Florida Senate - 2017                              CS for SB 730
       
       
        
       By the Committee on Banking and Insurance; and Senator Passidomo
       
       
       
       
       
       597-02145-17                                           2017730c1
    1                        A bill to be entitled                      
    2         An act relating to insurer insolvency; amending s.
    3         631.015, F.S.; adding the Insurer Receivership Model
    4         Act to a list of acts that extend reciprocity in the
    5         treatment of policyholders in receivership if such act
    6         is enacted in other states; amending s. 631.021, F.S.;
    7         adding the Florida Health Maintenance Organization
    8         Consumer Assistance Plan to a list of entities that
    9         must be given reasonable written notice by the
   10         Department of Financial Services of hearings
   11         pertaining to certain insurers; revising the exclusive
   12         jurisdiction of the Circuit Court of Leon County, upon
   13         issuance of specified orders, of an insurer’s assets
   14         or property in a delinquency proceeding; providing
   15         construction; amending s. 631.031, F.S.; requiring an
   16         insurer to file its response and defenses to a certain
   17         order within a specified timeframe; requiring that a
   18         hearing to determine whether cause exists to appoint
   19         the department as receiver must be commenced by a
   20         specified time; amending s. 631.041, F.S.; providing
   21         an exception for the Office of Insurance Regulation
   22         from applicability of a certain application or
   23         petition operating as an automatic stay; amending s.
   24         631.141, F.S.; authorizing a receiver to assume or
   25         reject an insurer’s executory contract or unexpired
   26         lease; authorizing the department as domiciliary
   27         receiver to pay certain expenses or reject certain
   28         contracts; providing that, under certain
   29         circumstances, certain persons of an insurer that is
   30         under liquidation are permanently discharged and have
   31         no further authority over the affairs or assets of the
   32         insurer; amending s. 631.152, F.S.; conforming a
   33         cross-reference; creating s. 631.1521, F.S.;
   34         prohibiting certain defenses in actions by and against
   35         a receiver; authorizing certain defenses in actions by
   36         and against a receiver; specifying that a principal
   37         under a surety bond or surety undertaking, under
   38         certain circumstances, is entitled to credit for the
   39         value of certain property against a reimbursement
   40         obligation to the receiver; limiting admissibility of
   41         evidence of fraud in the inducement to evidence
   42         contained in insurer records; creating s. 631.1522,
   43         F.S.; prohibiting, in a receiver’s proceeding or
   44         claim, the assertion of defenses or claims by an
   45         affiliate or certain persons of an insurer except
   46         under certain circumstances; providing construction;
   47         amending s. 631.181, F.S.; authorizing a receivership
   48         court to allow alternative procedures and requirements
   49         for filing proofs of claim or allowing or proving
   50         claims; providing construction; prohibiting a
   51         receivership court from waiving certain filing
   52         requirements; authorizing a receiver to petition the
   53         receivership court to set certain deadlines; requiring
   54         a receiver to provide notice of filing a certain
   55         petition to certain claimants; amending s. 631.191,
   56         F.S.; defining terms; providing applicability;
   57         requiring that specified large deductible claims under
   58         certain workers’ compensation policies must be turned
   59         over to the applicable responsible guaranty
   60         association for handling; providing for construction
   61         relating to payment of deductible claims; authorizing
   62         receivers to collect reimbursements owed for certain
   63         deductible claims; providing requirements for such
   64         collections; providing for construction relating to
   65         such collections; requiring receivers to use
   66         collateral, when available, to secure certain
   67         obligations; providing that a guaranty association is
   68         entitled to collateral for a certain purpose;
   69         providing for construction relating to certain
   70         distributions; requiring receivers to draw down
   71         collateral under certain circumstances; providing a
   72         procedure for payment of claims; authorizing the
   73         return of excess collateral under certain
   74         circumstances; providing that a receiver is entitled
   75         to deduct certain expenses from the collateral or
   76         deductible reimbursements; providing for construction;
   77         amending s. 631.192, F.S.; prohibiting claims for
   78         postjugdment interest accrued after the date of
   79         liquidation; amending s. 631.271, F.S.; adding and
   80         revising claims to a list that establishes the
   81         priority of distribution of claims from an insurer’s
   82         estate; specifying when interest on claims accrue and
   83         the interest rate calculation; amending s. 631.391,
   84         F.S.; specifying that certain persons in relation to
   85         an insurer who must cooperate with the department or
   86         office in certain proceedings or investigations
   87         include present or former roles; defining the term
   88         “person”; amending s. 631.395, F.S.; requiring an
   89         order of liquidation to authorize the release of
   90         certain claims files, records, documents, or claims,
   91         rather than only copies of the claims files, records,
   92         documents, or claims; amending s. 631.397, F.S.;
   93         authorizing the department as receiver to apply to the
   94         court for approval of a specified proposal, rather
   95         than requiring the department to make such application
   96         within a specified timeframe; deleting a specified
   97         notice requirement of the department; deleting a
   98         provision authorizing the court to take action on the
   99         application under certain circumstances; providing an
  100         effective date.
