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HOUSE BILL No. 2323
AN ACT concerning fraudulent insurance acts; establishing procedures for a civil action
instituted by the commissioner of insurance and authorizing civil penalties, restitution
and other relief; providing that expunged criminal records will be disclosed in any
application for licensure as an insurance producer or public adjuster if the arrest,
conviction or diversion is for a fraudulent insurance act; including automobile
assigned claims plans in provisions related to fraudulent insurance acts; amending
K.S.A. 21-6614, 40-2,118 and 40-2,119 and repealing the existing sections.
Be it enacted by the Legislature of the State of Kansas:
New Section 1. (a) If the commissioner believes that a person has
committed a fraudulent insurance act, the commissioner may bring a
civil action in the district court of any county in which the defendant
resides or in the district court of any county in which an alleged
fraudulent insurance act occurred. The commissioner shall plead with
particularity the circumstances constituting fraud.
(b) In an action brought pursuant to this section, the burden of
proof shall be on the commissioner to prove by clear and convincing
evidence that the person committed a fraudulent insurance act.
(c) In an action pursuant to this section, if the court finds that the
person committed a fraudulent insurance act, the court may:
(1) Impose a civil penalty of up to $10,000 for each fraudulent
insurance act, which shall be paid into the state general fund;
(2) order the person who engaged in the fraudulent insurance act
to pay restitution to the insurer or automobile assigned claims plan to
the extent of such insurer's or plan's actual pecuniary harm;
(3) order payment of reasonable expenses and investigation fees
incurred by the department of insurance as a result of the fraudulent
insurance act or acts, which shall be paid into the insurance department
service regulation fund; and
(4) order such other relief as the court considers appropriate.
(d) An aggrieved insurer or automobile assigned claims plan shall
not be joined as a party pursuant to K.S.A 60-219 or 60-220, and
amendments thereto, in any action brought pursuant to this section.
(e) The defendant and the commissioner shall be permitted to
present the testimony of witnesses through a two-way electronic audio-
video communication device in actions brought pursuant to this section.
(f) In an action pursuant to this section, a person shall not be
excused from testifying, producing a record or other evidence or
obeying a subpoena on the ground that the required testimony, record
or other evidence, directly or indirectly, may tend to incriminate the
individual or subject the person to a criminal fine, penalty or forfeiture.
If the person refuses to testify, produce a record or other evidence or
obey a subpoena based on the person's privilege against self-
incrimination, the court may compel the testimony, the production of
the record or other evidence or compliance with the subpoena. The
testimony, record or other evidence compelled under such an order
shall not be used, directly or indirectly, against the person in a criminal
case, except in a prosecution for perjury or contempt or otherwise
failing to comply with the court's order.
(g) As used in this section:
(1) "Commissioner" means the commissioner of insurance; and
(2) "fraudulent insurance act" means the same as defined in
K.S.A. 40-2,118, and amendments thereto.
Sec. 2. K.S.A. 21-6614 is hereby amended to read as follows: 21-
6614. (a) (1) Except as provided in subsections (b), (c), (d), (e) and (f),
any person convicted in this state of a traffic infraction, cigarette or
tobacco infraction, misdemeanor or a class D or E felony, or for crimes
committed on or after July 1, 1993, any nongrid felony or felony
ranked in severity levels 6 through 10 of the nondrug grid, or for crimes
committed on or after July 1, 1993, but prior to July 1, 2012, any felony
HOUSE BILL No. 2323—page 2
ranked in severity level 4 of the drug grid, or for crimes committed on
or after July 1, 2012, any felony ranked in severity level 5 of the drug
grid may petition the convicting court for the expungement of such
conviction or related arrest records if three or more years have elapsed
since the person: (A) Satisfied the sentence imposed; or (B) was
discharged from probation, a community correctional services program,
parole, postrelease supervision, conditional release or a suspended
sentence.
(2) Except as provided in subsections (b), (c), (d), (e) and (f), any
person who has fulfilled the terms of a diversion agreement may
petition the district court for the expungement of such diversion
agreement and related arrest records if three or more years have elapsed
since the terms of the diversion agreement were fulfilled.
(3) Notwithstanding the provisions of subsection (a)(1), and
except as provided in subsections (b), (c), (d), (e) and (f), any person
who has completed the requirements of a specialty court program
established pursuant to K.S.A. 20-173, and amendments thereto, may
petition the district court for the expungement of the conviction and
related arrest records. The court may waive all or part of the docket fee
imposed for filing a petition pursuant to this subsection.
