Studies, Reports, and Articles on Insurance Issues and Industry Practices

by United Policyholders

Our purpose is to collect data from disaster survivors on insurance claims and recovery progress at various intervals; identify coverage issues, individual and common problems and solutions, assess the pace of recovery and the claims handling performance of the various insurers in the region. We also survey the insurance marketplace from time to time to gather data on availability and affordability.

by United Policyholders and Jay M. Feinman, Distinguished Professor of Law, Rutgers-Camden

Survey of policyholder rights and remedies for tortious breach of an insurance contract in all 50 states. Excerpt: “The legal protections and remedies available to insureds that are harmed by unreasonable conduct by insurers vary widely from state to state. This UP report surveys the law in all 50 states that defines rules that apply to insurers’ claim practices and the available remedies for when these rules are violated.” (October 2014)

By U.S. Senator Bill Cassidy, M.D. (R-LA)

As every Louisianian knows, the end of summer marks the beginning of hurricane season. While we have all battened down the hatches and endured our share of storms, we understand the enormous destruction that they can inflict. We also understand the immense effort and cost required to rebuild the communities that are impacted by such storms.

United Policyholders contributed input to the Task Force that issued this report.

The Flood Insurance Premium Assistance Task Force (Task Force) was established through section 1.1 of Act 22 (P.L. 154. No. 22) in November 2023. The Task Force was created to review and analyze existing statutes, procedures, practices, processes, and rules relating to the administration of flood insurance in Pennsylvania. Seven individuals comprised the Task Force including two state Representatives, two state Senators, representatives from both the Department of Banking and Securities and Pennsylvania Emergency Management Agency (PEMA), and the Pennsylvania Insurance Commissioner serving as chairperson.

Presented by: Climate and Community Institute

Every year, more people across the United States brace for climate disasters — all while home insurance protections shrink and become increasingly unaffordable, or even totally unavailable, for households. These protection gaps can cause personal tragedies for homeowners and may also lead to wider financial crises if mortgage defaults grow and spread. Meanwhile, renters and other households confront future uncertainties with even more limited protections, and public coffers face strains as growing insurance gaps increase expectations for post-facto disaster response programs.

by Daniel Schwarcz, University of Minnesota Law School

Over the last decade, homeowners insurance markets nationwide have experienced unprecedented instability due to climate change. These disruptions, which are likely to accelerate in the coming years, risk destabilizing real estate markets, triggering financial instability, and undermining the nation’s resilience to climate change. Despite these massive stakes, federal and state reforms to date have largely failed to result in more accessible and affordable homeowners insurance coverage that promotes climate change resilience. This Article offers a new way forward, arguing that today’s troubled homeowners insurance markets resemble the broken state health insurance markets that pre-dated the 2010 passage of the Affordable Care Act (ACA), also known as Obamacare. For that reason, Obamacare offers a compelling initial template for reforming homeowners insurance markets in a time of climate change. This template begins with the principle that the federal government should play a major role in regulating homeowners insurance markets due to their national importance. However, rather than completely displacing existing state insurance regulation, federal reform should embrace a cooperative federalism model patterned on the ACA. This model would rely on federal law to establish key rules for selling, underwriting, pricing, and subsidizing homeowners insurance, while allowing states to implement and customize these rules to their local markets. Substantively, it would require homeowners insurers to offer coverage that meets comprehensive federal minimum standards and to avoid discrimination that does not plausibly promote social goals like climate change resilience. At the same time, Obamacare-based reform to homeowners insurance markets would dispense with heavy-handed state regulation of insurers’ rates, instead relying on managed competition among private insurers via state-run insurance exchanges. It would also rely on progressive subsidies to ensure that coverage remained affordable for low-income purchasers. While these reforms would of course need to be adapted to the homeowner insurance setting, Obamacare ultimately offers a powerful and underappreciated model for ensuring that homeowners insurance markets equitably promote climate change resilience in the decades to come.

by Jay M. Feinman, Rutgers Law School

Insurance for catastrophes is failing. Major insurers have stopped writing new homeowners policies in several states and premiums in many states have increased dramatically. The phenomenon is not new. Private insurance companies withdrew flood and earthquake coverage decades ago. When insurance against catastrophes is unavailable, the consequences for individual property owners, communities, and the national economy are dramatic.

