House Bill hb0767c1

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    Florida House of Representatives - 2001              CS/HB 767

        By the Committee on Insurance and Representatives Brown
    and Ross





  1                      A bill to be entitled

  2         An act relating to structured settlements;

  3         specifying the purpose of the act; providing

  4         definitions; providing requirements for the

  5         direct or indirect transfer of structured

  6         settlement payment rights; requiring court

  7         approval of any such transfer; requiring a

  8         court to make certain findings with respect to

  9         the transfer; authorizing an interested party

10         to file an objection to a proposed transfer;

11         providing requirements for an order approving a

12         transfer; requiring that an obligor make

13         certain disclosures to a claimant in

14         negotiating a settlement of claims; requiring a

15         transferee to provide certain notice with

16         respect to a proposed transfer of structured

17         settlement payment rights; providing for

18         penalties for certain violations of the act;

19         authorizing the state attorney to bring an

20         action for injunctive relief; providing an

21         effective date.

22

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

24

25         Section 1.  Transfers of structured settlement payment

26  rights.--

27         (1)  PURPOSE.--The purpose of this section is to

28  protect recipients of structured settlements who are involved

29  in the process of transferring structured settlement payment

30  rights.

31         (2)  DEFINITIONS.--As used in this section:

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  1         (a)  "Annuity issuer" means an insurer that has issued

  2  an annuity contract to be used to fund periodic payments under

  3  a structured settlement.

  4         (b)  "Applicable law" means, as applicable in

  5  interpreting the terms of a structured settlement:

  6         1.  The laws of the United States;

  7         2.  The laws of this state, including principles of

  8  equity applied in the courts of this state; or

  9         3.  The laws of any other jurisdiction:

10         a.  That is the domicile of the payee or any other

11  interested party;

12         b.  Under which laws a structured settlement agreement

13  was approved by a court; or

14         c.  In the courts of which a settled claim was pending

15  when the parties entered into a structured settlement

16  agreement.

17         (c)  "Applicable federal rate" means the most recently

18  published applicable rate for determining the present value of

19  an annuity, as issued by the United States Internal Revenue

20  Service pursuant to s. 7520 of the United States Internal

21  Revenue Code, as amended.

22         (d)  "Assignee" means any party that acquires

23  structured settlement payment rights directly or indirectly

24  from a transferee of such rights.

25         (e)  "Dependents" means a payee's spouse and minor

26  children and all other family members and other persons for

27  whom the payee is legally obligated to provide support,

28  including, but not limited to, spousal maintenance.

29         (f)  "Discount and finance charge" means the sum of all

30  charges that are payable directly or indirectly from assigned

31  structured settlement payments and imposed directly or

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  1  indirectly by the transferee and that are incident to a

  2  transfer of structured settlement payment rights, including,

  3  but not limited to:

  4         1.  Interest charges, discounts, or other compensation

  5  for the time value of money.

  6         2.  All application, origination, processing,

  7  underwriting, closing, filing, and notary fees and all similar

  8  charges, however denominated.

  9         3.  All charges for commissions or brokerage,

10  regardless of the identity of the party to whom such charges

11  are paid or payable.

12

13  The term does not include any fee or other obligation incurred

14  by a payee in obtaining independent professional advice

15  concerning a transfer of structured settlement payment rights.

16         (g)  "Discounted present value" means, with respect to

17  a proposed transfer of structured settlement payment rights,

18  the fair present value of future payments, as determined by

19  discounting the payments to the present using the most

20  recently published applicable federal rate as the discount

21  rate.

22         (h)  "Independent professional advice" means advice of

23  an attorney, certified public accountant, actuary, or other

24  licensed professional adviser:

25         1.  Who is engaged by a payee to render advice

26  concerning the legal, tax, and financial implications of a

27  transfer of structured settlement payment rights.

28         2.  Who is not in any manner affiliated with or

29  compensated by the transferee of the transfer.

30         3.  Whose compensation for providing the advice is not

31  affected by whether a transfer occurs or does not occur.

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  1         (i)  "Interested parties" means:

  2         1.  The payee;

  3         2.  Any beneficiary irrevocably designated under the

  4  annuity contract to receive payments following the payee's

  5  death or, if such designated beneficiary is a minor, the

  6  designated beneficiary's parent or guardian;

  7         3.  The annuity issuer;

  8         4.  The structured settlement obligor; or

  9         5.  Any other party who has continuing rights or

10  obligations under the structured settlement.

11         (j)  "Payee" means an individual who is receiving

12  tax-free damage payments under a structured settlement and

13  proposes to make a transfer of payment rights under the

14  structured settlement.

15         (k)  "Qualified assignment agreement" means an

16  agreement providing for a qualified assignment, as authorized

17  by Title 26, s. 130 of the United States Internal Revenue

18  Code, as amended.

19         (l)  "Settled claim" means the original tort claim

20  resolved by a structured settlement.

21         (m)  "Structured settlement" means an arrangement for

22  periodic payment of damages for personal injuries established

23  by settlement or judgment in resolution of a tort claim.

