Rabu, 29 Februari 2012

Landslides and mud-slides: NOT covered by a standard homeowners policy

The New York Times has an interesting story today about a significant hazard here in the rainy Pacific Northwest: mudslides.

Mudslides and landslides, the article notes, are "a topographical drama less spectacular but far more common than the potentially deadly earthquakes, avalanches and tsunamis that loom in anxious minds across the Pacific Northwest."

And here's what many homeowners don't know: mudslides and landslides aren't covered by a standard homeowners policy. So it can be very difficult to collect for losses caused by any form of land movement unless you bought specific additional riders or policies, like these:

Landslide coverage: You may be able to buy a special rider for your homeowners policy that includes coverage for contents for all perils, including earth movement. But this type of rider only covers contents, not the structure, and some insurers don't offer this option at all. For the structure, you may be able to buy separate earth-movement coverage from what's known as the "surplus lines" market, meaning insurers who specialize in risks that the traditional insurance industry doesn't cover. But if your home is on a hillside, it may be difficult to get this kind of coverage.

Flood insurance: Flood insurance may apply to some kinds of earth movement, such as water-related erosion, mudflows or flash floods. Most homeowners seeking flood coverage start with the National Flood Insurance Program, which is federally run but sold by local agents and brokers.

Earthquakes: Quake damage is another category of risk not covered in a standard homeowners policy, but you can buy this coverage to protect against losses from an earthquake -- or quake-triggered landslides.


Minimum Maintenance Standards Ruled Inapplicable

Giuliani v. Halton (Municipality), 2011 ONCA 812 (C.A.)

The Giuliani decision was released by the Court of Appeal on December 21, 2011. The plaintiff lost control of her vehicle when the road she was travelling on was covered with snow and ice. Approximately two centimetres of snow had fallen on the road which impacted and turned to ice.

The weather forecasts beginning the afternoon prior to the date of the accident indicated that snow would fall beginning the next morning. The trial judge found that the Town had ample time to schedule a person or crew to monitor the weather and road conditions and to place a maintenance crew on standby.

Salting operations did not begin until fifteen minutes after the accident occurred. It was not clear when the icy road conditions were first discovered. It was held that the Town “failed to inspect the roads when it ought to have known that an inspection was necessary to trigger the remedial steps necessary to maintain [the road in question]”.

The trial judge held that the defendants had complied with the Minimum Maintenance Standards (MMS) with respect to treating the icy roadway within the required time after becoming aware of its icy condition. However, the trial judge held that this was not a defence.

The Court of Appeal upheld the decision and held that sections 4 and 5 of the MMS do not establish minimum standards to address the accumulation of 2 centimetres of snow on a Class 2 roadway (they apply when there is a 5 cm accumulation), nor do they establish a minimum standard for the treatment of a highway before ice is formed and becomes an icy roadway. The Town was liable for failure to monitor the weather and the failure to deploy resources to prevent the road from becoming icy. Therefore, the analysis did not centre on the MMS as the MMS does not establish a minimum standard for the treatment of a highway before ice is formed and becomes icy.

The analysis turned to section 44(1) of the Municipal Act, 2001 requiring municipalities to take reasonable steps. The Court of Appeal agreed with the trial judge that reasonable steps were not taken with respect to monitoring the weather and lining crews up in advance.

This case raises the bar significantly with respect to what the courts require of municipalities to meet the reasonableness standard. It also takes away much of the certainty that was provided to municipalities by way of the MMS. An increased proactive approach to maintenance of roadways will be required.

̶ Kristen Dearlove, Student-at-Law


Selasa, 28 Februari 2012

Job opening: Actuary

We have a job opening for a full-time, permanent actuary at our main office in Tumwater.

The person will be reviewing health and disablity insurance rate filings, as well as helping our company supervision divisions financial analysis work. For a full description of the job, salary range, benefits, etc., please see the job listing.

