Senate Bill sb0432c2

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    Florida Senate - 2002                     CS for CS for SB 432

    By the Committees on Judiciary; Banking and Insurance; and
    Senator Klein




    308-2222-02

  1                      A bill to be entitled

  2         An act relating to insurance; amending s.

  3         624.430, F.S.; providing for the department to

  4         approve insurer withdrawals upon certain

  5         conditions being satisfied; providing for the

  6         dissolution of a domestic property and casualty

  7         insurer upon approval of the surrender of the

  8         certificate of authority; granting the

  9         department rulemaking authority; amending s.

10         626.9541, F.S.; conforming cross-references;

11         amending s. 631.001, F.S.; revising

12         construction and purpose provisions; amending

13         s. 631.011, F.S.; providing additional

14         definitions; revising definitions; creating s.

15         631.015, F.S.; providing for reciprocity;

16         creating s. 631.025, F.S.; specifying

17         application to certain persons and entities;

18         amending s. 631.041, F.S.; conforming a

19         cross-reference; creating s. 631.042, F.S.;

20         limiting application of certain time

21         restrictions; providing for tolling certain

22         time limitations in certain actions; amending

23         s. 631.141, F.S.; authorizing the Department of

24         Insurance to exercise certain third-party

25         rights; providing an exception; amending s.

26         631.154, F.S.; including certain assets within

27         provisions authorizing a receiver to take

28         certain actions; including certain costs and

29         expenses of the department in costs and

30         expenses entitled to be recovered by the

31         receiver under certain circumstances; creating

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

  2         by the department; providing department powers;

  3         authorizing the department to provide certain

  4         information in such investigations; requiring a

  5         receivership court to order expedited discovery

  6         under certain circumstances; providing

  7         penalties; creating s. 631.157, F.S.; providing

  8         for civil actions by receivers; imposing

  9         liability on certain persons or entities for

10         certain actions; specifying amounts of damages;

11         providing construction; providing costs and

12         expenses entitled to be recovered by the

13         receiver under certain circumstances; providing

14         a time certain for bringing certain actions;

15         creating s. 631.1571, F.S.; providing that

16         persons serving as officers or directors of

17         insolvent insurers may not thereafter serve as

18         officers or directors of insurers authorized in

19         this state; providing time restrictions;

20         creating s. 631.3915, F.S.; authorizing the

21         department to pursue actions for damages or

22         recoveries; amending s. 631.54, F.S.;

23         redefining the term "covered claim"; amending

24         s. 631.57, F.S.; vesting the Florida Insurance

25         Guaranty Association with the defenses of

26         certain insolvent insurers; amending s.

27         631.904, F.S.; redefining the term "covered

28         claim"; creating s. 817.2341, F.S.; specifying

29         certain activities relating to false or

30         misleading financial statements or supporting

31         documents as criminal offenses; providing

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  1         penalties; repealing s. 624.3101, F.S.,

  2         relating to false or misleading financial

  3         statements or supporting documents; providing

  4         an effective date.

  5

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

  7

  8         Section 1.  Section 624.430, Florida Statutes, is

  9  amended to read:

10         624.430  Withdrawal of insurer or discontinuance of

11  writing certain kinds or lines of insurance.--

12         (1)  Any insurer desiring to surrender its certificate

13  of authority, withdraw from this state, or discontinue the

14  writing of any one or multiple kinds or lines of insurance in

15  this state shall give 90 days' notice in writing to the

16  department setting forth its reasons for such action.  Any

17  insurer who does not write any premiums in a kind or line of

18  insurance within a calendar year shall have that kind or line

19  of insurance removed from its certificate of authority;

20  however, such line of insurance shall be restored to the

21  insurer's certificate upon the insurer demonstrating that it

22  has available the expertise necessary and meets the other

23  requirements of this code to write that line of insurance.

24         (2)  If the department determines, based upon its

25  review of the notice and other required information, that the

26  plan of an insurer withdrawing from this state makes adequate

27  provision for the satisfaction of the insurer's obligations

28  and is not hazardous to policyholders or the public, the

29  department shall approve the surrender of the insurer's

30  certificate of authority.