(b) Any person convicted of prostitution, as defined in K.S.A. 21-
3512, prior to its repeal, convicted of a violation of K.S.A. 21-6419,
and amendments thereto, or who entered into a diversion agreement in
lieu of further criminal proceedings for such violation, may petition the
convicting court for the expungement of such conviction or diversion
agreement and related arrest records if:
(1) One or more years have elapsed since the person satisfied the
sentence imposed or the terms of a diversion agreement or was
discharged from probation, a community correctional services program,
parole, postrelease supervision, conditional release or a suspended
sentence; and
(2) such person can prove they were acting under coercion caused
by the act of another. For purposes of this subsection, "coercion"
means: Threats of harm or physical restraint against any person; a
scheme, plan or pattern intended to cause a person to believe that
failure to perform an act would result in bodily harm or physical
restraint against any person; or the abuse or threatened abuse of the
legal process.
(c) Except as provided in subsections (e) and (f), no person may
petition for expungement until five or more years have elapsed since
the person satisfied the sentence imposed or the terms of a diversion
agreement or was discharged from probation, a community correctional
services program, parole, postrelease supervision, conditional release or
a suspended sentence, if such person was convicted of a class A, B or C
felony, or for crimes committed on or after July 1, 1993, if convicted of
an off-grid felony or any felony ranked in severity levels 1 through 5 of
the nondrug grid, or for crimes committed on or after July 1, 1993, but
prior to July 1, 2012, any felony ranked in severity levels 1 through 3
of the drug grid, or for crimes committed on or after July 1, 2012, any
felony ranked in severity levels 1 through 4 of the drug grid, or:
(1) Vehicular homicide, as defined in K.S.A. 21-3405, prior to its
repeal, or K.S.A. 21-5406, and amendments thereto, or as prohibited by
any law of another state that is in substantial conformity with that
statute;
(2) driving while the privilege to operate a motor vehicle on the
public highways of this state has been canceled, suspended or revoked,
as prohibited by K.S.A. 8-262, and amendments thereto, or as
prohibited by any law of another state that is in substantial conformity
with that statute;
(3) perjury resulting from a violation of K.S.A. 8-261a, and
amendments thereto, or resulting from the violation of a law of another
state that is in substantial conformity with that statute;
(4) violating the provisions of K.S.A. 8-142 Fifth, and
amendments thereto, relating to fraudulent applications or violating the
HOUSE BILL No. 2323—page 3
provisions of a law of another state that is in substantial conformity
with that statute;
(5) any crime punishable as a felony wherein a motor vehicle was
used in the perpetration of such crime;
(6) failing to stop at the scene of an accident and perform the
duties required by K.S.A. 8-1603, prior to its repeal, or K.S.A. 8-1602
or 8-1604, and amendments thereto, or required by a law of another
state that is in substantial conformity with those statutes;
(7) violating the provisions of K.S.A. 40-3104, and amendments
thereto, relating to motor vehicle liability insurance coverage; or
(8) a violation of K.S.A. 21-3405b, prior to its repeal.
(d) (1) No person may petition for expungement until five or more
years have elapsed since the person satisfied the sentence imposed or
the terms of a diversion agreement or was discharged from probation, a
community correctional services program, parole, postrelease
supervision, conditional release or a suspended sentence, if such person
was convicted of a first violation of K.S.A. 8-1567, and amendments
thereto, including any diversion for such violation.
(2) No person may petition for expungement until 10 or more
years have elapsed since the person satisfied the sentence imposed or
was discharged from probation, a community correctional services
program, parole, postrelease supervision, conditional release or a
suspended sentence, if such person was convicted of a second or
subsequent violation of K.S.A. 8-1567, and amendments thereto.
(3) Except as provided further, the provisions of this subsection
shall apply to all violations committed on or after July 1, 2006. The
provisions of subsection (d)(2) shall not apply to violations committed
on or after July 1, 2014, but prior to July 1, 2015.