When the private market is perceived to fail, governments sometimes enact public programs in response. For example, the National Flood Insurance Program was established when almost all private insurers excluded flood coverage under homeowners policies, creating a huge protection gap for coastal communities and other flood-prone properties.

This paper offers no solutions to the failures of private insurance against catastrophes. Nor does it evaluate any current public solutions. Instead, it frames questions. In designing public solutions to catastrophe insurance failures, what precisely is the problem to be solved? Which risks should be included? How should prices be set? And so on. The value of the project is that without asking the right questions, arriving at the right answer is purely a matter of chance.

When addressing any particular insurance failure, moreover, answering the right questions does not lead to a single “right” answer. One of the most important questions is, “What are the goals of insurance?” Insurance is a financial transaction of risk transfer and risk pooling, but it never is solely a financial transaction. Every form of insurance embodies social values and serves public policy goals. Responding to the questions in this paper in a particular context involves choices among values and goals that are economic, social, political, and even moral.

by Consumer Federation of America (CFA)

Hispanic and Black Homeowners Disproportionately Harmed, As Well As Lower-Income Owners and Those Owning Manufactured Homes

A new report by Consumer Federation of America (CFA) reveals that over six million homeowners lack homeowners insurance, leaving them dangerously unprotected from natural disasters and other significant damage that might happen to their homes. The report estimates that 7.4% of all homeowners in the country are uninsured, accounting for at least $1.6 trillion in unprotected market value. Known as “going bare,” CFA warned that the problem of uninsured homes is likely to get worse in coming years without significant investments in climate change adaptation and stronger oversight of the insurance industry.

“Being uninsured poses a potential threat not only to individual homeowners but also to communities and our national housing stock,” CFA explains in EXPOSED: A Report on 1.6 Trillion Dollars of Uninsured American Homes. “Being uninsured can foster deeper economic precarity for millions of homeowners across the country, especially those with lower incomes, and it is an important contributor to racial inequality. Inequalities in who has homeowners insurance will likely widen the long-standing racial wealth gap, as uninsurance disproportionately impacts Hispanic, Black, and Native American homeowners. Over time, insurance access is likely to become a key decider of who can fully reap the benefits of homeownership, including maintaining their home and building wealth.”

by Kenneth S. Klein

“Social Inflation” is a term that insurance industry spin doctors came up with to advance their longstanding national tort reform campaign to alter state laws to make it harder and more uneconomical for policyholders to hire lawyers and sue insurance companies for unfair sales and claim practices.  United Policyholders believes that consumer legal rights, the contingency fee system, and laws that allow for the recovery of penalties against insurance companies are critical to deterring and remedying abuses and unfair practices.  We oppose efforts to weaken policyholders’ legal rights and remedies and make it even harder than it already is for individuals to hold powerful, well-resourced insurers accountable for failing to uphold their obligations to their customers.

The research underlying this paper led to the conclusion that insurer’s  calls for legal system reform—whether they be limits on recoverable damages, attorney advertising, litigation financing, or other related proposals lack the empirical support and analytical comprehensiveness for regulators and legislators to act with confidence that the requested reforms will do more good than harm.  To date, insurers’ claims that limiting consumer legal rights and lawsuits will lead to lower premiums have not proven true. See: https://www.palmbeachpost.com/story/news/2023/03/16/florida-lawmakers-property-insurance-reforms-have-not-brought-relief/69975950007/

by Kenneth S. Klein

This article presents a novel data set describing the frequency of materially inadequate homeowner insurance in the event of a total loss. For decades, after a natural disaster, large percentages of homeowners who have lost their homes report suffering a second devastating loss­that, entirely to their surprise, they are vastly underinsured. These reports provocatively suggest that a large majority of all insured homes in the United States-not just homes destroyed by a natural disaster-might be profoundly, unknowingly, and unintentionally underinsured. Insurance companies reject this possibility. Insurers posit that underinsurance is rare, that other than after natural disasters it may be almost unheard of, and that no matter when it occurs, homeowners are at best complicit. Until now, there has not been robust data that could resolve insurers’ and insureds’ competing narratives.

by Congressional Research Service

The Congressional Research Service (CRS) has published a thorough report on “Private Flood Insurance and the National Flood Insurance Program.” The report explores issues and barriers to private flood insurance adoption – like the continuous coverage clause – and effects on the market of ongoing increases in flood – like variable consumer protections.