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  1         (3)  Upon department approval of the surrender of the

  2  certificate of authority of a domestic property and casualty

  3  insurer that is a corporation, the insurer may initiate the

  4  dissolution of the corporation in accordance with the

  5  applicable provisions of chapter 607.

  6         (4)(2)  Any insurer withdrawing from this state or

  7  discontinuing the writing of all kinds of insurance in this

  8  state shall surrender its certificate of authority.

  9         (5)(3)  This section does not apply to life insurance

10  and corresponding lines of insurance as long as the insurer

11  has in force life insurance policies and corresponding lines

12  in this state.

13         (6)(4)  This section does not apply to insurers during

14  the calendar year in which they first receive their

15  certificate of authority.

16         (7)(5)  This section does not apply to insurers who

17  have discontinued writing in accordance with an order issued

18  by the department.

19         (8)  The department may adopt rules to administer this

20  section.

21         Section 2.  Paragraph (w) of subsection (1) of section

22  626.9541, Florida Statutes, is amended to read:

23         626.9541  Unfair methods of competition and unfair or

24  deceptive acts or practices defined.--

25         (1)  UNFAIR METHODS OF COMPETITION AND UNFAIR OR

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

27  of competition and unfair or deceptive acts or practices:

28         (w)  Soliciting or accepting new or renewal insurance

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

30         1.  Whether or not delinquency proceedings as to the

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

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

  2  insurer, except with the written permission of the Department

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

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

  5  such director or officer knew, or reasonably should have

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

  7  includes impairment of for capital or surplus, as defined in

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

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

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

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

12  775.083, or s. 775.084.

13         Section 3.  Section 631.001, Florida Statutes, is

14  amended to read:

15         631.001  Title, construction, and purpose.--

16         (1)  This part constitutes and may be cited as the

17  "Insurers Rehabilitation and Liquidation Act."

18         (2)  This part may not be interpreted to limit the

19  powers granted the Department of Insurance by other provisions

20  of law.

21         (2)(3)  This part shall be liberally construed to

22  effect the purposes of this part purpose stated in subsection

23  (4).

24         (3)(4)  The purposes purpose of this part, which are

25  integral elements of the regulation of the business of

26  insurance and are of vital public interest and concern, are

27  to:

28         (a)  Protect is the protection of the interests of

29  policyholders insureds, creditors, and other claimants and the

30  public.

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  1         (b)  Provide a comprehensive scheme for administering

  2  insurer receiverships. generally, through:

  3         (c)(a)  Detect Early detection of any potentially

  4  dangerous condition in an insurer and promptly apply prompt

  5  application of appropriate corrective measures. which are

  6  neither unduly harsh nor subject to unwarranted publicity

  7  needlessly damaging to the insurer;

  8         (d)(b)  Implement improved methods for rehabilitating

  9  insurers, which methods involve the cooperation and management

10  expertise of the insurance industry.;

11         (e)(c)  Enhance the Enhanced efficiency and economy of

12  the liquidation process by clarifying through clarification

13  and specification of the law to minimize legal uncertainty and

14  litigation.;

15         (f)(d)  Establish a system to equitably apportion

16  Equitable apportionment of any unavoidable loss.; and

17         (g)(e)  Administer insurer receiverships more

18  efficiently on an interstate and international basis Lessening

19  the problems of interstate rehabilitation and liquidation by

20  facilitating cooperation between states in the liquidation

21  process and by extending extension of the scope of personal

22  jurisdiction over debtors of the insurer outside this state.

23         (h)  Maximize recovery of assets for the benefit of the

24  insurer's estate; policyholders, creditors, and other

25  claimants; and the public.

26         (5)  The Insurers Rehabilitation and Liquidation Act

27  shall be so interpreted and construed as to effectuate its

28  general purpose to make uniform the law of those states which

29  in substance and effect enact the Insurers Rehabilitation and

30  Liquidation Act. To the extent that the provisions of the

31  Insurers Rehabilitation and Liquidation Act, when applicable,

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  1  conflict with other provisions of this chapter, the provisions

  2  of such act shall control.

