| 1 | A bill to be entitled |
| 2 | An act relating to viatical settlements; amending s. |
| 3 | 626.9911, F.S.; limiting the definition of "life |
| 4 | expectancy provider" to those determining life |
| 5 | expectancies for the purpose of a viatical settlement |
| 6 | contract governed by state law; defining the terms |
| 7 | "premium finance loan" and "stranger-originated life |
| 8 | insurance"; modifying the definition of "viatical |
| 9 | settlement contract" to include additional transactions |
| 10 | and specify transactions not constituting such a contract; |
| 11 | conforming other definitions to changes made by the act; |
| 12 | amending s. 626.9913, F.S.; requiring that a viatical |
| 13 | settlement provider annually file a statement containing |
| 14 | information required by state law on or before a specified |
| 15 | date; providing requirements for such statements; |
| 16 | authorizing the Office of Insurance Regulation to adopt |
| 17 | rules; amending s. 626.9914, F.S.; clarifying grounds for |
| 18 | which the office may suspend, revoke, deny, or refuse to |
| 19 | renew the license of a viatical settlement provider; |
| 20 | amending s. 626.99175, F.S.; prohibiting a person from |
| 21 | performing the functions of a life expectancy provider |
| 22 | regarding viatical settlement contracts without first |
| 23 | having registered as a life expectancy provider; amending |
| 24 | s. 626.992, F.S.; clarifying restrictions on the use of |
| 25 | viatical settlement brokers, viatical settlement |
| 26 | providers, and registered life expectancy providers; |
| 27 | clarifying a requirement that a person operating as a life |
| 28 | expectancy provider register as such; amending s. |
| 29 | 626.9922, F.S.; limiting the scope of an examination of |
| 30 | the business affairs of certain licensees by the office or |
| 31 | Department of Financial Services; clarifying provisions |
| 32 | relating to parties to whom such examination requirements |
| 33 | apply; creating s. 626.99234, F.S.; authorizing insurers |
| 34 | to make certain inquiries to an applicant for a life |
| 35 | insurance policy; authorizing an insurer to reject certain |
| 36 | applications; prohibiting an insurer from rejecting an |
| 37 | application solely because the premiums will be financed |
| 38 | under certain circumstances; authorizing an insurer to |
| 39 | make certain disclosures to an applicant; authorizing an |
| 40 | insurer to require certain certifications from an |
| 41 | applicant or insured; amending s. 626.9924, F.S.; |
| 42 | requiring that a viatical settlement provider obtain a |
| 43 | witnessed document containing certain provisions before |
| 44 | the execution of a viatical settlement contract; providing |
| 45 | for the use of a third-party trustee or escrow agent |
| 46 | during a viatical settlement transaction; amending s. |
| 47 | 626.99245, F.S.; deleting provisions requiring the |
| 48 | maintenance of certain records from viatical settlement |
| 49 | transactions completed in other states; amending s. |
| 50 | 626.9925, F.S.; deleting a provision authorizing the |
| 51 | Financial Services Commission to adopt rules defining |
| 52 | terms for use in the Viatical Settlement Act; amending s. |
| 53 | 626.99275, F.S.; prohibiting any person from engaging in |
| 54 | stranger-originated life insurance; providing penalties; |
| 55 | amending s. 626.99287, F.S.; providing that a viatical |
| 56 | settlement contract is void under certain circumstances; |
| 57 | providing an effective date. |
| 58 |
|
| 59 | Be It Enacted by the Legislature of the State of Florida: |
| 60 |
|
| 61 | Section 1. Section 626.9911, Florida Statutes, is amended |
| 62 | to read: |
| 63 | 626.9911 Definitions.--As used in this act, the term: |
| 64 | (1) "Financing entity" means an underwriter, placement |
| 65 | agent, lender, purchaser of securities, or purchaser of a policy |
| 66 | or certificate from a viatical settlement provider, credit |
| 67 | enhancer, or any entity that has direct ownership in a policy or |
| 68 | certificate that is the subject of a viatical settlement |
| 69 | contract, but whose principal activity related to the |
| 70 | transaction is providing funds or credit enhancement to effect |
| 71 | the viatical settlement or the purchase of one or more |
| 72 | viaticated policies and who has an agreement in writing with one |
| 73 | or more licensed viatical settlement providers to finance the |
| 74 | acquisition of viatical settlement contracts. The term does not |
| 75 | include a nonaccredited investor or other natural person. A |
| 76 | financing entity may not enter into a viatical settlement |
| 77 | contract. |
| 78 | (2) "Independent third-party trustee or escrow agent" |
| 79 | means an attorney, certified public accountant, financial |
| 80 | institution, or other person providing escrow services under the |
