Senate Bill sb1816c1

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    Florida Senate - 2001                           CS for SB 1816

    By the Committee on Banking and Insurance; and Senator Klein





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  1                      A bill to be entitled

  2         An act relating to insurer rehabilitation and

  3         liquidation; amending s. 626.9541, F.S.;

  4         correcting a cross-reference; amending s.

  5         631.001, F.S.; providing construction and

  6         purposes; providing a short title; amending s.

  7         631.011, F.S.; providing additional

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

  9         specifying application to certain persons and

10         entities; amending s. 631.041, F.S.; limiting

11         application of certain time restrictions;

12         correcting a cross-reference; creating s.

13         631.113, F.S.; providing for tolling certain

14         time limitations in certain actions; amending

15         s. 631.141, F.S.; vesting the Department of

16         Insurance with certain rights as receiver;

17         amending s. 631.154, F.S.; including certain

18         costs and expenses of the department in costs

19         and expenses entitled to be recovered by the

20         receiver under certain circumstances; creating

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

22         by the department preliminary or incidental to

23         receivership proceedings; providing department

24         powers; authorizing the department to provide

25         certain information in such investigations;

26         granting the department certain discretionary

27         powers; creating s. 631.157, F.S.; imposing

28         liability on certain persons or entities for

29         certain actions; specifying amounts of damages;

30         providing construction; providing costs and

31         expenses entitled to be recovered by the

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  1         receiver under certain circumstances; providing

  2         a time certain for bringing certain actions;

  3         amending s. 631.57, F.S.; clarifying that the

  4         association has the same legal defenses

  5         available to the insolvent insurer; creating s.

  6         631.3995, F.S.; providing procedures and

  7         requirements for closing an estate; providing

  8         for deposit of certain assets into the Closed

  9         Estate Fund Trust Account; providing for uses

10         of such account; providing for reopening

11         certain proceedings; amending s. 631.54, F.S.;

12         revising a definition; creating s. 817.2341,

13         F.S.; providing criminal penalties for certain

14         activities; providing an effective date.

15

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

17

18         Section 1.  Paragraph (w) of subsection (1) of section

19  626.9541, Florida Statutes, is amended to read:

20         626.9541  Unfair methods of competition and unfair or

21  deceptive acts or practices defined.--

22         (1)  UNFAIR METHODS OF COMPETITION AND UNFAIR OR

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

24  of competition and unfair or deceptive acts or practices:

25         (w)  Soliciting or accepting new or renewal insurance

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

27         1.  Whether or not delinquency proceedings as to the

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

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

30  insurer, except with the written permission of the Department

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

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

  2  such director or officer knew, or reasonably should have

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

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

  5  631.011(12)(9) and (13)(10).

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

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

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

  9  775.083, or s. 775.084.

10         Section 2.  Section 631.001, Florida Statutes, is

11  amended to read:

12         (Substantial rewording of section.

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

14         631.001  Construction; purposes.--

15         (1)  The underlying purposes and policies of the

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

17  regulation of the business of insurance and are of vital

18  public interest and concern, are to:

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

20  creditors, and the public.

21         (b)  Provide a comprehensive scheme for the

22  receivership of insurers.

23         (c)  Establish this state as a reciprocal state in

24  those states which, in substance and effect, enact the

25  National Association of Insurance Commissioners Rehabilitation

26  and Liquidation Model Act or the Uniform Insurers Liquidation

27  Act.

28         (d)  Make more efficient the administration of insurer

29  receiverships on an interstate and international basis.

30         (e)  Provide prompt corrective measures for any

31  potentially dangerous condition in an insurer.

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  1         (f)  Implement improved methods for rehabilitating

  2  insurers, which methods involve the cooperation and management

  3  expertise of the insurance industry.

  4         (g)  Enhance the efficiency and economy of liquidation

  5  through clarification and specification of the law to minimize

  6  legal uncertainty and litigation.

