House Bill 2235

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    Florida House of Representatives - 1999                HB 2235

        By Representative Gay






  1                      A bill to be entitled

  2         An act relating to the regulation of insurance

  3         and investments in insurance products industry;

  4         amending s. 626.9911, F.S.; defining "viatical

  5         settlement purchaser," "viatical settlement

  6         purchase agreement," and "viatical settlement

  7         sales agent"; revising definitions of the terms

  8         "viatical settlement broker," "viatical

  9         settlement contract," "viatical settlement

10         provider," "related provider trust," and

11         "viator"; creating s. 626.99181, F.S.;

12         requiring disclosure of certain information

13         regarding viatical settlement broker fees;

14         amending s. 626.9919, F.S.; requiring viatical

15         settlement sales agents to give notice of

16         change of certain information; amending s.

17         626.992, F.S.; requiring viatical settlement

18         sales agents to be licensed by the Department

19         of Insurance; amending s. 626.9922, F.S.;

20         revising requirements for examination; amending

21         s. 626.99235, F.S.; revising requirements for

22         disclosure to viatical settlement purchasers

23         and providing for disclosure forms to be

24         adopted by the department; amending s.

25         626.9925; revising rulemaking authority of the

26         department; amending s. 626.9926, F.S.;

27         providing that viatical settlement purchase

28         agreement rates are not regulated; amending s.

29         626.9927, F.S.; including viatical settlement

30         purchase agreements; creating s. 626.99272,

31         F.S.; providing for cease and desist orders;

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  1         providing for administrative fines; creating s.

  2         626.99275, F.S.; prohibiting certain practices;

  3         creating s. 626.99277, F.S.; prohibiting false

  4         representations; amending s. 626.9929, F.S.;

  5         establishing a grace period for viatical

  6         settlement sales agents transacting business in

  7         this state; providing an effective date.

  8

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

10

11         Section 1.  Section 626.9911, Florida Statutes, 1998

12  Supplement, is amended to read:

13         626.9911  Definitions.--As used in this act, the term:

14         (1)  "Department" means the Department of Insurance.

15         (2)  "Independent third-party trustee or escrow agent"

16  means an attorney, certified public accountant, financial

17  institution, or other person providing escrow services under

18  the authority of a regulatory body. The term does not include

19  any person associated, affiliated, or under common control

20  with a viatical settlement provider or viatical settlement

21  broker.

22         (3)  "Person" has the meaning specified in s. 1.01.

23         (4)  "Viatical settlement broker" means a person who,

24  on behalf of a viator and for a fee, commission, or other

25  valuable consideration, offers or attempts to negotiate

26  viatical settlement contracts between a viator resident in

27  this state and one or more viatical settlement providers.

28  Notwithstanding the manner in which the viatical settlement

29  broker is compensated, a viatical settlement broker is deemed

30  to represent only the viator and owes a fiduciary duty to the

31  viator to act according to the viator's instructions and in

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  1  the best interest of the viator.  The term does not include an

  2  attorney, licensed Certified Public Accountant, or investment

  3  adviser lawfully registered with the Department of Banking and

  4  Finance under chapter 517 financial planner, or person acting

  5  under a power of attorney from the viator, who is retained to

  6  represent the viator and whose compensation is paid directly

  7  solely by or at the direction and on behalf of the viator

  8  without regard to whether a viatical settlement contract is

  9  effected.

10         (5)  "Viatical settlement contract" means a written

11  agreement settlement entered into between a viatical

12  settlement provider, or its related provider trust, and a

13  viator.  The agreement must establish the terms under which

14  the viatical settlement provider will pay compensation or

15  anything of value, which compensation or value is less than

16  the expected death benefit of the insurance policy or

17  certificate, in return for the viator's assignment, transfer,

18  sale, devise, or bequest of the death benefit or ownership of

19  all or a portion of the insurance policy or certificate of

20  insurance to the viatical settlement provider.  A viatical

21  settlement contract also includes a contract for a loan or

22  other financial transaction secured primarily by an individual

23  or group life insurance policy, other than a loan by a life

24  insurance company pursuant to the terms of the life insurance

25  contract, or a loan secured by the cash value of a policy.