24         (n)  "Structured settlement agreement" means the

25  agreement, judgment, stipulation, or release embodying the

26  terms of a structured settlement, including the rights of the

27  payee to receive periodic payments.

28         (o)  "Structured settlement obligor" means the party

29  who is obligated to make continuing periodic payments to the

30  payee under a structured settlement agreement or a qualified

31  assignment agreement.

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  1         (p)  "Structured settlement payment rights" means

  2  rights to receive periodic payments, including lump-sum

  3  payments under a structured settlement, from the structured

  4  settlement obligor or the annuity issuer, if:

  5         1.  The payee or any other interested party is

  6  domiciled in this state;

  7         2.  The structured settlement agreement was approved by

  8  a court; or

  9         3.  The settled claim was pending before the courts of

10  this state when the parties entered into the structured

11  settlement agreement.

12         (q)  "Terms of the structured settlement" means the

13  terms of the structured settlement agreement, the annuity

14  contract, a qualified assignment agreement, or an order or

15  approval of a court or other government authority authorizing

16  or approving the structured settlement.

17         (r)  "Transfer" means a sale, assignment, pledge,

18  hypothecation, or other form of alienation or encumbrance made

19  by a payee for consideration.

20         (s)  "Transfer agreement" means the agreement providing

21  for transfer of structured settlement payment rights from a

22  payee to a transferee.

23         (t)  "Transferee" means a person who is receiving or

24  who will receive structured settlement payment rights

25  resulting from a transfer.

26         (3)  CONDITIONS TO TRANSFERS OF STRUCTURED SETTLEMENT

27  PAYMENT RIGHTS AND STRUCTURED SETTLEMENT AGREEMENTS.--

28         (a)  A direct or indirect transfer of structured

29  settlement payment rights is not effective and a structured

30  settlement obligor or annuity issuer is not required to make a

31  payment directly or indirectly to a transferee of structured

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  1  settlement payment rights unless the transfer is authorized in

  2  advance in a final order by a court of competent jurisdiction

  3  which is based on the express written findings by the court

  4  that:

  5         1.  The transfer complies with this section and does

  6  not contravene other applicable law.

  7         2.  At least 10 days before the date on which the payee

  8  first incurred an obligation with respect to the transfer, the

  9  transferee provided to the payee a disclosure statement in

10  bold type, no smaller than 14 points in size, which specifies:

11         a.  The amounts and due dates of the structured

12  settlement payments to be transferred;

13         b.  The aggregate amount of the payments;

14         c.  The discounted present value of the payments,

15  together with the discount rate used in determining the

16  discounted present value;

17         d.  The gross amount payable to the payee in exchange

18  for the payments;

19         e.  An itemized listing of all brokers' commissions,

20  service charges, application fees, processing fees, closing

21  costs, filing fees, referral fees, administrative fees, legal

22  fees, notary fees, and other commissions, fees, costs,

23  expenses, and charges payable by the payee or deductible from

24  the gross amount otherwise payable to the payee;

25         f.  The net amount payable to the payee after deducting

26  all commissions, fees, costs, expenses, and charges described

27  in sub-subparagraph e.;

28         g.  The quotient, expressed as a percentage, obtained

29  by dividing the net payment amount by the discounted present

30  value of the payments, which shall be disclosed in the

31  following statement: "The net amount that you will receive

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  1  from us in exchange for your future structured settlement

  2  payments represent __ percent of the estimated current value

  3  of the payments";

  4         h.  The effective annual interest rate, which shall be

  5  disclosed in the following statement: "Based on the net amount

  6  that you will receive from us and the amounts and timing of

  7  the structured settlement payments that you are turning over

  8  to us, you will, in effect, be paying interest to us at a rate

  9  of __ percent per year"; and

10         i.  The amount of any penalty and the aggregate amount

11  of any liquidated damages, including penalties, payable by the

12  payee in the event of a breach of the transfer agreement by

13  the payee.

14         3.  The payee has established that the transfer is in

15  the best interests of the payee and the payee's dependents.

16         4.  The payee has received, or waived his or her right

17  to receive, independent professional advice regarding the

18  legal, tax, and financial implications of the transfer.

19         5.  The transferee has given written notice of the

20  transferee's name, address, and taxpayer identification number

21  to the annuity issuer and the structured settlement obligor

22  and has filed a copy of the notice with the court.

23         6.  The transfer agreement provides that:

24         a.  Any disputes between the parties will be governed

25  in accordance with the laws of this state, if the payee is

26  domiciled in this state at the time of transfer.

27         b.  The domicile state of the payee is the proper venue

28  to bring any cause of action arising out of a breach of the

29  agreement.

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  1         7.  The court has determined that the net amount

  2  payable to the payee is fair, just, and reasonable under the

  3  circumstances then existing.

  4         (b)  If a proposed transfer would contravene the terms

  5  of the structured settlement, upon the filing of a written

  6  objection by any interested party and after considering the

  7  objection and any response to the objection, the court may

  8  grant, deny, or impose conditions upon the proposed transfer

  9  which the court deems just and proper given the facts and

10  circumstances and in accordance with established principles of

11  law. Any order approving a transfer shall require that the

12  transferee indemnify the annuity issuer and the structured

13  settlement obligor for any liability, including, but not

14  limited to, reasonable costs and attorney's fees, which arises

15  from compliance by the issuer or obligor with the order of the

16  court.