  101          
  102  Be It Enacted by the Legislature of the State of Florida:
  103  
  104         Section 1. Section 631.015, Florida Statutes, is amended to
  105  read:
  106         631.015 Reciprocity; treatment of policyholders.
  107  Reciprocity in the treatment of policyholders in receivership is
  108  extended to those states which, in substance and effect, enact
  109  the National Association of Insurance Commissioners
  110  Rehabilitation and Liquidation Model Act, or the Uniform
  111  Insurers Liquidation Act, or the Insurer Receivership Model Act.
  112         Section 2. Section 631.021, Florida Statutes, is amended to
  113  read:
  114         631.021 Jurisdiction of delinquency proceeding; venue;
  115  change of venue; exclusiveness of remedy; appeal; construction.—
  116         (1) The circuit court shall have original jurisdiction of
  117  any delinquency proceeding under this chapter, and any court
  118  with jurisdiction is authorized to make all necessary or proper
  119  orders to carry out the purposes of this chapter. Any
  120  delinquency proceeding in this chapter is in equity.
  121         (2) The venue of a delinquency proceeding or summary
  122  proceeding against a domestic, foreign, or alien insurer shall
  123  be in the Circuit Court of Leon County.
  124         (3) A delinquency proceeding pursuant to this chapter
  125  constitutes the sole and exclusive method of liquidating,
  126  rehabilitating, reorganizing, or conserving an insurer. A No
  127  court may not shall entertain a petition for the commencement of
  128  such a proceeding unless the petition has been filed in the name
  129  of the state on the relation of the department. The Florida
  130  Insurance Guaranty Association, Incorporated, the Florida
  131  Workers’ Compensation Insurance Guaranty Association,
  132  Incorporated, the Florida Health Maintenance Organization
  133  Consumer Assistance Plan, and the Florida Life and Health
  134  Guaranty Association, Incorporated, shall be given reasonable
  135  written notice by the department of all hearings that which
  136  pertain to an adjudication of insolvency of a member insurer.
  137         (4) An appeal shall lie to the District Court of Appeal,
  138  First District, from an order granting or refusing
  139  rehabilitation, liquidation, or conservation and from every
  140  order in a delinquency proceeding having the character of a
  141  final order as to the particular portion of the proceeding
  142  embraced therein.
  143         (5) No service of process against the department in its
  144  capacity as receiver shall be effective unless served upon a
  145  person designated by the receiver and filed with the circuit
  146  court having jurisdiction over the delinquency proceeding. The
  147  designated person shall refuse to accept service if acceptance
  148  would violate a stay against legal proceedings involving an
  149  insurer that is the subject of delinquency proceedings or would
  150  violate any orders of the circuit court governing a delinquency
  151  proceeding. The person denied service may petition the circuit
  152  court having jurisdiction over the delinquency proceeding for
  153  relief from the receiver’s refusal to accept service. This
  154  subsection shall be strictly construed, and any purported
  155  service on the receiver or the department that is not in
  156  accordance with this subsection shall be null and void.
  157         (6) The domiciliary court acquiring jurisdiction over
  158  persons subject to this chapter may exercise exclusive
  159  jurisdiction to the exclusion of all other courts, except as
  160  limited by the provisions of this chapter. Upon the issuance of
  161  an order of conservation, rehabilitation, or liquidation, the
  162  Circuit Court of Leon County has shall have exclusive
  163  jurisdiction over all with respect to assets or property of the
  164  any insurer, wherever located, including property located
  165  outside the territorial limits of the state subject to such
  166  proceedings and claims against said insurer’s assets or
  167  property.
  168         (7) This chapter constitutes this state’s insurer
  169  receivership laws, and these laws must be construed as
  170  consistent with each other. If there is a conflict between this
  171  chapter and any other law, this chapter prevails.