26         (6)  "Viatical settlement provider" means a person

27  other than a viator who, in this state, or from this state, or

28  with a resident of this state, effectuates enters into a

29  viatical settlement contract with a viator.  The term does not

30  include:

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  1         (a)  Any bank, savings bank, savings and loan

  2  association, credit union, or other licensed lending

  3  institution that takes an assignment of a life insurance

  4  policy as collateral for a loan;

  5         (b)  A life and health insurer that has lawfully issued

  6  a life insurance policy that provides accelerated benefits to

  7  terminally ill policyholders or certificateholders; or

  8         (c)  Any natural person who enters into no more than

  9  one viatical settlement contract with a viator in 1 calendar

10  year, unless such natural person has previously been licensed

11  under this act or is currently licensed under this act.

12         (d)  A trust that meets the definition of a "related

13  provider trust."

14         (7)  "Viator" means the owner of a life insurance

15  policy or a certificateholder under a group policy insuring

16  the life of an individual with a natural person who has a

17  catastrophic or life-threatening illness or condition and who

18  enters or seeks to enter into a viatical settlement contract

19  has the right to assign, transfer, sell, devise, or bequeath

20  the benefits of his or her life insurance policy. This term

21  does not include a viatical settlement purchaser or a viatical

22  settlement provider or any person acquiring a policy or

23  interest in a policy from a viatical settlement provider, nor

24  does it include an independent third-party trustee or escrow

25  agent.

26         (8)  "Related provider trust" means a trust established

27  by a viatical settlement provider for the sole purpose of

28  entering into or owning viatical settlement contracts. This

29  term does not include an independent third-party trustee or

30  escrow agent.  A related provider trust shall be subject to

31  all provisions of this act that apply to the viatical

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  1  settlement provider who established the related provider

  2  trust, except s. 626.9912, which shall not be applicable. A

  3  viatical settlement provider may establish no more than one

  4  related provider trust, and the sole trustee of such related

  5  provider trust shall be the viatical settlement provider

  6  licensed under s. 626.9912. The name of the licensed viatical

  7  settlement provider shall be included within the name of the

  8  related provider trust.

  9         (9)  "Viatical settlement purchase agreement" means a

10  contract or agreement, entered into by a viatical settlement

11  purchaser, to which the viator is not a party, to purchase a

12  life insurance policy or an interest in a life insurance

13  policy, which is entered into for the purpose of deriving an

14  economic benefit.

15         (10)  "Viatical settlement purchaser" means a person,

16  other than a licensee under this part, an accredited investor

17  as defined in Rule 501, Regulation D of the Securities Act

18  Rules, or a qualified institutional buyer under Rule 144(a) of

19  the 1933 Securities Act, who gives a sum of money as

20  consideration for a life insurance policy or an interest in

21  the death benefits of a life insurance policy which has been

22  or will be the subject of a viatical settlement contract, for

23  the purpose of deriving an economic benefit.

24         (11)  "Viatical settlement sales agent" means a person

25  other than a licensed viatical settlement provider who

26  arranges the purchase through a viatical settlement purchase

27  agreement of a life insurance policy or an interest in a life

28  insurance policy.

29         Section 2.  Section 626.99181, Florida Statutes, is

30  created to read:

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  1         626.99181  Viatical settlement broker's

  2  compensation.--A viatical settlement broker shall disclose to

  3  a prospective viator the amount and method of calculating the

  4  broker's compensation. The term "compensation" includes

  5  anything of value paid or given to a viatical settlement

  6  broker for the placement of a policy.

  7         Section 3.  Section 626.9919, Florida Statutes, is

  8  amended to read:

  9         626.9919  Notice of change of address or name; viatical

10  settlement provider licensees, and broker licensees, and

11  viatical settlement sales agent licensees.--Each viatical

12  settlement provider licensee, and each viatical settlement

13  broker licensee, and viatical settlement sales agent licensee

14  must provide the department at least 30 days' advance notice

15  of any change in the licensee's name, residence address,

16  principal business address, or mailing address.

