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Senate File 2087

Partial Bill History

Bill Text

PAG LIN
  1  1    Section 1.  NEW SECTION.  507F.1  SHORT TITLE.
  1  2    This chapter shall be known and may be cited as the
  1  3 "Insurance Fraud Civil Remedies Act".
  1  4    Sec. 2.  NEW SECTION.  507F.2  DEFINITIONS.
  1  5    For purposes of this chapter:
  1  6    1.  "Conceal" means to take affirmative action to prevent
  1  7 others from discovering information.
  1  8    2.  "Insurance policy" means an insurance policy as defined
  1  9 in section 507B.2.
  1 10    3.  "Insurance professional" means a person or any other
  1 11 legal entity engaged in the business of insurance, including
  1 12 producers, brokers, adjusters, and third-party administrators.
  1 13    4.  "Insurance transaction" means a transaction by,
  1 14 between, or among an insurer, or a person who acts on behalf
  1 15 of an insurer, and an insured, claimant, applicant for
  1 16 insurance, public adjuster, insurance professional,
  1 17 practitioner, or any person who acts on behalf of any of those
  1 18 persons, for the purpose of obtaining insurance or
  1 19 reinsurance, calculating insurance premiums, submitting a
  1 20 claim, negotiating or adjusting a claim, or otherwise
  1 21 obtaining insurance, self-insurance, or reinsurance, or
  1 22 obtaining the benefits of insurance.
  1 23    5.  "Insurer" means a person engaged in the business of
  1 24 insurance, as defined in section 507A.3.
  1 25    6.  "Premium" includes any premium or consideration paid or
  1 26 payable for coverage under a group or individual insurance
  1 27 policy.
  1 28    7.  "Reckless" means without reasonable belief of the truth
  1 29 of representations made, or, for the purposes of section
  1 30 507E.3, subsection 1, paragraph "c", with a high degree of
  1 31 awareness of probable insolvency.
  1 32    8.  "Withhold" means to fail to disclose facts or
  1 33 information which any law, other than this chapter, requires
  1 34 to be disclosed.  Mere failure to disclose does not constitute
  1 35 withholding if the person failing to disclose reasonably
  2  1 believes that no duty to disclose applies.
  2  2    Sec. 3.  NEW SECTION.  507F.3  UNLAWFUL INSURANCE PRACTICE.
  2  3    Any person who commits, participates in, or aids, abets, or
  2  4 conspires to commit, or solicits another person to commit, or
  2  5 permits the person's employees or agents to commit any of the
  2  6 following acts with an intent to induce reliance, commits an
  2  7 unlawful insurance practice:
  2  8    1.  Presents, causes to be presented, or prepares with
  2  9 knowledge or belief that it will be presented, by or on behalf
  2 10 of an insured, claimant, or applicant to an insurer or
  2 11 insurance professional in connection with an insurance
  2 12 transaction, any information that the person knows to contain
  2 13 false representations, or representations the falsity of which
  2 14 the person has recklessly disregarded, as to any material
  2 15 fact, or that withholds or conceals a material fact,
  2 16 concerning any of the following:
  2 17    a.  The application for, rating of, or renewal of any
  2 18 insurance policy.
  2 19    b.  A claim for payment or benefit pursuant to any
  2 20 insurance policy.
  2 21    c.  Payments made in accordance with the terms of any
  2 22 insurance policy.
  2 23    2.  Presents, causes to be presented, or prepares with
  2 24 knowledge or belief that it will be presented, to or by an
  2 25 insurer or insurance professional, in connection with an
  2 26 insurance transaction, any information that contains false
  2 27 representations as to any material fact, or that withholds or
  2 28 conceals a material fact, concerning any of the following:
  2 29    a.  The solicitation for sale of any insurance policy or
  2 30 purported insurance policy.
  2 31    b.  An application for certificate of authority.
  2 32    c.  The financial condition of any insurer.