  172         Section 3. Subsections (3) and (4) are added to section
  173  631.031, Florida Statutes, to read:
  174         631.031 Initiation and commencement of delinquency
  175  proceeding.—
  176         (3) An insurer subject to an order to show cause entered
  177  pursuant to this chapter must file its written response to the
  178  order, together with any defenses it may have to the
  179  department’s allegations, no later than 20 days after service of
  180  the order to show cause, but no less than 15 days before the
  181  date of the hearing set by the order to show cause.
  182         (4)A hearing held pursuant to this chapter to determine
  183  whether cause exists for the department to be appointed receiver
  184  must be commenced within 60 days after an order directing an
  185  insurer to show cause.
  186         Section 4. Subsection (1) of section 631.041, Florida
  187  Statutes, is amended to read:
  188         631.041 Automatic stay; relief from stay; injunctions.—
  189         (1) An application or petition under s. 631.031 operates as
  190  a matter of law as an automatic stay applicable to all persons
  191  and entities, other than the receiver and the office, which
  192  shall be permanent and survive the entry of an order of
  193  conservation, rehabilitation, or liquidation, and which shall
  194  prohibit:
  195         (a) The commencement or continuation of judicial,
  196  administrative, or other action or proceeding against the
  197  insurer or against its assets or any part thereof;
  198         (b) The enforcement of a judgment against the insurer or an
  199  affiliate obtained either before or after the commencement of
  200  the delinquency proceeding;
  201         (c) Any act to obtain possession of property of the
  202  insurer;
  203         (d) Any act to create, perfect, or enforce a lien against
  204  property of the insurer, except that a secured claim as defined
  205  in s. 631.011(21) may proceed under s. 631.191 after the order
  206  of liquidation is entered;
  207         (e) Any act to collect, assess, or recover a claim against
  208  the insurer, except claims as provided for under this chapter;
  209  and
  210         (f) The setoff or offset of any debt owing to the insurer,
  211  except offsets as provided in s. 631.281.
  212         Section 5. Present subsections (3) through (5) and (6)
  213  through (10) of section 631.141, Florida Statutes, are
  214  redesignated as subsections (4) through (6) and (8) through
  215  (12), respectively, new subsections (3) and (7) are added to
  216  that section, and present subsection (8) is amended, to read:
  217         631.141 Conduct of delinquency proceeding; domestic and
  218  alien insurers.—
  219         (3) The receiver may assume or reject any executory
  220  contract or unexpired lease of the insurer.
  221         (7) The department as domiciliary receiver may pay any
  222  expenses under contracts, leases, employment agreements, or
  223  other arrangements entered into by the insurer before
  224  receivership as the department deems necessary for the purposes
  225  of this chapter. The department is not required to pay any such
  226  expenses that it determines are not necessary and may reject any
  227  contract pursuant to subsection (3).
  228         (10)(8) The department as domiciliary receiver may take
  229  such action as it deems necessary or appropriate to reform and
  230  revitalize the insurer. The department shall have all the powers
  231  of the directors, officers, and managers, whose authority shall
  232  be suspended, except as they are redelegated by the receiver.
  233  The receiver shall have full power to direct and manage the
  234  affairs of the insurer, to hire and discharge employees, and to
  235  deal with the property and business of the insurer. In the event
  236  of the liquidation of an insurer domiciled in this state, and
  237  notwithstanding any provision of chapter 605, chapter 607,
  238  chapter 617, chapter 620, or chapter 621, all officers,
  239  directors, and managers of the insurer are permanently
  240  discharged and have no further authority of any kind over the
  241  affairs or assets of the insurer, except as may be redelegated
  242  by the department.
  243         Section 6. Subsection (4) of section 631.152, Florida
  244  Statutes, is amended to read:
  245         631.152 Conduct of delinquency proceeding; foreign
  246  insurers.—
  247         (4) Paragraph 631.141(9)(b) Section 631.141(7)(b) applies
  248  to ancillary delinquency proceedings opened for the purpose of
  249  obtaining records necessary to adjudicate the covered claims of
  250  Florida policyholders.
  251         Section 7. Section 631.1521, Florida Statutes, is created
  252  to read:
  253         631.1521 Actions by and against the receiver.—
  254         (1) An allegation by the receiver of improper or fraudulent
  255  conduct against any person may not be the basis of a defense by
  256  a third party to the enforcement of a contractual obligation
  257  owed to the insurer. This section does not bar a third party
  258  from the right to raise a defense that the conduct was
  259  materially and substantially related to the contractual
  260  obligation for which enforcement is sought.