(e) There shall be no expungement of convictions for the
following offenses or of convictions for an attempt to commit any of
the following offenses:
(1) Rape, as defined in K.S.A. 21-3502, prior to its repeal, or
K.S.A. 21-5503, and amendments thereto;
(2) indecent liberties with a child or aggravated indecent liberties
with a child, as defined in K.S.A. 21-3503 or 21-3504, prior to their
repeal, or K.S.A. 21-5506, and amendments thereto;
(3) criminal sodomy, as defined in K.S.A. 21-3505(a)(2) or (a)(3),
prior to its repeal, or K.S.A. 21-5504(a)(3) or (a)(4), and amendments
thereto;
(4) aggravated criminal sodomy, as defined in K.S.A. 21-3506,
prior to its repeal, or K.S.A. 21-5504, and amendments thereto;
(5) indecent solicitation of a child or aggravated indecent
solicitation of a child, as defined in K.S.A. 21-3510 or 21-3511, prior to
their repeal, or K.S.A. 21-5508, and amendments thereto;
(6) sexual exploitation of a child, as defined in K.S.A. 21-3516,
prior to its repeal, or K.S.A. 21-5510, and amendments thereto;
(7) internet trading in child pornography or aggravated internet
trading in child pornography, as defined in K.S.A. 21-5514, and
amendments thereto;
(8) aggravated incest, as defined in K.S.A. 21-3603, prior to its
repeal, or K.S.A. 21-5604, and amendments thereto;
(9) endangering a child or aggravated endangering a child, as
defined in K.S.A. 21-3608 or 21-3608a, prior to their repeal, or K.S.A.
21-5601, and amendments thereto;
(10) abuse of a child, as defined in K.S.A. 21-3609, prior to its
repeal, or K.S.A. 21-5602, and amendments thereto;
(11) capital murder, as defined in K.S.A. 21-3439, prior to its
repeal, or K.S.A. 21-5401, and amendments thereto;
(12) murder in the first degree, as defined in K.S.A. 21-3401, prior
to its repeal, or K.S.A. 21-5402, and amendments thereto;
(13) murder in the second degree, as defined in K.S.A. 21-3402,
prior to its repeal, or K.S.A. 21-5403, and amendments thereto;
(14) voluntary manslaughter, as defined in K.S.A. 21-3403, prior
to its repeal, or K.S.A. 21-5404, and amendments thereto;
HOUSE BILL No. 2323—page 4
(15) involuntary manslaughter, as defined in K.S.A. 21-3404,
prior to its repeal, or K.S.A. 21-5405, and amendments thereto;
(16) sexual battery, as defined in K.S.A. 21-3517, prior to its
repeal, or K.S.A. 21-5505, and amendments thereto, when the victim
was less than 18 years of age at the time the crime was committed;
(17) aggravated sexual battery, as defined in K.S.A. 21-3518, prior
to its repeal, or K.S.A. 21-5505, and amendments thereto;
(18) a violation of K.S.A. 8-2,144, and amendments thereto,
including any diversion for such violation; or
(19) any conviction for any offense in effect at any time prior to
July 1, 2011, that is comparable to any offense as provided in this
subsection.
(f) Except as provided in K.S.A. 22-4908, and amendments
thereto, for any offender who is required to register as provided in the
Kansas offender registration act, K.S.A. 22-4901 et seq., and
amendments thereto, there shall be no expungement of any conviction
or any part of the offender's criminal record while the offender is
required to register as provided in the Kansas offender registration act.
(g) (1) When a petition for expungement is filed, the court shall
set a date for a hearing of such petition and shall cause notice of such
hearing to be given to the prosecutor and the arresting law enforcement
agency. The petition shall state the:
(A) Defendant's full name;
(B) full name of the defendant at the time of arrest, conviction or
diversion, if different than the defendant's current name;
(C) defendant's sex, race and date of birth;
(D) crime for which the defendant was arrested, convicted or
diverted;
(E) date of the defendant's arrest, conviction or diversion; and
(F) identity of the convicting court, arresting law enforcement
authority or diverting authority.
(2) Except as otherwise provided by law, a petition for
expungement shall be accompanied by a docket fee in the amount of
$176. On and after July 1, 2019, through June 30, 2025, the supreme
court may impose a charge, not to exceed $19 per case, to fund the
costs of non-judicial personnel. The charge established in this section
shall be the only fee collected or moneys in the nature of a fee collected
for the case. Such charge shall only be established by an act of the
legislature and no other authority is established by law or otherwise to
collect a fee.
