San Francisco partner David McMahon will speak on Understanding the Scope and Limits of Duty to Defend, Duty to Settle, and Initiating Settlement Negotiations at the upcoming ACI Bad Faith Litigation Forum (April 29-30, 2013 | Union League, PA).
Joining Mr. McMahon on the panel are Daniel W. Maguire, Partner, Burke, Williams & Sorensen; Mark S. Shapiro, Shareholder, Akerman Senterfitt; Robert N. Kelly, Director and Shareholder, Jackson & Campbell; and, David B. Drummy, Partner, Kightlinger & Gray.
For more information on the conference, click here.
San Francisco partner David McMahon will speak on Understanding the Scope and Limits of Duty to Defend, Duty to Settle, and Initiating Settlement Negotiations at the upcoming ACI Bad Faith Litigation Forum (April 29-30, 2013 | Union League, PA).
Michael and Forrest will speak on: Mitigating the Potential for Punitive Damages and Responding to Punitive Damage Claims When They Arise.
- Recent punitive damage verdicts and appeals
- Current federal constitutional limitations on punitive damages
- State caps and other procedural restrictions on punitive damages: state statutory limitations on punitive damages; state judicial limitations on punitive damages; trends – statutory versus judicial limitations
- How insurance companies can proactively guard against punitive damages
- Bad faith cases are statistically the most dangerous (RAND)
- How to recognize a dangerous bad faith case
- The emotional and factual drivers common to every bad faith verdict
- Procedural pitfalls to be avoided in defending punitive claims
- Early motions and discovery in preventing the punitive award
- Discoverability of the insurer’s fi nancial statements and other intrusive requests
- Strategies for keeping punitive damage claims from reaching the jury
- Post-verdict strategy for reducing punitive damages
- Punitive damages in settlement negotiations
- Should punitive damages be considered in settlement?
- Evaluating the bad faith punitive damages claim
- Related conflicts of interest
- New rules impacting jurisdiction and venue in bad faith cases
- Why jurisdiction and venue matters in punitive damage cases
- Recent federal changes under the JVCA
- How federal removal jurisdiction has expanded
If you would like more information on this presentation, please contact Michael Newman.
We at Barger & Wolen have exciting news to share with you.
On May 16-17, 2013, we will host the inaugural Definitive Disability Conference in Boston, an industry conference designed for in-house counsel and experienced claim personnel. The conference will be chaired by Martin Rosen, who heads Barger & Wolen’s Disability, Life and Health practice group.
The primary objectives for the Definitive Disability Conference are: (1) to create a conference focused solely on disability insurance issues; (2) to design the conference with the experienced disability insurance professional in mind; (3) to limit the conference to industry-related personnel and their counsel; and (4) to ensure that the conference provides great value for the price.
To accomplish these goals, Marty has secured speakers from the following companies, law firms and other entities:
- Berkshire Life Insurance Company of America
- Colonial Life Insurance Company
- CSC Financial Services Group
- Disability Management Services, Inc.
- First Mediation Corporation
- Funk & Bolton, P.A.
- Kunz, Plitt, Hyland & Demlong PC
- Metropolitan Life Insurance Company
- Mutual of Omaha Insurance Company
- Nawrocki Smith LLP
- Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
- Shipman & Goodwin LLP
- Shutts & Bowen LLP
- Sun Life Financial
- Unum Group
We are very excited about the inaugural conference and look forward to seeing you in Boston next spring.
For more information, please click on the following hyperlinks:
On June 28, we reported that a proposed initiative that would bring prior approval of rates for health insurance to California had failed to qualify for the November 2012 California ballot.
An earlier blog addressed in more detail that the the initiative would have:
- given the California Insurance Commissioner the power to approve health insurance rates proposed after November 6, 2012;
- required health insurers’ rate applications to be accompanied by a sworn statement by the insurer’s chief executive officer declaring that the contents of the application were accurate and complied in all respects with California law; and
- required health insurers to pay refunds with interest if the Commissioner determined that the company’s rates were excessive.