  7         (h)  Lessen the problems of interstate rehabilitation

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

  9  part by facilitating cooperation between states in the

10  liquidation process and by extension of the scope of personal

11  jurisdiction over debtors of the insurer outside this state.

12         (i)  Establish a system which equitably apportions any

13  unavoidable loss.

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

15  insurer and its policyholders, creditors, and estate.

16         (2)  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 and its policyholders, creditors, and

22  estate.

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

24  Rehabilitation and Liquidation Act."

25         Section 3.  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 this section subsections

  9  (8)-(10), means only allowed assets as defined in chapter 625.

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

11  while not possessing information that would lead a reasonable

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

13  financially impaired, and while unaware of the imminence or

14  pendency of any receivership proceeding against the insurer,

15  has, in the exercise of reasonable business judgment,

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

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

18  value.

19         (5)(4)  "Court" refers to the circuit court in which

20  the receivership proceeding is pending.

21         (6)(5)  "Delinquency proceeding" means any proceeding

22  commenced against an insurer pursuant to this chapter for the

23  purpose of liquidating, rehabilitating, reorganizing, or

24  conserving such insurer.

25         (7)(6)  "Domiciliary state" means the state in which an

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

27  insurer incorporated or organized in a foreign country, the

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

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

30  delinquency proceeding, the largest amount of its assets held

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

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  1  policyholders or policyholders and creditors in the United

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

  3  state.

  4         (8)  "Fair consideration" means that consideration

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

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

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

  8  obligation not invalidated by the receivership proceedings is

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

10  value of the property or assets given in exchange.

11         (9)(7)  "Foreign country" means territory not in any

12  state.

13         (10)(8)  "General assets" means all property, real,

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

15  deposited, or otherwise encumbered for the security or benefit

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

17  and as to such specifically encumbered property the term

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

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

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

21  security or benefit of all policyholders or all policyholders

22  and creditors in the United States shall be deemed general

23  assets.

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

25  transferor under this part, means honesty in fact and

26  intention and includes the exercise of reasonable business

27  judgment, together with the absence of information that would

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

29  insurer is financially impaired or insolvent and together with

30  the absence of knowledge regarding the imminence or pendency

31  of any receivership proceeding against the insurer.

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  1         (12)(9)  "Impairment of capital" means that the minimum

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

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

  4  equal to all its liabilities together with its total issued

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

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

  7  mutual, reciprocal, or business trust insurer.

  8         (13)(10)  "Impairment of surplus" means that the

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

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

11  business trust insurer does not comply with the requirements

12  of s. 624.408.

13         (14)(11)  "Insolvency" means that all the assets of the

14  insurer, if made immediately available, would not be

15  sufficient to discharge all its liabilities or that the

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

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

18  this code so indicates, insolvency also includes and is

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

20  (13)(9), and "impairment of capital," as defined in subsection

21  (12)(8).

22         (15)(12)  "Insurer," in addition to persons so defined

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

24  insurers or organizing, or holding themselves out as

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

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

27         (16)(13)  "Liabilities," as used in subsections (12)

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

29  specifically required in s. 625.041.

30

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  1         (17)(14)  "Person" includes natural persons,

  2  corporations, partnerships, trusts, estates, and sole

  3  proprietorships.

  4         (18)  "Property," with respect to an insolvent entity,

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

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

  7  choate or inchoate and includes choses in action, contract

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

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

10  liquidation is entered, the term also includes entitlements

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

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

13  other provisions of law allowing the department to avoid prior

14  transfers or assert other rights in its capacity as receiver.

15  The term also includes all records and data that are otherwise

16  the property of the insolvent insurer, however stored,

17  including, but not limited to, claims and claim files,

18  application files, litigation files, premium records, rate

19  books, underwriting manuals, personnel records, or financial

20  records, or similar records within the possession, custody, or

21  control of a managing general agent, third-party

22  administrator, management company, accountant, attorney,

23  affiliate, or other person. The term does not include

24  privileged or confidential documents of an insolvent insurer

25  generated by a third party.