Rabu, 22 Februari 2012

Insurance companies and agents fined

We'll be posting a news release on this shortly, but we've issued the following fines and other enforcement actions:
  • Fidelity National Title Insurance Co. and Chicago Title Insurance Co.: Fined $100,000 for wrongfully offering discount club memberships to people who were in a position to send title business to the companies.
  • Aetna Life Insurance Co.: Fined $20,000 for failing to promptly handle appeals from consumers.
  • Charter Warranty Services, Inc., Mechanical Breakdown Protection, Inc., and Paul Pawlusiak, of Detroit, Mich.: Ordered to stop selling unauthorized motor vehicle service contacts.
  • Scott L. Stevens and RV Protection.net, of Mill Creek: Ordered to stop acting as an agent for a service contract provider not authorized to do business in Washington state.
  • Cynthia L. Rushing, of Spokane: License revoked for misappropriating funds.
  • Trevor D’Jon Losse, of Cle Elum: Fined $1,000 for multiple violations, including failing to disclose other state disciplinary actions against him.
  • Robert Tychsen, of El Cajon, Calif.: Fined $1,750 for selling insurance in Washington without a license.
  • Douglas D. Wellsandt, of Hayden, Idaho: Fined $5,000 for violations including falsely stating that Washington policies had been sold in Idaho.
  • Ross S. Wolf, of Sammamish: Fined $2,000 for violations including acting as an insurance company’s agent without having been appointed by the company.
Orders and details about these cases are posted online at www.insurance.wa.gov/orders/enforcement.asp.

The fines collected do not go to the agency. They are deposited in the state's general fund to pay for other state services.
Washington consumers with questions, problems or complaints can call us at 1-800-562-6900 or e-mail AskMike@oic.wa.gov. (Not in Washington? Here's how to reach your state's insurance regulator.)

Selasa, 21 Februari 2012

A company that insured the Titanic goes under, leaving behind maritime relics

The Wall Street Journal's Leslie Scism has a story today about Atlantic Mutual, the company that insurered the Titanic and many other ships for more than a century, before the company was ordered into liquidation two years ago.

The story details the maritime artifacts and records amassed by the company. Many of the items -- model ships, paintings, old maps, gold coins, barometers, etc. -- may be sold soon.

Tacoma man sentenced to prison for insurance fraud, forgery

A Tacoma man has been sentenced to more than two years in prison for insurance fraud and forgery after filing a false auto insurance claim.

Cash B. Knott, 46, was sentenced Friday in Pierce County Superior Court to 29 months in prison and must pay $1,200 in costs and assessments. He pleaded guilty in January to two counts of forgery and one count of felony insurance fraud.

On Nov. 6th, less than a month after getting coverage from Progressive Direct Insurance Co. for his 1992 Ford Ranger pickup, Knott filed a $5,674 insurance claim with Progressive. He said someone had scratched the paint, stolen his chrome wheels and tires, and stolen his navigation and entertainment system, 1,000 watt amplifier and other electronic components.

He provided Progressive with a Sept. 2 stereo shop invoice for $4,547.84 worth of stereo equipment, a copy of his check, and a bank statement showing the withdrawal from his checking account.

The problem: When contacted by an insurance adjuster, the stereo shop said it had no record of such a purchase. All they could find was that Knott had bought an amplifier -- for $109 -- on Sept. 2.

Insurance Commissioner Mike Kreidler's Special Investigations Unit obtained a search warrant for Knott's bank records. The bank found no checks written to the stereo shop, and none whatsoever for $4,547.84.

Senin, 20 Februari 2012

Homeowners insurance: What's NOT covered

People often assume that homeowners insurance is a catch-all, covering virtually any event.

Not true, unfortunately. There are many things that a typical homeowners policy does NOT cover. Among them:
  • floods
  • earthquakes
  • breaks in a water line leading to your home
  • termites
  • stolen pets
  • damaged or stolen cars, boats and motorcycles (these would typically be covered, however, by your car/boat/etc. insurance)
Also, here's a list of what IS covered by a typical homeowners policy, as well as add-ons you might want to consider.

Rabu, 15 Februari 2012

Court of Appeal - Striking a Jury Notice

There is an interesting recent Court of Appeal decision in which the court discusses the appropriateness of a jury notice where there is a significant pre-accident medical condition. In Placzek v Green, (January 26, 2012, Ontario Court of Appeal) the plaintiff was injured in a rear end collision. The plaintiff had suffered from "severe fibromyalgia" for many years before the accident. The defendant argued that, to the extent that the plaintiff's physical problems interfered with her life after the accident, both problems were attributable in whole or in the main to the serious pre-existing condition and not to the relatively minor accident involving the vehicle driven by the defendant.

The trial judge struck the jury at the outset of the trial and held that, with respect to damages, despite the plaintiff's prior physical problems, the injuries suffered as a result of the car accident had caused significant problems for the plaintiff. The trial judge awarded damages in the amount of $919,237.