  2 33    d.  The acquisition, formation, merger, affiliation, or
  2 34 dissolution of any insurer.
  2 35    3.  Solicits or accepts new or renewal insurance risks by
  3  1 or for an insurer that the person knows was insolvent or the
  3  2 insolvency of which the person recklessly disregards.
  3  3    Sec. 4.  NEW SECTION.  507F.4  CIVIL REMEDIES.
  3  4    1.  A person who suffers an injury to the person's business
  3  5 or property by reason of a violation of section 507F.3,
  3  6 subsection 1, may recover all of the following from the person
  3  7 violating section 507F.3:
  3  8    a.  Any profit, benefit, compensation, or payment received
  3  9 by the person violating section 507F.3 that directly resulted
  3 10 from the violation.
  3 11    b.  Reasonable attorney fees and related legal expenses,
  3 12 including internal legal expenses and court costs.
  3 13    An action maintained under this subsection shall not be
  3 14 certified as a class action and shall not be made part of a
  3 15 class action.
  3 16    2.  A person who suffers an injury to the person's business
  3 17 or property by reason of a violation of section 507F.3,
  3 18 subsection 2, may recover all of the following from the person
  3 19 violating section 507F.3:
  3 20    a.  Any profit, benefit, compensation, or payment received
  3 21 by the person violating section 507F.3 that directly resulted
  3 22 from the violation.
  3 23    b.  Reasonable attorney fees and related legal expenses,
  3 24 including internal legal expenses and court costs.
  3 25    c.  All other pecuniary damages directly resulting from the
  3 26 violation of section 507F.3.
  3 27    d.  Reasonable investigative fees based on a reasonable
  3 28 estimate of the time and expense incurred in the investigation
  3 29 of the violation of section 507F.3.
  3 30    e.  A civil penalty not to exceed forty thousand dollars
  3 31 per violation.
  3 32    An action maintained under this subsection shall not be
  3 33 certified as a class action and shall not be made part of a
  3 34 class action.
  3 35    3.  a.  A violation of section 507E.3, subsection 2, is a
  4  1 violation of section 714.16, subsection 2, paragraph "a".  All
  4  2 the powers conferred upon the attorney general to accomplish
  4  3 the objectives and carry out the duties prescribed pursuant to
  4  4 section 714.16 are also conferred upon the attorney general to
  4  5 enforce section 507E.3, including, but not limited to, the
  4  6 power to issue subpoenas, adopt rules which shall have the
  4  7 force of law, and seek injunctive relief and civil penalties.
  4  8    b.  In seeking reimbursement pursuant to section 714.16,
  4  9 subsection 7, from a person who has committed a violation of
  4 10 section 507E.3, the attorney general may seek an order from
  4 11 the court that the person pay to the attorney general on
  4 12 behalf of consumers the amounts for which the person would be
  4 13 liable under section 507E.3, for each consumer who has a cause
  4 14 of action pursuant to section 507E.3.  Section 714.16, as it
  4 15 relates to consumer reimbursement, shall apply to consumer
  4 16 reimbursement pursuant to this section.
  4 17    4.  Any court in which a civil action has been commenced
  4 18 pursuant to this section may stay or limit proceedings
  4 19 regarding the same or related conduct or may transfer or
  4 20 consolidate the actions or allow the plaintiffs in the actions
  4 21 to participate in the action brought pursuant to this section.
  4 22    5.  An insurer shall not pay damages awarded under this
  4 23 section, or provide a defense or moneys for a defense, on
  4 24 behalf of an insured under a contract of insurance or
  4 25 indemnification.  A third party who has asserted a claim
  4 26 against an insured shall have no cause of action under this
  4 27 section against the insurer of the insured arising out of the
  4 28 insurer's processing or settlement of the third party's claim.
  4 29 An obligee under a surety bond shall not have a cause of
  4 30 action under this section against the surety arising out of
  4 31 the surety's processing or settlement of the obligee's claim
  4 32 against the bond.
