Golf insurer in CT arrested for selling illegal insurance in WA

A Connecticut businessman who specializes in insurance for golf tournament hole-in-one prizes has been arrested in his home state after failing to appear for a felony arraignment in Seattle earlier this month.

Kevin Kolenda, 54, was arrested Wednesday in his hometown of Norwalk, Conn. He faces five counts of transacting insurance without a license, a class B felony.

"We've been warning the public about Mr. Kolenda's scam for years," Insurance Commissioner Mike Kreidler said in a recent press release. "He has a long history of selling illegal insurance, refusing to pay prize winners, and thumbing his nose at regulators."

Kolenda was supposed to appear in court Sept. 5 for arraignment on those charges, but he failed to appear. So the judge issued a bench warrant for his arrest.

Kolenda has ignored a previous cease and desist order from our office, as well as a $125,000 fine.

Update (9/28/2012): Added King5 video at top of post.

Why did you make my auto/homeowners insurance rates go up?

Q: My auto and homeowners insurance rates went up, and my agent and insurer said that it's because Washington state required them to charge more. Did you require this?

A: We get this question fairly often. While we do review rates for many kinds of insurance, no, we did not tell your auto/homeowners/etc. insurer to raise its rates. It's up to insurers to decide when, or if, they will submit proposals to us to increase or decrease rates. (In some cases, notably health coverage, insurers often reduce benefits in order to moderate rates hikes.)

Again: While we may review the rates, the insurance company is the one proposing any changes.

There are many insurers selling auto and homeowners policies in Washington. If your insurer is raising rates too high, maybe it's time to shop around. Need help? Here are some tips when shopping for auto coverage, and here are some tips when shopping for homeowners coverage.

Threshold Motion Successful

Surveillance evidence can be useful in showing that the plaintiff does not meet the Insurance Act threshold.

In Dahrouj v. Aduvala, 2012 ONSC 4090 (S.C.J.), the plaintiff was injured in a minor rear end collision.  She was a homemaker and alleged she developed chronic pain which impaired her functioning in the home and her social interaction in the community.

The evidence at trial was that the plaintiff visited her family doctor on multiple occasions prior to the accident complaining of head, neck and back pain.  She made similar complaints post-accident.  The defendant obtained surveillance showing the plaintiff engaged in a variety of activities, including scraping snow and ice off her car, pumping gas, reaching for groceries on an upper shelf and carrying groceries.  Justice Hackland described the video as “particularly devastating” to the plaintiff’s credibility, as it showed the plaintiff stretching and lifting, the activities she alleged restricted her functioning as a homemaker.

The plaintiff’s expert diagnosed her with “central sensitization”, based on a 45 minute interview and relying only on the plaintiff’s self reports.  Justice Hackland preferred the defence expert, who conducted a more thorough assessment and whose opinion was corroborated by the surveillance evidence.

Justice Hackland held the plaintiff had not proved she sustained a serious, permanent impairment of an important physical function.  As a result, she was not entitled to general damages and her recovery was limited to $32,000, the amount the jury awarded for past housekeeping. 

Surveillance of the plaintiff can be extremely important in defending claims, especially those alleging chronic pain.  When surveillance can be combined with expert opinion, it can be effective in showing that the plaintiff’s claim does not meet the threshold.

Open enrollment for children ends Oct. 31

Do you need health insurance for your child? Open enrollment for individual health insurance for children is now underway. From Sept. 15-Oct. 31 you can buy an individual plan for your child or add them to your plan with out having to fill out a health questionnaire.

Under health reform, health plans can no longer deny children coverage if they have a pre-existing medical condition, but they can create open enrollment periods. Washington state has two annual enrollment periods: March 15-April 30 and Sept. 15-Oct. 31.

If you need coverage now, don't wait. You have until the end of Oct., but the sooner you enroll, the faster you'll get coverage.

The next open enrollment starts March 15. Here's a list of plans in the individual market by county and what to do if you miss the enrollment period.

Life insurance explainer: What are life settlements?

Life settlements are when you sell your life insurance policy to someone else. You get immediate cash, and they collect the value of the policy when you die.

There's a similar type of transaction, known as a viatical settlement, in which a terminally ill person sells his or her life insurance to someone else.

Both these types of transactions are mentioned as options in a notice that life insurers are required to send to some Washington policyholders.