• CRS has also released a useful NFIP overview – “A Brief Introduction to the National Flood Insurance Program in the 118th Congress”

(An Update to the March 2020 study, How the Cash Rich Insurance Industry Fakes Crises and Invents Social Inflation)

by Joanne Doroshow, Executive Director, Center for Justice & Democracy, Douglas Heller, Director of Insurance, Consumer Federation of America (CFA), and J. Robert Hunter, Insurance Director Emeritus, CFA

In early March 2020 — days before the COVID pandemic hit — the Center for Justice & Democracy (CJ&D) and Consumer Federation of America (CFA) released How the Cash Rich Insurance Industry Fakes Crises and Invents Social Inflation1 (hereinafter referred to as Fake Social Inflation). At that point in time, businesses were seeing insurance rates increase (also known as a “hard market”) after 13 years of low or stable rates (also known as a “soft market”). The CJ&D and CFA study documented in significant detail how the overcapitalized property/casualty insurance industry was charging many businesses far too much in premiums while threatening even greater increases, all while attempting to create the perception that it was too financially troubled to pay claims and blaming a concept they invented: “social inflation.”

by Siddhartha Biswas, Mallick Hossain & David Zink

This paper examines the impact of wildfires on mortgage repayment using novel data that combine property-level damages and mortgage performance. We find that 90-day delinquencies were 4 percentage points higher and prepayments were 16 percentage points higher for properties that were damaged by wildfires compared to properties 1 to 2 miles outside of the wildfire perimeter, which suggests higher risks to mortgage markets than found in previous studies. We find no significant changes in delinquency or prepayment for undamaged properties inside a wildfire boundary. Prepayments are not driven by increased sales or refinances, suggesting insurance claims drive prepayment. Almost 40 percent of affected households receive insurance settlements lower than the estimated replacement costs that define coverage limits. This underpayment and the resulting deficits imply that households receive about $200,000 to $300,000 less than their entitled amount under California law.

by David Princeton

Appraisal has played an important role in shaping the insurance industry. It has been used as a means of resolving value disputes between policyholders and insurers for hundreds of years. Appraisal is a contractual dispute resolution process that determines the cost of repair or replacement using professional appraisers. The information these professionals provide is critical in helping insurance companies and policyholders accurately assess and compensate claims to resolve valuation disputes.

by Parinitha Sastry, Ishita Sen & Ana-Maria Tenekedjieva

This paper studies how homeowners insurance markets respond to growing climate losses and how this impacts mortgage market dynamics. Using Florida as a case study, we show that traditional insurers are exiting high risk areas, and new lower quality insurers are entering and filling the gap. These new insurers service the riskiest areas, are less diversified, hold less capital, and 20 percent of them become insolvent. We trace their growth to a lax insurance regulatory environment. Yet, despite their low quality, these insurers secure high financial stability ratings, not from traditional rating agencies, but from emerging rating agencies. Importantly, these ratings are high enough to meet the minimum rating requirements set by government-sponsored enterprises (GSEs). We find that these new insurers would not meet GSE eligibility thresholds if subjected to traditional rating agencies’ methodologies. We then examine the implications of these dynamics for mortgage markets. We show that lenders respond to the decline in insurance quality by selling a large portion of exposed loans to the GSEs. We quantify the counterparty risk by examining the surge in serious delinquencies and foreclosure around the landfall of Hurricane Irma. Our results show that the GSEs bear a large share of insurance counterparty risk, which is driven by their mis-calibrated insurer eligibility requirements and lax insurance regulation.

United Policyholders is a member of the Coalition that issued this report.