  3         Section 4.  Section 631.011, Florida Statutes, is

  4  amended to read:

  5         631.011  Definitions.--For the purpose of this part,

  6  the term:

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

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

  9  indirectly through:

10         (a)  Equity ownership of voting securities;

11         (b)  Common managerial control; or

12         (c)  Collusive participation by the management of the

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

14  affiliate.

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

16  domiciliary state.

17         (3)  "Assets," as used in this section subsections

18  (8)-(10), means only allowed assets as defined in chapter 625.

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

20  while not possessing information that would lead a reasonable

21  person similarly situated to believe that the insurer is

22  insolvent or is experiencing an impairment of capital or an

23  impairment of surplus and while unaware of the imminence or

24  pendency of any receivership proceeding against the insurer,

25  has, in the exercise of reasonable business judgment,

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

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

28  value.

29         (5)(4)  "Court" refers to the circuit court in which

30  the receivership proceeding is pending.

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  1         (6)(5)  "Delinquency proceeding" means any proceeding

  2  commenced against an insurer pursuant to this chapter for the

  3  purpose of liquidating, rehabilitating, reorganizing, or

  4  conserving such insurer.

  5         (7)(6)  "Domiciliary state" means the state in which an

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

  7  insurer incorporated or organized in a foreign country, the

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

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

10  delinquency proceeding, the largest amount of its assets held

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

12  policyholders or policyholders and creditors in the United

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

14  state.

15         (8)  "Fair consideration" means that consideration

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

17  exchange for the funds, assets, or property and in good faith,

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

19  obligation not invalidated by the receivership proceedings is

20  created having a value to the insurer of not less than the

21  value of the funds, assets, or property given in exchange.

22         (9)(7)  "Foreign country" means territory not in any

23  state.

24         (10)(8)  "General assets" means all property, real,

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

26  deposited, or otherwise encumbered for the security or benefit

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

28  and as to such specifically encumbered property the term

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

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

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

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  1  security or benefit of all policyholders or all policyholders

  2  and creditors in the United States shall be deemed general

  3  assets.

  4         (11)  "Good faith", as used in ss. 631.262 and 631.263,

  5  means honesty in fact, including, but not limited to, the

  6  exercise of reasonable business judgment, in the conduct or

  7  transaction concerned, together with the absence of

  8  information that would lead a reasonable person in the same

  9  position to know that the insurer is insolvent or is

10  experiencing an impairment of capital or an impairment of

11  surplus and together with the absence of knowledge regarding

12  the imminence or pendency of any receivership proceeding

13  against the insurer.

14         (12)(9)  "Impairment of capital" means that the minimum

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

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

17  equal to all its liabilities together with its total issued

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

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

20  mutual, reciprocal, or business trust insurer.

21         (13)(10)  "Impairment of surplus" means that the

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

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

24  business trust insurer does not comply with the requirements

25  of s. 624.408.

26         (14)(11)  "Insolvency" means that all the assets of the

27  insurer, if made immediately available, would not be

28  sufficient to discharge all its liabilities or that the

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

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

31  this code so indicates, insolvency also includes and is

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

  2  (13)(9), and "impairment of capital," as defined in subsection

  3  (12)(8).

  4         (15)(12)  "Insurer," in addition to persons so defined

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

  6  insurers or organizing, or holding themselves out as

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

  8  and all insurers who have policyholders insureds resident in

  9  this state.

10         (16)(13)  "Liabilities," as used in subsections (12)

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

12  specifically required in s. 625.041.

13         (14)  "Person" includes natural persons, corporations,

14  partnerships, trusts, estates, and sole proprietorships.

15         (17)  "Property" includes:

16         (a)  All right, title, and interest of the insolvent

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

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

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

20  this state.

21         (b)  Entitlements that existed prior to the entry of an

22  order of conservation, rehabilitation, or liquidation and

23  entitlements that may arise by operation of the provisions of

24  this part or other provisions of law allowing the department

25  to avoid prior transfers or assert other rights in its

26  capacity as receiver.