While the initiative failed to qualify for the November 2012 ballot, we observed that the backers of the initiative were seeking to obtain the requisite number of valid signatures to place the initiative on the next general election ballot in November 2014.
According to the Secretary of State, on August 23, 2012, the initiative qualified for the general election to occur on November 4, 2014.
This will ensure plenty of time for both sides to present to the California electorate their arguments in favor of and against the as-of-yet un-numbered proposition. We will continue to update developments on this ballot initiative.
Though the election is still three months away, and the campaigning over California’s Prop 33 (the automobile insurance portable persistency initiative) has not yet begun in earnest, the ballot proposition is already being fought in the courts. On July 27, one of the proponents of Prop 33 filed suit in Sacramento Superior Court challenging the description of the proposition in the November ballot pamphlet. Our last report on Prop 33 is found here.
The suit, D'Arelli v. Debra Bowen, filed by Michael D’Arelli, the Executive Director of the American Agents Alliance and a proponent of the initiative, is in the form of a writ petition against California Secretary of State Debra Bowen, who the suit states is responsible for the preparation of the ballot pamphlet. The action also named as “real parties in interest” California Attorney General Kamala Harris, alleged to be the author of the Ballot Label and the Ballot Title and Summary for Prop 33; the Acting Printer for the State of California; and five persons who the suit states have authored false and misleading statements in their written arguments against Prop 33. The various ballot materials at issue, still in draft form, can be found on the Secretary of State’s website.
The first two claims in the suit allege that the Ballot Label and Ballot Title and Summary for Prop 33 are not true and impartial statements as to the purposes of Prop 33 and they are highly likely to create prejudice against the measure. Specifically, the language of the Ballot Label and Ballot Title and Summary that the suit objects to is the following:
Changes current law to allow insurance companies to set prices based on whether the driver previously carried auto insurance with any insurance company. (Emphasis added.)
The suit contends that the statement that current law allows insurers to “set prices” is not true and does not describe Prop 33 accurately since “all automobile insurance rates and rating class plans must be approved in advance by the Insurance Commissioner,” and Prop 33 does not change this system. Rather, Prop 33 merely adds another optional rating factor to the existing optional rating factors.
Moreover, the phrase “set prices” will prejudice voters since it “is commonly used to describe and define illegal price fixing, and has extremely negative connotations.”
The suit provides a recommended re-write of the ballot language:
Changes current law to allow an insurance company to offer a continuous coverage discount based on whether the driver previously carried auto insurance with any insurance company.
The final four causes of action in the suit are directed to four alleged false and misleading statements set forth in the written arguments against Prop 33, as submitted by several consumer groups including Consumer Watchdog. Here, the suit recommends that the Secretary of State strike each of those statements from the ballot materials.
The suit alleges that the printing deadline for the November ballot is August 13, 2012, and thus the suit requests that the Sacramento court issue a peremptory writ of mandate before that date commanding the Secretary of State to (1) amend Prop 33’s Ballot Label and Ballot Title and Summary and (2) amend or delete the false and misleading statements set forth in the written arguments against the measure.
Please see update here.
On the day the Affordable Care Act was found to be constitutional by the United States Supreme Court, the backers of a proposed initiative that would bring prior approval of rates for health insurance to California announced that their initiative had failed to qualify for the November 2012 California ballot.
We initially reported on this proposed initiative back in January. Among other things, the initiative would have given the California Insurance Commissioner the power to approve health insurance rates proposed after November 6, 2012, would have required health insurers’ rate applications to be accompanied by a sworn statement by the insurer’s chief executive officer declaring that the contents of the application were accurate and complied in all respects with California law, and would have required health insurers to pay refunds with interest if the Commissioner determined that the company’s rates were excessive.
According to the Sacramento Bee, when Los Angeles County submitted its random-sample count of valid signatures, it reported that only 66.6% of signatures were valid, which fell short of the 69% threshold needed to have enough valid signatures statewide to avoid a full count.