(3) All petitions for expungement shall be docketed in the original
criminal action. Any person who may have relevant information about
the petitioner may testify at the hearing. The court may inquire into the
background of the petitioner and shall have access to any reports or
records relating to the petitioner that are on file with the secretary of
corrections or the prisoner review board.
(h) At the hearing on the petition, the court shall order the
petitioner's arrest record, conviction or diversion expunged if the court
finds that:
(1) (A) The petitioner has not been convicted of a felony in the
past two years and no proceeding involving any such crime is presently
pending or being instituted against the petitioner if the petition is filed
under subsection (a)(1) or (a)(2); or
(B) no proceeding involving a felony is presently pending or being
instituted against the petitioner if the petition is filed under subsection
(a)(3);
(2) the circumstances and behavior of the petitioner warrant the
expungement;
(3) the expungement is consistent with the public welfare; and
(4) with respect to petitions seeking expungement of a felony
conviction, possession of a firearm by the petitioner is not likely to
pose a threat to the safety of the public.
(i) When the court has ordered an arrest record, conviction or
diversion expunged, the order of expungement shall state the
HOUSE BILL No. 2323—page 5
information required to be contained in the petition. The clerk of the
court shall send a certified copy of the order of expungement to the
Kansas bureau of investigation that shall notify the federal bureau of
investigation, the secretary of corrections and any other criminal justice
agency that may have a record of the arrest, conviction or diversion. If
the case was appealed from municipal court, the clerk of the district
court shall send a certified copy of the order of expungement to the
municipal court. The municipal court shall order the case expunged
once the certified copy of the order of expungement is received. After
the order of expungement is entered, the petitioner shall be treated as
not having been arrested, convicted or diverted of the crime, except
that:
(1) Upon conviction for any subsequent crime, the conviction that
was expunged may be considered as a prior conviction in determining
the sentence to be imposed;
(2) the petitioner shall disclose that the arrest, conviction or
diversion occurred if asked about previous arrests, convictions or
diversions:
(A) In any application for licensure as a private detective, private
detective agency, certification as a firearms trainer pursuant to K.S.A.
75-7b21, and amendments thereto, or employment as a detective with a
private detective agency, as defined by K.S.A. 75-7b01, and
amendments thereto; as security personnel with a private patrol
operator, as defined by K.S.A. 75-7b01, and amendments thereto; or
with an institution, as defined in K.S.A. 76-12a01, and amendments
thereto, of the Kansas department for aging and disability services;
(B) in any application for admission, or for an order of
reinstatement, to the practice of law in this state;
(C) to aid in determining the petitioner's qualifications for
employment with the Kansas lottery or for work in sensitive areas
within the Kansas lottery as deemed appropriate by the executive
director of the Kansas lottery;
(D) to aid in determining the petitioner's qualifications for
executive director of the Kansas racing and gaming commission, for
employment with the commission or for work in sensitive areas in
parimutuel racing as deemed appropriate by the executive director of
the commission, or to aid in determining qualifications for licensure or
renewal of licensure by the commission;
(E) to aid in determining the petitioner's qualifications for the
following under the Kansas expanded lottery act: (i) Lottery gaming
facility manager or prospective manager, racetrack gaming facility
manager or prospective manager, licensee or certificate holder; or (ii)
an officer, director, employee, owner, agent or contractor thereof;
(F) upon application for a commercial driver's license under
K.S.A. 8-2,125 through 8-2,142, and amendments thereto;
(G) to aid in determining the petitioner's qualifications to be an
employee of the state gaming agency;
(H) to aid in determining the petitioner's qualifications to be an
employee of a tribal gaming commission or to hold a license issued
pursuant to a tribal-state gaming compact;
(I) in any application for registration as a broker-dealer, agent,
investment adviser or investment adviser representative all as defined
in K.S.A. 17-12a102, and amendments thereto;
(J) in any application for employment as a law enforcement officer
as defined in K.S.A. 22-2202 or 74-5602, and amendments thereto; or
(K) to aid in determining the petitioner's qualifications for a
license to act as a bail enforcement agent pursuant to K.S.A. 75-7e01
through 75-7e09, and amendments thereto, and K.S.A. 2024 Supp. 50-
6,141, and amendments thereto; or
(L) in any application for licensure as an insurance producer or
public adjuster, as defined in K.S.A. 40-4901 and 40-5501, and
amendments thereto, and the arrest, conviction or diversion is for one
or more instances of a fraudulent insurance act, as defined in K.S.A.
