Florida Senate - 2017                       CS for CS for SB 730
       
       
        
       By the Committees on Rules; and Banking and Insurance; and
       Senator Passidomo
       
       
       
       
       595-04128-17                                           2017730c2
    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; providing that certain claims against an
   53         insurer which do not meet specified filing
   54         requirements are deemed late-filed rather than forever
   55         barred; authorizing a receiver to petition the
   56         receivership court to set certain deadlines; requiring
   57         a receiver to provide notice of filing a certain
   58         petition to certain claimants; amending s. 631.191,
   59         F.S.; defining terms; providing applicability;
   60         requiring that specified large deductible claims under
   61         certain workers’ compensation policies must be turned
   62         over to the applicable responsible guaranty
   63         association for handling; providing for construction
   64         relating to payment of deductible claims; authorizing
   65         receivers to collect reimbursements owed for certain
   66         deductible claims; providing requirements for such
   67         collections; providing for construction relating to
   68         such collections; requiring receivers to use
   69         collateral, when available, to secure certain
   70         obligations; providing that a guaranty association is
   71         entitled to collateral for a certain purpose;
   72         providing for construction relating to certain
   73         distributions; requiring receivers to draw down
   74         collateral under certain circumstances; providing a
   75         procedure for payment of claims; authorizing the
   76         return of excess collateral under certain
   77         circumstances; providing that a receiver is entitled
   78         to deduct certain expenses from the collateral or
   79         deductible reimbursements; providing for construction;
   80         amending s. 631.192, F.S.; prohibiting claims for
   81         postjugdment interest accrued after the date the court
   82         enters the order of liquidation; amending s. 631.271,
   83         F.S.; adding and revising claims to a list that
   84         establishes the priority of distribution of claims
   85         from an insurer’s estate; specifying when interest on
   86         claims accrue and the interest rate calculation;
   87         amending s. 631.391, F.S.; specifying that certain
   88         persons in relation to an insurer who must cooperate
   89         with the department or office in certain proceedings
   90         or investigations include present or former roles;
   91         defining the term “person”; amending s. 631.395, F.S.;
   92         requiring an order of liquidation to authorize the
   93         release of certain claims files, records, documents,
   94         or claims, rather than only copies of the claims
   95         files, records, documents, or claims; amending s.
   96         631.397, F.S.; authorizing the department as receiver
   97         to apply to the court for approval of a specified
   98         proposal, rather than requiring the department to make
   99         such application within a specified timeframe;
  100         deleting a specified notice requirement of the
  101         department; deleting a provision authorizing the court
  102         to take action on the application under certain
  103         circumstances; providing an effective date.
  104          
  105  Be It Enacted by the Legislature of the State of Florida:
  106  
  107         Section 1. Section 631.015, Florida Statutes, is amended to
  108  read:
  109         631.015 Reciprocity; treatment of policyholders.
  110  Reciprocity in the treatment of policyholders in receivership is
  111  extended to those states which, in substance and effect, enact
  112  the National Association of Insurance Commissioners
  113  Rehabilitation and Liquidation Model Act, or the Uniform
  114  Insurers Liquidation Act, or the Insurer Receivership Model Act.
  115         Section 2. Section 631.021, Florida Statutes, is amended to
  116  read:
  117         631.021 Jurisdiction of delinquency proceeding; venue;
  118  change of venue; exclusiveness of remedy; appeal; construction.—
  119         (1) The circuit court shall have original jurisdiction of
  120  any delinquency proceeding under this chapter, and any court
  121  with jurisdiction is authorized to make all necessary or proper
  122  orders to carry out the purposes of this chapter. Any
  123  delinquency proceeding in this chapter is in equity.
  124         (2) The venue of a delinquency proceeding or summary
  125  proceeding against a domestic, foreign, or alien insurer shall
  126  be in the Circuit Court of Leon County.
  127         (3) A delinquency proceeding pursuant to this chapter
  128  constitutes the sole and exclusive method of liquidating,
  129  rehabilitating, reorganizing, or conserving an insurer. A No
  130  court may not shall entertain a petition for the commencement of
  131  such a proceeding unless the petition has been filed in the name
  132  of the state on the relation of the department. The Florida
  133  Insurance Guaranty Association, Incorporated, the Florida
  134  Workers’ Compensation Insurance Guaranty Association,
  135  Incorporated, the Florida Health Maintenance Organization
  136  Consumer Assistance Plan, and the Florida Life and Health
  137  Guaranty Association, Incorporated, shall be given reasonable
  138  written notice by the department of all hearings that which
  139  pertain to an adjudication of insolvency of a member insurer.