26         (19)(15)  "Receiver" means a receiver, liquidator,

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

28         (20)(16)  "Reciprocal state" means any state other than

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

30  the Insurers Rehabilitation and Liquidation Act are in force,

31  including the provisions requiring that the commissioner of

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  1  insurance or equivalent insurance supervisory official be the

  2  receiver of a delinquent insurer.

  3         (21)(17)  "Secured claim" means any claim secured by

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

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

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

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

  8  months before the commencement of a delinquency proceeding in

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

10  specific assets by reason of judicial process.

11         (22)(18)  "Special deposit claim" means any claim

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

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

14  including any general assets.

15         (23)(19)  "State" is as defined in s. 624.08.

16         Section 4.  Section 631.025, Florida Statutes, is

17  created to read:

18         631.025  Persons and entities subject to this

19  part.--Delinquency proceedings authorized by this part may be

20  initiated against any insurer as defined in s. 631.011(15) if

21  the statutory grounds are present as to that insurer, and the

22  receivership court may exercise jurisdiction over any person

23  required to cooperate with the department pursuant to s.

24  631.391 and over all persons made subject to the court's

25  jurisdiction by other provisions of law. Such persons include,

26  but are not limited to:

27         (1)  A person who is transacting or has transacted

28  insurance business in or from this state and against whom

29  claims arising from that business exist or may exist in the

30  future.

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

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

  3  an insurer, transacts insurance, or otherwise engages in

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

  5  certificate of authority or proper authority from the

  6  department.

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

  8  state.

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

10  organizing with the intent to transact an insurance business

11  in this state.

12         Section 5.  Paragraph (d) of subsection (1) of section

13  631.041, Florida Statutes, is amended, and subsection (6) is

14  added to that section, to read:

15         631.041  Automatic stay; relief from stay;

16  injunctions.--

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

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

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

20  be permanent and survive the entry of an order of

21  conservation, rehabilitation, or liquidation, and which shall

22  prohibit:

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

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

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

26  after the order of liquidation is entered;

27         (6)  No statute of limitations or defense of laches

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

29  between the filing of a petition for conservation,

30  rehabilitation, or liquidation against an insurer and the

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

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

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

  3  least 60 days after the order denying such relief.

  4         Section 6.  Section 631.113, Florida Statutes, is

  5  created to read:

  6         631.113  Extension of time.--

  7         (1)  The running of any unexpired statute of

  8  limitations as to any claims brought by the administrator,

  9  conservator, rehabilitator, receiver, or liquidator, or an

10  official or agency exercising powers pursuant to this chapter

11  seeking damages or other recoveries on behalf of an insurer,

12  its policyholders, its creditors, or its estate, shall be

13  tolled for a period of 4 years from the entry of an order

14  placing the administrator, conservator, rehabilitator,

15  receiver, liquidator, or similar official or agency over the

16  insurer, provided, if the delinquency proceedings brought

17  pursuant to this chapter against the insurer terminate in less

18  than 4 years, such tolling shall cease at the time when the

19  proceedings are finally concluded, including all appeals

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

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

22  the time when the insurer is controlled by parties acting

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

24  rise to such claim are fraudulently concealed from regulatory

25  authorities or from any members of company management.  The

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

27  consistent with the provisions of this section.  The receiver

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

29  of the insurer while any statute of limitation is tolled

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

31  any other applicable tolling provision.

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

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

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

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

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

  6  entry of the order of rehabilitation or liquidation to perform

  7  the act.

  8         Section 7.  Present subsections (6) through (9) of

  9  section 631.141, Florida Statutes, are renumbered as

10  subsections (7) through (10), respectively, and a new

11  subsection (6) is added to that section to read:

12         631.141  Conduct of delinquency proceeding; domestic

13  and alien insurers.--

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

15  assert all rights belonging to policyholders, creditors, and

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

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

18  personal and unique to that claimant and recovery thereon

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

20  claimants.