27         (c)  All records and data that are otherwise the

28  property of the insolvent insurer, in whatever form

29  maintained, including, but not limited to, claims and claim

30  files, application files, litigation files, premium records,

31  rate books, underwriting manuals, personnel records, or

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  1  financial records, or similar records within the possession,

  2  custody, or control of a managing general agent, third-party

  3  administrator, management company, accountant, attorney,

  4  affiliate, or other person. 

  5         (18)(15)  "Receiver" means a receiver, liquidator,

  6  rehabilitator, reorganizer, or conservator, as the context may

  7  require.

  8         (19)  "Receivership" means the placement of an insurer

  9  under the control of a receiver pursuant to a delinquency

10  proceeding under this part.

11         (20)(16)  "Reciprocal state" means any state other than

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

13  the Insurers Rehabilitation and Liquidation Act are in force,

14  including the provisions requiring that the commissioner of

15  insurance or equivalent insurance supervisory official be the

16  receiver of a delinquent insurer.

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

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

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

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

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

22  months before the commencement of a delinquency proceeding in

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

24  specific assets by reason of judicial process.

25         (22)(18)  "Special deposit claim" means any claim

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

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

28  including any general assets.

29         (23)(19)  "State" is as defined in s. 624.08.

30         Section 5.  Section 631.015, Florida Statutes, is

31  created to read:

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  1         631.015  Reciprocity; treatment of

  2  policyholders.--Reciprocity in the treatment of policyholders

  3  in receivership is extended to those states which, in

  4  substance and effect, enact the National Association of

  5  Insurance Commissioners Rehabilitation and Liquidation Model

  6  Act or the Uniform Insurers Liquidation Act.

  7         Section 6.  Section 631.025, Florida Statutes, is

  8  created to read:

  9         631.025  Persons subject to this part.--Delinquency

10  proceedings authorized by this part may be initiated against

11  any insurer, as defined in s. 631.011(15), if the statutory

12  grounds are present as to that insurer, and the court may

13  exercise jurisdiction over any person required to cooperate

14  with the department pursuant to s. 631.391 and over all

15  persons made subject to the court's jurisdiction by other

16  provisions of law. Such persons include, but are not limited

17  to:

18         (1)  A person transacting, or that has transacted,

19  insurance business in or from this state and against whom

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

21  future.

22         (2)  A person purporting to transact an insurance

23  business in this state and any person who acts as an insurer,

24  transacts insurance, or otherwise engages in insurance

25  activities in or from this state, with or without a

26  certificate of authority or proper authority from the

27  department, against whom claims arising from that business may

28  exist now or in the future.

29         (3)  An insurer with policyholders resident in this

30  state.

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

  2  organizing with the intent to transact an insurance business

  3  in this state.

  4         Section 7.  Subsection (1) of section 631.041, Florida

  5  Statutes, is amended to read:

  6         631.041  Automatic stay; relief from stay;

  7  injunctions.--

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

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

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

11  be permanent and survive the entry of an order of

12  conservation, rehabilitation, or liquidation, and which shall

13  prohibit:

14         (a)  The commencement or continuation of judicial,

15  administrative, or other action or proceeding against the

16  insurer or against its assets or any part thereof;

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

18  or an affiliate obtained either before or after the

19  commencement of the delinquency proceeding;

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

21  insurer;

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

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

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

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

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

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

28  chapter; and

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

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

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  1         Section 8.  Section 631.042, Florida Statutes, is

  2  created to read:

  3         631.042  Extension of time.--

  4         (1)  With respect to any action by or against an

  5  insurer, no statute of limitations or defense of laches shall

  6  run between the date the department files a petition for a

  7  delinquency proceeding against an insurer and the date the

  8  court enters an order granting or denying that petition.  If

  9  the petition is denied, any action against the insurer that

10  might have been commenced when the petition was filed may be

11  commenced no later than 60 days after the order denying such

12  relief or the remaining unexpired time under the applicable

13  statute of limitations or defense of laches that was available

14  on the day the petition was filed, whichever is longer.

15         (2)  The running of any unexpired statute of

16  limitations, as to any claims brought by the administrator, a

17  receiver, or an official or agency exercising powers pursuant

18  to this chapter seeking damages or other recoveries on behalf

19  of an insurer, its policyholders, its creditors, or its

20  estate, shall be tolled for a period of 4 years from the date

21  the court enters an order placing the insurer in receivership.