| 81 | authority of a regulatory body. The term does not include any |
| 82 | person associated, affiliated, or under common control with a |
| 83 | viatical settlement provider or viatical settlement broker. |
| 84 | (3) "Life expectancy" means an opinion or evaluation as to |
| 85 | how long a particular person is to live, or relating to such |
| 86 | person's expected demise regarding a viatical settlement |
| 87 | contract. |
| 88 | (4) "Life expectancy provider" means a person who |
| 89 | determines, or holds himself or herself out as determining, life |
| 90 | expectancies or mortality ratings used to determine life |
| 91 | expectancies for the purposes of a viatical settlement contract |
| 92 | governed by state law: |
| 93 | (a) On behalf of a viatical settlement provider, viatical |
| 94 | settlement broker, life agent, or person engaged in the business |
| 95 | of viatical settlements; |
| 96 | (b) In connection with a viatical settlement investment, |
| 97 | pursuant to s. 517.021(23); or |
| 98 | (c) On residents of this state in connection with a |
| 99 | viatical settlement contract or viatical settlement investment. |
| 100 | (5) "Person" has the meaning specified in s. 1.01. |
| 101 | (6) "Premium finance loan" means a loan made primarily for |
| 102 | the purpose of making premium payments on a life insurance |
| 103 | policy issued or to be issued to a resident of this state, which |
| 104 | loan is secured by an interest in such life insurance policy. |
| 105 | (7)(6) "Related form" means any form, created by or on |
| 106 | behalf of a licensee, which a viator is required to sign or |
| 107 | initial. The forms include, but are not limited to, a power of |
| 108 | attorney, a release of medical information form, a suitability |
| 109 | questionnaire, a disclosure document, or any addendum, schedule, |
| 110 | or amendment to a viatical settlement contract considered |
| 111 | necessary by a provider to effectuate a viatical settlement |
| 112 | transaction. |
| 113 | (8)(7) "Related provider trust" means a titling trust or |
| 114 | other trust established by a licensed viatical settlement |
| 115 | provider or financing entity for the sole purpose of holding the |
| 116 | ownership or beneficial interest in purchased policies in |
| 117 | connection with a financing transaction. The trust must have a |
| 118 | written agreement with a licensed viatical settlement provider |
| 119 | or financing entity under which the licensed viatical settlement |
| 120 | provider or financing entity is responsible for insuring |
| 121 | compliance with all statutory and regulatory requirements and |
| 122 | under which the trust agrees to make all records and files |
| 123 | relating to viatical settlement transactions available to the |
| 124 | office as if those records and files were maintained directly by |
| 125 | the licensed viatical settlement provider. This term does not |
| 126 | include an independent third-party trustee or escrow agent or a |
| 127 | trust that does not enter into agreements with a viator. A |
| 128 | related provider trust shall be subject to all provisions of |
| 129 | this act that apply to the viatical settlement provider who |
| 130 | established the related provider trust, except s. 626.9912, |
| 131 | which shall not be applicable. A viatical settlement provider |
| 132 | may establish no more than one related provider trust, and the |
| 133 | sole trustee of such related provider trust shall be the |
| 134 | viatical settlement provider licensed under s. 626.9912. The |
| 135 | name of the licensed viatical settlement provider shall be |
| 136 | included within the name of the related provider trust. |
| 137 | (9)(8) "Special purpose entity" means an entity |
| 138 | established by a licensed viatical settlement provider or by a |
| 139 | financing entity, which may be a corporation, partnership, |
| 140 | trust, limited liability company, or other similar entity formed |
| 141 | solely to provide, either directly or indirectly, access to |
| 142 | institutional capital markets to a viatical settlement provider |
| 143 | or financing entity. A special purpose entity may not obtain |
| 144 | capital from any natural person or entity with less than $50 |
| 145 | million in assets and may not enter into a viatical settlement |
| 146 | contract. |
| 147 | (10) "Stranger-originated life insurance" or "STOLI" means |
| 148 | an act, practice, or arrangement to initiate the issuance of a |
| 149 | life insurance policy in this state for the benefit of a third- |
| 150 | party investor who, at the time of policy origination, has no |
| 151 | insurable interest under the laws of this state in the life of |
| 152 | the insured. STOLI practices include, but are not limited to, |
| 153 | cases in which life insurance is purchased with resources or |
| 154 | guarantees from or through a person or entity, that, at the time |