17         Section 4.  Section 626.992, Florida Statutes, is

18  amended to read:

19         626.992  Use of viatical settlement licensed brokers,

20  and providers, and viatical settlement sales agents

21  required.--

22         (1)  A licensed viatical settlement provider may not

23  use any person to perform the functions of a viatical

24  settlement broker as defined in this act unless such person

25  holds a current, valid license as a viatical settlement

26  broker.  Salaried individuals employed by viatical settlement

27  providers shall engage in viatical settlement broker

28  activities only when accompanied by a viatical settlement

29  broker who holds a current valid license issued under this

30  act. A viatical settlement provider may not use any person to

31  perform the functions of a viatical settlement sales agent

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  1  unless the person holds a current, valid license as provided

  2  in subsection (4).

  3         (2)  A licensed viatical settlement broker may not use

  4  any person to perform the functions of a viatical settlement

  5  provider as defined in this act unless such person holds a

  6  current, valid license as a viatical settlement provider.

  7         (3)  A viatical settlement sales agent may not use any

  8  person to perform the functions of a viatical settlement

  9  broker unless such person holds a current, valid license as a

10  viatical settlement broker.

11         (4)  A person may not perform the functions of a

12  viatical settlement sales agent unless licensed as a life

13  agent as defined in s. 626.051 and as provided in this

14  chapter.

15         Section 5.  Section 626.9922, Florida Statutes, is

16  amended to read:

17         626.9922  Examination.--

18         (1)  The department may examine the business and

19  affairs of any licensee or applicant for a license.  The

20  department may order any licensee or applicant to produce any

21  records, books, files, advertising and solicitation materials,

22  or other information and may take statements under oath to

23  determine whether the licensee or applicant is in violation of

24  the law or is acting contrary to the public interest.  The

25  expenses incurred in conducting any examination or

26  investigation must be paid by the licensee or applicant.

27  Examinations and investigations must be conducted as provided

28  in chapter 624, and licensees are subject to all applicable

29  provisions of the insurance code.

30         (2)  All accounts, records, documents, files, and other

31  information relating to all transactions of viatical

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  1  settlement contracts or viatical settlement purchase

  2  agreements must be maintained by the licensee for a period of

  3  at least 3 years after the death of the insured viator and

  4  must be available to the department for inspection during

  5  reasonable business hours.

  6         Section 6.  Section 626.99235, Florida Statutes, 1998

  7  Settlement, is amended to read:

  8         626.99235  Disclosures to viatical settlement

  9  purchasers investors; misrepresentations.--

10         (1)  No person shall misrepresent the nature of the

11  return or the duration of time to obtain the return of any

12  investment related to one or more viatical settlements sold by

13  a viatical settlement provider or related provider trust.

14         (2)  The viatical settlement provider and the viatical

15  settlement sales agent, themselves itself or through another

16  person, shall provide in writing the following disclosures to

17  any viatical settlement purchaser investor or purchaser

18  investor prospect:

19         (a)  That the return represented as being available

20  under the viatical settlement purchase agreement investment is

21  directly tied to the projected life span or date of death of

22  one or more insureds. viators;

23         (b)  If a return is represented, the disclosure shall

24  indicate the projected life span or date of death of the

25  insured or insureds viator or viators whose life or lives are

26  tied to the return.

27         (c)  If required by the terms of the viatical

28  settlement purchase agreement investment contract, that the

29  viatical settlement purchaser shall investor may be

30  responsible for the payment of insurance premiums on the life

31  of the insured, viator or late or surrender fees, or other

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  1  costs related to the life insurance policy on the life of the

  2  insured or insureds viator or viators which may reduce the

  3  return.

  4         (d)  The amount of any trust fees, commissions,

  5  deductions, or other expenses, if any, to be charged to the

  6  viatical settlement purchaser investor.

  7         (e)  The name and address of the person responsible for

  8  tracking the insured.

  9         (f)  That group policies may contain limitations or

10  caps in the conversion rights, that additional premiums may

11  have to be paid if the policy is converted, and that the party

12  responsible for the payment of such additional premiums shall

13  be identified.