40-2,118, and amendments thereto;
HOUSE BILL No. 2323—page 6
(3) the court, in the order of expungement, may specify other
circumstances under which the conviction is to be disclosed;
(4) the conviction may be disclosed in a subsequent prosecution
for an offense that requires as an element of such offense a prior
conviction of the type expunged; and
(5) upon commitment to the custody of the secretary of
corrections, any previously expunged record in the possession of the
secretary of corrections may be reinstated and the expungement
disregarded, and the record continued for the purpose of the new
commitment.
(j) Whenever a person is convicted of a crime, pleads guilty and
pays a fine for a crime, is placed on parole, postrelease supervision or
probation, is assigned to a community correctional services program, is
granted a suspended sentence or is released on conditional release, the
person shall be informed of the ability to expunge the arrest records or
conviction. Whenever a person enters into a diversion agreement, the
person shall be informed of the ability to expunge the diversion.
(k) (1) Subject to the disclosures required pursuant to subsection
(i), in any application for employment, license or other civil right or
privilege, or any appearance as a witness, a person whose arrest
records, conviction or diversion of a crime has been expunged under
this statute may state that such person has never been arrested,
convicted or diverted of such crime.
(2) A person whose arrest record, conviction or diversion of a
crime that resulted in such person being prohibited by state or federal
law from possessing a firearm has been expunged under this statute
shall be deemed to have had such person's right to keep and bear arms
fully restored. This restoration of rights shall include, but not be limited
to, the right to use, transport, receive, purchase, transfer and possess
firearms. The provisions of this paragraph shall apply to all orders of
expungement, including any orders issued prior to July 1, 2021.
(l) Whenever the record of any arrest, conviction or diversion has
been expunged under the provisions of this section or under the
provisions of any other existing or former statute, the custodian of the
records of arrest, conviction, diversion and incarceration relating to that
crime shall not disclose the existence of such records, except when
requested by:
(1) The person whose record was expunged;
(2) a private detective agency or a private patrol operator, and the
request is accompanied by a statement that the request is being made in
conjunction with an application for employment with such agency or
operator by the person whose record has been expunged;
(3) a court, upon a showing of a subsequent conviction of the
person whose record has been expunged;
(4) the secretary for aging and disability services, or a designee of
the secretary, for the purpose of obtaining information relating to
employment in an institution, as defined in K.S.A. 76-12a01, and
amendments thereto, of the Kansas department for aging and disability
services of any person whose record has been expunged;
(5) a person entitled to such information pursuant to the terms of
the expungement order;
(6) a prosecutor, and such request is accompanied by a statement
that the request is being made in conjunction with a prosecution of an
offense that requires a prior conviction as one of the elements of such
offense;
(7) the supreme court, the clerk or disciplinary administrator
thereof, the state board for admission of attorneys or the state board for
discipline of attorneys, and the request is accompanied by a statement
that the request is being made in conjunction with an application for
admission, or for an order of reinstatement, to the practice of law in this
state by the person whose record has been expunged;
(8) the Kansas lottery, and the request is accompanied by a
statement that the request is being made to aid in determining
qualifications for employment with the Kansas lottery or for work in
HOUSE BILL No. 2323—page 7
sensitive areas within the Kansas lottery as deemed appropriate by the
executive director of the Kansas lottery;
(9) the governor or the Kansas racing and gaming commission, or
a designee of the commission, and the request is accompanied by a
statement that the request is being made to aid in determining
qualifications for executive director of the commission, for
employment with the commission, for work in sensitive areas in
parimutuel racing as deemed appropriate by the executive director of
the commission or for licensure, renewal of licensure or continued
licensure by the commission;
(10) the Kansas racing and gaming commission, or a designee of
the commission, and the request is accompanied by a statement that the
request is being made to aid in determining qualifications of the
following under the Kansas expanded lottery act: (A) Lottery gaming
facility managers and prospective managers, racetrack gaming facility
managers and prospective managers, licensees and certificate holders;
and (B) their officers, directors, employees, owners, agents and
contractors;
(11) the Kansas sentencing commission;
(12) the state gaming agency, and the request is accompanied by a
statement that the request is being made to aid in determining
