Florida Senate - 2009                                    SB 1924
       
       
       
       By Senator Gaetz
       
       
       
       
       4-00629A-09                                           20091924__
    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
   10         transactions and specify transactions not constituting
   11         such a contract; conforming other definitions to
   12         changes made by the act; amending s. 626.9913, F.S.;
   13         requiring that a viatical settlement provider annually
   14         file a statement containing information required by
   15         state law on or before a specified date; providing
   16         requirements for such statements; authorizing the
   17         Office of Insurance Regulation to adopt rules;
   18         amending s. 626.9914, F.S.; clarifying grounds for
   19         which the office may suspend, revoke, deny, or refuse
   20         to renew the license of a viatical settlement
   21         provider; amending s. 626.99175, F.S.; prohibiting a
   22         person from performing the functions of a life
   23         expectancy provider regarding viatical settlement
   24         contracts without first having registered as a life
   25         expectancy provider; amending s. 626.992, F.S.;
   26         clarifying restrictions on the use of viatical
   27         settlement brokers, viatical settlement providers, and
   28         registered life expectancy providers; clarifying a
   29         requirement that a person operating as a life
   30         expectancy provider register as such; amending s.
   31         626.9922, F.S.; limiting the scope of an examination
   32         of the business affairs of certain licensees by the
   33         office or Department of Financial Services; clarifying
   34         provisions relating to parties to whom such
   35         examination requirements apply; creating s. 626.99234,
   36         F.S.; authorizing insurers to make certain inquiries
   37         to an applicant for a life insurance policy;
   38         authorizing an insurer to reject certain applications;
   39         prohibiting an insurer from rejecting an application
   40         solely because the premiums will be financed under
   41         certain circumstances; authorizing an insurer to make
   42         certain disclosures to an applicant; authorizing an
   43         insurer to require certain certifications from an
   44         applicant or insured; amending s. 626.9924, F.S.;
   45         requiring that a viatical settlement provider obtain a
   46         witnessed document containing certain provisions
   47         before the execution of a viatical settlement
   48         contract; providing for the use of a third-party
   49         trustee or escrow agent during a viatical settlement
   50         transaction; amending s. 626.99245, F.S.; deleting
   51         provisions requiring the maintenance of certain
   52         records from viatical settlement transactions
   53         completed in other states; amending s. 626.9925, F.S.;
   54         deleting a provision authorizing the Financial
   55         Services Commission to adopt rules defining terms for
   56         use in the Viatical Settlement Act; amending s.
   57         626.99275, F.S.; prohibiting any person from engaging
   58         in stranger-originated life insurance; providing
   59         penalties; amending s. 626.99287, F.S.; providing that
   60         a viatical settlement contract is void under certain
   61         circumstances; providing an effective date.
   62         
   63  Be It Enacted by the Legislature of the State of Florida:
   64         
   65         Section 1. Section 626.9911, Florida Statutes, is amended
   66  to read:
   67         626.9911 Definitions.—As used in this act, the term:
   68         (1) “Financing entity” means an underwriter, placement
   69  agent, lender, purchaser of securities, or purchaser of a policy
   70  or certificate from a viatical settlement provider, credit
   71  enhancer, or any entity that has direct ownership in a policy or
   72  certificate that is the subject of a viatical settlement
   73  contract, but whose principal activity related to the
   74  transaction is providing funds or credit enhancement to effect
   75  the viatical settlement or the purchase of one or more
   76  viaticated policies and who has an agreement in writing with one
   77  or more licensed viatical settlement providers to finance the
   78  acquisition of viatical settlement contracts. The term does not
   79  include a nonaccredited investor or other natural person. A
   80  financing entity may not enter into a viatical settlement
   81  contract.
   82         (2) “Independent third-party trustee or escrow agent” means
   83  an attorney, certified public accountant, financial institution,
   84  or other person providing escrow services under the authority of
   85  a regulatory body. The term does not include any person
   86  associated, affiliated, or under common control with a viatical
   87  settlement provider or viatical settlement broker.
