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Click here for the full text of this decision FACTS: Employers Reinsurance Corp. appeals a summary judgment granted in favor of its insured, Threlkeld & Co. Insurance Agency (TCI). The sole issue on appeal is whether the act of selling a viatical settlement constitutes the “business of insurance,” thereby invoking coverage under TCI’s professional liability policy. HOLDING: Reversed and remanded. Employers presents one issue: Does the act of selling a viatical settlement constitute the “business of insurance” as contemplated in the professional liability policy issued by Employers to TCI? Insurance is a contract by which one party, for consideration, assumes particular risks on behalf of another party and promises to pay him a certain or ascertainable sum of money on the occurrence of a specified contingency. Stewart Title Guar. Co. v. Cheatham, 764 S.W.2d 315 (Tex. App. � Texarkana 1988, writ denied). In other words, the buyer of an insurance policy forgoes current consumption in order to protect against future risk. Another essential characteristic of insurance is risk-pooling. None of these characteristics which define insurance are present in the viatical settlement agreement between First Financial and the individual investors. The terminally ill person, who was the insured, did not forgo current consumption; in fact, he opted for current consumption. This is diametrically opposed to the concept of insurance because in a viatical settlement, the insured immediately receives the protection for which he initially contracted, albeit at a discounted amount. Furthermore, any risk involved when the policy was purchased was removed as a result of the terminal illness and shortened life span. Finally, the individual investors did not risk-pool. There is no evidence in the record that the individuals who invested in the viatical settlements pooled the financial risk that the seller will live longer than expected. Therefore, a viatical settlement is not an insurance policy, and the business of selling fractional interests in insurance policies is no part of the “business of insurance.” The court finds no federal or state authority which holds or mandates that the selling of viatical settlements constitutes “the business of insurance.” However, TCI contends that its activities in soliciting the individual investors in its capacity as an agent for First Financial constituted the “business of insurance” as defined in the Texas Insurance Code. See �101.051. First Financial received a commission from the total amount invested by the investors as a result of structuring the viatical settlement and did not receive premium payments from them. Therefore, First Financial’s payment of premiums to the life insurance company did not result in TCI’s “receiving or collecting consideration for insurance” as contemplated by the Texas Insurance Code. The insurance commissioner does not consider First Financial to be an insurer; therefore, the court also declines TCI’s invitation to treat First Financial as an insurer. Based upon the history of article 3.50-6A of the Insurance Code, there is nothing indicating that selling viatical settlement agreements is part of the “business of insurance.” TCI’s act of selling a viatical settlement on behalf of First Financial did not constitute the “business of insurance” nor was it an act contemplated by its professional liability policy with Employers. OPINION: Worthen, C.J.

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