| 155 | of inception of the policy, could not lawfully initiate the |
| 156 | policy himself, herself, or itself, and where, at the time of |
| 157 | inception, there is an arrangement or agreement to directly or |
| 158 | indirectly transfer the ownership of the policy or the policy's |
| 159 | benefits to a third party. Trusts created to give the appearance |
| 160 | of insurable interest and used to initiate policies for |
| 161 | investors violate insurable interest laws and the prohibition |
| 162 | against wagering on life. STOLI arrangements do not include |
| 163 | otherwise lawful viatical settlement contracts as permitted by |
| 164 | state law or those acts, practices, or arrangements set forth in |
| 165 | paragraph (12)(c). |
| 166 | (11)(9) "Viatical settlement broker" means a person who, |
| 167 | on behalf of a viator and for a fee, commission, or other |
| 168 | valuable consideration, offers or attempts to negotiate viatical |
| 169 | settlement contracts between a viator resident in this state and |
| 170 | one or more viatical settlement providers. Notwithstanding the |
| 171 | manner in which the viatical settlement broker is compensated, a |
| 172 | viatical settlement broker is deemed to represent only the |
| 173 | viator and owes a fiduciary duty to the viator to act according |
| 174 | to the viator's instructions and in the best interest of the |
| 175 | viator. The term does not include an attorney, licensed |
| 176 | Certified Public Accountant, or investment adviser lawfully |
| 177 | registered under chapter 517, who is retained to represent the |
| 178 | viator and whose compensation is paid directly by or at the |
| 179 | direction and on behalf of the viator. |
| 180 | (12)(10) "Viatical settlement contract" means: |
| 181 | (a) A written agreement entered into between a viatical |
| 182 | settlement provider, or its related provider trust, and a viator |
| 183 | who is a resident of this state. The viatical settlement |
| 184 | contract includes an agreement to transfer ownership or change |
| 185 | the beneficiary designation of a life insurance policy at a |
| 186 | later date, regardless of the date that compensation is paid to |
| 187 | the viator. The agreement must establish the terms under which |
| 188 | the viatical settlement provider will pay compensation or |
| 189 | anything of value, which compensation or value is less than the |
| 190 | expected death benefit of the insurance policy or certificate, |
| 191 | in return for the viator's assignment, transfer, sale, devise, |
| 192 | or bequest of the death benefit or ownership of all or a portion |
| 193 | of the insurance policy or certificate of insurance to the |
| 194 | viatical settlement provider. |
| 195 | (b) A viatical settlement contract also includes: |
| 196 | 1. The transfer for compensation or value of ownership or |
| 197 | beneficial interest in a trust or other entity owning such |
| 198 | policy if the trust or other entity was formed or availed of for |
| 199 | the principal purpose of acquiring one or more life insurance |
| 200 | contracts owned by a resident of this state. |
| 201 | 2. A premium finance loan made for a policy on or before |
| 202 | the date of issuance of the policy if one or more of the |
| 203 | following conditions apply: |
| 204 | a. The loan proceeds are not used solely to pay premiums |
| 205 | for the policy and any costs or expenses incurred by the lender |
| 206 | or the borrower in connection with the financing. |
| 207 | b. The owner receives on the date of the origination of |
| 208 | the premium-finance loan a guarantee of the future viatical |
| 209 | settlement value of the policy. |
| 210 | c. The owner agrees on the date of origination of the |
| 211 | premium finance loan to sell the policy or any portion of the |
| 212 | policy's death benefit on any date following the issuance of the |
| 213 | policy, not including an agreement to sell the policy in the |
| 214 | event of a default, if the default is not pursuant to an |
| 215 | agreement or understanding with any other person for the purpose |
| 216 | of evading regulation under this act. |
| 217 | (c) A viatical settlement contract does not include: |
| 218 | 1. A policy loan by a life insurance company pursuant to |
| 219 | the terms of the life insurance policy or accelerated death |
| 220 | provisions contained in the life insurance policy issued with |
| 221 | the original policy or as a rider. |
| 222 | 2. A premium finance loan or any loan made by a bank or |
| 223 | other licensed financial institution, if neither party defaults |
| 224 | on such loan or the transfer of the policy in connection with |
| 225 | such default is pursuant to an agreement or understanding with |
| 226 | any other person for the purpose of evading regulation under |
| 227 | this act. |
| 228 | 3. A collateral assignment of a life insurance policy by |