  4 33    Sec. 5.  NEW SECTION.  507F.5  EXCLUSIVITY OF REMEDIES.
  4 34    1.  The remedies expressly provided in section 507F.4 shall
  4 35 be the only remedies for violations of this chapter and no
  5  1 additional remedies shall be implied.
  5  2    2.  The remedies available under section 507F.4 shall not
  5  3 be used in conjunction with or in addition to any other
  5  4 remedies available at law or in equity to duplicate recovery
  5  5 for the same element of economic damage.
  5  6    3.  This chapter shall not limit or abrogate any right of
  5  7 action that would have existed in the absence of this chapter,
  5  8 but an action based on such a right shall not rely on this
  5  9 chapter to establish a standard of conduct or for any other
  5 10 purpose.  
  5 11                           EXPLANATION
  5 12    This bill creates new Code chapter 507F, providing civil
  5 13 remedies for insurance fraud.
  5 14    The new Code section 507F.2 provides definitions, including
  5 15 "conceal", "insurance policy", "insurance professional",
  5 16 "insurance transaction", and "withhold".
  5 17    The bill sets out in new Code section 507F.3 circumstances
  5 18 in which the false representation of a material fact or
  5 19 withholding or concealment of a material fact in the
  5 20 application for, claim for payment or benefit pursuant to, or
  5 21 payments made in accordance with any insurance policy are
  5 22 unlawful insurance practices.  A person who acts with reckless
  5 23 disregard for the falsity of representations may also be
  5 24 liable under this section.  Also included as unlawful
  5 25 insurance practices are the solicitation for sale of any
  5 26 insurance policy or purported policy; false representation of
  5 27 a material fact or the withholding or concealing of a material
  5 28 fact in an application for certificate of authority; false
  5 29 representation relating to the financial condition of any
  5 30 insurer, or the acquisition, formation, merger, affiliation,
  5 31 or dissolution of any insurer; and the solicitation or
  5 32 acceptance of new or renewal insurance risks by or for an
  5 33 insolvent insurer.  The Code section makes unlawful any
  5 34 attempt to commit such acts, and any aiding and assisting, or
  5 35 commission or attempted commission of unlawful insurance
  6  1 practices.
  6  2    The bill provides, in new Code section 507F.4, civil
  6  3 remedies for persons injured as a result of violations of the
  6  4 prohibitions against unlawful insurance practices.  The civil
  6  5 remedies for violation of Code section 507F.3, unlawful
  6  6 insurance practices, may include recovery of profit, benefit,
  6  7 compensation, or payment received by the person violating the
  6  8 Code section, as well as attorney fees and legal expenses.
  6  9 The action for civil remedies cannot be certified as, nor made
  6 10 part of, a class action.  Civil remedies for violation of Code
  6 11 section 507F.3, fraudulent insurance practices, include
  6 12 pecuniary damages directly resulting from the violation,
  6 13 reasonable investigative fees, and a civil penalty not to
  6 14 exceed $40,000 per violation.
  6 15    New Code section 507E.4 also deems a violation of Code
  6 16 section 507E.3, subsection 2, as a violation of Code section
  6 17 714.16, subsection 2, paragraph "a", relating to consumer
  6 18 frauds.  The attorney general may seek relief on behalf of
  6 19 consumers in accordance with that Code section.
  6 20    The bill grants the court certain rights to stay and to
  6 21 consolidate actions regarding the same or similar conduct.
  6 22    The bill also prohibits insurers from providing a defense
  6 23 or money for a defense, and limits the rights of third-party
  6 24 claimants and surety bond obligees.
  6 25    The bill provides that the remedies provided in the new
  6 26 Code chapter are the exclusive remedies for the violations set
  6 27 out in the Code chapter.  
  6 28 LSB 5928XS 79
  6 29 jj/cls/14.1
     

Text: SF02086                           Text: SF02088
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