According to a New York Times article published last month, the fast-growing life settlements business swelled to $12 billion in transactions by 2007, but has dropped off dramatically, with only $3.8 billion worth of policies changing hands in 2010. Life settlements brokers maintain, however, that with trillions of dollars in life insurance out there, the industry is still in its infancy.

Health insurers rebates

Q: I've read in the news that health insurers are having to send rebates to their customers because of health care reform. But I didn't get a rebate? What's going on?

A: Yes, we've heard from a number of folks that are wondering whether they're going to get a rebate. The rebates are from companies that aren't putting enough premium dollars toward actual medical care (as opposed to marketing, administrative costs, etc.).

Here in Washington, however, most companies are already spending a high percentage of your premium dollars on medical care. That's the good news. But that also means that few Washingtonians will get rebates. Here's more about the rebates and a state-by-state breakdown.

Consumer alert: Real Benefits Association

Consumer alert

An unlicensed company named "Real Benefits Association" may be offering bogus discount health care plans in Washington state.

Again: This company is not licensed to do business in Washington state.

We've heard from consumers who said they paid monthly premiums to the Real Benefits Association, believing that they would receive legitimate medical and prescription drug coverage, but to date, the company has paid none of the health care claims they submitted.

Real Benefits Association and its owner, David Clark, were issued a cease and desist order by our office in January 2010. They are operating in violation of that order by collecting premiums for bogus discount health care coverage from Washington state consumers.

Friday wildfire update: We're hearing that some insurers have stopped writing new policies in the fire areas

The AP is reporting that wildfires in central Washington have merged and now cover more than 47 square miles, with officials urging more than 100 homeowners north of Ellensburg and in the Liberty area to evacuate. Here is a checklist of things to do if a wildfire is approaching a home.

Crews are digging lines, using bulldozers and trying to douse the flames and protect structures with fire retardant dropped from aircraft. Here are maps showing the areas that are burning. The fire began Sept. 8th with a lightning strike near Cle Elum. 775 firefighters are on scene, but fire commanders this morning ranked both the terrain difficulty and growth potential of the blaze as "extreme."

We have heard a few reports from consumers that some homeowners' insurance companies have stopped approving new policies in areas close to the fires. Nobody wants to hear this if they're trying to close a deal on a home, for example, but insurers are allowed to suspend writing new policies in cases like this.

It's a common practice, for example, with earthquake insurers to stop writing policies after a quake, for fear of aftershocks. And flood insurance typically comes with a 30 day waiting period, to prevent people from waiting until the storm clouds are overhead before they buy coverage.

Several other fires are burning in the state. Most of the state is now at high or very high fire danger.

U.S. 97 in both directions is closing today from 8 a.m. to 6 p.m. from milepost 150 (at the junction of SR 970) to milepost 177 (8 miles south of the junction of U.S. 2) for back-burning and fire containment operations.

Update: (5:02 p.m.) Some insurers have also stopped writing new auto policies in certain Eastern Washington zip codes due to the fires.

Adding an Insurer as a Defendant Rather than a Statutory Third Party

Can an insurer add itself as a defendant rather than as a statutory third party?

In Azad v. Dekran, 2012 ONSC 4257 (S.C.J.), the Personal insured the defendant and brought a motion pursuant to r. 13.01 to intervene as an added defendant.  It wished to allege that the accident did not occur or was staged and to crossclaim against its insured.  It preferred this route rather than being added as a statutory third party since s. 258(14) of the Insurance Act prohibits a statutory third party from taking a position incongruous to its insured.

Master Dash dismissed the motion, holding that it was not a proper use of r. 13.01.  One of the purposes of s. 258 is to permit an insurer to contest the plaintiff’s claim in a situation where it denies coverage.  The plaintiff’s action is not the appropriate forum to decide issues between the insured and insurer.  Any dispute could be decided in subsequent proceedings, including a proceeding to recover the statutory minimum paid to the plaintiff. 

Master Dash noted that if the accident was staged, the plaintiff would not be entitled to damages; on the other hand, if the trial court did award damages, it would mean there was a legitimate accident and there would be no basis for a crossclaim against the insured.  In addition, as a statutory third party, the insurer would have a right to discover its insured.

Master Dash refused to follow the decision in Esho v. Dekran, 2012 ONSC 3638 (S.C.J.), where the insurer was added as a defendant.  Now that there are conflicting decisions on this issue, perhaps it will be up to the Divisional Court to provide clarity.