| 229 | an owner of a policy. |
| 230 | 4. A loan made by a lender which is not described in |
| 231 | subparagraph (b)2. and is not otherwise within the scope of the |
| 232 | definition of viatical settlement contract. |
| 233 | 5. An agreement for which all of the parties satisfy at |
| 234 | least one of the following conditions: |
| 235 | a. The parties are closely related to the insured by blood |
| 236 | or law. |
| 237 | b. The parties have a lawful substantial economic interest |
| 238 | in the continued life, health, and bodily safety of the person |
| 239 | insured. |
| 240 | c. The parties are trusts established primarily for the |
| 241 | benefit of those parties. |
| 242 | 6. Any designation, consent, or agreement by an insured |
| 243 | who is an employee of an employer in connection with the |
| 244 | purchase by the employer or by a trust established by the |
| 245 | employer of life insurance on the life of the employee. |
| 246 | 7. A bona fide business succession planning arrangement |
| 247 | between: |
| 248 | a. One or more shareholders in a corporation; |
| 249 | b. A corporation and one or more of its shareholders or |
| 250 | one or more trusts established by its shareholders; |
| 251 | c. One or more partners in a partnership; |
| 252 | d. A partnership and one or more of its partners or one or |
| 253 | more trusts established by its partners; |
| 254 | e. One or more members in a limited liability company; or |
| 255 | f. A limited liability company and one or more of its |
| 256 | members or one or more trusts established by its members. |
| 257 | 8. An agreement entered into by a service recipient or a |
| 258 | trust established by the service recipient, or a service |
| 259 | provider or a trust established by the service provider |
| 260 | performing significant services for the service recipient's |
| 261 | trade or business. |
| 262 | 9. Any other contract, transaction, or arrangement that |
| 263 | the commissioner determines is not of the type intended to be |
| 264 | regulated by this act a contract for a loan or other financial |
| 265 | transaction secured primarily by an individual or group life |
| 266 | insurance policy, other than a loan by a life insurance company |
| 267 | pursuant to the terms of the life insurance contract, or a loan |
| 268 | secured by the cash value of a policy. |
| 269 | (13)(11) "Viatical settlement investment" has the same |
| 270 | meaning as specified in s. 517.021. |
| 271 | (14)(12) "Viatical settlement provider" means a person |
| 272 | who, in this state, from this state, or with a resident of this |
| 273 | state, effectuates a viatical settlement contract. The term does |
| 274 | not include: |
| 275 | (a) Any bank, savings bank, savings and loan association, |
| 276 | credit union, or other licensed lending institution that takes |
| 277 | an assignment of a life insurance policy as collateral for a |
| 278 | loan. |
| 279 | (b) A life and health insurer that has lawfully issued a |
| 280 | life insurance policy that provides accelerated benefits to |
| 281 | terminally ill policyholders or certificateholders. |
| 282 | (c) Any natural person who enters into no more than one |
| 283 | viatical settlement contract with a viator in 1 calendar year, |
| 284 | unless such natural person has previously been licensed under |
| 285 | this act or is currently licensed under this act. |
| 286 | (d) A trust that meets the definition of a "related |
| 287 | provider trust." |
| 288 | (e) A viator in this state. |
| 289 | (f) A financing entity. |
| 290 | (15)(13) "Viaticated policy" means a life insurance |
| 291 | policy, or a certificate under a group policy, which is the |
| 292 | subject of a viatical settlement contract. |
| 293 | (16)(14) "Viator" means a resident of this state who is |
| 294 | the owner of a life insurance policy or a certificateholder |
| 295 | under a group policy, which policy is not a previously |
| 296 | viaticated policy, who enters or seeks to enter into a viatical |
| 297 | settlement contract. This term does not include a viatical |
| 298 | settlement provider or any person acquiring a policy or interest |
| 299 | in a policy from a viatical settlement provider, nor does it |
| 300 | include an independent third-party trustee or escrow agent. |
| 301 | Section 2. Subsection (2) of section 626.9913, Florida |
| 302 | Statutes, is amended to read: |
| 303 | 626.9913 Viatical settlement provider license continuance; |
| 304 | annual report; fees; deposit.-- |
| 305 | (2) Annually, on or before March 1, the viatical |
| 306 | settlement provider licensee shall file a statement containing |
| 307 | information required by statute the commission requires and |
| 308 | shall pay to the office a license fee in the amount of $500. |
| 309 | After December 31, 2007, the annual statement shall include an |
| 310 | annual audited financial statement of the viatical settlement |
