The appraisal clause, time to end the games and resolve claims
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.
(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.”
Private Flood Insurance and the National Flood Insurance Program
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.
Whistleblower Sounds Alarm On Unfair Insurance Practices: Oregon Consumers Need Stronger Legal Protections
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).
Beware of Private Equity Gobbling Up Life Insurance and Annuity Companies
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.
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.
ASHES TO ASHES: A WAY HOME FOR CLIMATE CHANGE SURVIVORS
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.
Marsh Report on Massive Growth in Captive Insurers
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.
The Impacts of Camp Fire Disaster on Housing Market Conditions and Housing Opportunities in the Tri-County Region
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.
Forfeiture of Benefits For Failure To Cooperate Stopped Under New Colorado Law
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.
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 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.
Annual Report of the Flood Insurance Advocate (2019)
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.
Underinsurance in mature economies: reasons and remedies
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.
What they don't know can help you: California protections insurers and adjusters may "overlook"
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.
Regulating Robo Advice Across the Financial Services Industry
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.
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.
Article: Temporal Requirements for Water Damage Exclusions in Homeowner Policies
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.
50-state Survey of Insurance Agent-Broker Legal Duty
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 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
Memo on Matching and Uniform Appearance Rules in Various States
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 American Law Institute's Restatement of the Law of Liability Insurance: Selected Comments from the Policyholder Perspective
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)
(You've got to) fight for your right (to independent counsel). Who's defending who?
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)
Downpour or Downfall? ACC Clauses are Raining on Coverage
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)
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 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)
Best Practices for Post-Disaster Insurance Claim Mediation Programs
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.
Amicus Project Report: Twenty Years Protecting, Defending and Advancing Policyholders Rights
by United Policyholders
The United Policyholders Amicus Project helps preserve and enforce insurance promises – large and small – because lives and livelihoods depend on them. In state and federal appellate courts and in the nation’s highest court, we advocate for insureds on the full range of issues. This report contains, in chronological order, the United Policyholders Amicus Curiae Briefs filed between 1992 and the publication of this report. (July 2011)
Implementing the Affordable Care Act's Insurance Reforms: Consumer Recommendations for Regulators and Lawmakers
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)
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)
Transportation Network Company Insurance Principles for Legislators and Regulators
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)
Repeat Offenders: How the Insurance Industry Manufactures Crises and Harms America
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)
Low Ball: An Insider’s Look at How Some Insurers Can Manipulate Computerized Systems to Broadly Underpay Injury Claims
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)
Revictimization of Personal Injury Victims by ERISA Subrogation
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).
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)
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)
Here Today-Here Tomorrow: The Road to Earthquake Resilience in San Francisco
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)
The Tragedies of ERISA's Unintended Preemption of State Law Remedies
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 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)
OVERSIGHT OF THE PROPERTY AND CASUALTY INSURANCE INDUSTRY HEARING BEFORE THE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION UNITED STATES SENATE ONE HUNDRED TENTH CONGRESS FIRST SESSION APRIL 11, 2007