Monday wildfire update

Firefighters are making good gains against eastern Washington wilfires, with the list down to five active blazes in Chelan, Yakima, Kittitas, Okanogan, Klickitat counties.

Here's the morning update from Washington Emergency Management Division.

Washington wildfire update

Firefighters are making big gains containing the state's eight major fires, according to the latest update from the Washington Emergency Management Division.

The 91,000-acre Barker Canyon fire in Douglas and Grant counties is 63 percent contained, and the 23,000-acre Apache Pass fire in Lincoln County is 80 percent contained.

Seven aircraft and more than 1,100 firefighters are still wrestling, however, with the large Wenatchee River fire in Chelan County, which is only 10 percent contained. It covers more than 28,000 acres. More than 850 homes and other structures are threatened by that blaze, according to the update.

So far, the number of homes lost in this latest wave of wildfires is just 3, although about 14 non-residential structures have also burned.

See the report above for more detail.

Washington state fire update

According to the state's Emergency Management Division, early 3,000 firefighters and more than a dozen aircraft are battling seven fires -- several of which involve multiple large individual blazes -- on more than 150,000 acres throughout the eastern part of the state.

The largest is the Barker Canyon fire in Douglas and Grant counties, which includes more than 91,000 acres and this morning was only 20 percent contained.

Then there's the 25,000-acre Wenatchee River fire in Chelan County, which is only 8 percent contained. And then there's Lincoln County's 24,500-acre Apache Pass fire, which is about 40 percent contained. Smaller fires are burning in Yakima, Kittitas, Ferry, Okanogan and Klickitat counties.

So far, only a few homes appear to have been lost to fire, although some other structures (barns, etc.) have also burned. About 600 homes are considered threatened by fire at this point. We have a number of important tips for fire victims making insurance claims.

More details on each fire, including evacuation information, is available in this document prepared by the EMD. And for the latest information, see the agency's list of fire updates.

And for anyone in fire-prone areas, please see these tips to protect your belongings and property.

New report: More than 740,000 homes nationwide at high or very high risk of wildfire

A private research firm, Corelogic, has produced a report estimating wildfire risk in 13 western states, including Washington.

The upshot: More than 740,000 homes are ranked as high risk or very high risk for wildfire damage. All told, those homes represent $136 billion in total property value, according to Corelogic. The states with the highest number of properties at risk at California, Colorado and Texas.

Here in Washington state, the company estimates, there are more than 9,000 homes at high or very high risk, with a combined value of $1.3 billion. The study also takes a closer look at several high-value metropolitan areas with high fire risk, including Los Angeles, San Diego, and Boulder.

The report is free, although you have to register to read or download it.

It comes on the heels of a July statement by specialized insurer Lloyd's, which predicted "more frequent and severe wildfires as a result of climate change." Lloyd's warned that traditional risk assessment and pricing by insurers could understate the actual fire (and financial) risk.

Production of Statements Made Following an Accident

A recent motion decision deals with two issues that can arise in defending claims: the extent of litigation privilege with respect to statements made following an incident, and whether reviewing such a statement prior to examination for discovery waives privilege.

In Knox v. Applebaum Holdings, 2012 ONSC 4181 (CanLii) the plaintiff brought a motion seeking production of a statement prepared by the defendant’s property manager following an accident in its parking lot.  The accident occurred at 8:55 p.m..  The property manager was quickly notified, travelled to the parking lot, took pictures and called her risk manager to report what she had found at 12:35 a.m.  At this point, she was aware that two people had been injured.  She typed up a statement detailing her recollection of what she had seen and learned of the accident while it was fresh in her mind.  The statement was delivered to the adjuster later that day.

On the motion, the issues were whether the statement was protected by litigation privilege and whether privilege was lost when the property manager reviewed it when she prepared for her examination for discovery.

Justice Hockin held that litigation privilege attached to the document.  The property manager knew there was an accident and that two people had been injured.  She believed that litigation would follow.  It did not matter that the defendant was not represented by counsel at the time.  The dominant purpose of the document was to facilitate her employer’s defence and to assist in her forensic involvement of the case. 

Privilege was not waived.  Justice Hockin relied on Wronick v. Allstate (1997), 7 C.P.C. (4^th) 285 (Gen. Div.) where Justice Leitch held that reviewing a privilege document to refresh one’s memory in preparation for examination for discovery does not amount to a waiver of privilege.

"I own a business, but don't offer health coverage. Will I be penalized in 2014?"