The defendant appealed on the basis that the trial judge should not have discharged the jury and that she did not quantify the damages on the basis of a rational analysis of the evidence.

With respect to discharging the jury, the Court of Appeal pointed out that the decision to discharge a jury is a discretionary one and that the court will defer to the exercise of that discretion unless it is shown that it was exercised on a wrong principle or that the exercise in the circumstances can be properly characterized as arbitrary, capricious or unreasonable.

In this case, the trial judge dismissed the jury on the basis of the anticipated complexity of the evidence to come relevant to the damage assessment. The complexity arose out of the plaintiff's pre-existing medical condition and the need to determine the impact of that condition on the plaintiff's post accident medical condition. In addition, there was competing expert evidence relating to the plaintiff's lost income and loss of future income claims. The plaintiff was a self-employed realtor and there were several factual variables relevant to her lost income claims. Finally there was competing and somewhat complex medical, engineering and biomedical evidence.

The Court of Appeal acknowledged that the defendant had made a powerful argument in support of his position that this was not really a complicated case at all, but found that they were unable to describe the trial judge's characterization of the evidentiary complexity as arbitrary, capricious or unreasonable. The Court of Appeal acknowledged that other judges might have reached a different assessment of the complexity of the evidence and declined to strike the jury, but that is not a basis upon which the trial judge's exercise of her discretion can be interfered with.

Of interest, the Court of Appeal went on to discuss other factors which the trial judge thought supported the exercise of her discretion in favor of striking the jury. For example, the Court of Appeal was of the view that the manner in which some of the evidence might be put before the jury and the advantages or disadvantages that one side or the other might have as a consequence, is irrelevant to the decision as to whether the jury should be struck before the trial started. Also, concerns about the position taken by the defendant with respect to liability could not provide any basis for striking a jury.

However, because the trial judge made it clear in her reasons that she struck the jury because of the anticipated evidentiary complexity on matters relating to damages, errors in respect of other matters considered did not taint the exercise of the trial judge's discretion.

With respect to the second ground of appeal, the defendant argued that the trial judge did not attempt to quantify the damages based on a critical assessment of the evidence, but instead simply picked a point somewhere in the middle between the various scenarios advanced by the parties. The Court of Appeal gave short shrift to that argument which apparently did not have much basis in evidence.

This case should be of some concern to defendants who believe that their cases are best determined by a jury. In most injury cases, certainly most cases which proceed to trial, there are issues relating to pre-existing medical conditions and there are issues relating to the calculation of future lost income. We certainly hope that Courts will not develop the habit of striking juries on those types of cases.

- Colin Osterberg

Selasa, 14 Februari 2012

Cease and desist order issued for "Prolong Plus" auto warranties

A New Jersey-based company selling vehicle warranties paired with engine additives has been ordered to stop selling unauthorized vehicle warranties in Washington state. The order takes effect immediately.
The Choice Manufacturing Company, Inc., also known as The Choice Warranty, Inc., is not authorized to sell vehicle service contracts in Washington. Their application was denied in 2008 because they didn't meet several requirements of the state's insurance law.

Despite that denial, however, the company continued to sell its "Prolong Plus" vehicle warranty in Washington. When state officials investigated, the company and principal Peter Masi refused to provide information or cooperate.

Our office has received several complaints from people who bought the warranties. Each said that the company had wrongly denied claims.

The Prolong Plus warranty requires consumers to put additives in their car radiators, engine oil, air conditioning or batteries. The additives are manufactured by Choice Manufacturing.

What if you live in Washington and bought one of these warranties? Even though the warranty was not legally sold here, the company is still required to honor the terms of the contract.

Update: On Aug. 6, 2012, the company agreed to pay a $10,000 fine.

Most and least expensive cars to insure

Insure.com is out with its annual list of the most- and least-expensive cars to insure. (Scroll down after clicking that link to reach the table listing the cars.)

Among the cheapest to insure: minivans, small SUVs, and some large pickup trucks. The lowest-cost vehicle to insure is the Toyota Sienna.

The most expensive will come as no surprise. The list, topped by the Audi R8 Spyder Quattro convertible, is dominated by expensive European sports cars.

The folks at PropertyCasualty360.com, an industry news site, put together a short slideshow with the top cars in each category.

Give us your feedback

We're tuning up our agency website (not this blog; we've already done that part) and would love to get your feedback.


Our survey takes less than a minute. Please take a quick look at the site and give us your thoughts.