| 311 | provider prepared in accordance with generally accepted |
| 312 | accounting principles by an independent certified public |
| 313 | accountant covering a 12-month period ending on a day falling |
| 314 | during the last 6 months of the preceding calendar year. If the |
| 315 | audited financial statement has not been completed, however, the |
| 316 | licensee shall include in its annual statement an unaudited |
| 317 | financial statement for the preceding calendar year and an |
| 318 | affidavit from an officer of the licensee stating that the audit |
| 319 | has not been completed. In this event, the licensee shall submit |
| 320 | the audited statement on or before June 1. The audited and |
| 321 | unaudited financial statements are subject to the provisions of |
| 322 | chapter 688 and ss. 812.081 and 815.045 and may be protected as |
| 323 | trade secrets. The annual statement, due on or before March 1 |
| 324 | each year, shall also provide the office with a report of all |
| 325 | life expectancy providers who have provided life expectancies |
| 326 | directly or indirectly to the viatical settlement provider for |
| 327 | use in connection with a viatical settlement contract or a |
| 328 | viatical settlement investment. A viatical settlement provider |
| 329 | shall include in all statements filed with the office all |
| 330 | information requested by the office regarding a related provider |
| 331 | trust established by the viatical settlement provider. The |
| 332 | office may adopt rules requiring that the annual statement |
| 333 | contain information, in the aggregate, regarding viatical |
| 334 | settlement contracts entered into with a resident of this state. |
| 335 | The office may require more frequent reporting. Failure to |
| 336 | timely file the annual statement or the audited financial |
| 337 | statement or to timely pay the license fee is grounds for |
| 338 | immediate suspension of the license. The commission may by rule |
| 339 | require all or part of the statements or filings required under |
| 340 | this section to be submitted by electronic means in a computer- |
| 341 | readable form compatible with the electronic data format |
| 342 | specified by the commission. |
| 343 | Section 3. Subsection (1) of section 626.9914, Florida |
| 344 | Statutes, is amended to read: |
| 345 | 626.9914 Suspension, revocation, denial, or nonrenewal of |
| 346 | viatical settlement provider license; grounds; administrative |
| 347 | fine.-- |
| 348 | (1) The office shall suspend, revoke, deny, or refuse to |
| 349 | renew the license of any viatical settlement provider if the |
| 350 | office finds that the licensee: |
| 351 | (a) Has made a misrepresentation in the application for |
| 352 | the license; |
| 353 | (b) Has engaged in fraudulent or dishonest practices, or |
| 354 | otherwise has been shown to be untrustworthy or incompetent to |
| 355 | act as a viatical settlement provider; |
| 356 | (c) Demonstrates a pattern of unreasonable payments to |
| 357 | viators; |
| 358 | (d) Has been found guilty of, or has pleaded guilty or |
| 359 | nolo contendere to, any felony, or a misdemeanor involving fraud |
| 360 | or moral turpitude, regardless of whether a judgment of |
| 361 | conviction has been entered by the court; |
| 362 | (e) Has issued viatical settlement contracts using a |
| 363 | viatical settlement contract form that has have not been |
| 364 | approved pursuant to this act; |
| 365 | (f) Has failed to honor contractual obligations related to |
| 366 | the business of viatical settlement contracts; |
| 367 | (g) Deals in bad faith with viators; |
| 368 | (h) Has violated any provision of the insurance code or of |
| 369 | this act; |
| 370 | (i) Employs any person who materially influences the |
| 371 | licensee's conduct and who fails to meet the requirements of |
| 372 | this act; |
| 373 | (j) No longer meets the requirements for initial |
| 374 | licensure; or |
| 375 | (k) Obtains or utilizes life expectancies regarding |
| 376 | viatical settlement contracts from life expectancy providers who |
| 377 | are not registered with the office pursuant to this act. |
| 378 | Section 4. Subsection (1) of section 626.99175, Florida |
| 379 | Statutes, is amended to read: |
| 380 | 626.99175 Life expectancy providers; registration |
| 381 | required; denial, suspension, revocation.-- |
| 382 | (1) After July 1, 2006, A person may not perform the |
| 383 | functions of a life expectancy provider regarding viatical |
| 384 | settlement contracts without first having registered as a life |
| 385 | expectancy provider, except as provided in subsection (6). |
| 386 | Section 5. Section 626.992, Florida Statutes, is amended |
| 387 | to read: |
| 388 | 626.992 Use of licensed viatical settlement providers, |
| 389 | viatical settlement brokers, and registered life expectancy |
| 390 | providers required.-- |