Flooding is the most common naturally occurring disaster in the United States (Federal Emergency Management Agency, 2020), with 99% of U.S. counties having experienced at least one flood event from 1996 to 2019 (Federal Emergency Management Agency, n.d.). Nationally, flood risk is projected to increase. The Government Accountability Office (GAO), reporting findings of the Fourth National Climate Assessment, noted increasing flood risk is forecast to expose more than $1 trillion in developed domestic coastal infrastructure and property to inundation (Gomez, 2019).

by Jay M. Feinman

Effective homeowners insurance is key to the American economy and society. People rely on their homeowners insurance for financial and emotional security. Homeowners insurance serves social ends, too. It promotes homeownership by enabling mortgage lending through the security it provides for the lender. It provides incentives for risk reduction and mitigation. Through all of these steps, homeowners insurance helps build communities and promote economic growth.

by Eileen Appelbaum

Private equity (PE) firms have had their eye on individual retirement savings since 2013 when they were first allowed to market directly to individuals. Pension funds already allocate workers’ retirement savings to PE firms, which use these assets to fund a range of risky equity and debt investments. Access to personal retirement savings, including IRAs and 401(k)s, would open up a huge new source of capital for PE.

by United Policyholders

Insurance funds are critical for people and communities to repair, rebuild and regain financial health after a catastrophic event. Based on the insurance claim experiences that Oregon residents are reporting to United Policyholders, it is clear that more needs to be done in the state to deter and prevent unfair practices.

In early September, 2022 a wildfire survivor contacted United Policyholders to alert our organization that the adjuster who’d been very competently handling her 2021 claim had contacted her in tears to notify her that she’d just been terminated. The survivor connected United Policyholders with the terminated adjuster, an experienced claim professional who had been adjusting losses in Oregon and California for a major insurer, (including the wildfire survivor’s claim).

by United Policyholders

By Chip Merlin, Merlin Law Group

Colorado passed very pro-consumer legislation stopping insurance companies from overusing the cooperation clause in property insurance policies. Denver based Merlin Law Group attorney Jon Bukowski explained that some insurance defense counsel have aggressively used the cooperation clause in property insurance policies as a sword in an attempt to obtain a forfeiture of insurance policy benefits.

Study Prepared By Peloton Research + Economics

The Camp Fire was the most destructive wildfire in California’s history and the costliest disaster in the world during 2018. A total of 86 lives were lost during the fire’s rampage along with an excess of $20 billion dollars of property damage. The loss of over 18,000 structures, including homes and businesses, led to the temporary displacement of approximately 56,000 residents and longer-term displacement of over 20,000 residents. The majority of long-term displaced residents fled the Town of Paradise, where nearly 95% of the community’s structures were damaged and destroyed.

Study Prepared By Marsh & McLennan Companies

Maps from antiquity referred to uncharted territories as “terra incognita,” showing sketchy outlines of lands not yet known. Organizations today face their own terra incognita as they strive to navigate complex global risks. Many are using their captive insurance companies to help pilot them through the COVID-19 pandemic, a challenging
insurance market, and other risks.

by Kenneth S. Klein*

In 2020, the United States suffered a record number of named storms, a record number of storms causing $1 billion or more in damage, a derecho that destroyed much of Iowa’s corn crop, and previously unheard-of levels of wildfire frequency and damage in California, Oregon, and Washington. The effects of climate change are causing a crisis of affordable, available homeowner insurance. As more and more homes in the United States are in high-risk areas for natural catastrophes, insurers increasingly choose not to offer insurance at all in some communities, exclude disaster risks from coverage in others, and dramatically raise prices in still others. For ever-growing numbers of homeowners, the only option is an inadequate and unattractive public insurance product of last resort. As a result, growing numbers of climate change survivors are finding there is no way home.

By Kai0Uwe Schanz, Senior Advisor and Director Socio-Economic Resilience, The Geneva Association

The Geneva Association commissioned a global customer survey designed to identify the main obstacles to insurance purchases. The geographical scope included the mature insurance markets of the United States, the United Kingdom, France, Germany, Italy, Japan and Switzerland, with a particular product focus on residential property insurance, voluntary private health insurance, term life insurance and retirement annuities.