Starting in 2014, under federal health care reform, some employers who fail to offer affordable health coverage to their employees will have to pay penalties of $2,000 to $3,000 per employee.

Small businesses won't be affected. Under the law, if an employer has fewer than 50 employees, the penalties do not apply. (If you have 25 or fewer workers and average wages up to $50,000, your company may be eligible for a health insurance tax credit to help offer coverage to your workers.)

If you're a medium- or large employer, though, you could be hit with the penalty unless you offer employees affordable coverage.

So what's affordable? The Kaiser Family Foundation has built this simple flowchart to determine what qualifies as affordable health coverage and what doesn't. It also explains which penalties apply in each case.

Good news: We're back online

We've got our website back online. Thanks for your patience.

Our website's down; we're working to fix it

Our agency website (www.insurance.wa.gov) is currently down, due to a major network problem affecting multiple state agencies.

Even if you can access the site, you won't be able conduct transactions or do use our other online applications.

We and others are working hard to resolve the problem.

Who will have to pay a penalty for not having health coverage?

If federal health care reform takes effect as planned in 2014, some people will pay a penalty of $95 if they do not have health coverage. (This is what's known as the individual mandate.)

And the penalties would get bigger. In 2015, it would be $325. In 2016 and beyond, it would be $695.

But will you have to pay?

For most people, the answer's no. There are a number of exemptions. There's a religious exemption, for example. Members of Indian tribes are exempt. Very poor individuals and families -- such as a family living on less than $18,700 a year) are exempt. So are those that have to pay more than 8 percent of their income  for health insurance.

Also, most people already have coverage that already satisfies the requirement. If you're on Medicare, for example, there's no penalty. If you're on TRICARE (the health plan for members of the military, retirees and their families), there's no penalty. If you get coverage through the VA, through your employer, Medicaid, or the Children's Health Program, there's no penalty.

The Kaiser Family Foundation offers an excellent, simple flowchart that lays this out in more detail. It includes estimates on the cost of insurance through the new health care exchanges, and a link to a KFF online calculator to help figure out premiums and tax credits to help you buy coverage.

Failure to Add Property Owner as Additional Insured

Many winter maintenance contracts require the contractor to add the property owner as an additional insured on its policy.  But what happens when the contractor fails to do so and the owner is sued?

In Papapetrou v. 1054422 Ontario Ltd., 2012 ONCA 506 (C.A.), the plaintiff sued the Cora Group, alleging she slipped and fell on black ice on its property.  Cora contracted with Collingwood Landscape for winter maintenance services.  In the service contract, Collingwood agreed to name Cora as an additional insured on its CGL policy, but failed to do so.  On a motion for summary judgment, Collingwood was ordered to assume Cora's defence and indemnify it for damages.  Collingwood appealed.  Cora conceded that the order to indemnify was premature so the primary issue on appeal was whether the motions judge erred in ordering Collingwood to assume Cora's defence.

The Court of Appeal set aside the original Order and substituted an Order that Collingwood pay for Cora's defence.

Simmons J.A. held that Collingwood's breach of its contractual obligation to name Cora as an additional insured did not create a duty to defend; rather, it gave rise to a remedy in damages.  The quantum of such damages is the amount Cora will be required to pay for a defence of the claims that Collingwood's insurer would have paid had Collingwood fulfilled its contractual obligations.  The costs would include all of the costs of Cora's defence except for those incurred exclusively to defend claims that do not arise from Collingwood's performance or non-performance of the contract.  Cora was entitled to separate counsel given there were distinct claims against the two parties, which meant there would be an inherent conflict between them.

My neighbor damaged my back yard, but won't file an insurance claim. What can I do?

Q: My neighbor damaged my back yard as the result of one of his do-it-yourself projects. Now he won't turn in a claim to his insurer. And he won't tell me who his insurer is. What can I do?

A: We get variations on this question a lot. Common ones involve a neighbor driving over a mailbox or into a fence. And we periodically get calls from people wondering if we have a database listing who insures who. (We don't.)

First, try to deal directly with your neighbor to get him to pay for the damage. If he's worried that the claim will drive up his premiums (or lead to his policy being cancelled), he may still be willing to compensate you for the sake of the relationship and to stave off the possibility of your taking him to court.

If that doesn't work, you can contact your agent or insurer to see if the damage is covered on your own policy. Or you could decide to take legal action against the neighbor, either in small claims or a higher court.