  140         (4) An appeal shall lie to the District Court of Appeal,
  141  First District, from an order granting or refusing
  142  rehabilitation, liquidation, or conservation and from every
  143  order in a delinquency proceeding having the character of a
  144  final order as to the particular portion of the proceeding
  145  embraced therein.
  146         (5) No service of process against the department in its
  147  capacity as receiver shall be effective unless served upon a
  148  person designated by the receiver and filed with the circuit
  149  court having jurisdiction over the delinquency proceeding. The
  150  designated person shall refuse to accept service if acceptance
  151  would violate a stay against legal proceedings involving an
  152  insurer that is the subject of delinquency proceedings or would
  153  violate any orders of the circuit court governing a delinquency
  154  proceeding. The person denied service may petition the circuit
  155  court having jurisdiction over the delinquency proceeding for
  156  relief from the receiver’s refusal to accept service. This
  157  subsection shall be strictly construed, and any purported
  158  service on the receiver or the department that is not in
  159  accordance with this subsection shall be null and void.
  160         (6) The domiciliary court acquiring jurisdiction over
  161  persons subject to this chapter may exercise exclusive
  162  jurisdiction to the exclusion of all other courts, except as
  163  limited by the provisions of this chapter. Upon the issuance of
  164  an order of conservation, rehabilitation, or liquidation, the
  165  Circuit Court of Leon County has shall have exclusive
  166  jurisdiction over all with respect to assets or property of the
  167  any insurer, wherever located, including property located
  168  outside the territorial limits of the state subject to such
  169  proceedings and claims against said insurer’s assets or
  170  property.
  171         (7) This chapter constitutes this state’s insurer
  172  receivership laws, and these laws must be construed as
  173  consistent with each other. If there is a conflict between this
  174  chapter and any other law, this chapter prevails.
  175         Section 3. Subsections (3) and (4) are added to section
  176  631.031, Florida Statutes, to read:
  177         631.031 Initiation and commencement of delinquency
  178  proceeding.—
  179         (3) An insurer subject to an order to show cause entered
  180  pursuant to this chapter must file its written response to the
  181  order, together with any defenses it may have to the
  182  department’s allegations, no later than 20 days after service of
  183  the order to show cause, but no less than 15 days before the
  184  date of the hearing set by the order to show cause.
  185         (4)A hearing held pursuant to this chapter to determine
  186  whether cause exists for the department to be appointed receiver
  187  must be commenced within 60 days after an order directing an
  188  insurer to show cause.
  189         Section 4. Subsection (1) of section 631.041, Florida
  190  Statutes, is amended to read:
  191         631.041 Automatic stay; relief from stay; injunctions.—
  192         (1) An application or petition under s. 631.031 operates as
  193  a matter of law as an automatic stay applicable to all persons
  194  and entities, other than the receiver and the office, which
  195  shall be permanent and survive the entry of an order of
  196  conservation, rehabilitation, or liquidation, and which shall
  197  prohibit:
  198         (a) The commencement or continuation of judicial,
  199  administrative, or other action or proceeding against the
  200  insurer or against its assets or any part thereof;
  201         (b) The enforcement of a judgment against the insurer or an
  202  affiliate obtained either before or after the commencement of
  203  the delinquency proceeding;
  204         (c) Any act to obtain possession of property of the
  205  insurer;
  206         (d) Any act to create, perfect, or enforce a lien against
  207  property of the insurer, except that a secured claim as defined
  208  in s. 631.011(21) may proceed under s. 631.191 after the order
  209  of liquidation is entered;
  210         (e) Any act to collect, assess, or recover a claim against
  211  the insurer, except claims as provided for under this chapter;
  212  and
  213         (f) The setoff or offset of any debt owing to the insurer,
  214  except offsets as provided in s. 631.281.