Thank you!

Kamis, 09 Februari 2012

Surpluses of nonprofit health insurers in WA at $2.4 billion

The Seattle Times had a story today about a change in the law we've proposed.

The background: Washington's three major health insurers -- all of whom are non-profit companies -- have amassed surpluses totalling more than $2.4 billion.

Commissioner Kreidler is asking lawmakers to let him consider those surpluses when the companies propose increases in health insurance premiums. The That, hopefully, could ease future premium hikes. In the individual and small group markets, insurance premiums, on average, have more than doubled since 2005.

The bill is SB 5247. It has cleared a key committee and is currently in the Senate's Rules Committee.

Rabu, 08 Februari 2012

How to look up the number of complaints against an insurance company

We've created an easy online tool to look up the number of complaints against insurance companies.

We're the insurance regulator in Washington state, so the data's only for our state. But it can provide some insight into who we hear a lot of complaints about, and who we don't.



Since the market share of these companies varies widely, we also calculate what we call the "complaint index." That's simply the ratio of complaints divided by market share, to make the results easy to compare.

Loss Transfer - Costs of Assessments

In Wawanesa v. Axa (2012), 107 O.R. (3d) 395 (S.C.J.), the issue was whether the cost of s. 42 assessments are recoverable in loss transfer, particularly in light of the legislative changes that came into effect March 1, 2006 (when DACs were eliminated). The underlying accidents occurred on August 21, 2006 and October 6, 2005.

The arbitrator held that the cost of s. 42 assessments are not recoverable under loss transfer. Justice Greer upheld the decision. The legislative changes had no impact on the principle that assessment expenses are not recoverable in loss transfer.

Selasa, 07 Februari 2012

Survey: 57 percent of people in low-income families have no health insurance

The Commonwealth Fund today released the results of a new survey on the uninsured. Among the group's findings:
  • 57 percent of people in low-income families (those earning less than about $30,000 for a family of 4) had no health insurance at some point last year.
  • 35 percent have been uninsured for two years or more.
  • Among moderate-income adults (about $30,000 to $56,000 for a family of 4), some 36 percent of adults in those families were uninsured during the past year.
None of this should come as a surprise. We do our own report on the uninsured in Washington state, and income is by far the largest factor correlated to being uninsured. The less you make, the more likely it is that you don't have health insurance.

We've also found that in most income brackets, the younger you are, the more likely that you're uninsured. See the report link above for more data and details.

Car sharing and usage-based insurance bills move forward

Everyone in Washington state is required to have basic liability insurance if you own a car. Well, here's two bills that could impact how you get insurance and how much you pay for coverage.

The first, House Bill 2384, creates an insurance framework for peer-to-peer car sharing programs. Several other western states (OR, CA) have passed similar bills. Here's how it would work: You sign-up with a program to share your car when you're not using it. Your financial liability for the car transfers to the program during the time it's in use. Of course you still need insurance coverage for when you're driving your car, but the program is responsible for having insurance coverage for any car in its use. The bill report has all of the details if you want to know more.

Next is an issue we've seen before: Usage-based insurance (House Bill 2361). Nothing prevents an insurance company from creating a usage-based insurance product today, but under our state law, all auto insurance products and why they cost what they do is public once the premiums are approved by our office.

Certain information is considered confidential (ie. those pesky credit scoring models) but only if they've been carved out in state law. This bill would allow insurers who want to offer a usage-base product the ability to keep their products confidential. Also, there would be limits on how the insurance company could use your information and they couldn't sell it to anyone.

So why should you care? Well, you could get your rates reduced depending on how you drive. This means: the amount of miles, where you drive, the time of the day you drive, your speed, etc. Of course it goes both ways - if you have a lead foot or tend to brake hard, you could see your rates go up. Here's the full details.

Both bills must pass a February 14 deadline to stay alive.

Senin, 06 Februari 2012

Job openings: Actuary, investigator, HR consultant, etc.

We have four job openings, although some of the application deadlines are coming up soon. (Check each listing for the deadline, some may have closed by the time you're reading this.) We're looking for:
We're a small agency, but we do have job openings periodically. Most are due to retirements or resignations, rather than new positions. When we have job openings, we post them on our jobs page, as well as on the state's careers.wa.gov site.

Jumat, 03 Februari 2012

Insurers and agents fined more than $1.3 million in 2011

Insurance Commissioner Mike Kreidler fined insurance companies, agents and brokers more than $1.3 million in 2011.