   88         (3) “Life expectancy” means an opinion or evaluation as to
   89  how long a particular person is to live, or relating to such
   90  person’s expected demise regarding a viatical settlement
   91  contract.
   92         (4) “Life expectancy provider” means a person who
   93  determines, or holds himself or herself out as determining, life
   94  expectancies or mortality ratings used to determine life
   95  expectancies for the purposes of a viatical settlement contract
   96  governed by state law:
   97         (a) On behalf of a viatical settlement provider, viatical
   98  settlement broker, life agent, or person engaged in the business
   99  of viatical settlements;
  100         (b) In connection with a viatical settlement investment,
  101  pursuant to s. 517.021(23); or
  102         (c) On residents of this state in connection with a
  103  viatical settlement contract or viatical settlement investment.
  104         (5) “Person” has the meaning specified in s. 1.01.
  105         (6)“Premium finance loan” means a loan made primarily for
  106  the purpose of making premium payments on a life insurance
  107  policy issued or to be issued to a resident of this state, which
  108  loan is secured by an interest in such life insurance policy.
  109         (7)(6) “Related form” means any form, created by or on
  110  behalf of a licensee, which a viator is required to sign or
  111  initial. The forms include, but are not limited to, a power of
  112  attorney, a release of medical information form, a suitability
  113  questionnaire, a disclosure document, or any addendum, schedule,
  114  or amendment to a viatical settlement contract considered
  115  necessary by a provider to effectuate a viatical settlement
  116  transaction.
  117         (8)(7) “Related provider trust” means a titling trust or
  118  other trust established by a licensed viatical settlement
  119  provider or financing entity for the sole purpose of holding the
  120  ownership or beneficial interest in purchased policies in
  121  connection with a financing transaction. The trust must have a
  122  written agreement with a licensed viatical settlement provider
  123  or financing entity under which the licensed viatical settlement
  124  provider or financing entity is responsible for insuring
  125  compliance with all statutory and regulatory requirements and
  126  under which the trust agrees to make all records and files
  127  relating to viatical settlement transactions available to the
  128  office as if those records and files were maintained directly by
  129  the licensed viatical settlement provider. This term does not
  130  include an independent third-party trustee or escrow agent or a
  131  trust that does not enter into agreements with a viator. A
  132  related provider trust shall be subject to all provisions of
  133  this act that apply to the viatical settlement provider who
  134  established the related provider trust, except s. 626.9912,
  135  which shall not be applicable. A viatical settlement provider
  136  may establish no more than one related provider trust, and the
  137  sole trustee of such related provider trust shall be the
  138  viatical settlement provider licensed under s. 626.9912. The
  139  name of the licensed viatical settlement provider shall be
  140  included within the name of the related provider trust.
  141         (9)(8) “Special purpose entity” means an entity established
  142  by a licensed viatical settlement provider or by a financing
  143  entity, which may be a corporation, partnership, trust, limited
  144  liability company, or other similar entity formed solely to
  145  provide, either directly or indirectly, access to institutional
  146  capital markets to a viatical settlement provider or financing
  147  entity. A special purpose entity may not obtain capital from any
  148  natural person or entity with less than $50 million in assets
  149  and may not enter into a viatical settlement contract.
  150         (10)“Stranger-originated life insurance” or “STOLI” means
  151  an act, practice, or arrangement to initiate the issuance of a
  152  life insurance policy in this state for the benefit of a third
  153  party investor who, at the time of policy origination, has no
  154  insurable interest under the laws of this state in the life of
  155  the insured. STOLI practices include, but are not limited to,
  156  cases in which life insurance is purchased with resources or
  157  guarantees from or through a person or entity, that, at the time
  158  of inception of the policy, could not lawfully initiate the
  159  policy himself, herself, or itself, and where, at the time of
  160  inception, there is an arrangement or agreement to directly or
  161  indirectly transfer the ownership of the policy or the policy’s
  162  benefits to a third party. Trusts created to give the appearance
  163  of insurable interest and used to initiate policies for
  164  investors violate insurable interest laws and the prohibition
  165  against wagering on life. STOLI arrangements do not include
  166  otherwise lawful viatical settlement contracts as permitted by
  167  state law or those acts, practices, or arrangements set forth in
  168  paragraph (12)(c).