  215         Section 5. Present subsections (3) through (5) and (6)
  216  through (10) of section 631.141, Florida Statutes, are
  217  redesignated as subsections (4) through (6) and (8) through
  218  (12), respectively, new subsections (3) and (7) are added to
  219  that section, and present subsection (8) is amended, to read:
  220         631.141 Conduct of delinquency proceeding; domestic and
  221  alien insurers.—
  222         (3) The receiver may assume or reject any executory
  223  contract or unexpired lease of the insurer.
  224         (7) The department as domiciliary receiver may pay any
  225  expenses under contracts, leases, employment agreements, or
  226  other arrangements entered into by the insurer before
  227  receivership as the department deems necessary for the purposes
  228  of this chapter. The department is not required to pay any such
  229  expenses that it determines are not necessary and may reject any
  230  contract pursuant to subsection (3).
  231         (10)(8) The department as domiciliary receiver may take
  232  such action as it deems necessary or appropriate to reform and
  233  revitalize the insurer. The department shall have all the powers
  234  of the directors, officers, and managers, whose authority shall
  235  be suspended, except as they are redelegated by the receiver.
  236  The receiver shall have full power to direct and manage the
  237  affairs of the insurer, to hire and discharge employees, and to
  238  deal with the property and business of the insurer. In the event
  239  of the liquidation of an insurer domiciled in this state, and
  240  notwithstanding any provision of chapter 605, chapter 607,
  241  chapter 617, chapter 620, or chapter 621, all officers,
  242  directors, and managers of the insurer are permanently
  243  discharged and have no further authority of any kind over the
  244  affairs or assets of the insurer, except as may be redelegated
  245  by the department.
  246         Section 6. Subsection (4) of section 631.152, Florida
  247  Statutes, is amended to read:
  248         631.152 Conduct of delinquency proceeding; foreign
  249  insurers.—
  250         (4) Paragraph 631.141(9)(b) Section 631.141(7)(b) applies
  251  to ancillary delinquency proceedings opened for the purpose of
  252  obtaining records necessary to adjudicate the covered claims of
  253  Florida policyholders.
  254         Section 7. Section 631.1521, Florida Statutes, is created
  255  to read:
  256         631.1521 Actions by and against the receiver.—
  257         (1) An allegation by the receiver of improper or fraudulent
  258  conduct against any person may not be the basis of a defense by
  259  a third party to the enforcement of a contractual obligation
  260  owed to the insurer. This section does not bar a third party
  261  from the right to raise a defense that the conduct was
  262  materially and substantially related to the contractual
  263  obligation for which enforcement is sought.
  264         (2)A prior wrongful or negligent action of any present or
  265  former officer, manager, director, trustee, owner, employee, or
  266  agent of the insurer may not be asserted as a defense to a claim
  267  by the receiver under a theory of estoppel, comparative fault,
  268  intervening cause, proximate cause, reliance, mitigation of
  269  damages, or otherwise. However, the affirmative defense of fraud
  270  in the inducement may be asserted against the receiver in a
  271  claim based on a contract; and a principal under a surety bond
  272  or a surety undertaking is entitled to credit for the value of
  273  any property pledged to secure the reimbursement obligation
  274  against any reimbursement obligation to the receiver, to the
  275  extent that the receiver has possession or control of the
  276  property, or that the insurer or its agents misappropriated such
  277  property, which includes, but is not limited to, the comingling
  278  of such property. Evidence of fraud in the inducement is
  279  admissible only if it is contained in the records of the
  280  insurer.
  281         (3)An action or inaction by an insurance regulatory
  282  authority may not be asserted as a defense to a claim by the
  283  department.
  284         Section 8. Section 631.1522, Florida Statutes, is created
  285  to read:
  286         631.1522 Unrecorded obligations and defenses and claims of
  287  affiliates.—
  288         (1) In any proceeding or claim by the receiver, an
  289  affiliate, a controlled or controlling person, or a present or
  290  former officer, manager, director, trustee, or shareholder of
  291  the insurer may not assert any defense unless:
  292         (a) Evidence of the defense was recorded in the books and
  293  records of the insurer at or about the time the events giving
  294  rise to the defense occurred; and
  295         (b) If required by statutory accounting practices and
  296  procedures, such events were timely reported on the insurer’s
  297  official financial statements filed with the office.
