BILL ANALYSIS Ó SENATE COMMITTEE ON INSURANCE Senator Richard Roth, Chair 2015 - 2016 Regular Bill No: AB 459 Hearing Date: June 10, 2015 ----------------------------------------------------------------- |Author: |Daly | |-----------+-----------------------------------------------------| |Version: |February 23, 2015 Introduced | ----------------------------------------------------------------- ----------------------------------------------------------------- |Urgency: |No |Fiscal: |No | ----------------------------------------------------------------- ----------------------------------------------------------------- |Consultant:|Erin Ryan | | | | ----------------------------------------------------------------- Subject: Insurance: insurable interest: declaratory relief. SUMMARY Authorizes an owner of record of a life insurance policy issued for delivery in California prior to January 1, 2010 and having a death benefit equal to or greater than one million dollars ($1,000,000), who believes that the insurer may challenge the policy for lack of an insurable interest, to bring an action for declaratory relief no later than January 1, 2017 seeking a court order declaring the policy to have a valid insurable interest. DIGEST Existing law 1) Provides that an interest in the life or health of a person insured must exist when the insurance takes effect, but need not exist thereafter or when the loss occurs. (IC §286) 2) Provides that if the insured has no insurable interest, the contract is void. 3) Provides that every person has an unlimited insurable interest in his or her own life, health, and bodily safety, and may take out a policy of insurance and have the policy payable to whomsoever he or she pleases, regardless of whether the beneficiary designated has an insurance interest. (IC §10110.1) AB 459 (Daly) Page 2 of ? 4) Provides that an insurable interest exists when based upon a reasonable expectation of pecuniary advantage through the continued life, health or bodily safety or another, or when engendered by a substantial interest engendered by love and affection in the case of individuals closely related by blood or law. 5) Provides that any device, scheme or artifice designed to give the appearance of an insurance interest where there is no legitimate insurance interest violates insurable interest laws. 6) Provides that an insurer is entitled to rely upon all statements, declarations or representations made by an applicant for insurance relative to the insurable interest, and shall incur no legal liability by virtue of any untrue statements, declarations or representations so relied upon in good faith. 7) Provides that an individual life insurance policy is incontestable, except for non-payment of premiums, after it has been in force, during the lifetime of the insured, for a period of not more than two years after its date of issue. 8) Specifies that trusts and special purpose entities that are used to apply for and initiate the issuance of policies of insurance for investors have no insurable interest unless the designated beneficiary of the policy has an otherwise valid insurable interest in the life of the insured. This bill 1) Authorizes an owner of record of a life insurance policy who believes that the insurer may challenge the policy for lack of an insurable interest, to bring an action for declaratory relief seeking a court order declaring the policy to have a valid insurable interest. 2) Limits the right to bring an action only to life insurance policies issued for delivery in California prior to January 1, 2010, and having a death benefit equal to or greater than one million dollars ($1,000,000). 3) Repeals the authority granted by this bill on January 1, 2017. AB 459 (Daly) Page 3 of ? COMMENTS 1. Purpose of the bill To resolve potential litigation regarding life insurance policies issued before California expressly prohibited "stranger originated life insurance" (STOLI). 2. Background An individual has an unlimited insurable interest in his or her own life. Individuals related by blood or marriage can also have an insurable interest. An employer can have an insurable interest in the life of its directors, officers or other key personnel, with the consent of the employee. As defined in the California Insurance Code, "an individual has an unlimited insurable interest in his or her own life, health and bodily safety and may lawfully take out a policy of insurance on his or her own life, health, or bodily safety and have the policy made payable to whomsoever he or she pleases, regardless of whether the beneficiary designated has an insurable interest." An insurable interest must exist at the time the policy becomes effective, but does not have to exist at the time the loss occurs. An individual can always take out insurance on his or her self, and then transfer the policy to someone else. The question comes down to the intent at the time the policy is purchased. By statute, a life insurance policy is incontestable after it has been in force for two years except for non-payment of premiums, unless an imposter was used to obtain the policy. The insurance company has those two years to identify any undisclosed or misrepresented facts that rise to the level of material misrepresentation, allowing it to rescind the policy. If the fraud was material and intentional-for example if there was no insurable interest at the time the policy was taken out-the insurer may attempt to contest the policy beyond the two year period. A life settlement is a complex financial transaction in which an owner of a life insurance policy sells the policy to a third party for more than the cash surrender value offered by the life insurance company. The purchaser becomes the new beneficiary of the policy at maturation AB 459 (Daly) Page 4 of ? (death of the insured) and is responsible for all subsequent premium payments. In order to purchase a life insurance policy, the purchaser must have an "insurable interest" in the life of the person insured. The life insurance industry has claimed that the buying and selling of life insurance policies in a secondary market distorts the purpose of life insurance by breaking the "insurable interest" link between an insurer, policyholder and beneficiary. The US Supreme Court established in 1911 in Grigsby v. Russell that a life insurance policy is the property of the policyholder and is fully transferable. This opinion placed the ownership rights in a life insurance policy on the same legal footing as more traditional investment property such as stocks and bonds. Notwithstanding the court's ruling, the market for life settlements did not gain much traction, or institutional investors, until the 1980s. During the 1980s, the so-called viatical settlement market developed in response to the AIDS crisis. These transactions involved the sale of life insurance policies by persons with a catastrophic or life threatening illness or condition (diagnosed as having a life expectancy of 24 months or less) for an amount less than the death benefit, but more than the cash surrender value, in order to raise funds to pay for end-of-life care. As a result of abuses, legislation was enacted in 1990 to regulate viatical settlements. The viatical market largely evaporated after medical advances dramatically altered the life expectancy of an AIDS diagnosis. Life settlements-or the sale of policies by those not facing a terminal illness--were not regulated in California until legislation was enacted in 2009 (SB 98 Calderon, Chapter 343 Statutes of 2009). In the 2000's, the market for life settlements had taken off, and capital from hedge funds, investment banks and pension funds in search of higher returns began flowing into the life settlement market. The need for enough policies to satisfy investors led to widespread solicitation of seniors to take out life insurance for the sole purpose of selling it. The life insurance industry objected to many life settlement transactions at the time, particularly those transactions referred to as STOLI because they claim they violated the AB 459 (Daly) Page 5 of ? requirement for an insurable interest. Many policies issued prior to enactment of SB 98 have been the subject of litigation by insurers who characterize them as STOLI and have denied benefits when the named insured dies, claiming they were void at issuance because of the lack of an insurable interest by the purchaser. The market for life settlements largely collapsed during the Great Recession, and is slowly rebounding governed by the new statutory requirements. Investors, however, have continued to pay the premium on many policies purchased at the market's height. They have sponsored AB 459 in an attempt to ensure that they will be able to collect on those policies, or stop paying premiums for life insurance policies that are found by the court to be invalid. 3. Support The Institutional Longevity Markets Association supports AB 459 because it will provide much needed certainty to the $30 billion secondary life insurance market. It represents a reasonable and workable compromise that gives investors a legal procedure to immediately determine the validity of a policy prior to its maturation while also preserving the rights of insurers to assert available legal challenges to the policy. Without this legal procedure, investors are frequently left in an untenable position of paying premiums on a policy for many years only to have an insurer challenge the policy's validity when a claim for benefits is ultimately made. 4. Opposition None received. 5. Prior and Related Legislation SB 98 (Calderon, Chapter 343, Statutes of 2009) established regulations for the life settlements market and expressly prohibited STOLI transactions. POSITIONS Support Institutional Longevity Markets Association (sponsor) AB 459 (Daly) Page 6 of ? Oppose None received -- END --