By David Stearrett, Flood Insurance Advocate

The Office of the Flood Insurance Advocate (OFIA) seeks to reduce the complexity of the National Flood Insurance Program (NFIP) with compassion and fairness. This report details five areas of customer frustration related to the NFIP that warrant a systemic solution. The OFIA identified the issues while assisting customers with their questions and concerns.

By United Policyholders and Professor Jay M. Feinman, Rutgers Law School Center for Risk and Responsibility

Every state regulates homeowners insurance and insurance companies, but states differ dramatically in how much and what kind of regulation they provide for the benefit of policyholders. The Essential Protections provide a roadmap in four categories that every state can follow in improving homeowners insurance – Essential Protections When Buying Insurance, Essential Protections for Coverage, Essential Protections in the Claims Process, and Essential Protections for Disaster Victims.

By Ken Klein, Professor of Law, California Western School of Law. Louis & Hermione Brown Professorship in Preventative Law

By Professor Jay M. Feinman, Rutgers Law School Center for Risk and Responsibility

The California Earthquake Authority (CEA) is a one-off, public catastrophe-insurance organizations often seem to be that—formed to replace dysfunctional private insurance markets—but each unique to its own political and economic setting.

By The California Department of Insurance

By Ian P. Davies, Ryan D. Haugo, James C. Robertson, Phillip S. Levin

By Amy Bach and Dan Wade

California is way ahead of other states with regard to decisional, statutory and regulatory protections for policyholders…especially in the aftermath of disasters. And while this has been the case for years, many CAT adjusters that come in from out of state and even national insurance companies remain in the dark about them. So much so that the CA Insurance Commissioner had to issue a special alert in November 2017 listing the protections. This article appeared in FORUM, the magazine of the Consumer Attorneys of California in February 2018.

By Kevin Pollack, Esq. (Merlin Law Group) and UP Staff Attorney Daniel Wade

Homeowner insurance policies typically include limited water damage coverage, further limited by reporting requirements, which can eviscerate coverage if it is not timely reported. This article examines the types of exclusions one may encounter and argues that such policy language wrongly forces many water claims within the exclusion for “gradual seepage” simply because the homeowner does not discover there is a leak until there are visible signs such as mold. The authors survey case law, discuss the use of experts in resolving these disputes, and propose a “discovery rule” in which the time for reporting only begins to run when the policyholder discovers the damage. This article appeared in the Summer 2017 edition of the American Association for Justice’s Insurance Law Section Newsletter.

By Professor Tom Baker, University of of Pennsylvania Law School and Benedict G. C. Dellaert, Eramsmuc School of Economics (Institute for Law and Economics, University of Pennsylvania)

Automated financial product advisors – “robo advisors” – are emerging across the financial services industry, helping consumers choose investments, banking products, and insurance policies. Robo advisors have the potential to lower the cost and increase the quality and transparency of financial advice for consumers. But they also pose significant new challenges for regulators who are accustomed to assessing human intermediaries. A well-designed robo advisor will be honest and competent, and it will recommend only suitable products. Because humans design and implement robo advisors, however, honesty, competence, and suitability cannot simply be assumed. Moreover, robo advisors pose new scale risks that are different in kind from the risks involved in assessing the conduct of thousands of individual actors. This essay identifies the core components of robo advisors, key questions that regulators need to be able to answer about them, and the capacities that regulators need to develop in order to answer those questions. The benefits to developing these capacities almost certainly exceed the costs, because the same returns to scale that make an automated advisor so cost-effective lead to similar returns to scale in assessing the quality of automated advisors.

By Professor Jay M. Feinman, Rutgers Law School Center for Risk and Responsibility

UP partnered with Rutgers University Law School Professor and advisor Jay M. Feinman to research how different states treat the issue of matching and uniform appearance under a replacement cost policy. In many cases, a policyholder will suffer damage to a part of their home that cannot be “spot” repaired. For example, if a roof or siding is partially damaged and the damage cannot be repaired in a manner that constitutes uniform appearance, the insurance company should pay to replace even the undamaged portion of the property. However, this is not always (or often) the case. Many policyholders end up with patchwork repairs that lower the value of their home. This survey/memo was intended to show the differing approaches to state regulators, legislators, and courts have taken to address this common claim issue.