| 391 | (1) A licensed viatical settlement provider may not use |
| 392 | any person to perform the functions of a viatical settlement |
| 393 | broker as defined in this act regarding a viatical settlement |
| 394 | contract unless such person holds a current, valid life agent |
| 395 | license and has appointed himself or herself in conformance with |
| 396 | this chapter. |
| 397 | (2) A viatical settlement broker may not use any person to |
| 398 | perform the functions of a viatical settlement provider as |
| 399 | defined in this act regarding a viatical settlement contract |
| 400 | unless such person holds a current, valid license as a viatical |
| 401 | settlement provider. |
| 402 | (3) After July 1, 2006, A person may not operate as a life |
| 403 | expectancy provider regarding a viatical settlement contract |
| 404 | unless such person is registered as a life expectancy provider |
| 405 | pursuant to this act. |
| 406 | (4) After July 1, 2006, A viatical settlement provider, |
| 407 | viatical settlement broker, or any other person in the business |
| 408 | of viatical settlements may not obtain life expectancies |
| 409 | regarding a viatical settlement contract from a person who is |
| 410 | not registered as a life expectancy provider pursuant to this |
| 411 | act. |
| 412 | Section 6. Subsections (1), (2), (4), and (7) of section |
| 413 | 626.9922, Florida Statutes, are amended to read: |
| 414 | 626.9922 Examination.-- |
| 415 | (1) The office or department may examine the business and |
| 416 | affairs of any of its respective licensees or applicants for a |
| 417 | license. The office or department may order any such licensee or |
| 418 | applicant to produce any records, books, files, advertising and |
| 419 | solicitation materials, or other information and may take |
| 420 | statements under oath to determine whether the licensee or |
| 421 | applicant is in violation of the law or is acting contrary to |
| 422 | the public interest. With respect to licensees, the examination |
| 423 | is limited to information regarding viatical settlement |
| 424 | contracts executed in this state, from this state, or with a |
| 425 | resident of this state. The expenses incurred in conducting any |
| 426 | examination or investigation must be paid by the licensee or |
| 427 | applicant. Examinations and investigations must be conducted as |
| 428 | provided in chapter 624, and licensees are subject to all |
| 429 | applicable provisions of the insurance code. |
| 430 | (2) All accounts, books and records, documents, files, |
| 431 | contracts, and other information relating to all transactions of |
| 432 | viatical settlement contracts, or life expectancies regarding |
| 433 | viatical settlement contracts, or viatical settlement purchase |
| 434 | agreements made before July 1, 2005, must be maintained by the |
| 435 | licensee for a period of at least 3 years after the death of the |
| 436 | insured and must be available to the office or department for |
| 437 | inspection during reasonable business hours. |
| 438 | (4) Such information The originals of records required to |
| 439 | be maintained under this section must be made available to the |
| 440 | office or department for examination at the office's or |
| 441 | department's request. |
| 442 | (7) Subsections (1), (2), (3), and (4) apply to life |
| 443 | expectancy providers providing life expectancies regarding |
| 444 | viatical settlement contracts in the state and providing life |
| 445 | expectancies regarding viatical settlement contracts to viatical |
| 446 | settlement providers in the state, as if life expectancy |
| 447 | providers were licensees. |
| 448 | Section 7. Section 626.99234, Florida Statutes, is created |
| 449 | to read: |
| 450 | 626.99234 Disclosures by insurers.--In addition to other |
| 451 | questions that an insurance carrier may lawfully pose to an |
| 452 | applicant for a life insurance policy, insurance carriers may |
| 453 | inquire in the application as to whether the proposed owner |
| 454 | intends to pay premiums with the assistance of financing from a |
| 455 | lender that will use the policy as collateral to support the |
| 456 | financing. |
| 457 | (1) If the premium finance loan provides funds that can be |
| 458 | used for a purpose other than paying for the premiums, costs, |
| 459 | and expenses associated with obtaining and maintaining the life |
| 460 | insurance policy and loan, the application shall be rejected as |
| 461 | a prohibited practice under this act. |
| 462 | (2) If the financing does not violate subsection (1) or |
| 463 | the insurer's lawful underwriting guidelines, the insurer may |
| 464 | not reject the life insurance application solely because the |
| 465 | premiums will be financed. |
| 466 | (3) The insurance carrier may make a disclosure to the |
| 467 | applicant, either on the application or an amendment to the |