14         (g)  That the life expectancy and rate of return are

15  only estimates and cannot be guaranteed.

16         (h)  That the purchase of a viatical settlement

17  contract should not be considered a liquid purchase, since it

18  is impossible to predict the exact timing of its maturity and

19  the funds may not be available until the death of the insured.

20         (i)  The name and address of the person with the

21  responsibility for paying the premium until the death of the

22  insured.

23

24  The written disclosure required under this subsection shall be

25  conspicuously displayed in any viatical settlement purchase

26  investment agreement, and in any solicitation material

27  furnished to the viatical settlement purchaser investor by

28  such viatical settlement provider, related provider trust, or

29  person, and shall be in contrasting color and in not less than

30  10-point type or no smaller than the largest type on the page

31  if larger than 10-point type. The department is authorized to

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  1  adopt by rule the disclosure form to be used. The disclosures

  2  need not be furnished in an invitation to inquire, the

  3  objective of which is to create a desire to inquire further

  4  about entering into a viatical settlement purchase agreement.

  5  The invitation to inquire may not quote rates of return, may

  6  not include material attendant to the execution of any

  7  specific viatical settlement purchase agreement, and may not

  8  relate to any specific viator.

  9         Section 7.  Section 626.9925, Florida Statutes, is

10  amended to read:

11         626.9925  Rules.--The department may adopt rules to

12  implement this act, including rules establishing standards for

13  evaluating advertising by licensees and rules providing for

14  the collection of data and recordkeeping requirements relating

15  to executed viatical settlement contracts and viatical

16  settlement purchase agreements.

17         Section 8.  Section 626.9926, Florida Statutes, is

18  amended to read:

19         626.9926  Rate regulation not authorized.--Nothing in

20  this act shall be construed to authorize the department to

21  directly or indirectly regulate the amount paid as

22  consideration for entry into a viatical settlement contract or

23  viatical settlement purchase agreement.

24         Section 9.  Subsection (1) of section 626.9927, Florida

25  Statutes, is amended to read:

26         626.9927  Unfair trade practices; cease and desist;

27  injunctions; civil remedy.--

28         (1)  A violation of this act is an unfair trade

29  practice under ss. 626.9521 and 626.9541 and is subject to the

30  penalties provided in the insurance code.  Part IX X of this

31  chapter applies to a licensee under this act or a transaction

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  1  subject to this act as if a viatical settlement contract and a

  2  viatical settlement purchase agreement were an insurance

  3  policy.

  4         Section 10.  Section 626.99272, Florida Statutes, is

  5  created to read:

  6         626.99272  Cease and desist orders and fines.--

  7         (1)  The department may issue a cease and desist order

  8  upon a person that violates any provision of this part, any

  9  rule or order adopted by the department, or any written

10  agreement entered into with the department.

11         (2)  When the department finds that such an action

12  presents an immediate danger to the public which requires an

13  immediate final order, it may issue an emergency cease and

14  desist order reciting with particularity the facts underlying

15  such findings.  The emergency cease and desist order is

16  effective immediately upon service of a copy of the order on

17  the respondent and remains effective for 90 days.  If the

18  department begins nonemergency cease and desist proceedings

19  under subsection (1), the emergency cease and desist order

20  remains effective, absent an order by an appellate court of

21  competent jurisdiction pursuant to ss. 120.68, until the

22  conclusion of proceedings under ss. 120.569 and 120.57.

23         (3)  The department may impose and collect an

24  administrative fine not to exceed $10,000 for each nonwillful

25  violation and $25,000 for each willful violation of any

26  provision of this part.

27         Section 11.  Section 626.99275, Florida Statutes, is

28  created to read:

29         626.99275  Prohibited practices.--It is unlawful for

30  any person:

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  1         (1)  To knowingly enter into a viatical settlement

  2  contract the subject of which is a life insurance policy that

  3  was obtained by means of a false, deceptive, or misleading

  4  application for the life insurance policy.