  261         (2)A prior wrongful or negligent action of any present or
  262  former officer, manager, director, trustee, owner, employee, or
  263  agent of the insurer may not be asserted as a defense to a claim
  264  by the receiver under a theory of estoppel, comparative fault,
  265  intervening cause, proximate cause, reliance, mitigation of
  266  damages, or otherwise. However, the affirmative defense of fraud
  267  in the inducement may be asserted against the receiver in a
  268  claim based on a contract; and a principal under a surety bond
  269  or a surety undertaking is entitled to credit for the value of
  270  any property pledged to secure the reimbursement obligation
  271  against any reimbursement obligation to the receiver, to the
  272  extent that the receiver has possession or control of the
  273  property, or that the insurer or its agents misappropriated such
  274  property, which includes, but is not limited to, the comingling
  275  of such property. Evidence of fraud in the inducement is
  276  admissible only if it is contained in the records of the
  277  insurer.
  278         (3)An action or inaction by an insurance regulatory
  279  authority may not be asserted as a defense to a claim by the
  280  department.
  281         Section 8. Section 631.1522, Florida Statutes, is created
  282  to read:
  283         631.1522 Unrecorded obligations and defenses and claims of
  284  affiliates.—
  285         (1) In any proceeding or claim by the receiver, an
  286  affiliate, a controlled or controlling person, or a present or
  287  former officer, manager, director, trustee, or shareholder of
  288  the insurer may not assert any defense unless:
  289         (a) Evidence of the defense was recorded in the books and
  290  records of the insurer at or about the time the events giving
  291  rise to the defense occurred; and
  292         (b) If required by statutory accounting practices and
  293  procedures, such events were timely reported on the insurer’s
  294  official financial statements filed with the office.
  295         (2)An affiliate, a controlled or controlling person, or a
  296  present or former officer, manager, director, trustee, or
  297  shareholder of the insurer may not assert any claim unless:
  298         (a) The obligations were recorded in the books and records
  299  of the insurer at or about the time the obligations were
  300  incurred; and
  301         (b) If required by statutory accounting practices and
  302  procedures, the obligations were timely reported on the
  303  insurer’s official financial statements filed with the office.
  304         (3) This section does not bar claims based on unrecorded or
  305  unreported transactions by the receiver against any affiliate,
  306  controlled or controlling person, or present or former officer,
  307  manager, director, trustee, or shareholder of the insurer.
  308         Section 9. Paragraph (g) of subsection (2) and subsections
  309  (4) and (5) are added to section 631.181, Florida Statutes, to
  310  read:
  311         631.181 Filing and proof of claim.—
  312         (2)
  313         (g) Upon application of the receiver:
  314         1. The receivership court may allow alternative procedures
  315  and requirements for the filing of proofs of claim or for
  316  allowing or proving claims.
  317         2. If the receivership court waives the requirements of
  318  filing a proof of claim for a person, class, or group of
  319  persons, a timely proof of claim by such person, class, or group
  320  is deemed to be filed for all purposes. However, the
  321  receivership court may not waive guaranty association or
  322  coverage determination proof of claim filing requirements, to
  323  the extent that the guaranty fund statute or filing requirements
  324  are inconsistent with the receivership court’s waiver of proof.
  325         (4) The receiver may petition the receivership court to set
  326  a date certain before which all contingent or unliquidated
  327  claims are final. In addition to the notice requirements in this
  328  section, the receiver shall give notice of filing the petition
  329  to all claimants with claims that remain contingent or
  330  unliquidated under this section.
  331         (5) Notwithstanding any other provision of this chapter,
  332  the receiver may petition the receivership court to set a date
  333  certain after which no further claims may be filed.
  334         Section 10. Section 631.191, Florida Statutes, is amended
  335  to read:
  336         631.191 Special deposit claims; and secured claims;
  337  administration of workers’ compensation large deductible
  338  policies and insured collateral.—
  339         (1) SPECIAL DEPOSIT CLAIMS.The owners of special deposit
  340  claims against an insurer against which a liquidation order has
  341  been entered in this or any other state shall be given priority
  342  against their several special deposits in accordance with the
  343  provisions of the statutes governing the creation and
  344  maintenance of such deposits. If there is a deficiency in any
  345  such deposit so that the claims secured thereby are not fully
  346  discharged therefrom, the claimants may share in the general
  347  assets, but such sharing shall be deferred until general
  348  creditors, and also claimants against other special deposits who
  349  have received smaller percentages from their respective special
  350  deposits, have been paid percentages of their claims equal to
  351  the percentage paid from the special deposit.