22  If the delinquency proceedings against the insurer terminate

23  in fewer than 4 years, tolling shall cease at the time the

24  proceedings are final, including all appeals.

25         (3)  A cause of action does not accrue, and the

26  limitations period for any such action does not run, during

27  the time the insurer is controlled by parties acting contrary

28  to the company's interests or when facts giving rise to the

29  claim are concealed fraudulently from regulatory authorities

30  or from any members of company management.  The provisions of

31  chapter 95 shall be construed to be consistent with the

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  1  provisions of this section.  The receiver may institute any

  2  action or proceeding authorized under this part while any

  3  statute of limitation is tolled pursuant to this section.

  4  This tolling provision shall be in addition to any other

  5  applicable tolling provision.

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

  7  unexpired time period is fixed by any agreement or in any

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

  9  the receiver shall have 180 days, or for good cause shown more

10  than 180 days as allowed by the court, from the date the court

11  enters the order granting the department's petition for a

12  delinquency proceeding.

13         Section 9.  Present subsections (6) through (9) of

14  section 631.141, Florida Statutes, are renumbered as

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

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

17         631.141  Conduct of delinquency proceeding; domestic

18  and alien insurers.--

19         (6)  The department may assert all rights belonging to

20  third parties, including, but not limited to, policyholders,

21  creditors, and other claimants, except to the extent an

22  individual claim is personal and unique to the claimant and

23  could not inure to the benefit of the estate or to

24  policyholders, creditors, or other claimants.

25         Section 10.  Section 631.154, Florida Statutes, is

26  amended to read:

27         631.154  Funds, assets, or other property in the

28  possession of third person.--

29         (1)  If the receiver determines that funds, assets, or

30  property in the possession of another person are rightfully

31  the property of the estate, the receiver shall deliver to such

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  1  person a written demand for immediate delivery of the funds,

  2  assets, or property to the receiver, referencing this section

  3  by number, referencing the court and docket number of the

  4  receivership action, and notifying the person that any claim

  5  of right to the funds, assets, or property by her or him must

  6  be presented to the receivership court within 20 days after

  7  the date of the written demand.  Any person who holds funds,

  8  assets, or other property belonging to an entity placed in

  9  receivership subject to an order of conservation,

10  rehabilitation, or liquidation under this chapter shall

11  deliver the funds, assets, or other property to the receiver

12  on demand.  Should the person allege any right to retain the

13  funds, assets, or other property pursuant to s. 631.155, s.

14  631.191, s. 631.261, s. 631.262, s. 631.263, or s. 631.281, a

15  pleading setting out the right shall be filed with the court

16  within 20 days after of the receipt of the receiver's demand

17  that the funds, assets, or property be delivered to the

18  receiver.  The person shall serve a copy of the pleading on

19  the receiver.  The pleading of the person shall inform the

20  court as to the nature of the claim to the property, the

21  alleged value of the assets or property, or the amount of

22  funds held, and what action has been taken by the person to

23  preserve and protect the assets or property or to preserve any

24  funds pending determination of the dispute.

25         (2)  If requested by the receiver, a hearing shall be

26  held to determine where and under what conditions the

27  property, assets, or funds shall be held by the person pending

28  determination of the dispute.  The court may impose conditions

29  as it may deem necessary or appropriate for the preservation

30  of the property until the court can determine the validity of

31  the person's claim to the property, assets, or funds.  If any

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  1  property, assets, or funds are allowed to remain in the

  2  possession of the person after demand made by the receiver,

  3  that person shall be strictly liable for any waste, loss, or

  4  damage of the property, assets, or funds retained.

  5         (3)  If a person has filed a pleading alleging any

  6  right to retain funds, assets, or property, the court shall

  7  hold a subsequent hearing to determine entitlement to the

  8  funds, assets, or property claimed by the receiver.