Jamie Court, the President of Consumer Watchdog, the proponent of the measure,sought to downplay the failure to qualify for the upcoming November ballot, and stated that the close number of valid signatures will “make the initiative all but certain to appear on the next general election ballot after November,” which will occur in 2014.
On January 27, the California Department of Insurance (“DOI”) issued a news release that it had reached a settlement in its lawsuit that sought to require insurers to disclose investments in companies doing business with Iran.
This blog has reported on the DOI’s continuing efforts to require such disclosures by insurers since July 2009 when prior Insurance Commissioner Steve Poizner first issued a Data Call to all insurers admitted in California seeking information on their investments in or related to Iran.
On March 29, 2010, five insurance trade associations filed a petition with the Office of Administrative Law (“OAL”) contending that the Commissioner’s rule on Iran investment activity constituted an impermissible “underground” regulation.
The OAL found, on October 11, 2010, that the DOI’s rule on Iranian investments was indeed such a “regulation” that should have been adopted pursuant to the procedures set forth in the California Administrative Procedure Act (“APA”).
On November 9, 2010, Commissioner Poizner filed an action in the Los Angeles Superior Court contesting the OAL’s determination and sought to clarify his authority to address insurer investments in companies doing business with Iran. The action also named the five insurance trade associations. At the time the action was filed, OAL Director Susan Lapsley issued a press release stating that the Commissioner did not follow the APA procedure “but rather simply imposed new rules unilaterally without any public input or comment,” something “the APA is designed to prevent.”
In the DOI’s news release issued January 27, 2012, current Commissioner Dave Jones announced the settlement of the litigation, which he advised will “permit the Commissioner to maintain a public list of businesses involved in volatile sectors of the Iranian economy,” and be able “to independently review and publicize the names of insurers with investments in Iran-related businesses.”
However, the settlement also includes an agreement that “insurers will no longer be required to file quarterly reports regarding their Iran-related investment activities nor will such investments be disallowed for purposes of determining financial solvency of the insurers.”
The news release further states that the settlement will include the Commissioner withdrawing his lawsuit against OAL, and the trade associations withdrawing their challenge as to the Commissioner’s publicizing of insurer investments in companies engaged in business with Iran.
On January 4, 2012, the California Secretary of State announced that signatures may be collected for a proposed initiative which would bring prior approval of rates for health insurance to California, and also amend the existing regulation of automobile and homeowners insurance.
Jamie Court, the President of Consumer Watchdog, is the proponent of the measure, termed the Insurance Rate Public Justification and Accountability Act. There were actually two virtually identical versions of the initiative submitted to (and allowed to proceed to collect signatures by) the Secretary of State, file numbers 11-0070 and 11-0072, but it is expected that Consumer Watchdog will pursue signature gathering for only the second version of the initiative. (In fact, its website only links to the second version of the initiative.)
In order to qualify for the November 6, 2012 ballot, backers of an initiative must file 504,760 valid signatures in support of the measure. The deadline for submitting signatures for the initiative is June 4, 2012.
Among other things, the initiative would give the California Insurance Commissioner the power to approve health insurance rates proposed after November 6, 2012. The rate approval statutes enacted by Proposition 103 in 1988 for most property and casualty insurance would be made applicable to health insurance. A health insurer’s rate application would have to be accompanied by a sworn statement by insurer’s chief executive officer declaring that the contents of the application are accurate and comply in all respects with California law.
The initiative would require a health insurance company to pay refunds with interest if the insurance commissioner determines that the company’s rates are excessive; this requirement would apply to rates in effect on November 6, 2012 and rates in effect after that date.
Large group health insurance policies would be excluded from the scope of the initiative unless any one of four specified conditions exists; two of the conditions relate to the level of the proposed rate increase.
For health insurance, as well as automobile and homeowners insurance, the initiative would prohibit insurers from using the absence of prior insurance coverage or a person’s credit history as a rating factor or a criterion for determining insurance eligibility.
