11  such action as it deems necessary or appropriate to reform and

12  revitalize the insurer.  The department shall have all the

13  powers of the directors, officers, and managers, whose

14  authority shall be suspended, except as they are redelegated

15  by the receiver.  The receiver shall have full power to direct

16  and manage the affairs of the insurer, to hire and discharge

17  employees, and to deal with the property and business of the

18  insurer.

19         (9)(8)  If the department as domiciliary receiver

20  determines that reorganization, consolidation, conversion,

21  reinsurance, merger, or other transformation of the insurer is

22  appropriate, it shall prepare a plan to effect such changes.

23  Upon application of the receiver for approval of the plan, and

24  after such notice and hearings as the court may prescribe, the

25  court may either approve or disapprove the plan proposed or

26  may modify it and approve it as modified. Any plan approved

27  under this section must be, in the judgment of the court, fair

28  and equitable to all parties concerned.  If the plan is

29  approved, the receiver shall carry out the plan.

30         (10)(9)  Records created by the entity in receivership

31  shall be disposed of in accordance with the order of the court

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  1  at such time as the receiver determines that the records are

  2  not needed for the administration of the estate.

  3         Section 7.  Subsection (6) of section 631.154, Florida

  4  Statutes, is amended to read:

  5         631.154  Funds or other property in the possession of

  6  third person.--

  7         (6)  If Should the receiver is be successful in

  8  establishing its claim or any part thereof, the receiver is

  9  shall be entitled to recover judgment for the following:

10         (a)  The property or its cash value as of the date of

11  the order of conservation, rehabilitation, or liquidation,

12  whichever is applicable.

13         (b)  Rental for the use of the property to run from the

14  date of the order of conservation, rehabilitation, or

15  liquidation, whichever is applicable, to the date the property

16  is delivered to the receiver.

17         (c)  In the case of funds, interest at the statutory

18  rate to run from the date of the order of conservation,

19  rehabilitation, or liquidation, whichever is applicable, to

20  the date the funds are delivered to the receiver.

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

22  expenses, including expenses, costs, and salaries of the

23  department's in-house staff and attorneys, expended in

24  necessary to the recovery of the property or funds, and

25  reasonable attorney's fees.

26

27  It is the intent of this section that a person found to be

28  holding receivership assets fully reimburse the receiver for

29  any and all efforts made to recover those assets.

30         Section 8.  Section 631.156, Florida Statutes, is

31  created to read:

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  1         631.156  Investigation by the department.--

  2         (1)  Preliminary or incidental to a petition for

  3  receivership proceedings, the department may, and if appointed

  4  receiver shall, undertake a full investigation to determine

  5  the causes and reasons for the insolvency, the discovery of

  6  and location of assets to be recovered, the recovery of such

  7  assets, whether the filing of false statements with the

  8  department contributed to the insolvency and, in conjunction

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

10  appropriate agency of state or Federal Government, determine

11  whether any law of this state, any other state, or the Federal

12  Government relating to the solvency of the insurer has been

13  violated. In the furtherance of such investigation, the

14  department may:

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

16  reasonably calculated to disclose or lead to the disclosure of

17  the causes and reasons for the insolvency, the discovery of

18  and location of assets to be recovered, the recovery of such

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

20  department, or whether any law of this state, any other state,

21  or the Federal Government has been violated;

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

23  person whose testimony is reasonably calculated to disclose or

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

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

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

27  of statements filed with the department, or whether any law of

28  this state, any other state, or the Federal Government has

29  been violated;

30         (c)  Request the court having jurisdiction over the

31  receivership proceedings to issue any necessary subpoenas; and

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

  2  documents of any affiliate, controlling person, officer,

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

  4  independent contractor of any insurer or affiliate and any

  5  other person that possesses any executive authority over, or

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

  7  of the affairs of the insurer or affiliate, to the extent that

  8  such examination is reasonably calculated to disclose or lead

  9  to the disclosure of the causes and reasons for the

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

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

12  of statements filed with the department, or whether any law of

13  this state, any other state, or the Federal Government has

14  been violated.

15         (2)  The department may not be hindered in its

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

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

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

19  type of receivership proceedings, commingled their operations;

20  operated as an integrated entity, whether or not adjudged a

21  single business enterprise for purposes of the Florida

22  Insurance Code; filed a combined financial statement with any

23  governmental authority or published a combined financial

24  statement to any investor or customer; had common officers,

25  directors, managers, trustees, agents, adjusters, employees,

26  independent contractors, accountants, auditors, attorneys, or

27  other significant personnel, regardless of whether such

28  persons are controlling persons or affiliates as defined in

29  the Florida Insurance Code; or operated in fact as a combined

30  or integrated entity to any degree, such persons or entities

31  may not withhold from the department any books, records,

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  1  documents, or testimony that would otherwise be privileged if

  2  the insurer and its affiliates had conducted their business as

  3  unrelated entities.