17         (c)  Any provision in a transfer agreement which gives

18  a transferee power to confess judgment against a payee is

19  unenforceable to the extent that the amount of the judgment

20  would exceed the amount paid by the transferee to the payee,

21  less any payments received from the structured settlement

22  obligor or payee.

23         (d)  In negotiating a structured settlement of claims

24  brought by or on behalf of a claimant who is domiciled in this

25  state, the structured settlement obligor shall disclose in

26  writing to the claimant or the claimant's legal representative

27  the following information that is not otherwise specified in

28  the structured settlement agreement:

29         1.  The amounts and due dates of the periodic payments

30  to be made under the structured settlement agreement. In the

31  case of payments that will be subject to periodic percentage

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  1  increases, the amounts of future payments may be disclosed by

  2  identifying the base payment amount, the amount and timing of

  3  scheduled increases, and the manner in which increases will be

  4  compounded.

  5         2.  The amount of the premium payable to the annuity

  6  issuer.

  7         3.  The discounted present value of all periodic

  8  payments that are not life contingent, together with the

  9  discount rate used in determining the discounted present

10  value.

11         4.  The nature and amount of any costs that may be

12  deducted from any of the periodic payments.

13         5.  Where applicable, that any transfer of the periodic

14  payments is prohibited by the terms of the structured

15  settlement and may otherwise be prohibited or restricted under

16  applicable law.

17         6.  That any transfer of the periodic payments by the

18  claimant may subject the claimant to serious adverse tax

19  consequences.

20         (4)  JURISDICTION; PROCEDURE FOR APPROVAL OF

21  TRANSFERS.--At least 20 days before the scheduled hearing on

22  an application for authorizing a transfer of structured

23  settlement payment rights under this section, the transferee

24  shall file with the court and all interested parties a notice

25  of the proposed transfer and the application for its

26  authorization. The notice shall include:

27         (a)  A copy of the transferee's application to the

28  court or judge of compensation claims.

29         (b)  A copy of the transfer agreement.

30         (c)  A copy of the disclosure statement required under

31  paragraph (3)(a).

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  1         (d)  Notification that an interested party may support,

  2  oppose, or otherwise respond to the transferee's application,

  3  in person or by counsel, by submitting written comments to the

  4  court or by participating in the hearing.

  5         (e)  Notification of the time and place of the hearing

  6  and notification of the manner in which and the time by which

  7  any written response to the application must be filed in order

  8  to be considered by the court. A written response to an

  9  application shall be filed within 15 days after service of the

10  transferee's notice.

11         (5)  WAIVER PROHIBITED; NO PENALTIES INCURRED.--

12         (a)  The provisions of this section may not be waived.

13         (b)  If a transfer of structured settlement payment

14  rights fails to satisfy the conditions of subsection (3), the

15  payee who proposed the transfer does not incur any penalty,

16  forfeit any application fee or other payment, or otherwise

17  incur any liability to the proposed transferee.

18         (6)  NONCOMPLIANCE.--

19         (a)  If a transferee violates the requirements for

20  stipulating the discount and finance charge, neither the

21  transferee nor any assignee may collect from the transferred

22  payments, or from the payee, any amount in excess of the net

23  advance amount and the payee may recover from the transferee

24  or any assignee:

25         1.  A refund of any excess amounts previously received

26  by the transferee or any assignee.

27         2.  A penalty in an amount determined by the court but

28  not in excess of three times the aggregate amount of the

29  discount and finance charge.

30         3.  Reasonable costs and attorney's fees.

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  1         (b)  If the transferee violates the disclosure

  2  requirements in paragraph (3)(a), the transferee and any

  3  assignee are liable to the payee for:

  4         1.  A penalty in an amount determined by the court but

  5  not in excess of three times the amount of the discount and

  6  finance charge.

  7         2.  Reasonable costs and attorney's fees.

  8         (c)  A transferee or assignee is not liable for any

  9  penalty in any action brought under this section if the

10  transferee or assignee establishes by a preponderance of

11  evidence that the violation was not intentional and resulted

12  from a bona fide error, notwithstanding the transferee's

13  maintenance of procedures reasonably designed to avoid such

14  errors.

15         (d)  Notwithstanding any other provision of law, an

16  action may not be brought under this section more than 1 year

17  after the due date of:

18         1.  The last transferred structured settlement payment,

19  in the case of a violation of the requirements for stipulating

20  the discount and finance charge.

21         2.  The first transferred structured settlement

22  payment, in the case of a violation of the disclosure

23  requirements of paragraph (3)(a).

24         (e)  When the state attorney has reason to believe that

25  any transferee has violated this section, the state attorney

26  may bring a civil action for injunctive relief, penalties, and

27  any other relief that is appropriate to secure compliance with

28  this section.

29         Section 2.  This act shall take effect October 1, 2001.

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