  298         (2)An affiliate, a controlled or controlling person, or a
  299  present or former officer, manager, director, trustee, or
  300  shareholder of the insurer may not assert any claim unless:
  301         (a) The obligations were recorded in the books and records
  302  of the insurer at or about the time the obligations were
  303  incurred; and
  304         (b) If required by statutory accounting practices and
  305  procedures, the obligations were timely reported on the
  306  insurer’s official financial statements filed with the office.
  307         (3) This section does not bar claims based on unrecorded or
  308  unreported transactions by the receiver against any affiliate,
  309  controlled or controlling person, or present or former officer,
  310  manager, director, trustee, or shareholder of the insurer.
  311         Section 9. Subsection (3) of section 631.181, Florida
  312  Statutes, is amended, and paragraph (g) of subsection (2) and
  313  subsections (4) and (5) are added to that section, to read:
  314         631.181 Filing and proof of claim.—
  315         (2)
  316         (g) Upon application of the receiver:
  317         1. The receivership court may allow alternative procedures
  318  and requirements for the filing of proofs of claim or for
  319  allowing or proving claims.
  320         2. If the receivership court waives the requirements of
  321  filing a proof of claim for a person, class, or group of
  322  persons, a timely proof of claim by such person, class, or group
  323  is deemed to be filed for all purposes. However, the
  324  receivership court may not waive guaranty association or
  325  coverage determination proof of claim filing requirements, to
  326  the extent that the guaranty fund statute or filing requirements
  327  are inconsistent with the receivership court’s waiver of proof.
  328         (3) After the entry of the order of liquidation against a
  329  Florida-domiciled insurer, regardless of any prior notice that
  330  may have been given to creditors, the receiver shall notify all
  331  persons who may have claims against the insurer that they must
  332  file such claims with it at a place and within the time
  333  specified in the notice, or else such claims will be late-filed
  334  forever barred. The Florida receiver need not give such notice
  335  in ancillary proceedings if the receiver obtains an order from
  336  the court authorizing the receiver to not send out such notices,
  337  which order the court shall issue upon satisfactory evidence
  338  that the domiciliary receiver will be sending out similar
  339  notices and will accept and evaluate claims from Florida
  340  residents, that Florida residents may have objections to
  341  evaluations heard in Florida, and that there are reasonable
  342  assurances that Florida policyholders and claimants will be
  343  treated fairly and equally as compared to residents of the
  344  domicile state. The time specified in the notice shall be as
  345  fixed by the court for filing of claims and shall be not less
  346  than 6 months after the entry of the order of insolvency. The
  347  notice shall be given in such manner and for such reasonable
  348  period of time as may be ordered by the court.
  349         (4) The receiver may petition the receivership court to set
  350  a date certain before which all contingent or unliquidated
  351  claims are final. In addition to the notice requirements in this
  352  section, the receiver shall give notice of filing the petition
  353  to all claimants with claims that remain contingent or
  354  unliquidated under this section.
  355         (5) Notwithstanding any other provision of this chapter,
  356  the receiver may petition the receivership court to set a date
  357  certain after which no further claims may be filed.
  358         Section 10. Section 631.191, Florida Statutes, is amended
  359  to read:
  360         631.191 Special deposit claims; and secured claims;
  361  administration of workers’ compensation large deductible
  362  policies and insured collateral.—
  363         (1) SPECIAL DEPOSIT CLAIMS.The owners of special deposit
  364  claims against an insurer against which a liquidation order has
  365  been entered in this or any other state shall be given priority
  366  against their several special deposits in accordance with the
  367  provisions of the statutes governing the creation and
  368  maintenance of such deposits. If there is a deficiency in any
  369  such deposit so that the claims secured thereby are not fully
  370  discharged therefrom, the claimants may share in the general
  371  assets, but such sharing shall be deferred until general
  372  creditors, and also claimants against other special deposits who
  373  have received smaller percentages from their respective special
  374  deposits, have been paid percentages of their claims equal to
  375  the percentage paid from the special deposit.