21         Section 8.  Paragraph (d) of subsection (6) of section

22  631.154, Florida Statutes, is amended to read:

23         631.154  Funds or other property in the possession of

24  third person.--

25         (6)  Should the receiver be successful in establishing

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

27  to recover judgment for the following:

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

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

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

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

  2  fees.

  3         Section 9.  Section 631.156, Florida Statutes, is

  4  created to read:

  5         631.156  Investigation by the department.--

  6         (1)  Preliminary or incidental to a petition for

  7  receivership proceedings, the department may, and if appointed

  8  receiver shall, undertake a full investigation to determine

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

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

11  assets, whether the filing of false statements with the

12  department contributed to the insolvency, and, in conjunction

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

14  appropriate agency of state or federal government, whether any

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

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

17  the furtherance of such investigation, the department may:

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

19  reasonably calculated to disclose or lead to the disclosure of

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

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

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

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

24  state, or the Federal Government has been violated.

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

26  person whose testimony is reasonably calculated to disclose or

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

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

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

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

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

  2  been violated.

  3         (c)  Request the court having jurisdiction over the

  4  receivership proceedings to issue any necessary subpoenas.

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

  6  documents of any affiliate, controlling person, officer,

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

  8  independent contractor of any insurer or affiliate and any

  9  other person who possesses any executive authority over, or

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

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

12  examination is reasonably calculated to disclose or lead to

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

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

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

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

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

18         (2)  In its capacity as receiver, the department may

19  provide documents, books and records, other investigative

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

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

22  Fraud or any other appropriate agency of state or federal

23  government.  The sharing of information, investigative

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

25  other privilege that would otherwise apply under common law,

26  chapter 119, or any other law.

27         (3)  The department, as the court's receiver, is

28  granted the discretion to determine what books, records,

29  documents, or testimony would be reasonably calculated to

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

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

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

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

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

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

  5  general master to review such determination.  A party

  6  asserting that any documents requested by the department under

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

  8  testimony may not be obtained, shall present such contention

  9  by written motion to the receivership court within 20 days

10  after receipt of the request and shall be fully responsible

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

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

13  shall, as expeditiously as possible, determine whether the

14  department has abused its discretion in seeking such evidence

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

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

17  testimony without filing a proper timely objection, or who

18  having unsuccessfully asserted such objection fails thereafter

19  to furnish the evidence or testimony, within the time provided

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

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

22  applicable penalties which may be provided in the Florida

23  Insurance Code or other law.

24         Section 10.  Section 631.157, Florida Statutes, is

25  created to read:

26         631.157  Civil action by the receiver.--

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

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

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

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

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

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

  2  obtains or uses, as defined in s. 812.012(2), any asset or

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

  4  premiums, credits, or other property of an insurer, shall be

  5  liable to the department as receiver for the use and benefit

  6  of an insolvent insurer's estate, creditors, and

  7  policyholders, as follows:

  8         (a)  If such obtaining or using did not jeopardize the

  9  safety and soundness of an insurer and was not a significant

10  cause of such insurer's being placed in conservation,

11  rehabilitation, or liquidation, such person shall be liable

12  only for the full amount of any asset obtained or used, plus

13  prejudgment interest provided by law.

14         (b)  If such obtaining or using jeopardized the safety

15  and soundness of an insurer or was a significant cause of such

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

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

18  amount of any asset obtained or used, plus prejudgment

19  interest provided by law on the original amount.

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

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

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

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

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

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

26  actual knowledge or such constructive knowledge as should have

27  been obtained through reasonable inquiry by a person in such

28  position, if such person knowingly misreports, or knowingly

29  makes any false entry of, a material fact in any book, report,

30  or statement of an insurer with the intent to deceive such

31  insurer, including any officer, employee, or agent of such

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  1  insurer, the department, or any agent or examiner appointed by

  2  the department to examine the affairs of such person or of the

  3  insurer, concerning the financial condition or solvency of

  4  such business, shall be liable to the department as receiver

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

  6  creditors, and policyholders, as follows:

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

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

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

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

11  amount of any asset misreported.