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

  5  provide documents, books and records, other investigative

  6  products, work products, or analysis, including copies of any

  7  such items, to its Division of Insurance Fraud or any other

  8  appropriate agency of the state or Federal Government. The

  9  sharing of information, investigative products, or analysis

10  does not waive any privilege granted to work products or any

11  other privilege that would otherwise apply under common law,

12  chapter 119, or any other law.

13         (4)  The department, as the court's receiver and

14  subject to the court's power to review the determination or

15  appoint a general master to do so, may determine what books,

16  records, documents, or testimony would be reasonably

17  calculated to disclose or lead to the disclosure of the causes

18  and reasons for the insolvency, the discovery of and location

19  of assets to be recovered, the recovery of the assets, the

20  truth or falsity of statements filed with the department, or

21  whether any law of this state or of the Federal Government has

22  been violated. A party asserting that any documents requested

23  by the department under this section are not subject to

24  review, or that any particular testimony may not be obtained,

25  must present such contention by written motion to the

26  receivership court within 10 days after receipt of the

27  request, and such party is fully responsible for the loss of

28  any evidence which occurs after the department first informs

29  the party of its request for evidence or testimony. The court

30  shall, as expeditiously as possible, determine whether the

31  department has abused its discretion in seeking such evidence

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  1  or testimony with the objecting party having the burden of

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

  3  testimony without filing a proper timely objection or who,

  4  having unsuccessfully asserted such objection, fails

  5  thereafter to furnish the evidence or testimony within the

  6  time provided by the court or the department is subject to the

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

  8  applicable penalties that may be provided in the Florida

  9  Insurance Code or other law.

10         Section 9.  Section 631.157, Florida Statutes, is

11  created to read:

12         631.157  Civil action by the receiver.--

13         (1)  If any person who is engaged in the business of

14  insurance; who acts as or is an officer, director, agent, or

15  employee of any person engaged in the business of insurance;

16  or who is involved, other than as an insured or beneficiary

17  under a policy of insurance, in a transaction relating to the

18  conduct of affairs of such a business and willfully embezzles,

19  abstracts, purloins, converts, or misappropriates any asset or

20  property, including, but not limited to, moneys, funds,

21  premiums, credits, or other property of an insurer, such

22  person is liable to the department as receiver for the use and

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

24  policyholders, as follows:

25         (a)  If the embezzlement, abstraction, purloining,

26  conversion, or misappropriation did not jeopardize the safety

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

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

29  liquidation, the person is liable only for the full amount of

30  any asset embezzled, abstracted, purloined, or

31  misappropriated, plus prejudgment interest as provided by law.

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  1         (b)  If the embezzlement, abstraction, purloining,

  2  conversion, or misappropriation jeopardized the safety and

  3  soundness of an insurer or was a significant cause of the

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

  5  liquidation, the person is liable for triple the full amount

  6  of any asset embezzled, abstracted, purloined, converted, or

  7  misappropriated, plus prejudgment interest on the original

  8  amount as provided by law.

  9         (2)  If any person who is engaged in the business of

10  insurance; who acts as, or is an officer, director, agent, or

11  employee of any person engaged in the business of insurance;

12  or who is involved, other than as an insured or beneficiary

13  under a policy of insurance, in a transaction relating to the

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

15  actual knowledge or such constructive knowledge as should have

16  been obtained through reasonable inquiry by a person in such

17  position of the falsity thereof, misreports or makes any false

18  entry of material fact in any book, report, or statement of an

19  insurer to deceive such insurer, including any officer,

20  employee, or agent of such insurer, the department, or any

21  agent or examiner appointed by the department to examine the

22  affairs of such person or of the insurer concerning the

23  financial condition or solvency of such business, such person

24  is liable to the department as receiver for the use and

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

26  policyholders, as follows:

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

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

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

30  liquidation, such person is liable only for the full amount of

31  any asset misreported.

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  1         (b)  If such misreporting jeopardized the safety and

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

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

  4  liquidation, such person is liable for triple the full amount

  5  of any asset misreported.

  6         (3)  If the asset or property that has been

  7  misreported, embezzled, abstracted, purloined, converted, or

  8  misappropriated was reported to the department as being

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

10  is unavailable to the receiver for payment of the obligations

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

12  instituted, the misreporting, embezzlement, abstraction,

13  purloining, conversion, or misappropriation is presumed to

14  have jeopardized the safety and soundness of the insurer and

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

16  placed in conservation, rehabilitation, or liquidation, and

17  the defendant has the burden of proof to show otherwise.

18         (4)  If the receiver is successful in establishing its

19  claim under this section or any part of this section, the

20  receiver is entitled to recover all of its costs,

21  investigative expenses, and other expenses, including

22  expenses, costs, and salaries of the department's in-house

23  staff and attorneys, expended in the prosecution of the

24  action, and reasonable attorney's fees. The receiver is exempt

25  from s. 57.111.

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

27  time before the expiration of 4 years after the date of entry

28  of the initial order of rehabilitation or liquidation under

29  this part, but must be filed before the receivership

30  proceeding is closed or dismissed.