  352         (2) SECURED CLAIMS.—
  353         (a) The owner of a secured claim against an insurer against
  354  which a liquidation order has been entered in this or any other
  355  state may surrender her or his security and file her or his
  356  claim as a general creditor, or the claim may be discharged by
  357  resort to the security, in which case the deficiency, if any,
  358  shall be treated as a claim against the general assets of the
  359  insurer on the same basis as claims of unsecured creditors. If
  360  the amount of the deficiency has been adjudicated in ancillary
  361  proceedings as provided in this chapter, or if it has been
  362  adjudicated by a court of competent jurisdiction in a proceeding
  363  in which the domiciliary receiver has had notice and an
  364  opportunity to be heard, such amount shall be conclusive;
  365  otherwise the amount shall be determined in the delinquency
  366  proceeding in the domiciliary state.
  367         (b) The value of any security held by a secured creditor
  368  shall be determined under supervision of the court by:
  369         1. Converting the same into money according to the terms of
  370  the agreement pursuant to which the security was delivered to
  371  such creditor; or
  372         2. If no such agreement exists, the court shall determine
  373  the value in the event the creditor and the receiver cannot
  374  agree upon same.
  375         (3) ADMINISTRATION OF WORKERS’ COMPENSATION LARGE
  376  DEDUCTIBLE POLICIES AND INSURED COLLATERAL.—
  377         (a) Definitions.—As used in this subsection, the term:
  378         1.“Collateral” means cash, a letter of credit, a surety
  379  bond, or any other form of security posted by the insured, or by
  380  a captive insurer or reinsurer, to secure the insured’s
  381  obligation under a large deductible policy to pay deductible
  382  claims or to reimburse the insurer for deductible claim
  383  payments. Collateral may also secure an insured’s obligation
  384  to reimburse or pay the insurer as may be required for other
  385  secured obligations.
  386         2.“Deductible claim” means any claim that is within the
  387  deductible under a large deductible policy, including a claim
  388  for loss and defense and cost containment expense, unless such
  389  expense is excluded by the terms of the policy.
  390         3.a.“Large deductible policy” means a combination of one
  391  or more workers compensation policies and endorsements issued
  392  to an insured, and contracts or security agreements entered into
  393  between an insured and the insurer, in which the insured has
  394  agreed with the insurer to:
  395         (I) Pay directly the initial portion of any claim under the
  396  policy up to a specified dollar amount or the expenses related
  397  to any claim; or
  398         (II) Reimburse the insurer for its payment of any claim or
  399  related expenses under the policy up to the specified dollar
  400  amount of the deductible.
  401         b. The term also includes policies that contain an
  402  aggregate limit on the insured’s liability for all deductible
  403  claims in addition to a per—claim deductible limit. A policy
  404  must meet the current guidelines for large deductible workers
  405  compensation filings as defined by the office, including the
  406  eligibility standards regarding the minimum standard premium and
  407  the minimum deductible to be deemed a large deductible policy.
  408         c. The term does not include policies, endorsements, or
  409  agreements providing that the initial portion of any covered
  410  claim must be self-insured and that the insurer has no payment
  411  obligation within the self-insured retention.
  412         d. The term does not include policies that provide for
  413  retrospectively rated premium payments by the insured or
  414  reinsurance arrangements or agreements, except to the extent
  415  such arrangements or agreements assume, secure, or pay the
  416  policyholder’s large deductible obligations.
  417         4. “Other secured obligations” means obligations of an
  418  insured to an insurer other than those under a large deductible
  419  policy, such as those under a reinsurance agreement or other
  420  agreement involving retrospective premium obligations, the
  421  performance of which is secured by collateral that also secures
  422  an insured’s obligations under a large deductible policy.
  423         (b) Applicability.
  424         1. This subsection applies to workers’ compensation large
  425  deductible policies issued by an insurer that is subject to
  426  delinquency proceedings under this chapter. This subsection does
  427  not apply to first-party claims, or to covered claims funded by
  428  a guaranty association above the deductible unless paragraph (c)
  429  applies. Large deductible policies must be administered in
  430  accordance with the terms of the policy, except to the extent
  431  such terms conflict with this subsection.