  5         (2)  In the solicitation or sale of a viatical

  6  settlement purchase agreement:

  7         (a)  To employ any device, scheme, or artifice to

  8  defraud;

  9         (b)  To obtain money or property by means of an untrue

10  statement of a material fact or by any omission to state a

11  material fact necessary in order to make the statements made,

12  in light of the circumstances under which they were made, not

13  misleading; or

14         (c)  To engage in any transaction, practice, or course

15  of business which operates or would operate as a fraud or

16  deceit upon a person.

17         Section 12.  Section 626.99277, Florida Statutes, is

18  created to read:

19         626.99277  False representations; deceptive words.--

20         (1)  It is unlawful for a person in the advertisement,

21  offer, or sale of a viatical settlement purchase agreement to

22  misrepresent that such an agreement has been guaranteed,

23  sponsored, recommended, or approved by the state, or any

24  agency or officer of the state or by the United States or any

25  agency or officer of the United States.

26         (2)  It is unlawful for a person in conjunction with

27  the sale of a viatical settlement purchase agreement to

28  directly or indirectly misrepresent that the person has been

29  sponsored, recommended, or approved, or that his or her

30  abilities or qualifications have in any respect been passed

31  upon, by this state or any other state, or any agency or

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  1  officer thereof, or by the United States or any agency or

  2  officer thereof.

  3         (3)  It is unlawful for a person in the offer or sale

  4  of a viatical settlement purchase agreement to obtain money or

  5  property by:

  6         (a)  A misrepresentation that the viatical settlement

  7  purchase agreement purchased, offered, or sold is guaranteed,

  8  sponsored, recommended, or approved by this state or any other

  9  state, or any agency or officer thereof, or by the United

10  States or any agency or officer thereof.

11         (b)  A misrepresentation that the person is sponsored,

12  recommended, or approved, or that the person's abilities or

13  qualifications have in any respect been passed upon, by this

14  state or any other state, or any agency or officer thereof, or

15  by the United States or any agency or officer thereof.

16         (4)  Neither subsection (1) nor subsection (2) may be

17  construed to prohibit a statement that the person is licensed

18  or appointed under this part if such a statement is required

19  by this part or rules adopted under this part, if the

20  statement is true in fact, and if the effect of the statement

21  is not misrepresented.

22         (5)  A person may not represent that a viatical

23  settlement purchase agreement is guaranteed by any insurance

24  guaranty fund.

25         (6)  A person may not represent that the investment in

26  a viatical settlement purchase agreement is "guaranteed," that

27  the principal is "safe," or that the investment is free of

28  risk.

29         Section 13.  Section 626.9929, Florida Statutes, is

30  amended to read:

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  1         626.9929  Grace period.--A viatical settlement sales

  2  agent provider or viatical settlement broker that was

  3  transacting business in this state on June 30, 1999 1996, may

  4  continue to transact such business, in the absence of any

  5  orders by the department to the contrary, until the department

  6  approves or disapproves the sales agent's provider's or

  7  broker's application for licensure if the sales agent provider

  8  or broker files with the department no later than November 1,

  9  1999, an application for licensure and all forms currently in

10  use no later than November 1, 1996, and if the sales agent

11  provider or broker complies with all other provisions of this

12  act.

13         Section 14.  This act shall take effect upon becoming a

14  law.

15

16            *****************************************

17                          HOUSE SUMMARY

18
      Revises provisions relating to viatical settlement
19    contracts. Provides that a viatical settlement broker
      must disclose to a prospective viator the amount and
20    method of calculating the broker's compensation. Requires
      such viatical settlement sales agents to be licensed.
21    Requires 30 days advance notice to the Department of
      Insurance of a change in name or address of viatical
22    settlement sales agent licensees. Provides that viatical
      settlement purchase agreements must be maintained for 3
23    years after the death of the insured and be available to
      the department for inspection. Revises disclosure and
24    advertising requirements. Authorizes the department to
      promulgate rules establishing recordkeeping requirements.
25    Authorizes the department, under its cease and desist
      authority, to impose administrative fines for violations.
26    Prohibits false or misleading practices. Provides a grace
      period for viatical settlement sales agents to continue
27    to transact such business. See bill for details.

28

29

30

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