  169         (11)(9) “Viatical settlement broker” means a person who, on
  170  behalf of a viator and for a fee, commission, or other valuable
  171  consideration, offers or attempts to negotiate viatical
  172  settlement contracts between a viator resident in this state and
  173  one or more viatical settlement providers. Notwithstanding the
  174  manner in which the viatical settlement broker is compensated, a
  175  viatical settlement broker is deemed to represent only the
  176  viator and owes a fiduciary duty to the viator to act according
  177  to the viator’s instructions and in the best interest of the
  178  viator. The term does not include an attorney, licensed
  179  Certified Public Accountant, or investment adviser lawfully
  180  registered under chapter 517, who is retained to represent the
  181  viator and whose compensation is paid directly by or at the
  182  direction and on behalf of the viator.
  183         (12)(10) “Viatical settlement contract” means:
  184         (a) A written agreement entered into between a viatical
  185  settlement provider, or its related provider trust, and a viator
  186  who is a resident of this state. The viatical settlement
  187  contract includes an agreement to transfer ownership or change
  188  the beneficiary designation of a life insurance policy at a
  189  later date, regardless of the date that compensation is paid to
  190  the viator. The agreement must establish the terms under which
  191  the viatical settlement provider will pay compensation or
  192  anything of value, which compensation or value is less than the
  193  expected death benefit of the insurance policy or certificate,
  194  in return for the viator’s assignment, transfer, sale, devise,
  195  or bequest of the death benefit or ownership of all or a portion
  196  of the insurance policy or certificate of insurance to the
  197  viatical settlement provider.
  198         (b) A viatical settlement contract also includes:
  199         1.The transfer for compensation or value of ownership or
  200  beneficial interest in a trust or other entity owning such
  201  policy if the trust or other entity was formed or availed of for
  202  the principal purpose of acquiring one or more life insurance
  203  contracts owned by a resident of this state.
  204         2.A premium finance loan made for a policy on or before
  205  the date of issuance of the policy if one or more of the
  206  following conditions apply:
  207         a.The loan proceeds are not used solely to pay premiums
  208  for the policy and any costs or expenses incurred by the lender
  209  or the borrower in connection with the financing.
  210         b.The owner receives on the date of the origination of the
  211  premium-finance loan a guarantee of the future viatical
  212  settlement value of the policy.
  213         c.The owner agrees on the date of origination of the
  214  premium finance loan to sell the policy or any portion of the
  215  policy’s death benefit on any date following the issuance of the
  216  policy, not including an agreement to sell the policy in the
  217  event of a default, if the default is not pursuant to an
  218  agreement or understanding with any other person for the purpose
  219  of evading regulation under this act.
  220         (c)A viatical settlement contract does not include:
  221         1.A policy loan by a life insurance company pursuant to
  222  the terms of the life insurance policy or accelerated death
  223  provisions contained in the life insurance policy issued with
  224  the original policy or as a rider.
  225         2.A premium finance loan or any loan made by a bank or
  226  other licensed financial institution, if neither party defaults
  227  on such loan or the transfer of the policy in connection with
  228  such default is pursuant to an agreement or understanding with
  229  any other person for the purpose of evading regulation under
  230  this act.
  231         3.A collateral assignment of a life insurance policy by an
  232  owner of a policy.
  233         4.A loan made by a lender which is not described in
  234  subparagraph (b)2. and is not otherwise within the scope of the
  235  definition of viatical settlement contract.
  236         5.An agreement for which all of the parties satisfy at
  237  least one of the following conditions:
  238         a.The parties are closely related to the insured by blood
  239  or law.