  9         (4)  If a person fails to file the pleading required by

10  subsection (1) within the 20-day period, the court may, upon

11  petition of the receiver and upon a copy of the petition being

12  served by the petitioner to such person, issue its summary

13  order directing the immediate delivery of the funds, assets,

14  or property to the receiver and finding that the person has

15  waived all claims of right to the funds, assets, or property.

16         (5)  This section shall apply to all proceedings

17  brought by the receiver to recover funds, assets, or property

18  believed by the receiver under this chapter to be assets of

19  the entity subject to an order of conservation,

20  rehabilitation, or liquidation.  The receiver shall be exempt

21  from the provisions of s. 57.111.

22         (6)  Should the receiver be successful in establishing

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

24  to recover judgment for the following:

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

26  the order of conservation, rehabilitation, or liquidation,

27  whichever is applicable.

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

29  date of the order of conservation, rehabilitation, or

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

31  is delivered to the receiver.

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

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

  3  rehabilitation, or liquidation, whichever is applicable, to

  4  the date the funds are delivered to the receiver.

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

  6  including, but not limited to, those for department staff,

  7  incurred in necessary to the recovery of the property, assets,

  8  or funds, and reasonable attorney's fees. Department staff

  9  costs and expenses include staff salaries.

10

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

12  holding receivership assets fully reimburse the receiver for

13  any and all efforts made to recover those assets.

14         Section 11.  Section 631.156, Florida Statutes, is

15  created to read:

16         631.156  Investigation by the department; scope of

17  authority; sharing of materials.--

18         (1)  The department may, under the direction and

19  supervision of the receivership court, conduct an

20  investigation to determine the causes of the insolvency,

21  including whether false statements filed with the department

22  contributed to the insolvency and if any laws of this state,

23  any other state, or the Federal Government relating to the

24  solvency of the insurer were violated; to discover assets for

25  recovery; and to determine the location of assets and their

26  manner of recovery. The department may take statements under

27  oath and examine and review the books, records, and documents

28  of the insurer or any affiliate, controlling person, officer,

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

30  independent contractor of any insurer or affiliate and any

31  other person possessing any executive authority over, or

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  1  exercising or having exercised any control over, any segment

  2  of the affairs of the insurer or affiliate. Contracts of

  3  reinsurance between an insurer and a reinsurer do not

  4  constitute the exercise of control by the reinsurer over the

  5  insurer for purposes of this section.

  6         (2)  The department may provide documents, books, and

  7  records; other investigative products, work product, and

  8  analysis; and copies of any or all of such materials to the

  9  Division of Insurance Fraud or any other appropriate

10  government agency.  The sharing of these materials shall not

11  waive any work product or other privilege otherwise applicable

12  under law.

13         (3)  The receivership court, upon motion of the

14  department, shall enter an order expediting compliance with

15  the requirements of subsection (1). The court may impose

16  appropriate penalties and sanctions for noncompliance with

17  such order, including penalties and sanctions for the loss,

18  destruction, or spoliation of any evidence that occurs after

19  entry of such order.

20         Section 12.  Section 631.157, Florida Statutes, is

21  created to read:

22         631.157  Civil action by the receiver.--

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

24  insurance, is or acts as an officer, director, agent, or

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

26  or is involved in a transaction relating to the conduct of

27  affairs of such a business, other than as an insured or

28  beneficiary under a policy of insurance, and who willfully

29  obtains or uses, as defined in s. 812.012(3), any funds,

30  assets, or property, including, but not limited to, moneys,

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

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

  2  benefit of an insolvent insurer's estate, claimants,

  3  creditors, and policyholders, as follows:

  4         (a)  If the funds, assets, or property obtained or used

  5  did not jeopardize the safety and soundness of an insurer and

  6  was not a significant cause of such insurer being placed in

  7  receivership, the person shall be liable only for the full

  8  amount of any funds, assets, or property obtained or used,

  9  plus prejudgment interest provided by law.

10         (b)  If the funds, assets, or property obtained or used

11  jeopardized the safety and soundness of an insurer or was a

12  significant cause of the insurer being placed in receivership,

13  the person shall be liable for triple the full amount of any

14  funds, assets, or property obtained or used, plus prejudgment

15  interest provided by law on the original amount.