The Independent Insurance Agents and Brokers of America (The Big “I”) and Swiss Re Corporate Solutions asked attorneys who specialize in the defense of insurance agent professional liability claims to draft a brief synopsis outlining an insurance agent’s standard of care in their states. Those summaries are now available on the Web. The attached document provides links to each of the state summaries, which are available for every state except Arizona, Hawaii, North Dakota, Oregon and Rhode Island. The compilation document (but not the summaries themselves) was prepared by Brent Winans, CPCU, ARM of Clear Advantage Risk Management.

by Wells Media Group (via Insurance Journal)

Conditional renewal statutes and administrative rules are called “conditional” because the majority of these statutes apply only when there is a change in a provision or condition that adversely affects the insured. The adverse conditions that trigger these statutes vary greatly from state to state. (2015)

by National Association of Insurance Commissions, Sharing Economy Working Group

Addresses the insurance coverage gaps associated with ridesharing services offered by Transportation Network Companies (TNCs) such as Sidecar, Lyft and Uber. The white paper was issued to assist state insurance regulators and state legislators throughout the United States who are considering how best to address insurance coverage gaps associated with TNCs and ridesharing. Legislation is pending in at least 35 states. (2015)

by Consumer Union, published in Consumer Reports

The way insurers set prices is shrouded in secrecy and rife with inequities.  Consumers Union studied more than 2 billion price quotes to understand the factors that raise rates.  This report discusses that research and what you can do to keep yours low. (Septmember, 2015)

by United Policyholders

This report shows that as insurers make outsized profits, policyholders in New York have little legal recourse to challenge unfair claim settlement practices. Insurers profits from the sale of homeowners insurance in New York have been much greater than the rest of the nation, even in the aftermath of devastating property damage from recent weather events. Yet the customers who pay the premiums that generate those profits in New York remain disenfranchised. Unlike the residents of almost every other state, New York policyholders are virtually powerless to use the legal system to recover in full from a recalcitrant insurance company unless they’re wealthy enough to pay a lawyer by the hour. These findings come from United Policyholders’ review of two key indicators of insurance company profitability published in the annual Profitability Report of the National Association of Insurance Commissioners, and our work with disaster survivors in New York. (June 2015)

By: Amy Bach and Dan Wade

The above-titled article appeared in the Spring 2015 edition of the American Bar Association’s Property Insurance Law Committee’s newsletter. In the article, Bach and Wade explore the history of anti-concurrent causation clauses (“ACC”) in residential insurance policies and the effect they have on coverage for loss or damage involving multiple combined perils (e.g., wind and water in a hurricane). Bach and Wade discuss alternatives to the ACC and important pending litigation. A version of the article entitled: Anti-Concurrent Clauses: Exclusion Causing Much Confusion previously appeared in the American Association for Justice Insurance Law Section’s Winter 2015 Newsletter (Winter-Spring 2015)

By: Amy Bach and Dan Wade

The above-titled article appeared in the Fall 2015 edition of the the American Association for Justice Insurance Law Section’s Newsletter. The article explores “tripartite” relationship, when an insured may be entitled to independent counsel, both in the scenario where an insurer defends despite possible coverage issues and where an insurer must defend multiple insureds under the same policy, with emphasis on California’s Cumis rule. (Fall 2015)

By: Lorie S. Masters, Amy Bach, and Dan Wade

As the ALI (a group of law professors and lawyers who make treatises on various areas law for use in law schools and for judges) considers the rules governing the insurer-insured relationship, UP and advisor Lorie S. Masters of Perkins Coie offered their perspectives for Lexis Nexis. Topics discussed in the paper include contract interpretation, the duty to defend, the duty settle, fraud, and misrepresentation. UP and Masters stressed the importance of treating insurance policies as different from other contracts because they involve certain equities, including piece of mind and economic security for which an insurance policy is purchased. (Fall 2015)