  376         (2) SECURED CLAIMS.—
  377         (a) The owner of a secured claim against an insurer against
  378  which a liquidation order has been entered in this or any other
  379  state may surrender her or his security and file her or his
  380  claim as a general creditor, or the claim may be discharged by
  381  resort to the security, in which case the deficiency, if any,
  382  shall be treated as a claim against the general assets of the
  383  insurer on the same basis as claims of unsecured creditors. If
  384  the amount of the deficiency has been adjudicated in ancillary
  385  proceedings as provided in this chapter, or if it has been
  386  adjudicated by a court of competent jurisdiction in a proceeding
  387  in which the domiciliary receiver has had notice and an
  388  opportunity to be heard, such amount shall be conclusive;
  389  otherwise the amount shall be determined in the delinquency
  390  proceeding in the domiciliary state.
  391         (b) The value of any security held by a secured creditor
  392  shall be determined under supervision of the court by:
  393         1. Converting the same into money according to the terms of
  394  the agreement pursuant to which the security was delivered to
  395  such creditor; or
  396         2. If no such agreement exists, the court shall determine
  397  the value in the event the creditor and the receiver cannot
  398  agree upon same.
  399         (3) ADMINISTRATION OF WORKERS’ COMPENSATION LARGE
  400  DEDUCTIBLE POLICIES AND INSURED COLLATERAL.—
  401         (a) Definitions.—As used in this subsection, the term:
  402         1.“Collateral” means cash, a letter of credit, a surety
  403  bond, or any other form of security posted by the insured, or by
  404  a captive insurer or reinsurer, to secure the insured’s
  405  obligation under a large deductible policy to pay deductible
  406  claims or to reimburse the insurer for deductible claim
  407  payments. Collateral may also secure an insured’s obligation
  408  to reimburse or pay the insurer as may be required for other
  409  secured obligations.
  410         2.“Deductible claim” means any claim that is within the
  411  deductible under a large deductible policy, including a claim
  412  for loss and defense and cost containment expense, unless such
  413  expense is excluded by the terms of the policy.
  414         3.a.“Large deductible policy” means a combination of one
  415  or more workers compensation policies and endorsements issued
  416  to an insured, and contracts or security agreements entered into
  417  between an insured and the insurer, in which the insured has
  418  agreed with the insurer to:
  419         (I) Pay directly the initial portion of any claim under the
  420  policy up to a specified dollar amount or the expenses related
  421  to any claim; or
  422         (II) Reimburse the insurer for its payment of any claim or
  423  related expenses under the policy up to the specified dollar
  424  amount of the deductible.
  425         b. The term also includes policies that contain an
  426  aggregate limit on the insured’s liability for all deductible
  427  claims in addition to a per—claim deductible limit. A policy
  428  must meet the current guidelines for large deductible workers
  429  compensation filings as defined by the office, including the
  430  eligibility standards regarding the minimum standard premium and
  431  the minimum deductible to be deemed a large deductible policy.
  432         c. The term does not include policies, endorsements, or
  433  agreements providing that the initial portion of any covered
  434  claim must be self-insured and that the insurer has no payment
  435  obligation within the self-insured retention.
  436         d. The term does not include policies that provide for
  437  retrospectively rated premium payments by the insured or
  438  reinsurance arrangements or agreements, except to the extent
  439  such arrangements or agreements assume, secure, or pay the
  440  policyholder’s large deductible obligations.
  441         4. “Other secured obligations” means obligations of an
  442  insured to an insurer other than those under a large deductible
  443  policy, such as those under a reinsurance agreement or other
  444  agreement involving retrospective premium obligations, the
  445  performance of which is secured by collateral that also secures
  446  an insured’s obligations under a large deductible policy.
  447         (b) Applicability.
  448         1. This subsection applies to workers’ compensation large
  449  deductible policies issued by an insurer that is subject to
  450  delinquency proceedings under this chapter. This subsection does
  451  not apply to first-party claims, or to covered claims funded by
  452  a guaranty association above the deductible unless paragraph (c)
  453  applies. Large deductible policies must be administered in
  454  accordance with the terms of the policy, except to the extent
  455  such terms conflict with this subsection.
  456         2. This subsection applies to all delinquency proceedings
  457  that commence on or after July 1, 2017.
  458         (c) Handling of large deductible claims.Unless otherwise
  459  agreed to by the responsible guaranty association, all large
  460  deductible claims that are also covered claims as defined by an
  461  applicable guaranty association law, including those that may
  462  have been funded by an insured before liquidation, must be
  463  turned over to the guaranty association for handling. To the
  464  extent the insured funds or pays the deductible claim pursuant
  465  to an agreement by the guaranty fund or otherwise, the insured’s
  466  funding or payment of a deductible claim extinguishes the
  467  obligations, if any, of the receiver and any guaranty
  468  association to pay such claim. A charge may not be made against
  469  the receiver or a guaranty association on the basis of an
  470  insured’s funding or payment of a deductible claim.
