BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON INSURANCE
                             Senator Richard Roth, Chair
                                2015 - 2016  Regular 

          Bill No:              AB 459        Hearing Date:    June 10,  
          2015
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          |Author:    |Daly                                                 |
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          |Version:   |February 23, 2015    Introduced                      |
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          |Urgency:   |No                     |Fiscal:    |No               |
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          |Consultant:|Erin Ryan                                            |
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            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) 








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           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. 








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           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  








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              (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  








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              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)  









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          Oppose
               
          None received


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