By Frederick C. Berry ., J.D., C.P.C.U., C.L.U

A uniform law proposed by the National Association of Insurance Commissioners (NAIC) is currently working its way through state legislatures. The Corporate Governance Annual Disclosure Model Act would require American insurers to disclose a wide range of information relating to their governance, performance evaluation systems, compensation and incentive plans, Enterprise Risk Management (“ERM”) plans and codes of ethics and conduct. This article will highlight some of the important features of the NAIC’s model act and illuminate how they are designed to cloak insurer disclosures in secrecy, but at the same time provide compelling evidence of information whose existence insurers have long denied. Discarding the secrecy mandated by the model act and allowing access to the disclosed information will help discourage insurer misconduct long hidden from the best regulators of their behavior and the insuring public.

by Wells Media Group (via Insurance Journal)

50-state summary of mid-term cancelation rules for auto, commercial, business, and other personal lines insurance policies. (2014)

By Professor Jay M. Feinman, Rutgers Law School Center for Risk and Responsibility

Insurance claim practices determine the extent to which insurers will or will not honor their promises. This Article describes the failure in the market for claim practices, the failure of the regulatory responses to that failure, and the ways in which litigation can provide a partial corrective. The Article explains why the market fails to guarantee fair claim practices, how market forces might be improved, and why, even with improvements, market forces alone are not enough. It then describes claim practices regulation by state insurance departments, argues that regulation in most cases is insufficient, and suggests improvements in state regulation. Finally, the Article concludes that private litigation, in addition to redressing individual harm, serves a necessary regulatory function in promoting fair claim practices, and it describes the substantive law and processes that are needed to perform that function

by D. Duff McKee, J.D.

A categorical list of articles and case studies related to punitive damages against an insurer for the bad faith handling of a first party claim.  (updated February 2013)

by Professor Shauhin A. Talesh, University of California, Irvine School of Law

Legal Studies Research Paper Series No. 2013-81 (2013)

by Oliver Barry and Abraham Tran with assistance from Amy Bach, Prof. Jay Feinman and Doug DeVries with Judicate West.

This report examines past efforts and best practices in mediation and outlines a model for state-run post-disaster mediation programs. This includes a plan for a Model Mediation Program that will allow for the rapid resolution of a large number of property claim disputes, while balancing the potential needs of individuals and commuities harmed by large-scale disasters against the cost of such a program and the interests of insurers. (December 2012)

UP Executive Director Amy bach lectures before the American Bar Association Tort Trial and Insurance Practice section on post-diaster mediation programs. View slides here.

American Arbitration Association Storm Sandy Mediation Program for New York and New Jersey. View link here. View related UP blog here. View UP Guide here.

by Harvey R. Levine (Universitty of San Diego School of Law)

Older article from the University of San Francisco Law Review discussing punitive damages and deterrence in insurance bad faith cases (13 U.S.F.L 613 1978-1979).

by J. Robert Hunter, Director of Insurance, Consumer Federation of America

How Insurers Have Shifted Risk And Costs Associated With Weather Catastrophes To Consumers And Taxpayers (February 2012)

by Professor Roger Baron, University of South Dakota School of Law

Subrogation on personal injury claims by a health insurer was universally prohibited by law when Congress enacted ERISA in 1974.  Seizing upon the notion of ERISA preemption, ERISA plans and related insurers have manufactured the right of reimbursement (or subrogation) without regard to the impact on the victims.  The unique history of this phenomenon and the need for judicial oversight are addressed in this article.  The recent decision by the 3rd Circuit in US Airways v. McCutchen is highlighted as providing a solid basis for other federal courts to follow.  The citation to the article is Roger M. Baron and Anthony P. Lamb, The Revictimization of Personal Injury Victims by ERISA Subrogation Claims, 45 Creighton Law Review 325 (March 2012).

by Mark Romano, Director of Insurance Claims Projects and J. Robert Hunter, Director of Insurance

The primary objective of this report is to inform regulators about the technical complexity of this topic and the need to exercise better oversight regarding how these systems can be manipulated to the detriment of consumers. (June 2012)

by various National Association of Insurance Commissioners consumer representatives including United Policyholders

These materials were prepared to assist regulators, lawmakers, and the National Association of Insurance Commissioners (NAIC) during ongoing implementation of the comprehensive insurance reforms called for by the Patient Protection and Affordable Care Act of 2010 (ACA). The purpose of these recommendations is to convey the perspectives of consumer advocates on appropriate standards and guidelines for implementing these reforms, which will go into effect in 2014. (August 2012)

by Birny Birnbaum, Center for Economic Justice

Editing by UP Staff and members of the UP Agent/Broker Advisory Board.