The initiative specifies that it may be amended only (1) by the Legislature if the legislation furthers the initiative’s purposes and is passed by a two-thirds vote in both the Assembly and the Senate or (2) by another voter ballot initiative.
In its summary of the fiscal effects of the initiative if approved by the voters, the Legislative Analyst’s Office estimates that the measure would increase “state administrative costs in the low tens of millions of dollars annually to regulate health insurance rates, funded with revenues collected from filing fees paid by health insurance companies.”
California Insurance Commissioner Dave Jones' Holds Investigatory Hearing on Life Insurer Claims Payments of Death Benefits
By Robert W. Hogeboom and Alexandra E. Ciganer
On May 23, 2011, California Insurance Commissioner Dave Jones along with State Controller John Chiang held an investigatory hearing on the claims practices of Metropolitan Life Insurance Company (“MetLife”) regarding the payment of death benefits under life insurance policies and annuities. Joining the Commissioner and State Controller were regulatory officials from the Florida and Minnesota Departments of Insurance who are also investigating death benefits claims practices.
MetLife was called to the hearing pursuant to the California Department of Insurance’s (“CDI”) investigatory subpoena to appear and provide documents to determine whether the insurer’s practices and procedures relating to its use of its death master file data and related information violates various sections of the Insurance Code.
The Commissioner’s opening statement reflects his concern that a number of life insurers are using death information to “boost their finances by stopping annuity payments, but not using the same information to pay policyholders the beneficiary payments they are due.”
The CDI announced that it is commencing market conduct exams on the ten largest life insurers to investigate these practices. Adam Cole, CDI General Counsel, along with Insurance Commissioner Jones, gave opening statements and conducted the bulk of the questioning of MetLife officials. Mr. Cole indicated that the CDI is reviewing the death claims practices to determine if violations exist under California Insurance Code subsections 790.03(h)(3) and (5). Subsection (3) refers to failing to adopt reasonable standards for the prompt investigation and processing of claims. Subsection (5) refers to not attempting in good faith to effect prompt, fair and equitable settlements of claims. Other sections of the California Insurance Code were also cited.
In assessing whether claims settlement practices violated these statutes, Commissioner Jones dedicated a significant portion of the inquiry to MetLife’s use of the U.S. Social Security Administration death master file in identifying deceased insureds. Much of the time was spent questioning the application of the death master file to different insurance products, including group annuity, group life and individual life products, frequency of the death master file sweeps, and what constitutes a match in the death master file.
Commissioner Jones raised his concern with the varying frequency of death master file sweeps to the different products. He probed into the reasons for conducting a death master file sweep of individual life insurance products annually versus monthly or quarterly for other products. The regulators also dedicated significant attention to MetLife’s use and characterization of the death master file as a “safety net” procedure in identifying the deceased individual life insurance insured. Commissioner Jones’ view appears to be that the use of the death master file as a safety net is not sufficient and should be used as “an integral part of the normal process.”
While the investigatory hearing was characterized by the CDI as a public hearing to investigate company actions, policies and practices, in actuality it was a disciplinary investigatory hearing to determine specific violations, which is tantamount to a deposition. As such, it was not being used as a public forum to exchange information which could ultimately lead to best practices legislation with respect to payment of death benefits, but to provide traction for the CDI to institute disciplinary proceedings against members of the life insurance industry.
A copy of the Commissioner’s Press Release on the hearing and his plans to conduct market conduct examinations is found here.
For more information, please contact Robert Hogeboom at (213) 614-7304, or firstname.lastname@example.org.
Strategies to Minimize the Risk of Ethics Violations and Malpractice Claims
Barger & Wolen partner David J. McMahon will be a faculty member for this Strafford Publications' CLE webinar which will provide attorneys with a framework to identify the most problematic and difficult-to-detect conflicts risks. The panel will outline best practices for attorneys to cope with conflicts that could potentially result in disqualification, discipline and malpractice.