  240         b.The parties have a lawful substantial economic interest
  241  in the continued life, health, and bodily safety of the person
  242  insured.
  243         c.The parties are trusts established primarily for the
  244  benefit of those parties.
  245         6.Any designation, consent, or agreement by an insured who
  246  is an employee of an employer in connection with the purchase by
  247  the employer or by a trust established by the employer of life
  248  insurance on the life of the employee.
  249         7.A bona fide business succession planning arrangement
  250  between:
  251         a.One or more shareholders in a corporation;
  252         b.A corporation and one or more of its shareholders or one
  253  or more trusts established by its shareholders;
  254         c.One or more partners in a partnership;
  255         d.A partnership and one or more of its partners or one or
  256  more trusts established by its partners;
  257         e.One or more members in a limited liability company; or
  258         f.A limited liability company and one or more of its
  259  members or one or more trusts established by its members.
  260         8.An agreement entered into by a service recipient or a
  261  trust established by the service recipient, or a service
  262  provider or a trust established by the service provider
  263  performing significant services for the service recipient’s
  264  trade or business.
  265         9.Any other contract, transaction, or arrangement that the
  266  commissioner determines is not of the type intended to be
  267  regulated by this act a contract for a loan or other financial
  268  transaction secured primarily by an individual or group life
  269  insurance policy, other than a loan by a life insurance company
  270  pursuant to the terms of the life insurance contract, or a loan
  271  secured by the cash value of a policy.
  272         (13)(11) “Viatical settlement investment” has the same
  273  meaning as specified in s. 517.021.
  274         (14)(12) “Viatical settlement provider” means a person who,
  275  in this state, from this state, or with a resident of this
  276  state, effectuates a viatical settlement contract. The term does
  277  not include:
  278         (a) Any bank, savings bank, savings and loan association,
  279  credit union, or other licensed lending institution that takes
  280  an assignment of a life insurance policy as collateral for a
  281  loan.
  282         (b) A life and health insurer that has lawfully issued a
  283  life insurance policy that provides accelerated benefits to
  284  terminally ill policyholders or certificateholders.
  285         (c) Any natural person who enters into no more than one
  286  viatical settlement contract with a viator in 1 calendar year,
  287  unless such natural person has previously been licensed under
  288  this act or is currently licensed under this act.
  289         (d) A trust that meets the definition of a “related
  290  provider trust.”
  291         (e) A viator in this state.
  292         (f) A financing entity.
  293         (15)(13) “Viaticated policy” means a life insurance policy,
  294  or a certificate under a group policy, which is the subject of a
  295  viatical settlement contract.
  296         (16)(14) “Viator” means a resident of this state who is the
  297  owner of a life insurance policy or a certificateholder under a
  298  group policy, which policy is not a previously viaticated
  299  policy, who enters or seeks to enter into a viatical settlement
  300  contract. This term does not include a viatical settlement
  301  provider or any person acquiring a policy or interest in a
  302  policy from a viatical settlement provider, nor does it include
  303  an independent third-party trustee or escrow agent.