16         (2)(a)  Any person who:

17         1.  Is engaged in the business of insurance, is or acts

18  as an officer, director, agent, or employee of any person

19  engaged in the business of insurance, or is involved in a

20  transaction relating to the conduct of affairs of such a

21  business, other than as an insured or beneficiary under a

22  policy of insurance;

23         2.  Has actual knowledge or such constructive knowledge

24  as should have been obtained through reasonable inquiry by a

25  person in that position; and

26         3.  Misreports a material fact in any book, report, or

27  statement of an insurer

28

29  with the intent to deceive the insurer, including any officer,

30  employee, or agent of the insurer, the department, or any

31  agent or examiner appointed by the department to examine the

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  1  affairs of the person or insurer, concerning the financial

  2  condition or solvency of such business is liable to the

  3  department as receiver for the use and benefit of the

  4  insolvent insurer's estate, creditors, and policyholders, as

  5  provided in paragraph (b).

  6         (b)1.  If the misreporting did not jeopardize the

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

  8  cause of the insurer being placed in receivership, the person

  9  shall be liable only for the full amount of any asset

10  misreported.

11         2.  If the misreporting jeopardized the safety and

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

13  insurer being placed in receivership, the person shall be

14  liable for triple the full amount of any asset misreported.

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

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

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

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

19  the time a receivership proceeding is instituted, the

20  obtaining or using shall be presumed to have jeopardized the

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

22  significant cause of the insurer's being placed in

23  conservation, rehabilitation, or liquidation, with the burden

24  of proof on the defendants to show otherwise.

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

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

27  recover all of its costs; investigative and other expenses,

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

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

30  prosecution of the action; and reasonable attorney's fees.

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

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

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

  3  initial order of rehabilitation or liquidation under this part

  4  but shall be filed before the time the receivership proceeding

  5  is closed or dismissed.

  6         Section 13.  Section 631.1571, Florida Statutes, is

  7  created to read:

  8         631.1571  Officers and directors of insolvent

  9  insurers.--Any person who was an officer or director of an

10  insurer doing business in this state and who served in that

11  capacity within the 2-year period prior to the date the

12  insurer became insolvent, for any insolvency that occurs on or

13  after July 1, 2002, may not thereafter serve as an officer or

14  director of an insurer authorized in this state.

15         Section 14.  Section 631.3915, Florida Statutes, is

16  created to read:

17         631.3915  Actions for damages.--The department, in its

18  capacity as administrator, receiver, or similar capacity, may

19  pursue any actions for damages or other recoveries on behalf

20  of the insurer's estate and the insurer's policyholders,

21  creditors, and other claimants.

22         Section 15.  Subsection (3) of section 631.54, Florida

23  Statutes, is amended to read:

24         631.54  Definitions.--As used in this part:

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

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

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

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

29  insurer, if such insurer becomes an insolvent insurer after

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

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

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  1  from which the claim arises is permanently located in this

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

  3  reinsurer, insurer, insurance pool, or underwriting

  4  association, as subrogation, contribution, indemnification,

  5  recoveries or otherwise.  Member insurers shall have no right

  6  of subrogation against the insured of any insolvent member.

  7         Section 16.  Paragraph (b) of subsection (1) of section

  8  631.57, Florida Statutes, is amended to read:

  9         631.57  Powers and duties of the association.--

10         (1)  The association shall:

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

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

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

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

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

16  or interest.

17         Section 17.  Subsection (2) of section 631.904, Florida

18  Statutes, is amended to read:

19         631.904  Definitions.--As used in this part, the term:

20         (2)  "Covered claim" means an unpaid claim, including a

21  claim for return of unearned premiums, which arises out of, is

22  within the coverage of, and is not in excess of the applicable

23  limits of, an insurance policy to which this part applies,

24  which policy was issued by an insurer and which claim is made

25  on behalf of a claimant or insured who was a resident of this

26  state at the time of the injury. The term "covered claim" does

27  not include any amount sought as a return of premium under any

28  retrospective rating plan; any amount due any reinsurer,

29  insurer, insurance pool, or underwriting association, as

30  subrogation recoveries or otherwise; or any return of premium

31  resulting from a policy that was not in force on the date of

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  1  the final order of liquidation. Member insurers have no right

  2  of subrogation  against the insured of any insolvent insurer.