  471         (d) Deductible claims paid by a guaranty association.
  472         1. To the extent a guaranty association pays any deductible
  473  claim for which an insurer would have been entitled to
  474  reimbursement from an insured, a guaranty association is
  475  entitled to the amount of reimbursements received or collateral
  476  available, subject to paragraph (g). Reimbursements paid to the
  477  guaranty association pursuant to this paragraph may not be
  478  treated as distributions under s. 631.271 or as early access
  479  payments under s. 631.397(1).
  480         2. To the extent that a guaranty association pays a
  481  deductible claim that is not reimbursed from collateral or by
  482  insured payments, or the guaranty association incurred expenses
  483  in connection with large deductible policies that are not
  484  reimbursed under this subsection, the guaranty association is
  485  entitled to assert a claim for those amounts in the delinquency
  486  proceeding.
  487         3. This paragraph does not limit any right of the receiver
  488  or a guaranty association which may otherwise exist under
  489  applicable law to obtain reimbursement from insureds for claims
  490  payments made by the guaranty association under policies of the
  491  insurer or for the guaranty association’s related expenses.
  492         (e)Collections.
  493         1. The receiver may collect reimbursements owed for
  494  deductible claims as provided in this paragraph, and must use
  495  reasonable efforts to collect such reimbursements from the
  496  insured or the party that is obligated to pay the deductible as
  497  specified in the large deductible policy or other agreement. The
  498  receiver may bill insureds and others for reimbursement of
  499  deductible claims that are:
  500         a. Paid by the insurer before the commencement of
  501  delinquency proceedings;
  502         b. Paid by a guaranty association upon receipt by the
  503  receiver of notice from a guaranty association of reimbursable
  504  payments; or
  505         c. Paid or allowed by the receiver.
  506         2. If the insured or other party does not make payment
  507  within the time specified in the large deductible policy, or, if
  508  no time is specified, within a reasonable time after the date of
  509  billing, the receiver may take reasonable steps to collect any
  510  reimbursements owed.
  511         3. The insolvency of the insurer or its inability to
  512  perform any of its obligations under the large deductible policy
  513  may not be a defense to the insured’s reimbursement obligation
  514  under the large deductible policy.
  515         4. An allegation of improper handling or payment of a
  516  deductible claim by the receiver or a guaranty association may
  517  not be a defense to the insured’s reimbursement obligations
  518  under the large deductible policy.
  519         (f) Collateral.
  520         1. Subject to this paragraph, the receiver shall use
  521  collateral, when available, to secure the insured’s obligation
  522  to fund or reimburse deductible claims or other secured
  523  obligations or payment obligations. A guaranty association is
  524  entitled to collateral as provided for in this paragraph to the
  525  extent needed to reimburse a guaranty association for the
  526  payment of a deductible claim. Any distributions made to a
  527  guaranty association pursuant to this paragraph may not be
  528  treated as distributions under s. 631.271 or as early access
  529  payments under s. 631.397(1).
  530         2. The receiver shall draw down collateral to the extent
  531  necessary in the event the insured fails to:
  532         a.Perform its funding or payment obligations under any
  533  large deductible policy;
  534         b.Pay deductible claim reimbursements within the time
  535  specified in the large deductible policy, or, if no time is
  536  specified, within 60 days after the date of the billing;
  537         c.Pay amounts due to the estate for preliquidation
  538  obligations;
  539         d.Timely fund any other secured obligation; or
  540         e.Timely pay expenses.
  541         3. Claims that are validly asserted against the collateral
  542  must be satisfied in the order in which such claims are received
  543  by the receiver. However, if more than one creditor has a valid
  544  claim against the same collateral and the available collateral,
  545  along with billing collection efforts and to the extent that the
  546  collateral is subject to other known secured obligations, are
  547  together insufficient to pay each creditor in full, the receiver
  548  may prorate payments to each creditor based upon the ratio of
  549  the amount of claims each creditor has to the total claims paid
  550  by all such creditors.