  432         2. This subsection applies to all delinquency proceedings
  433  that commence on or after July 1, 2017.
  434         (c) Handling of large deductible claims.Unless otherwise
  435  agreed to by the responsible guaranty association, all large
  436  deductible claims that are also covered claims as defined by an
  437  applicable guaranty association law, including those that may
  438  have been funded by an insured before liquidation, must be
  439  turned over to the guaranty association for handling. To the
  440  extent the insured funds or pays the deductible claim pursuant
  441  to an agreement by the guaranty fund or otherwise, the insured’s
  442  funding or payment of a deductible claim extinguishes the
  443  obligations, if any, of the receiver and any guaranty
  444  association to pay such claim. A charge may not be made against
  445  the receiver or a guaranty association on the basis of an
  446  insured’s funding or payment of a deductible claim.
  447         (d) Deductible claims paid by a guaranty association.
  448         1. To the extent a guaranty association pays any deductible
  449  claim for which an insurer would have been entitled to
  450  reimbursement from an insured, a guaranty association is
  451  entitled to the amount of reimbursements received or collateral
  452  available, subject to paragraph (g). Reimbursements paid to the
  453  guaranty association pursuant to this paragraph may not be
  454  treated as distributions under s. 631.271 or as early access
  455  payments under s. 631.397(1).
  456         2. To the extent that a guaranty association pays a
  457  deductible claim that is not reimbursed from collateral or by
  458  insured payments, or the guaranty association incurred expenses
  459  in connection with large deductible policies that are not
  460  reimbursed under this subsection, the guaranty association is
  461  entitled to assert a claim for those amounts in the delinquency
  462  proceeding.
  463         3. This paragraph does not limit any right of the receiver
  464  or a guaranty association which may otherwise exist under
  465  applicable law to obtain reimbursement from insureds for claims
  466  payments made by the guaranty association under policies of the
  467  insurer or for the guaranty association’s related expenses.
  468         (e)Collections.
  469         1. The receiver may collect reimbursements owed for
  470  deductible claims as provided in this paragraph, and must use
  471  reasonable efforts to collect such reimbursements from the
  472  insured or the party that is obligated to pay the deductible as
  473  specified in the large deductible policy or other agreement. The
  474  receiver may bill insureds and others for reimbursement of
  475  deductible claims that are:
  476         a. Paid by the insurer before the commencement of
  477  delinquency proceedings;
  478         b. Paid by a guaranty association upon receipt by the
  479  receiver of notice from a guaranty association of reimbursable
  480  payments; or
  481         c. Paid or allowed by the receiver.
  482         2. If the insured or other party does not make payment
  483  within the time specified in the large deductible policy, or, if
  484  no time is specified, within a reasonable time after the date of
  485  billing, the receiver must take reasonable steps to collect any
  486  reimbursements owed.
  487         3. The insolvency of the insurer or its inability to
  488  perform any of its obligations under the large deductible policy
  489  may not be a defense to the insured’s reimbursement obligation
  490  under the large deductible policy.
  491         4. An allegation of improper handling or payment of a
  492  deductible claim by the insurer, the receiver, or a guaranty
  493  association may not be a defense to the insured’s reimbursement
  494  obligations under the large deductible policy.
  495         (f) Collateral.
  496         1. Subject to this paragraph, the receiver shall use
  497  collateral, when available, to secure the insured’s obligation
  498  to fund or reimburse deductible claims or other secured
  499  obligations or payment obligations. A guaranty association is
  500  entitled to collateral as provided for in this paragraph to the
  501  extent needed to reimburse a guaranty association for the
  502  payment of a deductible claim. Any distributions made to a
  503  guaranty association pursuant to this paragraph may not be
  504  treated as distributions under s. 631.271 or as early access
  505  payments under s. 631.397(1).
  506         2. The receiver shall draw down collateral to the extent
  507  necessary in the event the insured fails to:
  508         a.Perform its funding or payment obligations under any
  509  large deductible policy;
  510         b.Pay deductible claim reimbursements within the time
  511  specified in the large deductible policy, or, if no time is
  512  specified, within 60 days after the date of the billing;
  513         c.Pay amounts due to the estate for preliquidation
  514  obligations;
  515         d.Timely fund any other secured obligation; or
  516         e.Timely pay expenses.