Violations included wrongly denying medical claims, overcharging customers, misappropriating clients’ money, charging unapproved rates and submitting false documents.

“These cases are the exception, not the rule,” said Kreidler, who’s been the state’s insurance regulator since 2001. “The vast majority of insurers, agents and brokers comply with the law.”

The largest fine, issued in January 2011, was against six Chubb & Son subsidiaries, which were ordered to pay $534,000 for violations including a long-running pattern of failing to properly document why the companies were charging higher or lower rates for certain policyholders.

Other major fines included $100,000 from American Bankers Insurance Co. of Florida (June 2011) and $100,000 from Regence BlueShield (August 2011).

Over the past 11 years, Kreidler has issued more than $13 million in fines against insurers, agents and brokers who violated the law. The agency’s disciplinary orders are posted online at http://www.insurance.wa.gov/orders/enforcement.asp.

Fines collected by the insurance commissioner’s office do not go to the agency. The money is deposited in the state’s general fund to pay for other state services.

Rabu, 01 Februari 2012

Interpretation of the Insurance Contract – Back to the Basics

In Sam’s Auto Wrecking Co. (c.o.b. Wentworth Metal) v. Lombard General Insurance Co. of Canada (S.C.J.), the Operations Manager of Sam’s Auto, Mr. Farber, was injured on the job when he was run over by a crane being operated by an employee, resulting in the severance of his right leg between the ankle and knee and a serious cut to his left heel.

Mr. Farber was not an owner but was considered to be a part of the management team at Sam’s Auto. Prior to the incident, the owners had decided to opt out of WSIB insurance for themselves and Mr. Farber, for economic reasons. They purchased alternative disability insurance. However, they were left with a gap in coverage for which they were unaware.

When they approached the broker for Lombard to acquire a comprehensive business policy, they did not advise him that not everyone at their company had WSIB coverage. They obtained a comprehensive business insurance policy through Lombard which included commercial general liability. Because no one was aware of the gap in coverage, an employer’s liability endorsement was not requested.

Following the incident, Mr. Farber sued Sam’s Auto. Lombard took an off coverage position and consequently would not provide a
defence. As a result, this action was commenced.

The issue before the court was whether the personal injury experienced by Mr. Farber, due to the actions of an employee at Sam’s Auto, operating within the scope of his employment, was or should have been covered by the insurance policy Sam’s Auto had through Lombard.

Justice Whitten used basic contract interpretation principles in his interpretation of the insurance policy:
1) The contra proferentem rule;
2) The principle that coverage provisions should be construed broadly and exclusion clauses narrowly; and
3) The desirability, at least where the policy is ambiguous, of giving effect to the reasonable expectation of the parties.

Justice Whitten cited the principle from Bathurst Ltd. V. Mutual Boiler and Machinery Insurance Company [1980] 1SCR 888 that the “objective is to search for an interpretation which from the whole of the contract would appear to promote or advance the true intent of the parties at the time of entry into the contract.”

Justice Whitten listed factors to consider, in an insurance context, to determine the intent of the parties at the time of entry into the contract:
1) What was the nature of the business operated by the potential insured?
2) Was there an independent insurance contractor involved? Or was the insurance solicited direct from the insurance company?
3) If a broker was involved, what was requested or communicated to the broker?
4) What was the broker’s understanding of what was communicated to him or her that guided the request for coverage from the insurer?
5) What was the broker’s understanding or knowledge as to the appropriate insurance coverage?

The policy stated: "We will pay those sums that the insured becomes legally obligated to pay as compensatory damages because of “bodily injury” to which this insurance applies...This insurance does not apply to … (d) “Bodily Injury” to an employee of the insured arising out of and in the course of employment by the insured".

Justice Whitten held that there was no ambiguity with respect to these sections and it was clear that personal injury to the public was covered but personal injury to an employee working in the course of his or her employment was exempt. Given the nature and size of the business, the broker was reasonable in assuming that all employees were covered by WSIB, and was not told any different. Therefore, the broker would not have been aware of the gap in coverage.

There were arguments advanced with respect to whether Mr. Farber would be considered an “employee” because of the management position he held. Justice Whitten held that the distinction between the terms “employee” and “executive officer” is purely “academic”, and had no bearing in this context.

It was held that there was a clear lack of coverage and therefore no duty to defend existed.

- Kristen Dearlove, Student-at-Law