  304         Section 2. Subsection (2) of section 626.9913, Florida
  305  Statutes, is amended to read:
  306         626.9913 Viatical settlement provider license continuance;
  307  annual report; fees; deposit.—
  308         (2) Annually, on or before March 1, the viatical settlement
  309  provider licensee shall file a statement containing information
  310  required by statute the commission requires and shall pay to the
  311  office a license fee in the amount of $500. After December 31,
  312  2007, the annual statement shall include an annual audited
  313  financial statement of the viatical settlement provider prepared
  314  in accordance with generally accepted accounting principles by
  315  an independent certified public accountant covering a 12-month
  316  period ending on a day falling during the last 6 months of the
  317  preceding calendar year. If the audited financial statement has
  318  not been completed, however, the licensee shall include in its
  319  annual statement an unaudited financial statement for the
  320  preceding calendar year and an affidavit from an officer of the
  321  licensee stating that the audit has not been completed. In this
  322  event, the licensee shall submit the audited statement on or
  323  before June 1. The audited and unaudited financial statements
  324  are subject to the provisions of chapter 688 and ss. 812.081 and
  325  815.045 and may be protected as trade secrets. The annual
  326  statement, due on or before March 1 each year, shall also
  327  provide the office with a report of all life expectancy
  328  providers who have provided life expectancies directly or
  329  indirectly to the viatical settlement provider for use in
  330  connection with a viatical settlement contract or a viatical
  331  settlement investment. A viatical settlement provider shall
  332  include in all statements filed with the office all information
  333  requested by the office regarding a related provider trust
  334  established by the viatical settlement provider. The office may
  335  adopt rules requiring that the annual statement contain
  336  information, in the aggregate, regarding viatical settlement
  337  contracts entered into with a resident of this state. The office
  338  may require more frequent reporting. Failure to timely file the
  339  annual statement or the audited financial statement or to timely
  340  pay the license fee is grounds for immediate suspension of the
  341  license. The commission may by rule require all or part of the
  342  statements or filings required under this section to be
  343  submitted by electronic means in a computer-readable form
  344  compatible with the electronic data format specified by the
  345  commission.
  346         Section 3. Subsection (1) of section 626.9914, Florida
  347  Statutes, is amended to read:
  348         626.9914 Suspension, revocation, denial, or nonrenewal of
  349  viatical settlement provider license; grounds; administrative
  350  fine.—
  351         (1) The office shall suspend, revoke, deny, or refuse to
  352  renew the license of any viatical settlement provider if the
  353  office finds that the licensee:
  354         (a) Has made a misrepresentation in the application for the
  355  license;
  356         (b) Has engaged in fraudulent or dishonest practices, or
  357  otherwise has been shown to be untrustworthy or incompetent to
  358  act as a viatical settlement provider;
  359         (c) Demonstrates a pattern of unreasonable payments to
  360  viators;
  361         (d) Has been found guilty of, or has pleaded guilty or nolo
  362  contendere to, any felony, or a misdemeanor involving fraud or
  363  moral turpitude, regardless of whether a judgment of conviction
  364  has been entered by the court;
  365         (e) Has issued viatical settlement contracts using a
  366  viatical settlement contract form that has have not been
  367  approved pursuant to this act;
  368         (f) Has failed to honor contractual obligations related to
  369  the business of viatical settlement contracts;
  370         (g) Deals in bad faith with viators;
  371         (h) Has violated any provision of the insurance code or of
  372  this act;
  373         (i) Employs any person who materially influences the
  374  licensee’s conduct and who fails to meet the requirements of
  375  this act;
  376         (j) No longer meets the requirements for initial licensure;
  377  or
  378         (k) Obtains or utilizes life expectancies regarding
  379  viatical settlement contracts from life expectancy providers who
  380  are not registered with the office pursuant to this act.
  381         Section 4. Subsection (1) of section 626.99175, Florida
  382  Statutes, is amended to read:
  383         626.99175 Life expectancy providers; registration required;
  384  denial, suspension, revocation.—
  385         (1) After July 1, 2006, A person may not perform the
  386  functions of a life expectancy provider regarding viatical
  387  settlement contracts without first having registered as a life
  388  expectancy provider, except as provided in subsection (6).
  389         Section 5. Section 626.992, Florida Statutes, is amended to
  390  read:
  391         626.992 Use of licensed viatical settlement providers,
  392  viatical settlement brokers, and registered life expectancy
  393  providers required.—
  394         (1) A licensed viatical settlement provider may not use any
  395  person to perform the functions of a viatical settlement broker
  396  as defined in this act regarding a viatical settlement contract
  397  unless such person holds a current, valid life agent license and
  398  has appointed himself or herself in conformance with this
  399  chapter.