  517         3. Claims that are validly asserted against the collateral
  518  must be satisfied in the order in which such claims are received
  519  by the receiver. However, if more than one creditor has a valid
  520  claim against the same collateral and the available collateral,
  521  along with billing collection efforts and to the extent that the
  522  collateral is subject to other known secured obligations, are
  523  together insufficient to pay each creditor in full, the receiver
  524  must prorate payments to each creditor based upon the
  525  relationship the amount of claims each creditor has paid bears
  526  to the total of all claims paid by all such creditors.
  527         4. Excess collateral may be returned to the insured, as
  528  determined by the receiver, after a periodic review of claims
  529  paid, outstanding case reserves, and a factor for claims that
  530  were incurred but not reported.
  531         (g) Receiver’s expenses.The receiver is entitled to deduct
  532  from the collateral or from the deductible reimbursements
  533  reasonable and actual expenses incurred in connection with the
  534  collection of the collateral and deductible reimbursements as
  535  provided pursuant to s. 631.271.
  536         (h) Construction.—This subsection does not limit or
  537  adversely affect any rights or powers a guaranty association may
  538  have under applicable state law to obtain reimbursement from
  539  certain classes of policyholders for claims payments made by the
  540  guaranty association under policies of the insolvent insurer, or
  541  for related expenses the guaranty association incurs.
  542         Section 11. Subsection (5) is added to section 631.192,
  543  Florida Statutes, to read:
  544         631.192 Allowance of certain claims.—
  545         (5) A claim may not be allowed for postjudgment interest
  546  accrued after the date of liquidation.
  547         Section 12. Paragraphs (a), (b), and (j) of subsection (1)
  548  of section 631.271, Florida Statutes, are amended to read:
  549         631.271 Priority of claims.—
  550         (1) The priority of distribution of claims from the
  551  insurer’s estate shall be in accordance with the order in which
  552  each class of claims is set forth in this subsection. Every
  553  claim in each class shall be paid in full or adequate funds
  554  shall be retained for such payment before the members of the
  555  next class may receive any payment. No subclasses may be
  556  established within any class. The order of distribution of
  557  claims shall be:
  558         (a) Class 1.—
  559         1. All of the receiver’s costs and expenses of
  560  administration.
  561         2. All of the expenses of a guaranty association or foreign
  562  guaranty association in handling claims.
  563         3. All of the deputy supervisor’s costs and expenses of
  564  administration incurred as a result of administrative
  565  supervision under part VI of chapter 624.
  566         (b) Class 2.—All claims under policies for losses incurred,
  567  including third-party claims, all claims against the insurer for
  568  liability for bodily injury or for injury to or destruction of
  569  tangible property which claims are not under policies, and all
  570  claims of a guaranty association or foreign guaranty
  571  association, and all claims related to a patient’s healthcare
  572  coverage by physicians, hospitals, and other providers of a
  573  health insurer or health maintenance organization. All claims
  574  under life insurance and annuity policies, whether for death
  575  proceeds, annuity proceeds, or investment values, shall be
  576  treated as loss claims. That portion of any loss,
  577  indemnification for which is provided by other benefits or
  578  advantages recovered by the claimant, may not be included in
  579  this class, other than benefits or advantages recovered or
  580  recoverable in discharge of familial obligations of support or
  581  by way of succession at death or as proceeds of life insurance,
  582  or as gratuities. No payment by an employer to her or his
  583  employee may be treated as a gratuity.
  584         (j) Class 10.—Interest on allowed claims of Classes 1
  585  through 9. The rate of interest payable on an allowed claim must
  586  accrue from the date of liquidation until such time as the
  587  receivership court approves the distribution. The interest rate
  588  must be calculated in accordance with s. 55.03, according to the
  589  terms of a plan to pay interest on allowed claims proposed by
  590  the liquidator and approved by the receivership court.
  591         Section 13. Section 631.391, Florida Statutes, is amended
  592  to read:
  593         631.391 Cooperation of officers and employees.—
  594         (1) Any present or former officer, director, manager,
  595  trustee, agent, adjuster, employee, or independent contractor of
  596  any insurer or affiliate and any other person who possesses any
  597  executive authority over, or who exercises any control over, any
  598  segment of the affairs of the insurer or affiliate shall fully
  599  cooperate with the department and office in any proceeding under
  600  this chapter or any investigation preliminary or incidental to
  601  the proceeding. An order of rehabilitation or liquidation which
  602  results in the discharge or suspension of any of the persons
  603  listed above does not operate to release such person from the
  604  duty to cooperate with the department and office as set out
  605  herein. As used in this section, the term “person” includes any
  606  person who directly or indirectly exercises control over
  607  activities of the insurer through any holding company or other
  608  affiliate of the insurer. The term To “cooperate” includes, but
  609  is not limited to, the following:
  610         (a) To reply promptly in writing to any inquiry from the
  611  department or office requesting such a reply;
  612         (b) Promptly to make available and deliver to the
  613  department or office any books, accounts, documents, other
  614  records, information, data processing software, or property of
  615  or pertaining to the insurer and in her or his possession,
  616  custody, or control; or
  617         (c) Promptly to provide access to all data processing
  618  records in hard copy and in electronic form and to data
  619  processing facilities and services.