31

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  1         Section 10.  Section 631.400, Florida Statutes, is

  2  created to read:

  3         631.400  Closing of estate.--

  4         (1)  When all assets justifying the expense of

  5  collection and distribution have been marshaled and

  6  distributed under this part, the department shall petition the

  7  court to terminate the liquidation proceedings and to close

  8  the estate. The court may grant any other relief as is

  9  appropriate, including a full discharge of all liability and

10  responsibility of the liquidator, the reservation of assets

11  for administrative expenses incurred in the closing of the

12  estate, and any other actions the department finds necessary

13  or appropriate for the winding up of the estate.

14         (2)  The department may petition the court to reopen

15  the proceedings for good cause shown, including the marshaling

16  of additional assets, and the court may enter any other orders

17  it finds appropriate.

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

19  Statutes, is amended to read:

20         631.54  Definitions.--As used in this part:

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

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

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

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

25  insurer, if such insurer becomes an insolvent insurer after

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

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

28  from which the claim arises is permanently located in this

29  state. "Covered claim" does shall not include any amount due

30  any reinsurer, insurer, insurance pool, or underwriting

31  association, as subrogation, contribution, indemnification,

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  1  recoveries or otherwise.  Member insurers shall have no right

  2  of subrogation against the insured of any insolvent member.

  3         Section 12.  Paragraph (w) of subsection (1) of section

  4  626.9541, Florida Statutes, is amended to read:

  5         626.9541  Unfair methods of competition and unfair or

  6  deceptive acts or practices defined.--

  7         (1)  UNFAIR METHODS OF COMPETITION AND UNFAIR OR

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

  9  of competition and unfair or deceptive acts or practices:

10         (w)  Soliciting or accepting new or renewal insurance

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

12         1.  Whether or not delinquency proceedings as to the

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

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

15  insurer, except with the written permission of the Department

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

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

18  such director or officer knew, or reasonably should have

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

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

21  631.011(12) and (13) s. 631.011(9) and (10).

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

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

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

25  775.083, or s. 775.084.

26         Section 13.  Section 817.2341, Florida Statutes, is

27  created to read:

28         817.2341  Crimes by or affecting persons engaged in the

29  administration of any insurer or entity organized under

30  chapter 624 or chapter 641.--

31

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

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

  3  transaction of an insurer or entity organized under chapter

  4  624 or chapter 641, with intent to deceive any person about

  5  the financial condition or solvency of the insurer or entity

  6  commits a felony of the third degree, punishable as provided

  7  in s. 775.082, s. 775.083, or s. 775.084.

  8         (b)  If the false entry of a material fact is made with

  9  the intent to deceive any person as to the impairment of

10  capital as defined in s. 631.011(9) of the insurer or entity,

11  or is the significant cause of the insurer or entity being

12  placed on conservation, rehabilitation, or liquidation by a

13  court, the offense is a felony of the first degree, punishable

14  as provided in s. 775.082, s. 775.083, or s. 775.084.

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

16  statement or report to the department or any of its agents, or

17  who knowingly and materially overvalues any property in any

18  document or report prepared to be presented to the department

19  or any of its agents, 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 the material false statement or report or such

23  material overvaluation is made with the intent to deceive any

24  person as to the impairment of capital as defined in s.

25  631.011(9) of an insurer or entity organized under chapter 624

26  or chapter 641, or is the significant cause of such insurer or

27  entity being placed on conservation, rehabilitation, or

28  liquidation by a court, the offense is a felony of the first

29  degree, punishable as provided in s. 775.082, s. 775.083 or s.

30  775.084.

31         Section 14.  This act shall take effect July 1, 2001.

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

  2                          SENATE SUMMARY

  3    Revises various provisions of ch. 631, F.S., relating to
      the rehabilitation and liquidation of insolvent insurers.
  4    Tolls any statute of limitations for 4 years for purposes
      of a claim on behalf of an insurer, its policyholder, its
  5    creditors, or its estate. Provides for an award of
      damages for an injury that occurs due to a violation of a
  6    stay against obtaining or enforcing a judgment. Tolls the
      statute of limitations or the defense of laches following
  7    the filing of a petition for conservation,
      rehabilitation, or liquidation. Specifies the powers of
  8    the Department of Insurance when acting as a receiver in
      a delinquency proceeding. Authorizes the department to
  9    investigate the causes for an insurer's insolvency.
      Provides for such investigation notwithstanding the
10    commingling of an insurer's operations and assets.
      Authorizes the department to provide information to its
11    Division of Insurance Fraud or any other state or federal
      agency in its capacity as receiver. Provides for an order
12    of contempt for failure to produce evidence or testimony.
      Provides for civil actions by the Department of Insurance
13    as receiver for the benefit of an insurer's estate,
      creditors, and policyholders. Provides procedures for
14    terminating liquidation proceedings and closing an
      insurer's estate. Provides penalties for crimes by or
15    affecting persons engaged in the administration of an
      insurer or entity organized under ch. 624 or ch. 641,
16    F.S. (See bill for details.)

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