  400         (2) A viatical settlement broker may not use any person to
  401  perform the functions of a viatical settlement provider as
  402  defined in this act regarding a viatical settlement contract
  403  unless such person holds a current, valid license as a viatical
  404  settlement provider.
  405         (3) After July 1, 2006, A person may not operate as a life
  406  expectancy provider regarding a viatical settlement contract
  407  unless such person is registered as a life expectancy provider
  408  pursuant to this act.
  409         (4) After July 1, 2006, A viatical settlement provider,
  410  viatical settlement broker, or any other person in the business
  411  of viatical settlements may not obtain life expectancies
  412  regarding a viatical settlement contract from a person who is
  413  not registered as a life expectancy provider pursuant to this
  414  act.
  415         Section 6. Subsections (1), (2), (4), and (7) of section
  416  626.9922, Florida Statutes, are amended to read:
  417         626.9922 Examination.—
  418         (1) The office or department may examine the business and
  419  affairs of any of its respective licensees or applicants for a
  420  license. The office or department may order any such licensee or
  421  applicant to produce any records, books, files, advertising and
  422  solicitation materials, or other information and may take
  423  statements under oath to determine whether the licensee or
  424  applicant is in violation of the law or is acting contrary to
  425  the public interest. With respect to licensees, the examination
  426  is limited to information regarding viatical settlement
  427  contracts executed in this state, from this state, or with a
  428  resident of this state. The expenses incurred in conducting any
  429  examination or investigation must be paid by the licensee or
  430  applicant. Examinations and investigations must be conducted as
  431  provided in chapter 624, and licensees are subject to all
  432  applicable provisions of the insurance code.
  433         (2) All accounts, books and records, documents, files,
  434  contracts, and other information relating to all transactions of
  435  viatical settlement contracts, or life expectancies regarding
  436  viatical settlement contracts, or viatical settlement purchase
  437  agreements made before July 1, 2005, must be maintained by the
  438  licensee for a period of at least 3 years after the death of the
  439  insured and must be available to the office or department for
  440  inspection during reasonable business hours.
  441         (4) Such information The originals of records required to
  442  be maintained under this section must be made available to the
  443  office or department for examination at the office’s or
  444  department’s request.
  445         (7) Subsections (1), (2), (3), and (4) apply to life
  446  expectancy providers providing life expectancies regarding
  447  viatical settlement contracts in the state and providing life
  448  expectancies regarding viatical settlement contracts to viatical
  449  settlement providers in the state, as if life expectancy
  450  providers were licensees.
  451         Section 7. Section 626.99234, Florida Statutes, is created
  452  to read:
  453         626.99234Disclosures by insurers.—In addition to other
  454  questions that an insurance carrier may lawfully pose to an
  455  applicant for a life insurance policy, insurance carriers may
  456  inquire in the application as to whether the proposed owner
  457  intends to pay premiums with the assistance of financing from a
  458  lender that will use the policy as collateral to support the
  459  financing.
  460         (1)If the premium finance loan provides funds that can be
  461  used for a purpose other than paying for the premiums, costs,
  462  and expenses associated with obtaining and maintaining the life
  463  insurance policy and loan, the application shall be rejected as
  464  a prohibited practice under this act.
  465         (2)If the financing does not violate subsection (1) or the
  466  insurer’s lawful underwriting guidelines, the insurer may not
  467  reject the life insurance application solely because the
  468  premiums will be financed.