DescriptionConflicts of interest are one of the most common ethical dilemmas for attorneys. Whether the situation involves a personal conflict, a multi-client conflict, or a third-party conflict, practitioners must identity situations or transactions that pose potential conflicts of interest.
Conflict issues that arise when attorneys change firms are particularly relevant in the current environment. The ABA's Formal Opinion 09-455 addresses situations in which revealing a client’s identity and description of work performed may itself violate client confidence.
While many conflicts can be resolved with client consent, an effective waiver depends on the nature of the conflict, the timing of the waiver request, and whether the client is a current or former client. Conflicts can also be anticipated and addressed in engagement letters.
Listen as our authoritative panel of attorneys discusses how to identify potential conflicts issues and outlines best practices for avoiding or resolving those conflicts.
- Identifying sources for potential conflicts of interest
- Defining the client
- Defining the adversity that triggers conflict rules
- Adverse client conflict — direct adversity or adverse representation
- Joint representation — dual or concurrent representation
- Adversity to former clients
- Personal conflicts of interest
- Conflict resolution
- Withdrawal from representation
- Client consent
- Conflict waivers
- Engagement letters
- Law firm conflicts checks
The panel will review these and other key questions:
- What are some best practices for law firm conflict avoidance procedures?
- Under what circumstances will a conflict prevent representation?
- How can engagement letters effectively limit potential conflicts?
- What critical language should be included in a conflicts waiver document?
Following the speaker presentations, you'll have an opportunity to get answers to your specific questions during the interactive Q&A.
- The statutory framework for claims examinations and what §790.03(h) really means
- Understanding the Unfair Claims Settlement Regulations and how, if and when they relate to a §790.03 violation
- The examination process—new trends on which the examination will focus
- Negotiation, resolution and cost
- Order to Show Cause hearing process
- New issues in market conduct compliance
When: Wednesday, December 8, 2010
Where: Los Angeles Airport Marriott
5855 West Century Boulevard
Los Angeles, CA 90045
Time: 10:00 a.m.—2:00 p.m. (lunch provided)
Who should attend? In-house counsel and senior claims personnel who specialize in the claims examination process and disciplinary actions in California.
For more information, or to register for the event: Please e-mail Heather Milligan here or 213.614.7382.
California CLE credits are provided.
14th Annual Insurance Forum
Tuesday, November 9, 2010
7:30 a.m. - 5:30 p.m.
The Union League Club
65 West Jackson
What is the Insurance Forum? The Forum is an event presented by the Insurance Forum Committee, chaired by Kenneth M. Weine. This is an executive level program designed for insurance and risk management professionals, accountants, attorneys, corporate officers, financial examiners, and regulators.
Can I Earn Continuing Education Credit? Continuing Education credit is available for attorneys, AIRs, CPAs, CFEs, CIRs and other insurance designations. (Certain restrictions apply, so please verify that your designation is approved in the state(s) you require).
To register for this complimentary event, click here
For more information, click here
Panels & Speakers (order subject to change)
From Out of the Blue Comes a Proposed Exemption for Air Ambulance Companies to Avoid California Workers' Compensation Official Medical Fee Schedule
This week, the Administrative Director of the Division of Workers’ Compensation of the California Department of Industrial Relations (“DWC”) proposed a regulation, California Code of Regulations, title 8, Section 9789.70(c), that would completely exempt air ambulance companies from the Official Medical Fee Schedule (“OMFS”) that applies to all other providers who furnish medical services under the California workers’ compensation system.
The DWC’s purported impetus for this abrupt action was “to avoid the hazards and cost of litigation against the Division,” as stated in the DWC’s Initial Statement of Reasons. That Statement further advised that the DWC based its proposed regulation on the contention that the OMFS may likely be preempted by the Airline Deregulation Act of 1978, which it says “prohibits states from adopting or enforcing regulations which have any effect on airline rates of air carriers.”