12         (b)  If such misreporting jeopardized the safety and

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

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

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

16  amount of any asset misreported.

17         (3)  If the asset or property that has been obtained or

18  used was reported to the department as being available to the

19  insurer as an admitted asset and such asset is unavailable to

20  the receiver for payment of the obligations of the insurer at

21  the time when a receivership proceeding is instituted, the

22  obtaining or using shall be presumed to have jeopardized the

23  safety and soundness of the insurer and to have been a

24  significant cause of such insurer's being placed in

25  conservation, rehabilitation, or liquidation, with the burden

26  of proof on the defendants to show otherwise.

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

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

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

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

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

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

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

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

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

  5  initial order of rehabilitation or liquidation under this part

  6  but shall be filed before the time the receivership proceeding

  7  is closed or dismissed.

  8         Section 11.  Paragraph (b) of subsection (1) of section

  9  631.57, Florida Statutes, is amended to read:

10         631.57  Powers and duties of the association.--

11         (1)  The association shall:

12         (b)  Be deemed the insurer to the extent of its

13  obligation on the covered claims, and, to such extent, shall

14  have all rights, duties, defenses, and obligations of the

15  insolvent insurer as if the insurer had not become insolvent.

16  In no event shall the association be liable for any penalties

17  or interest.

18         Section 12.  Section 631.3995, Florida Statutes, is

19  created to read:

20         631.3995  Closing of estate; Closed Estate Fund Trust

21  Account.--

22         (1)  When all assets justifying the expense of

23  collection and distribution have been marshaled and

24  distributed under this part, the department shall petition the

25  court to terminate the liquidation proceedings and to close

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

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

28  of all liability and responsibility of the liquidator, the

29  reservation of assets for administrative expenses incurred in

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

31

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  1  department feels necessary or appropriate for closing the

  2  estate.

  3         (2)  Any remaining reserved assets that are provided

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

  5  economically distributed to claimants shall be deposited into

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

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

  8  moneys held in the account for paying the administrative

  9  expenses of companies subject to this part that lack

10  sufficient assets to allow the department to perform its

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

12  Closed Estate Fund Trust Account shall be performed regardless

13  of its balance.

14         (3)  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 such other

17  orders as may be deemed appropriate.

18         Section 13.  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" shall not include any amount due any

30  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 14.  Section 817.2341, Florida Statutes, is

  4  created to read:

  5         817.2341  Crimes by or affecting persons engaged in the

  6  administration of any insurer or entity organized pursuant to

  7  chapter 624 or chapter 641.--

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

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

10  transaction of an insurer or entity organized pursuant to

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

12  person about the financial condition or solvency of such

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

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

15  775.084.

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

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

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

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

20  being placed in conservation, rehabilitation, or liquidation

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

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

23  775.084.

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

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

26  department, or who knowingly and materially overvalues any

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

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

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

30  775.082, s. 775.083, or s. 775.084.

31

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

  2  material overvaluation is made with the intent to deceive any

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

  4  631.011(12), of an insurer or entity organized pursuant to

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

  6  such insurer or entity being placed in conservation,

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

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

  9  775.082, s. 775.083, or s. 775.084.

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

11

12          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
13                             SB 1816

14

15  Removes the provision defining a "single business enterprise."

16  Eliminates the provision allowing the estate of an insurer
    that is injured by any willful violation of a stay to be
17  entitled to actual damages, costs and attorney's fees.

18  Provides for an additional 10 days for a party to object to
    production of certain documents requested by the Department of
19  Insurance, acting as the court's receiver.

20  Adds the provision clarifying that the Florida Insurance
    Guaranty Association assumes all defenses available to the
21  insolvent insurer.

22  Clarifies that records and data held by other persons must
    specifically be the property of the insolvent insurer.
23
    Removes archaic undefined terms such as "purloined" and
24  "abstracted" under the civil action provision and replaces
    such terms with references to "obtained" or "used" as such
25  references are defined under Florida's theft law.

26

27

28

29

30

31

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