  3  This provision shall be applied retroactively to cover claims

  4  of an insolvent self-insurance fund resulting from accidents

  5  or losses incurred prior to January 1, 1994, regardless of the

  6  date the Department of Insurance filed a petition in circuit

  7  court alleging insolvency and the date the court entered an

  8  order appointing a receiver.

  9         Section 18.  Section 817.2341, Florida Statutes, is

10  created to read:

11         817.2341  False or misleading statements or supporting

12  documents; penalty.--

13         (1)  Any person who willfully files with the

14  department, or who willfully signs for filing with the

15  department, a materially false or materially misleading

16  financial statement or document in support of such statement

17  required by law or rule, with intent to deceive and with

18  knowledge that the statement or document is materially false

19  or materially misleading, commits a felony of the third

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

21  s. 775.084.

22         (2)(a)  Any person who makes a false entry of a

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

24  transaction of an insurer or entity organized pursuant to

25  chapter 624 or chapter 641, intending to deceive any person

26  about the financial condition or solvency of the insurer or

27  entity, commits a felony of the third degree, punishable as

28  provided in s. 775.082, s. 775.083, or s. 775.084.

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

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

31  capital, as defined in s. 631.011(12), of the insurer or

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  1  entity or is the significant cause of the insurer or entity

  2  being placed in conservation, rehabilitation, or liquidation

  3  by a court, the person commits a felony of the first degree,

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

  5  775.084.

  6         (3)(a)  Any person who knowingly makes a material false

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

  8  department, or knowingly and materially overvalues any

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

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

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

12  775.082, s. 775.083, or s. 775.084.

13         (b)  If the material false statement or report or the

14  material overvaluation is made with the intent to deceive any

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

16  631.011(12), of an insurer or entity organized pursuant to

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

18  insurer or entity being placed in receivership by a court, the

19  person commits a felony of the first degree, punishable as

20  provided in s. 775.082, s. 775.083, or s. 775.084.

21         Section 19.  Section 624.3101, Florida Statutes, is

22  repealed.

23         Section 20.  This act shall take effect July 1, 2002.

24

25

26

27

28

29

30

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  1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  2                      CS for Senate Bill 432

  3

  4  --    Amends s. 624.430, F.S., which pertains to the
          withdrawal of insurers from the state, to provide that a
  5        solvent insurer can submit a plan for withdrawal to the
          Department of Insurance and, upon approval of the plan,
  6        the insurer may initiate corporate dissolution
          proceedings pursuant to chapter 607, F.S.
  7
    --    Revises the definition of the term "good faith" so that
  8        the application of the definition is limited to the
          provisions in ss. 631.262 and 631.263, F.S., regarding
  9        transfers of the insurer's property.

10  --    Clarifies s. 631.025, F.S., to provide that the court
          has jurisdiction in a delinquency proceeding over
11        persons purporting to transact insurance business and
          against whom claims may exist now or in the future.
12
    --    Clarifies s. 631.042, F.S., which contains provisions
13        tolling statutes of limitation when delinquency
          petitions are filed. When the court denies a petition
14        for delinquency, the remaining time to file an action
          against an insurer will be the greater of 60 days or the
15        amount of unexpired time, as of the date of the filing
          of the petition of delinquency, remaining under the
16        applicable statute of limitations.

17  --    Modifies the provisions in s. 631.156, F.S., relating to
          the department's ability to investigate the causes of an
18        insurer's insolvency. The court is required, upon motion
          of the department, to enter an order expediting
19        discovery related to the investigation. The court may
          impose penalties and sanctions for noncompliance with
20        the discovery order, including penalties and sanctions
          for the destruction, loss, or spoliation of any evidence
21        that occurs after the entry of the discovery order.

22  --    Amends s. 631.904, F.S., which provides definitions
          applicable to the Florida Workers' Compensation
23        Insurance Guaranty Association, to revise the definition
          of the term "covered claim" to exclude any return of
24        premium for retrospective rating plans.

25

26

27

28

29

30

31

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