  469         (3)The insurance carrier may make a disclosure to the
  470  applicant, either on the application or an amendment to the
  471  application to be completed no later than the date of delivery
  472  of the policy, including, but not limited to, the following:
  473  IF YOU HAVE ENTERED INTO A LOAN ARRANGEMENT IN WHICH THE POLICY
  474  IS USED AS COLLATERAL AND THE POLICY CHANGES OWNERSHIP AT SOME
  475  POINT IN THE FUTURE IN SATISFACTION OF THE LOAN, YOU SHOULD BE
  476  AWARE THAT A CHANGE OF OWNERSHIP COULD LEAD TO A STRANGER OWNING
  477  AN INTEREST IN THE INSURED’S LIFE AND COULD IN THE FUTURE LIMIT
  478  YOUR ABILITY TO PURCHASE INSURANCE ON THE INSURED’S LIFE BECAUSE
  479  THERE IS A LIMIT AS TO HOW MUCH COVERAGE INSURERS WILL ISSUE ON
  480  A LIFE. YOU SHOULD CONSULT A PROFESSIONAL ADVISOR SINCE A CHANGE
  481  IN OWNERSHIP IN SATISFACTION OF THE LOAN MAY RESULT IN TAX
  482  CONSEQUENCES TO THE OWNER, DEPENDING ON THE STRUCTURE OF THE
  483  LOAN.
  484         (4)In addition to the disclosures in subsection (3), the
  485  insurance carrier may require any of the following
  486  certifications from the applicant or the insured:
  487         (a)I HAVE NOT ENTERED INTO ANY AGREEMENT OR ARRANGEMENT
  488  UNDER WHICH I HAVE AGREED TO MAKE A FUTURE SALE OF THIS LIFE
  489  INSURANCE POLICY.
  490         (b)MY LOAN ARRANGEMENT FOR THIS POLICY PROVIDES FUNDS
  491  SUFFICIENT TO PAY FOR SOME OR ALL OF THE PREMIUMS, COSTS, AND
  492  EXPENSES ASSOCIATED WITH OBTAINING AND MAINTAINING MY LIFE
  493  INSURANCE POLICY, BUT I HAVE NOT ENTERED INTO ANY AGREEMENT
  494  PURSUANT TO WHICH I AM TO RECEIVE CONSIDERATION IN EXCHANGE FOR
  495  PROCURING THIS POLICY.
  496         (c)THE BORROWER HAS AN INSURABLE INTEREST IN THE INSURED.
  497         Section 8. Subsections (1) and (3) of section 626.9924,
  498  Florida Statutes, are amended to read:
  499         626.9924 Viatical settlement contracts; procedures;
  500  rescission.—
  501         (1) Before the execution of a viatical settlement contract
  502  by all parties, the A viatical settlement provider entering into
  503  a viatical settlement contract with any viator must first obtain
  504  a witnessed document in which the viator consents to the
  505  viatical settlement contract, represents that he or she has a
  506  full and complete understanding of the viatical settlement
  507  contract and the benefits of the life insurance policy, releases
  508  his or her medical records, and acknowledges that he or she is
  509  entering has entered into the viatical settlement contract
  510  freely and voluntarily.
  511         (3) A viatical settlement transaction may be completed only
  512  through the use of an independent third-party trustee or escrow
  513  agent. Immediately upon receipt by the independent third-party
  514  trustee or escrow agent of documents from the viatical
  515  settlement provider viator to effect the transfer of the
  516  insurance policy, the viatical settlement provider must pay the
  517  proceeds of the settlement to an escrow or trust account managed
  518  by the independent third-party trustee or escrow agent in a
  519  financial institution licensed under Florida law or a federally
  520  chartered financial institution that is a member of the Federal
  521  Reserve System, pending acknowledgment of the transfer by the
  522  issuer of the policy. An advance or partial payment of the
  523  proceeds due under a viatical settlement contract may not be
  524  used to effect transfer of the subject policy; any such advance
  525  or partial payment is made at the sole discretion and risk of
  526  the viatical settlement provider.
  527         Section 9. Section 626.99245, Florida Statutes, is amended
  528  to read:
  529         626.99245 Conflict of regulation of viaticals.—
  530         (1) A viatical settlement provider who from this state
  531  enters into a viatical settlement contract with a viator who is
  532  a resident of another state that has enacted statutes or adopted
  533  regulations governing viatical settlement contracts shall be
  534  governed in the effectuation of that viatical settlement
  535  contract by the statutes and regulations of the viator’s state
  536  of residence. If the state in which the viator is a resident has
  537  not enacted statutes or regulations governing viatical
  538  settlement agreements, the provider shall give the viator notice
  539  that neither Florida nor his or her state regulates the
  540  transaction upon which he or she is entering. For transactions
  541  in those states, however, the viatical settlement provider is to
  542  maintain all records required as if the transactions were
  543  executed in Florida. The forms used in those states need not be
  544  approved by the office.
