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. |