qualifications: (A) To be an employee of the state gaming agency; or
(B) to be an employee of a tribal gaming commission or to hold a
license issued pursuant to a tribal-gaming compact;
(13) the Kansas securities commissioner or a designee of the
commissioner, and the request is accompanied by a statement that the
request is being made in conjunction with an application for
registration as a broker-dealer, agent, investment adviser or investment
adviser representative by such agency and the application was
submitted by the person whose record has been expunged;
(14) the Kansas commission on peace officers' standards and
training and the request is accompanied by a statement that the request
is being made to aid in determining certification eligibility as a law
enforcement officer pursuant to K.S.A. 74-5601 et seq., and
amendments thereto;
(15) a law enforcement agency and the request is accompanied by
a statement that the request is being made to aid in determining
eligibility for employment as a law enforcement officer as defined by
K.S.A. 22-2202, and amendments thereto;
(16) (A) the attorney general and the request is accompanied by a
statement that the request is being made to aid in determining
qualifications for a license to act as a bail enforcement agent pursuant
to K.S.A. 75-7e01 through 75-7e09, and amendments thereto, and
K.S.A. 2024 Supp. 50-6,141, and amendments thereto; or
(B) the attorney general for any other purpose authorized by law,
except that an expungement record shall not be the basis for denial of a
license to carry a concealed handgun under the personal and family
protection act; or
(17) the Kansas bureau of investigation, for the purpose of
completing a person's criminal history record information within the
central repository, in accordance with K.S.A. 22-4701 et seq., and
amendments thereto; or
(18) the Kansas insurance commissioner or a designee of the
commissioner, and the request is accompanied by a statement that the
request is being made in conjunction with an application for licensure
as an insurance producer or public adjuster, as defined in K.S.A 40-
4901 and 40-5501, and amendments thereto, and the arrest, conviction
or diversion is for one or more instances of a fraudulent insurance act,
as defined in K.S.A. 40-2,118, and amendments thereto.
(m) (1) The provisions of subsection (l)(17) shall apply to records
created prior to, on and after July 1, 2011.
(2) Upon the issuance of an order of expungement that resulted in
the restoration of a person's right to keep and bear arms, the Kansas
bureau of investigation shall report to the federal bureau of
HOUSE BILL No. 2323—page 8
investigation that such expunged record be withdrawn from the national
instant criminal background check system. The Kansas bureau of
investigation shall include such order of expungement in the person's
criminal history record for purposes of documenting the restoration of
such person's right to keep and bear arms.
Sec. 3. K.S.A. 40-2,118 is hereby amended to read as follows: 40-
2,118. (a) For purposes of this act , a "fraudulent insurance act" means
an act committed by any person who, knowingly and with intent to
defraud, presents, causes to be presented or prepares with knowledge or
belief that it will be presented to or by an insurer, purported insurer,
broker or any agent thereof, or the Kansas automobile assigned claims
plan, any written, electronic, electronic impulse, facsimile, magnetic,
oral, or telephonic communication or statement as part of, or in support
of, an application for the issuance of, or the rating of an insurance
policy for personal or commercial insurance, or a claim for payment or
other benefit pursuant to an insurance policy for commercial or
personal insurance or automobile assigned claims plan that such person
knows to contain materially false information concerning any fact
material thereto; or conceals, for the purpose of misleading,
information concerning any fact material thereto.
(b) An insurer or automobile assigned claims plan that has
knowledge or a good faith belief that a fraudulent insurance act is being
or has been committed shall provide to the commissioner, on a form
prescribed by the commissioner, any and all information and such
additional information relating to such fraudulent insurance act as the
commissioner may require.
(c) Any other person who has knowledge or a good faith belief
that a fraudulent insurance act is being or has been committed may
provide to the commissioner, on a form prescribed by the
commissioner, any and all information and such additional information
relating to such fraudulent insurance act as the commissioner may
request.
(d) (1) Each insurer and automobile assigned claims plan shall
have antifraud initiatives reasonably calculated to detect fraudulent
insurance acts. Antifraud initiatives may include fraud investigators,
who may be insurer employees or independent contractors and an
antifraud plan submitted to the commissioner not later than July 1,
2007. Each insurer and automobile assigned claims plan that submits
an antifraud plan shall notify the commissioner of any material change
in the information contained in the antifraud plan within 30 days after
such change occurs. Such insurer or automobile assigned claims plan
shall submit to the commissioner in writing the amended antifraud plan.