  551         4. Excess collateral may be returned to the insured, as
  552  determined by the receiver, after a periodic review of claims
  553  paid, outstanding case reserves, and a factor for claims that
  554  were incurred but not reported.
  555         (g) Receiver’s expenses.The receiver is entitled to deduct
  556  from the collateral or from the deductible reimbursements
  557  reasonable and actual expenses incurred in connection with the
  558  collection of the collateral and deductible reimbursements as
  559  provided pursuant to s. 631.271.
  560         (h) Construction.—This subsection does not limit or
  561  adversely affect any rights or powers a guaranty association may
  562  have under applicable state law to obtain reimbursement from
  563  certain classes of policyholders for claims payments made by the
  564  guaranty association under policies of the insolvent insurer, or
  565  for related expenses the guaranty association incurs.
  566         Section 11. Subsection (5) is added to section 631.192,
  567  Florida Statutes, to read:
  568         631.192 Allowance of certain claims.—
  569         (5) A claim may not be allowed for postjudgment interest
  570  accrued after the date the court enters the order of
  571  liquidation.
  572         Section 12. Paragraphs (a), (b), and (j) of subsection (1)
  573  of section 631.271, Florida Statutes, are amended to read:
  574         631.271 Priority of claims.—
  575         (1) The priority of distribution of claims from the
  576  insurer’s estate shall be in accordance with the order in which
  577  each class of claims is set forth in this subsection. Every
  578  claim in each class shall be paid in full or adequate funds
  579  shall be retained for such payment before the members of the
  580  next class may receive any payment. No subclasses may be
  581  established within any class. The order of distribution of
  582  claims shall be:
  583         (a) Class 1.—
  584         1. All of the receiver’s costs and expenses of
  585  administration.
  586         2. All of the expenses of a guaranty association or foreign
  587  guaranty association in handling claims.
  588         3. All of the deputy supervisor’s costs and expenses of
  589  administration incurred as a result of administrative
  590  supervision under part VI of chapter 624.
  591         (b) Class 2.—All claims under policies for losses incurred,
  592  including third-party claims, all claims against the insurer for
  593  liability for bodily injury or for injury to or destruction of
  594  tangible property which claims are not under policies, and all
  595  claims of a guaranty association or foreign guaranty
  596  association, and all claims related to a patient’s healthcare
  597  coverage by physicians, hospitals, and other providers of a
  598  health insurer or health maintenance organization. All claims
  599  under life insurance and annuity policies, whether for death
  600  proceeds, annuity proceeds, or investment values, shall be
  601  treated as loss claims. That portion of any loss,
  602  indemnification for which is provided by other benefits or
  603  advantages recovered by the claimant, may not be included in
  604  this class, other than benefits or advantages recovered or
  605  recoverable in discharge of familial obligations of support or
  606  by way of succession at death or as proceeds of life insurance,
  607  or as gratuities. No payment by an employer to her or his
  608  employee may be treated as a gratuity.
  609         (j) Class 10.—Interest on allowed claims of Classes 1
  610  through 9. The rate of interest payable on an allowed claim must
  611  accrue from the date the court enters the order of liquidation
  612  until such time as the receivership court approves the
  613  distribution. The interest rate must be calculated in accordance
  614  with s. 55.03, according to the terms of a plan to pay interest
  615  on allowed claims proposed by the liquidator and approved by the
  616  receivership court.
  617         Section 13. Section 631.391, Florida Statutes, is amended
  618  to read:
  619         631.391 Cooperation of officers and employees.—
  620         (1) Any present or former officer, director, manager,
  621  trustee, agent, adjuster, employee, or independent contractor of
  622  any insurer or affiliate and any other person who possesses any
  623  executive authority over, or who exercises any control over, any
  624  segment of the affairs of the insurer or affiliate shall fully
  625  cooperate with the department and office in any proceeding under
  626  this chapter or any investigation preliminary or incidental to
  627  the proceeding. An order of rehabilitation or liquidation which
  628  results in the discharge or suspension of any of the persons
  629  listed above does not operate to release such person from the
  630  duty to cooperate with the department and office as set out
  631  herein. As used in this section, the term “person” includes any
  632  person who directly or indirectly exercises control over
  633  activities of the insurer through any holding company or other
  634  affiliate of the insurer. The term To “cooperate” includes, but
  635  is not limited to, the following:
  636         (a) To reply promptly in writing to any inquiry from the
  637  department or office requesting such a reply;
  638         (b) Promptly to make available and deliver to the
  639  department or office any books, accounts, documents, other
  640  records, information, data processing software, or property of
  641  or pertaining to the insurer and in her or his possession,
  642  custody, or control; or
  643         (c) Promptly to provide access to all data processing
  644  records in hard copy and in electronic form and to data
  645  processing facilities and services.