| 468 | application to be completed no later than the date of delivery |
| 469 | of the policy, including, but not limited to, the following: |
| 470 | IF YOU HAVE ENTERED INTO A LOAN ARRANGEMENT IN WHICH |
| 471 | THE POLICY IS USED AS COLLATERAL AND THE POLICY |
| 472 | CHANGES OWNERSHIP AT SOME POINT IN THE FUTURE IN |
| 473 | SATISFACTION OF THE LOAN, YOU SHOULD BE AWARE THAT A |
| 474 | CHANGE OF OWNERSHIP COULD LEAD TO A STRANGER OWNING AN |
| 475 | INTEREST IN THE INSURED'S LIFE AND COULD IN THE FUTURE |
| 476 | LIMIT YOUR ABILITY TO PURCHASE INSURANCE ON THE |
| 477 | INSURED'S LIFE BECAUSE THERE IS A LIMIT AS TO HOW MUCH |
| 478 | COVERAGE INSURERS WILL ISSUE ON A LIFE. YOU SHOULD |
| 479 | CONSULT A PROFESSIONAL ADVISOR SINCE A CHANGE IN |
| 480 | OWNERSHIP IN SATISFACTION OF THE LOAN MAY RESULT IN |
| 481 | TAX CONSEQUENCES TO THE OWNER, DEPENDING ON THE |
| 482 | STRUCTURE OF THE LOAN. |
| 483 | (4) In addition to the disclosures in subsection (3), the |
| 484 | insurance carrier may require any of the following |
| 485 | certifications from the applicant or the insured: |
| 486 | (a) I HAVE NOT ENTERED INTO ANY AGREEMENT OR ARRANGEMENT |
| 487 | UNDER WHICH I HAVE AGREED TO MAKE A FUTURE SALE OF THIS LIFE |
| 488 | INSURANCE POLICY. |
| 489 | (b) MY LOAN ARRANGEMENT FOR THIS POLICY PROVIDES FUNDS |
| 490 | SUFFICIENT TO PAY FOR SOME OR ALL OF THE PREMIUMS, COSTS, AND |
| 491 | EXPENSES ASSOCIATED WITH OBTAINING AND MAINTAINING MY LIFE |
| 492 | INSURANCE POLICY, BUT I HAVE NOT ENTERED INTO ANY AGREEMENT |
| 493 | PURSUANT TO WHICH I AM TO RECEIVE CONSIDERATION IN EXCHANGE FOR |
| 494 | PROCURING THIS POLICY. |
| 495 | (c) THE BORROWER HAS AN INSURABLE INTEREST IN THE INSURED. |
| 496 | Section 8. Subsections (1) and (3) of section 626.9924, |
| 497 | Florida Statutes, are amended to read: |
| 498 | 626.9924 Viatical settlement contracts; procedures; |
| 499 | rescission.-- |
| 500 | (1) Before the execution of a viatical settlement contract |
| 501 | by all parties, the A viatical settlement provider entering into |
| 502 | a viatical settlement contract with any viator must first obtain |
| 503 | a witnessed document in which the viator consents to the |
| 504 | viatical settlement contract, represents that he or she has a |
| 505 | full and complete understanding of the viatical settlement |
| 506 | contract and the benefits of the life insurance policy, releases |
| 507 | his or her medical records, and acknowledges that he or she is |
| 508 | entering has entered into the viatical settlement contract |
| 509 | freely and voluntarily. |
| 510 | (3) A viatical settlement transaction may be completed |
| 511 | only through the use of an independent third-party trustee or |
| 512 | escrow agent. Immediately upon receipt by the independent third- |
| 513 | party trustee or escrow agent of documents from the viatical |
| 514 | settlement provider viator to effect the transfer of the |
| 515 | insurance policy, the viatical settlement provider must pay the |
| 516 | proceeds of the settlement to an escrow or trust account managed |
| 517 | by the independent third-party trustee or escrow agent in a |
| 518 | financial institution licensed under Florida law or a federally |
| 519 | chartered financial institution that is a member of the Federal |
| 520 | Reserve System, pending acknowledgment of the transfer by the |
| 521 | issuer of the policy. An advance or partial payment of the |
| 522 | proceeds due under a viatical settlement contract may not be |
| 523 | used to effect transfer of the subject policy; any such advance |
| 524 | or partial payment is made at the sole discretion and risk of |
| 525 | the viatical settlement provider. |
| 526 | Section 9. Section 626.99245, Florida Statutes, is amended |
| 527 | to read: |
| 528 | 626.99245 Conflict of regulation of viaticals.-- |
| 529 | (1) A viatical settlement provider who from this state |
| 530 | enters into a viatical settlement contract with a viator who is |
| 531 | a resident of another state that has enacted statutes or adopted |
| 532 | regulations governing viatical settlement contracts shall be |
| 533 | governed in the effectuation of that viatical settlement |
| 534 | contract by the statutes and regulations of the viator's state |
| 535 | of residence. If the state in which the viator is a resident has |
| 536 | not enacted statutes or regulations governing viatical |
| 537 | settlement agreements, the provider shall give the viator notice |
| 538 | that neither Florida nor his or her state regulates the |
| 539 | transaction upon which he or she is entering. For transactions |
| 540 | in those states, however, the viatical settlement provider is to |
| 541 | maintain all records required as if the transactions were |
| 542 | executed in Florida. The forms used in those states need not be |
| 543 | approved by the office. |