  545         (2) This section does not affect the requirement of s. ss.
  546  626.9911(12) and 626.9912(1) that a viatical settlement provider
  547  doing business from this state must obtain a viatical settlement
  548  license from the office. As used in this subsection, the term
  549  “doing business from this state” includes effectuating viatical
  550  settlement contracts from offices in this state, regardless of
  551  the state of residence of the viator.
  552         Section 10. Section 626.9925, Florida Statutes, is amended
  553  to read:
  554         626.9925 Rules.—The commission may adopt rules to
  555  administer this act, including rules establishing standards for
  556  evaluating advertising by licensees; rules providing for the
  557  collection of data, for disclosures to viators, for the
  558  reporting of life expectancies, and for the registration of life
  559  expectancy providers; and rules defining terms used in this act
  560  and prescribing recordkeeping requirements relating to executed
  561  viatical settlement contracts.
  562         Section 11. Paragraph (e) is added to subsection (1) of
  563  section 626.99275, Florida Statutes, to read:
  564         626.99275 Prohibited practices; penalties.—
  565         (1) It is unlawful for any person:
  566         (e)To engage in stranger-originated life insurance.
  567         Section 12. Section 626.99287, Florida Statutes, is amended
  568  to read:
  569         626.99287 Contestability of viaticated policies.—Except as
  570  hereinafter provided, if a viatical settlement contract is
  571  entered into at any time before the date of issuance of a policy
  572  or within the 2-year period commencing with the date of issuance
  573  of the insurance policy or certificate to be acquired, the
  574  viatical settlement contract is void and unenforceable by either
  575  party. Notwithstanding this limitation, such a viatical
  576  settlement contract is not void and unenforceable if:
  577         (1) The policy was issued upon the owner’s exercise of
  578  conversion rights arising out of a group or term policy;
  579         (2) The owner of the policy is a charitable organization
  580  exempt from taxation under 26 U.S.C. s. 501(c)(3);
  581         (3) The owner of the policy is not a natural person;
  582         (4) The viatical settlement contract was entered into
  583  before July 1, 2000;
  584         (5) The viator certifies by producing independent evidence
  585  to the viatical settlement provider that one or more of the
  586  following conditions have been met within the 2-year period:
  587         (a)1. The viator or insured is diagnosed with an illness or
  588  condition that is either:
  589         a. Catastrophic or life threatening; or
  590         b. Requires a course of treatment for a period of at least
  591  3 years of long-term care or home health care; and
  592         2. The condition was not known to the insured at the time
  593  the life insurance contract was entered into.
  594         (b) The viator’s spouse dies;
  595         (c) The viator divorces his or her spouse;
  596         (d) The viator retires from full-time employment;
  597         (e) The viator becomes physically or mentally disabled and
  598  a physician determines that the disability prevents the viator
  599  from maintaining full-time employment;
  600         (f) The owner of the policy was the insured’s employer at
  601  the time the policy or certificate was issued and the employment
  602  relationship terminated;
  603         (g) A final order, judgment, or decree is entered by a
  604  court of competent jurisdiction, on the application of a
  605  creditor of the viator, adjudicating the viator bankrupt or
  606  insolvent, or approving a petition seeking reorganization of the
  607  viator or appointing a receiver, trustee, or liquidator to all
  608  or a substantial part of the viator’s assets; or
  609         (h) The viator experiences a significant decrease in income
  610  which is unexpected by the viator and which impairs his or her
  611  reasonable ability to pay the policy premium.
  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.