This issue of preemption by the Federal Aviation Act of 1958, as amended by the Airline Deregulation Act of 1978 (“FAA/ADA”), was asserted in a lawsuit filed last year by California Shock Trauma Air Rescue (“CALSTAR”), an air ambulance company rendering services primarily in California. That action, filed in federal court in Sacramento against more than 75 workers’ compensation insurers and self-insured employers, is entitled California Shock Trauma Air Rescue v. State Compensation Insurance Fund, et al. This blog reported on that case on July 30, 2009, after the federal district court dismissed the case, finding that the federal court lacked subject matter jurisdiction over CALSTAR’s claims.
CALSTAR then appealed the action to the Ninth Circuit Court of Appeals, where the case is now fully briefed and awaiting oral argument.
Apparently not satisfied with the court's decision in its federal court action, CALSTAR threatened to sue the DWC unless it did something to offer relief to CALSTAR and other air ambulance companies. In an article posted on workcompcentral.com, the president and chief executive officer of CALSTAR stated that, after having the federal trial court dismiss his company’s action, “we went back to the DWC and said, ‘We’ve been instructed to sue you,’ is what brought this action on their part.” It is clear that the threat of a lawsuit prompted the DWC to issue the proposed regulation and completely exempt CALSTAR and other air ambulance companies from the ambit of the OMFS.
The defendants in the pending federal court action contend that the FAA/ADA does not preempt the OMFS as it applies to the medical services that air ambulance companies provide in California, and indeed exempting such companies from the scope of the OMFS on preemption ground is anathema to the legislative goals and purposes of the FAA/ADA. Larry Golub and Sandra Weishart of Barger & Wolen LLP represent a number of the defendants in the litigation.
The DWC will be holding a full-day hearing on the proposed regulation in Oakland on Tuesday, April 13, 2010, to receive statements and argument from all interested persons.
Federal Court Dismisses Claim by Air Ambulance Company Seeking to Avoid California Workers' Compensation Official Medical Fee Schedule
Earlier this year, California Shock Trauma Air Rescue (“CALSTAR”), an air ambulance company rendering services primarily in California, filed an action in federal court in Sacramento against more than 75 workers’ compensation insurers and self-insured employers. CALSTAR’s lawsuit, California Shock Trauma Air Rescue v. State Compensation Insurance Fund, et al., argued that, as a result of it being certified by the Federal Aviation Administration to operate as an air carrier, any claims for payment it submitted to workers’ compensation insurers and self-insured employers in California should not be limited to those amounts set forth in the Official Medical Fee Schedule for ambulance services, California Code of Regulations, title 8, section 9789.70.
Rather, as a federally certified air carrier, CALSTAR asserted that the Fee Schedule is preempted by the Federal Aviation Act of 1958, as amended by the Airline Deregulation Act (“FAA/ADA”). In other words, CALSTAR sought to avoid the limitations on payment that would apply to all other medical providers and even ground-based ambulances set forth in the Fee Schedule. CALSTAR’s complaint alleged causes of action for declaratory relief and a number of state law claims.
The defendants filed motions to dismiss on a variety of grounds. Prominent among the bases for the motions was the claim that the federal court lacked subject matter jurisdiction over CALSTAR’s action. Another basis for the lack of federal court subject matter jurisdiction was that CALSTAR’s claims are subject to California’s exclusive workers’ compensation system and which claims can and should be resolved through lien requests by CALSTAR at the Workers’ Compensation Appeals Board.
In a detailed ruling issued July 24, 2009, the federal court granted the motions to dismiss on the basis that the court lacked subject matter jurisdiction over CALSTAR’s claim. The fact that CALSTAR sought to use a federal statute, the FAA/ADA, to claim that certain state laws were preempted was inadequate to support jurisdiction in the federal courts under well-established case law. The court also observed that CALSTAR had not sued the State challenging its power to enforce the Fee Schedule, but rather only sued third parties (i.e., insurers and self-insured employers) who have neither “the ability to enact or enforce state laws.” In short, CALSTAR was asking the federal court for an advisory opinion as to the preemption of the Fee Schedule, something it lacked the power to do.
Barger & Wolen represented a number of the defendants in the litigation.