  646         (2) No person shall obstruct or interfere with the
  647  department or office in the conduct of any delinquency
  648  proceeding or any investigation preliminary or incidental
  649  thereto.
  650         (3) This section does not prohibit any person from seeking
  651  legal relief from a court when aggrieved by the petition for
  652  liquidation or other delinquency proceeding or by other orders.
  653         (4) Any person referred to in subsection (1) who fails to
  654  cooperate with the department or office, or any other person who
  655  obstructs or interferes with the department or office, in the
  656  conduct of any delinquency proceeding or any investigation
  657  preliminary or incidental thereto, is guilty of a misdemeanor of
  658  the first degree, punishable as provided in s. 775.082 or by
  659  fine of not more than $10,000.
  660         (5) Refusal by any person referred to in subsection (1) to
  661  provide records upon the request of the department or office is
  662  grounds for revocation of any insurance-related license,
  663  including, but not limited to, agent and third-party
  664  administrator licenses.
  665         (6) Any person referred to in subsection (1) who refuses to
  666  cooperate in providing records upon the request of the
  667  department or office is liable for any penalties, fines, or
  668  other costs assessed against the guaranty association or the
  669  receiver that result from the refusal or delay to provide
  670  records.
  671         Section 14. Section 631.395, Florida Statutes, is amended
  672  to read:
  673         631.395 Guaranty fund; orders of court.—Any order of
  674  liquidation issued pursuant to s. 631.111 or s. 631.131 must
  675  shall authorize and direct the department as receiver to
  676  coordinate the operation of the receivership with the operation
  677  of any insurance guaranty fund authorized to operate in this
  678  state and may authorize the department to provide data
  679  processing services for any appropriate guaranty fund. Such
  680  authorization must shall include, but not be limited to, release
  681  of copies of any of the following:
  682         (1) Claims files, records, or documents pertaining to
  683  claims on file with the insolvent insurer; and
  684         (2) Insurance claims filed with the receiver.
  685         Section 15. Subsections (1), (4), and (5) of section
  686  631.397, Florida Statutes, are amended to read:
  687         631.397 Use of certain marshaled assets.—
  688         (1) Within 120 days of a final determination of insolvency
  689  of an insurer by a court of competent jurisdiction of this
  690  state, The department, as receiver, may shall apply to the court
  691  for approval of a proposal to disburse assets out of such
  692  insurer’s marshaled assets, as such assets become available, to
  693  each association entitled thereto or, if there are no assets
  694  available for such disbursement, then for approval of such
  695  proposal as the receiver deems appropriate. For the purposes of
  696  this section, the term “association” includes the Florida
  697  Insurance Guaranty Association, Incorporated, the Florida
  698  Workers’ Compensation Insurance Guaranty Association, and any
  699  entity or person performing a function in another state similar
  700  to that performed in this state by the Florida Insurance
  701  Guaranty Association, Incorporated, or the Florida Workers’
  702  Compensation Insurance Guaranty Association, provided the
  703  Florida Insurance Guaranty Association, Incorporated, or the
  704  Florida Workers’ Compensation Insurance Guaranty Association, is
  705  entitled to like payment under the laws of the association’s
  706  state of domicile in respect to insolvent companies doing
  707  business in that state.
  708         (4) Notice of such application shall be given by the
  709  department to the associations in, and to the commissioners of
  710  insurance of, each of the states to which disbursement may be
  711  made. Such notice shall be made by certified mail, first-class
  712  postage prepaid, at least 15 days prior to submission of such
  713  application to the court. Such notice shall be deemed to have
  714  been made when deposited in the mail.
  715         (5) Action on the application may be taken by the court if
  716  notice has been given pursuant to subsection (4) and the
  717  department’s proposal complies with subsection (2).
  718         Section 16. This act shall take effect July 1, 2017.