For more information on credit scoring, check out the web sites of the Center for Economic Justice and the National Association of Insurance Commissioners. (January 2011)

by Professor Daniel Schwarcz, University of Minnesota Law School

This important research shows that homeowners insurance policies now vary significantly in what they cover and what they exclude, yet even sophisticated consumers cannot access sample policies to comparison shop the variations before buying. United Policyholders is working closely with the author to pursue regulatory and legislative changes warranted by his findings. (April 2011)

by American Association for Justice

How They Raise Premiums, Deny Claims, and Refuse Insurance to Those Who Need It Most (December 2011)

by J. Robert Hunter, Joanne Doroshow, Americans for Insurance Reform, Center for Justice and Democracy at New York Law School

“Imagine an industry that sold a product which every person and business in America needed. This product was so important that the industry could literally threaten the economy of a state by pulling its product out. The seller of this product was accountable to no federal agency and regulated only by very weak state agencies. It was also exempt from anti-trust laws so the entire industry, including so-called “competitors,” could use the same collusive pricing agencies to help determine the product’s price – price fixing that would land others in jail. Other laws permitted it to keep its financial data secret, enabling it to routinely mislead lawmakers, regulators and members of the media about its financial condition. This secrecy allowed it to create phony “crises” to help promote its own legislative agenda, padding its bottom line at the expense of everyday Americans.” (2011)

Individuals and businesses purchase insurance to protect their property against monetary losses that can occur due to both non-catastrophic and catastrophic events, including theft, fire, and natural disasters such as hurricanes. When a loss occurs, policyholders can submit claims to their insurance companies to seek monetary compensation for their losses.

In general, when an insurance company receives a claim, it reviews the claimant’s insurance policy to determine whether the policy covers the loss and investigates the type and extent of damage to determine the company’s liability. The company then estimates the amount of compensation and pays the claim.

Policyholders that disagree with their insurance company regarding claim settlements (e.g. scope of loss, damage estimate) can resolve the dispute through mediation, appraisal, or litigation. Mediation is a process by which a neutral third party helps to facilitate an agreement and is nonbinding, whereas appraisal is a binding form of alternative dispute resolution used to establish the amount of the loss. Litigation is a binding resolution via the court system, achieved through a negotiated settlement or trial. (January 2010)

by Community Action Plan for Seismic Safety (CAPSS)

Through a series of four major reports, the CAPSS project studied the most pressing earthquake risks facing the City and recommended seventeen important actions that San Francisco’s City government leaders should take now to reduce the consequences of future earthquakes. For more information and additional reports from CAPSS, visit https://sfgov.org/esip/capss. (December 2010)

by Professor Erwann O. Michel-Kerjan, Wharton School of the University of Pennsylvania

History of the NFIP, challenges, and solutions. (Fall 2010)

by Arnold R. Levinson, Pillsbury & Levinson, LLP (now Levinson Mediation)

This paper explains how ERISA eliminated the standard remedies available under state law, and replaced them with inadequate remedies. It then offers proposed remedies and suggested legislation  (March 2009)

by Matthiesen, Wickert & Leher, S.C.

This report is a compilation of summaries of the law in all 50 states with regard to the made whole doctrine and its applicability to subrogation generally. (November 2008)

by Aaron Motschenbacher, Law Student at Santa Clara University, Amy Bach, Esq., Executive Director

Insurers’ increasing use of CLUE and other claims history databases has resulted in a large number of California homeowner’s facing non-renewal or cancellation of their insurance. This article examines the regulatory landscape and possible solutions. (October 2007)

by Center for Justice and Democracy at New York Law School

An older but still relevant expose on whether so-called “tort reform” (eliminating access to justice and remedies) will lead to decreased insurance premiums. (2003)