  620         (2) No person shall obstruct or interfere with the
  621  department or office in the conduct of any delinquency
  622  proceeding or any investigation preliminary or incidental
  623  thereto.
  624         (3) This section does not prohibit any person from seeking
  625  legal relief from a court when aggrieved by the petition for
  626  liquidation or other delinquency proceeding or by other orders.
  627         (4) Any person referred to in subsection (1) who fails to
  628  cooperate with the department or office, or any other person who
  629  obstructs or interferes with the department or office, in the
  630  conduct of any delinquency proceeding or any investigation
  631  preliminary or incidental thereto, is guilty of a misdemeanor of
  632  the first degree, punishable as provided in s. 775.082 or by
  633  fine of not more than $10,000.
  634         (5) Refusal by any person referred to in subsection (1) to
  635  provide records upon the request of the department or office is
  636  grounds for revocation of any insurance-related license,
  637  including, but not limited to, agent and third-party
  638  administrator licenses.
  639         (6) Any person referred to in subsection (1) who refuses to
  640  cooperate in providing records upon the request of the
  641  department or office is liable for any penalties, fines, or
  642  other costs assessed against the guaranty association or the
  643  receiver that result from the refusal or delay to provide
  644  records.
  645         Section 14. Section 631.395, Florida Statutes, is amended
  646  to read:
  647         631.395 Guaranty fund; orders of court.—Any order of
  648  liquidation issued pursuant to s. 631.111 or s. 631.131 must
  649  shall authorize and direct the department as receiver to
  650  coordinate the operation of the receivership with the operation
  651  of any insurance guaranty fund authorized to operate in this
  652  state and may authorize the department to provide data
  653  processing services for any appropriate guaranty fund. Such
  654  authorization must shall include, but not be limited to, release
  655  of copies of any of the following:
  656         (1) Claims files, records, or documents pertaining to
  657  claims on file with the insolvent insurer; and
  658         (2) Insurance claims filed with the receiver.
  659         Section 15. Subsections (1), (4), and (5) of section
  660  631.397, Florida Statutes, are amended to read:
  661         631.397 Use of certain marshaled assets.—
  662         (1) Within 120 days of a final determination of insolvency
  663  of an insurer by a court of competent jurisdiction of this
  664  state, The department, as receiver, may shall apply to the court
  665  for approval of a proposal to disburse assets out of such
  666  insurer’s marshaled assets, as such assets become available, to
  667  each association entitled thereto or, if there are no assets
  668  available for such disbursement, then for approval of such
  669  proposal as the receiver deems appropriate. For the purposes of
  670  this section, the term “association” includes the Florida
  671  Insurance Guaranty Association, Incorporated, the Florida
  672  Workers’ Compensation Insurance Guaranty Association, and any
  673  entity or person performing a function in another state similar
  674  to that performed in this state by the Florida Insurance
  675  Guaranty Association, Incorporated, or the Florida Workers’
  676  Compensation Insurance Guaranty Association, provided the
  677  Florida Insurance Guaranty Association, Incorporated, or the
  678  Florida Workers’ Compensation Insurance Guaranty Association, is
  679  entitled to like payment under the laws of the association’s
  680  state of domicile in respect to insolvent companies doing
  681  business in that state.
  682         (4) Notice of such application shall be given by the
  683  department to the associations in, and to the commissioners of
  684  insurance of, each of the states to which disbursement may be
  685  made. Such notice shall be made by certified mail, first-class
  686  postage prepaid, at least 15 days prior to submission of such
  687  application to the court. Such notice shall be deemed to have
  688  been made when deposited in the mail.
  689         (5) Action on the application may be taken by the court if
  690  notice has been given pursuant to subsection (4) and the
  691  department’s proposal complies with subsection (2).
  692         Section 16. This act shall take effect July 1, 2017.