| 544 | (2) This section does not affect the requirement of s. ss. |
| 545 | 626.9911(12) and 626.9912(1) that a viatical settlement provider |
| 546 | doing business from this state must obtain a viatical settlement |
| 547 | license from the office. As used in this subsection, the term |
| 548 | "doing business from this state" includes effectuating viatical |
| 549 | settlement contracts from offices in this state, regardless of |
| 550 | the state of residence of the viator. |
| 551 | Section 10. Section 626.9925, Florida Statutes, is amended |
| 552 | to read: |
| 553 | 626.9925 Rules.--The commission may adopt rules to |
| 554 | administer this act, including rules establishing standards for |
| 555 | evaluating advertising by licensees; rules providing for the |
| 556 | collection of data, for disclosures to viators, for the |
| 557 | reporting of life expectancies, and for the registration of life |
| 558 | expectancy providers; and rules defining terms used in this act |
| 559 | and prescribing recordkeeping requirements relating to executed |
| 560 | viatical settlement contracts. |
| 561 | Section 11. Paragraph (e) is added to subsection (1) of |
| 562 | section 626.99275, Florida Statutes, to read: |
| 563 | 626.99275 Prohibited practices; penalties.-- |
| 564 | (1) It is unlawful for any person: |
| 565 | (e) To engage in stranger-originated life insurance. |
| 566 | Section 12. Section 626.99287, Florida Statutes, is |
| 567 | amended to read: |
| 568 | 626.99287 Contestability of viaticated policies.--Except |
| 569 | as hereinafter provided, if a viatical settlement contract is |
| 570 | entered into at any time before the date of issuance of a policy |
| 571 | or within the 2-year period commencing with the date of issuance |
| 572 | of the insurance policy or certificate to be acquired, the |
| 573 | viatical settlement contract is void and unenforceable by either |
| 574 | party. Notwithstanding this limitation, such a viatical |
| 575 | settlement contract is not void and unenforceable if: |
| 576 | (1) The policy was issued upon the owner's exercise of |
| 577 | conversion rights arising out of a group or term policy; |
| 578 | (2) The owner of the policy is a charitable organization |
| 579 | exempt from taxation under 26 U.S.C. s. 501(c)(3); |
| 580 | (3) The owner of the policy is not a natural person; |
| 581 | (4) The viatical settlement contract was entered into |
| 582 | before July 1, 2000; |
| 583 | (5) The viator certifies by producing independent evidence |
| 584 | to the viatical settlement provider that one or more of the |
| 585 | following conditions have been met within the 2-year period: |
| 586 | (a)1. The viator or insured is diagnosed with an illness |
| 587 | or condition that is either: |
| 588 | a. Catastrophic or life threatening; or |
| 589 | b. Requires a course of treatment for a period of at least |
| 590 | 3 years of long-term care or home health care; and |
| 591 | 2. The condition was not known to the insured at the time |
| 592 | the life insurance contract was entered into. |
| 593 | (b) The viator's spouse dies; |
| 594 | (c) The viator divorces his or her spouse; |
| 595 | (d) The viator retires from full-time employment; |
| 596 | (e) The viator becomes physically or mentally disabled and |
| 597 | a physician determines that the disability prevents the viator |
| 598 | from maintaining full-time employment; |
| 599 | (f) The owner of the policy was the insured's employer at |
| 600 | the time the policy or certificate was issued and the employment |
| 601 | relationship terminated; |
| 602 | (g) A final order, judgment, or decree is entered by a |
| 603 | court of competent jurisdiction, on the application of a |
| 604 | creditor of the viator, adjudicating the viator bankrupt or |
| 605 | insolvent, or approving a petition seeking reorganization of the |
| 606 | viator or appointing a receiver, trustee, or liquidator to all |
| 607 | or a substantial part of the viator's assets; or |
| 608 | (h) The viator experiences a significant decrease in |
| 609 | income which is unexpected by the viator and which impairs his |
| 610 | or her reasonable ability to pay the policy premium. |
| 611 |
|
| 612 | If the viatical settlement provider submits to the insurer a |
| 613 | copy of the viator's or owner's certification described above, |
| 614 | then the provider submits a request to the insurer to effect the |
| 615 | transfer of the policy or certificate to the viatical settlement |
| 616 | provider, the viatical settlement agreement shall not be void or |
| 617 | unenforceable by operation of this section. The insurer shall |
| 618 | timely respond to such request. Nothing in this section shall |
| 619 | prohibit an insurer from exercising its right during the |
| 620 | contestability period to contest the validity of any policy on |
| 621 | grounds of fraud. |
| 622 | Section 13. This act shall take effect July 1, 2009. |