(2) Any antifraud plan, or any amendment thereof, submitted to
the commissioner for informational purposes only shall be confidential
and not be a public record and shall not be subject to discovery or
subpoena in a civil action unless following an in camera review, the
court determines that the antifraud plan is relevant and otherwise
admissible under the rules of evidence set forth in article 4 of chapter
60 of the Kansas Statutes Annotated, and amendments thereto.
(e) Except as otherwise specifically provided in K.S.A. 44-5,125,
and amendments thereto, and K.S.A. 21-5812(a), and amendments
thereto, a fraudulent insurance act shall constitute a severity level 6,
nonperson felony if the amount involved is $25,000 or more; a severity
level 7, nonperson felony if the amount involved is at least $5,000 but
less than $25,000; a severity level 8, nonperson felony if the amount
involved is at least $1,000 but less than $5,000; and a class C
nonperson misdemeanor if the amount involved is less than $1,000.
Any combination of fraudulent acts as defined in subsection (a) that
occur in a period of six consecutive months and that involve $25,000 or
more shall have a presumptive sentence of imprisonment regardless of
its location on the sentencing grid block.
(f) In addition to any other penalty, a person who violates this
statute shall be ordered to make restitution to the insurer or any other
person or entity for any financial loss sustained as a result of such
HOUSE BILL No. 2323—page 9
violation. An insurer shall not be required to provide coverage or pay
any claim involving a fraudulent insurance act.
(g) For the purposes of this section:
(1) "Amount involved" means the greater of: (A) The actual
pecuniary harm resulting from the fraudulent insurance act; (B) the
pecuniary harm that was intended to result from the fraudulent
insurance act; or (C) the intended pecuniary harm that would have been
impossible or unlikely to occur, such as in a government sting operation
or a fraud in which the claim for payment or other benefit pursuant to
an insurance policy exceeded the allowed value. The aggregate dollar
amount of the fraudulent claims submitted to the insurance company
shall constitute prima facie evidence of the amount of intended loss and
is sufficient to establish the aggregate amount involved in the
fraudulent insurance act, if not rebutted; and
(2) "pecuniary harm" means harm that is monetary or that
otherwise is readily measurable in money, and does not include
emotional distress, harm to reputation or other non-economic harm.
(h) This act shall apply to all insurance applications, ratings,
claims and other benefits made pursuant to any insurance policy or
automobile assigned claims plan.
Sec. 4. K.S.A. 40-2,119 is hereby amended to read as follows: 40-
2,119. In the absence of fraud, bad faith or malice, no person or, insurer
or automobile assigned claims plan shall be subject to civil liability for
libel, slander or any other relevant cause of action:
(a) For filing reports or furnishing other information required by
chapter 40 of the Kansas Statutes Annotated, and amendments thereto,
or required by the commissioner under the authority granted in chapter
40 of the Kansas Statutes Annotated, and amendments thereto;
(b) for any information relating to suspected fraudulent insurance
acts furnished to or received from law enforcement officials, their
agents and employees;
(c) for any information relating to suspected fraudulent insurance
acts furnished to or received from other persons subject to the
provisions of chapter 40 of the Kansas Statutes Annotated, and
amendments thereto;
(d) for any such information furnished in reports to the insurance
department, regulatory agencies of any other state, the national
association of insurance commissioners or any organization established
to detect and prevent fraudulent insurance acts, their agents, employees
or designees; or
(e) for the publication of any report or bulletin related to the
official activities of the insurance department by the commissioner or
any employee of the insurance department. Nothing herein is intended
to abrogate or modify in any way any common law or statutory
privilege or immunity heretofore enjoyed by any person.
HOUSE BILL No. 2323—page 10
Sec. 5. K.S.A. 21-6614, 40-2,118 and 40-2,119 are hereby
repealed.
Sec. 6. This act shall take effect and be in force from and after its
publication in the statute book.
I hereby certify that the above BILL originated in the House, and passed
that body
HOUSE concurred in
SENATE amendments __________________________________________________________________
Speaker of the House.
Chief Clerk of the House.
Passed the SENATE
as amended
President of the Senate.
Secretary of the Senate.
APPROVED ______________________________________________________________________________
Governor.